Filed 10/16/20 Marriage of Minkovitch CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re the Marriage of LINA and YAN MINKOVITCH. B297022, B300374,

B301994

(Los Angeles County

Super. Ct. No. BD630832)

LINA MINKOVITCH,

Respondent,

v.

YAN MINKOVITCH,

Appellant.

APPEALS from a judgment and postjudgment orders of the Superior Court of Los Angeles County, John A. Slawson and Helen Zukin, Judges. Affirmed in part and dismissed in part.

Yan Minkovitch, self-represented litigant, for Appellant.

No appearance for Respondent.

__________________________

I. INTRODUCTION

In this consolidated appeal, appellant Yan Minkovitch (husband) challenges a judgment of dissolution and several postjudgment orders. In case number B297022, husband contends that the trial court erred in: allocating the parties’ former home (residence) to Lina Minkovich (wife); allocating a tax liability solely to husband; and calculating husband’s income for purposes of child support. In case number B300374, husband challenges the court’s denial of his postjudgment motion to “clarify” an earlier order and the court’s denial of his motion to set aside the judgment pursuant to Code of Civil Procedure section 473, subdivision (b). Finally, in case number B301994, husband challenges the court’s denial of his motion to modify the custody order. We will dismiss the appeal from the order denying the motion for clarification. We otherwise affirm.

II. PROCEDURAL BACKGROUND

A. Dissolution Petition

Husband and wife married on April 6, 2007, and had two daughters together. They separated on November 17, 2015. On November 20, 2015, wife petitioned for dissolution of marriage.

B. Judge Tamzarian’s August 9, 2016, Order

On June 24, 2016, following the sale of the residence, wife filed a request for an order allowing immediate distribution of the sales proceeds from the escrow account.

On August 9, 2016, Judge Armen Tamzarian ordered, among other things, that:

“[Wife] may withdraw $10,000 from the escrow account and h[a]lf for deposit. If [husband] is more than 5 days late on any support payment, [wife’]s counsel may withdraw the support amount. [Wife’s] counsel is to immediately notify [husband] in writing and reflect the remaining balance in the account.”

C. Dissolution Trial

The dissolution trial commenced on November 15, 2018, before Judge John A. Slawson. It concluded on December 19, 2018.

On April 2, 2019, Judge Slawson issued the judgment of dissolution. Among other things, the court granted the parties joint custody of the children. The court also ordered husband to pay child support.

D. Husband’s Notice of Appeal and Subsequent Motions

On April 15, 2019, husband filed three documents with the trial court. First, he filed a notice of appeal from the April 2, 2019, judgment.

Second, he filed a request for order, specifically, “FOR CLARIFICATION OF THE COURT’S ORDER OF 8/9/2016, MADE BY [JUDGE] ARMEN TAMZARIAN.”

Third, he filed a request for relief from the judgment of dissolution pursuant to Code of Civil Procedure section 473, subdivision (b).

Husband’s request for clarification was assigned to Judge Helen Zukin, who conducted a hearing on the request on May 15, 2019. Judge Zukin denied husband’s request.

On May 30, 2019, Judge Slawson heard the motion for relief from judgment. The court concluded that it did not have jurisdiction to rule on the motion and on July 2, 2019, denied it.

On August 29, 2019, husband filed notices of appeal, purporting to appeal from the May 15, 2019, and July 2, 2019, orders.

E. Request for Modification of Child Custody and Visitation

On June 24, 2019, husband filed a request to modify the child custody order.

On September 11, 2019, Judge Zukin, following a hearing, denied husband’s request for modification.

On October 18, 2019, husband filed a notice of appeal.

III. DISCUSSION

A. Appeal of Judgment of Dissolution

1. Background

During the marriage, in February 2013, husband and wife purchased the residence. Husband, who was, among other things, a real estate agent, acted as the agent for the purchase. On or about February 15, 2013, the sellers transferred the residence by grant deed to wife, “a married woman, as her sole and separate property.” At around the same time, husband signed a quitclaim (interspousal deed), transferring his interest in the residence to wife, as her sole and separate property.

In explaining why the transaction had been structured in this manner, husband testified that he wanted to apply the commission he earned from the transaction to the down payment for the residence but would be unable to do so if he were “part of the purchase.” As to the reason for the interspousal transfer, husband testified: “[A]t the time I was working through my tax issues. So in order to not cloud the title with my tax issues, I quitclaimed my interest off until I could resolve those tax issues.”

Husband’s “tax issues” included a $195,000 debt that he owed to the IRS for his failure to pay taxes for the years 2010 and 2011. During the course of their marriage, wife and husband did not file joint tax returns and the IRS sought to recover the tax debt from husband only. The IRS placed a lien on the residence.

Husband had also failed to pay taxes for years 2002 to 2006, prior to the marriage. The lien on the residence, however, was based only on husband’s failure to pay taxes for 2010 and 2011.

Husband and wife maintained separate bank accounts during their marriage. In 2018, wife earned $50,835.69 in wages and had no other source of income. Wife regularly took out cash, or “payday loans,” in order to pay her monthly bills.

Husband worked as a loan officer and real estate agent for a company called Mortgage Mavens, for which he received commissions, as reflected in Form 1099s. In addition, husband controlled various other companies. Husband earned income through both wages and commissions, as reflected in W-2s and Form 1099s, which husband submitted for review by the court. Husband’s Form 1099s showed the following earnings for the following years: $182,613 for 2012, $236,544 for 2013, and $173,817 for 2015.

The trial court made certain findings, which it incorporated into its judgment of dissolution. As relevant here, the court concluded that the residence belonged to wife as her separate property. The court further found that “[husband] had experience, education, and history such that he was knowledgeable on the interspousal transfer deed and its consequences.”

The trial court found that the community debts exceeded community assets. Therefore, the court exercised its discretion under Family Code section 2622, subdivision (b) to allocate the tax liability to husband only. It stated, “In exercising its equitable abilities under the statute, the Court [finds] that it would be completely inequitable to burden [wife] with a debt that the [IRS] is pursuing against [husband] and not even pursuing against [wife].”

Finally, the trial court calculated the parties’ income based on their submitted W-2s and, in husband’s case, also his Form 1099s. The court calculated wife’s income to be $72,000 and husband’s income to be $80,000, comprised of $21,600 from employee wages and $58,400 from self-employment. Husband’s counsel agreed with the court’s calculations. Further, husband did not object after the court stated: “Let’s take our time and make sure we’re right. But you both [counsel for husband and counsel for wife] have agreed. So I’m going to blame it back on you if there’s an error there somewhere.”

When the trial court asked the parties their positions on its tentative decision to order husband to pay $131 monthly in child support, husband’s counsel stated: “My client submits on that. We agree with the tentative.” Husband added, “Yes, sir.”

2. Legal Analysis

On appeal, husband challenges the judgment of dissolution, contending that the court erred in: (1) finding that the residence was wife’s separate property, (2) allocating the tax liability solely to him, and (3) calculating husband’s income for purposes of child support.

“The trial court is generally required to ‘divide the community estate of the parties equally.’ (§ 2550.) In satisfying this mandate, ‘the court must distribute both the assets and the obligations of the community so that the residual assets awarded to each party after the deduction of the obligations are equal.’ [Citations.]” (In re Marriage of Walrath (1998) 17 Cal.4th 907, 924.)

As a general rule, property acquired by spouses during marriage, including earnings, is community property. (In re Marriage of Bonds (2000) 24 Cal.4th 1, 12; see § 760; see also In re Brace (2020) 9 Cal.5th 903, 914–915 [Evid. Code, § 662’s title presumption does not apply if it conflicts with § 760].) As an exception to the general rule, “[m]arried persons may, through a transfer or an agreement, transmute—that is, change—the character of property from community to separate or from separate to community. ([ ] § 850.) A transmutation of property, however, ‘is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.’ ([§§ 850,] 852, subd. (a).) To satisfy the requirement of an ‘express declaration,’ a writing signed by the adversely affected spouse must expressly state that the character or ownership of the property at issue is being changed.” (In re Marriage of Valli (2014) 58 Cal.4th 1396, 1400.) Further, “[i]f one spouse secures an advantage from the transaction, a statutory presumption arises under section 721 that the advantaged spouse exercised undue influence and the transaction will be set aside.” (In re Marriage of Mathews (2005) 133 Cal.App.4th 624, 628–629.) The presumption, however, is rebutted if the advantaged spouse can demonstrate that the disadvantaged spouse acted freely and voluntarily, with “‘“‘“full knowledge of all the facts, and with a complete understanding of the effect of ” the transaction.’”’ [Citation.]” (Lintz v. Lintz (2014) 222 Cal.App.4th 1346, 1353.)

“‘To the extent that community debts exceed total community and quasi-community assets, the excess of debt shall be assigned as the court deems just and equitable, taking into account factors such as the parties’ relative ability to pay.’ (§ 2622, subd. (b).)” (In re Marriage of Walrath, supra, 17 Cal.4th at p. 924.)

We review the trial court’s findings on the characterization of assets for substantial evidence. (In re Marriage of Fink (1979) 25 Cal.3d 877, 887; In re Marriage of Campi (2013) 212 Cal.App.4th 1565, 1572.) “But de novo review is appropriate where resolution of ‘the issue of the characterization to be given (as separate or community property) . . . requires a critical consideration, in a factual context, of legal principles and their underlying values, the determination in question amounts to the resolution of a mixed question of law and fact that is predominantly one of law.’ (In re Marriage of Davis (2004) 120 Cal.App.4th 1007, 1015 . . . , citing In re Marriage of Lehman[ (1998)] 18 Cal.4th [169,] 184.)” (In re Marriage of Rossin (2009) 172 Cal.App.4th 725, 734.)

We review the court’s assignment of debt under section 2622, subdivision (b) for abuse of discretion. (See In re Marriage of Vanderbeek (1986) 177 Cal.App.3d 224, 234.)

a. Residence

Husband does not dispute that the interspousal transfer deed is a writing signed by him. Instead, he contends that the trial court erred in allocating the residence to wife as her separate property because it failed to consider the statutory presumption of undue influence and its finding that the residence was wife’s separate property therefore was not supported by substantial evidence. We disagree.

First, “[w]e presume the trial court knew and properly applied the law absent evidence to the contrary.” (McDermott Will & Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083, 1103.) Thus, even if the court had not referred to the presumption of undue influence, we could presume that the court applied it. But, here, the court stated that husband “had experience, education, and history such that he was knowledgeable on the interspousal transfer deed and its consequences,” which was an implicit finding that wife had rebutted the presumption of undue influence. That finding was supported by evidence that husband was a real estate agent and loan officer. Further, far from claiming that he was ignorant of the ramifications of either the grant deed or the interspousal deed, he testified that he had structured the transaction to transfer title to wife, in order to obtain a commission to which he would not otherwise be entitled and to avoid encumbering the residence with his tax liability. Thus, there was sufficient evidence that husband acted freely and voluntarily, indeed, strategically, with “‘“‘“full knowledge of all the facts, and with a complete understanding of the effect of” the transaction.’’’’” (Lintz v. Lintz, supra, 222 Cal.App.4th at p. 1353.)

b. Tax Liability

We next consider husband’s contention that the trial court erred in allocating the tax liability solely to him. We see no abuse of discretion in the court’s conclusion that the equities supported such an allocation. Despite his high earnings, husband for many years did not pay any taxes. Indeed, husband had a long history, predating his marriage, of avoiding tax payments. Further, husband and wife maintained separate bank accounts during the marriage and wife frequently took out payday loans to pay her monthly expenses, which suggested that she did not enjoy the benefits of husband’s tax avoidance. Finally, husband had a history of earning higher income than did wife, which supported a finding that he was better able to repay the tax debt. (See In re Marriage of Vanderbeek, supra, 177 Cal.App.3d at p. 235.)

c. Imputation of Income for Child Support

Finally, we conclude that husband has waived any challenge to the trial court’s calculation of his income. Not only did husband fail to object to the court’s calculation of income, he expressly submitted to the court’s tentative order that he pay $131 monthly in child support. (In re Marriage of Calcaterra & Badakhsh (2005) 132 Cal.App.4th 28, 37 [“‘[T]to conserve judicial resources, any errors [to the calculation of income] must be brought to the trial court’s attention at the trial level while the [theoretical] error can still be expeditiously corrected’”].)

B. May 15, 2019, Order Denying Request for Clarification

1. Background

As discussed above, on August 9, 2016, Judge Tamzarian issued an order, which stated, in part: “[Wife] may withdraw $10,000 from the escrow account and h[a]lf for deposit. If [husband] is more than 5 days late on any support payment, [wife’s] counsel may withdraw the support amount. [Wife’s] counsel is to immediately notify [husband] in writing and reflect the remaining balance in the account.” There is no reporter’s transcript, settled statement, or agreed statement of the hearing in the record. Wife subsequently withdrew $10,000 from escrow (first $10,000 withdrawal).

During the course of the dissolution trial, the trial court found that husband owed $19,565 in child support arrearages. Husband sought certain credits against this amount. Husband’s counsel requested a $10,000 credit for funds that wife had withdrawn from escrow pursuant to the parties’ March 9, 2017, stipulation (second $10,000 withdrawal). Husband’s counsel expressly distinguished the second $10,000 withdrawal, which she referred to as “the additional 10,000,” from the first $10,000 withdrawal. The parties disputed whether the March 9, 2017, stipulation permitted reallocation of the second $10,000 withdrawal. The court referred to Judge Tamzarian the issue of whether the second $10,000 withdrawal was subject to reallocation.

Husband’s counsel then requested a $10,000 credit for the first $10,000 withdrawal. The court denied that request, noting that because the residence was wife’s separate property, any money that she withdrew from the proceeds of its sale should not be credited against husband’s child support arrearages. The court’s judgment specified that “the $10,000 drawn from the escrow account containing proceeds from the sale of [the residence] . . . pursuant to Court Order of August 9, 2016 subject to reallocation, was drawn from [wife’s] separate property funds, and as such, does not constitute a child support payment made by [husband].” The court added that it “reserve[d] for Judge . . . Tamzarian to determine” whether the second $10,000 withdrawal “is subject to reallocation.”

On April 15, 2019, husband filed a request “FOR CLARIFICATION OF THE COURT’S ORDER OF 8/9/2016, MADE BY [JUDGE] ARMEN TAMZARIAN.” Husband asserted that during the dissolution trial, Judge Slawson “had some trouble determining whether or not the funds so expended were proper[l]y allocated to defray [husband’s] support obligations.” Husband requested that the first $10,000 withdrawal be credited against his arrearages.

The matter was reassigned to Judge Helen Zukin, who, on May 15, 2019, held a hearing on husband’s request. After reviewing the dissolution trial transcript and the judgment, Judge Zukin denied husband’s request for clarification. That same day, the court issued a minute order denying husband’s request.

2. Legal Analysis

“The right to appeal is wholly statutory.” (Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5.) Husband contends that Judge Zukin’s order denying his request for clarification is appealable pursuant to Code of Civil Procedure section 904.1, subdivision (a)(2). We disagree.

“Although Code of Civil Procedure section 904.1, subdivision (a)(2) makes appealable ‘an order made after a judgment made appealable by paragraph (1),’ this does not literally mean that any order after a previous judgment is appealable.” (In re Marriage of Ellis (2002) 101 Cal.App.4th 400, 403.) Specifically, “‘[t]o be appealable, a postjudgment order must satisfy two additional requirements . . . . [¶] The first requirement . . . is that the issues raised by the appeal from the order must be different from those arising from an appeal from the judgment . . . . [¶] The second requirement . . . is that “the order must either affect the judgment or relate to it by enforcing it or staying its execution.”’” (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1217.) The May 15, 2019, order does not satisfy the first requirement.

The issues raised by husband from the May 15, 2019, order are not different from those he raised in connection with the dissolution judgment, namely, his challenge of the trial court’s designation of the residence as separate property such that husband was not entitled to a credit for the first $10,000 withdrawal. The May 15, 2019, order therefore is not an appealable postjudgment order. (In re Marriage of Corona, supra, 172 Cal.App.4th at p. 1217.) In any event, even if we were to consider the merits of husband’s appeal, we would reject it as husband was not entitled to any purported “clarification.”

C. July 2, 2019, Order Denying Motion for Relief

Husband next contends that the trial court erred in denying his motion for relief from judgment pursuant to Code of Civil Procedure section 473, subdivision (b).

1. Background

As discussed, on April 15, 2019, husband filed a motion for relief from judgment.

On May 30, 2019, Judge Slawson heard the motion and concluded that the trial court lacked jurisdiction to rule on the motion because of the pending appeal from the judgment.

On July 2, 2019, Judge Slawson issued his “Findings And Order After Hearing,” which denied husband’s motion for lack of jurisdiction.

2. Legal Analysis

Husband’s contention that his filing of a notice of appeal did not divest the trial court of jurisdiction to consider his motion is meritless. (See Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 198 [“[Code of Civil Procedure] section 916, as a matter of logic and policy, divests the trial court of jurisdiction over the subject matter on appeal—i.e., jurisdiction in its fundamental sense”]; Kroger Co. v. Workers’ Comp. Appeals Bd. (2012) 210 Cal.App.4th 952, 959 [appeal is perfected when notice of appeal is filed].) The court correctly concluded that it lacked jurisdiction to consider defendant’s motion.

D. Order Denying Request for Modification of Child Custody Order

1. Background

On June 24, 2019, husband filed a request to modify the child custody order to grant him sole legal and physical custody of the children. Husband contended that wife: medicated, that is, vaccinated, the children without notice; discussed the divorce proceedings with the children and solicited information from them; asked the children to lie to a doctor, who had been appointed by the trial court for purposes of the dissolution proceeding; interfered with the children’s therapy by purportedly not cooperating with husband regarding an agreed therapist; disparaged husband to the children, including using derogatory language; failed to protect the children from “many, many, insect bites”; lived with the children in a one-bedroom apartment, where the youngest child did not have her own bed, and instead shared a bed with wife; “cavalierly” cancelled the children’s medical insurance, which was subsequently reinstated; and did not help the children with their studies, with their grades being “very low.”

Husband supported his request with his own declaration and over a hundred pages of exhibits, including communications between husband and wife on Talking Parents. On August 19, 2019, husband submitted a supplemental declaration attaching purported transcripts of telephone calls between and among wife, husband, and the children. One of the conversations was identified as having occurred on April 15, 2019. The other conversations were not identified by date. He also attached updated Talking Parents communications, husband’s purported “log” detailing wife’s actions beginning in 2015, medical records of doctor visits for the children from 2016 and 2017, wife’s cell phone records from 2016, screenshots of texts from 2016, communications with prosecutors from 2015 and 2016, communications between husband’s prior counsel and wife’s counsel from 2016 and 2017, reports of monitored visits with the children from 2015, police records from 2016, and discovery requests from 2016.

Wife opposed the request for modification. She declared that she had advised husband of the annual physical check-up, during which one of the daughters received three vaccinations. She attached a copy of the Talking Parents message advising husband of the upcoming yearly checkup. She agreed that the daughters had mosquito bites and that she now lived in a one-bedroom apartment, but declared that each daughter had a separate bed in a shared bedroom and that when she had custody of the daughters, she slept in the living room. She explained that husband had never been to wife’s home and thus did not know its setup. She denied husband’s other allegations, stating that she helped the girls with their homework.

Wife requested that the trial court impose sanctions pursuant to section 271 and submitted her counsel’s declaration in support. Wife’s counsel declared that during the course of these proceedings, husband had filed approximately 40 requests for orders, including multiple requests to modify custody and support, all of which were denied. Counsel also explained that husband had filed additional civil actions against wife, wife’s friends, and wife’s counsel. Counsel detailed the time she and her colleague had spent opposing husband’s most recent request for modification and requested $4,650 in attorney fees.

On September 11, 2019, Judge Zukin conducted a hearing on husband’s request for modification. She asked husband, who was self-represented, what he contended to be the material change in circumstances that supported his request for modification. Husband responded that wife was now “living in a smaller apartment where . . . one of our children does not have her own bed.”

After noting that wife had declared that both daughters had their own bed, the trial court asked wife, “Does [daughter] sleep in her own bed?”

Wife responded, “Yes she does. Both of them do.”

Husband proffered that this was “a false statement, and I would actually like to—that’s a completely false statement, and I’ll be able to prove that up during my examination.”

The trial court responded: “We’ve dealt with these issues before. Go on. What else is new, other than the bed?”

Husband responded, without evidentiary support, that the children were getting lower grades and that wife had moved farther away from her work and the children’s school, and “ha[d] less time with the kids, leaving the kids, you know—leaving the kids unattended and un—not only unattended, but unavailable to do homework with them and various other things. [¶] So although I understand you wanting to be brief, I wanted to call [wife] to the stand in order to ask her some questions in order to clarify my position via her testimony.”

The trial court denied husband’s request to examine wife, but permitted husband to continue his testimony, during which he repeated many of the statements in his request for modification. At the conclusion of husband’s testimony and argument, the court again denied his request to cross-examine wife.

Next, the trial court asked wife a number of questions. For instance, the court asked whether wife had left the children unattended. Wife responded that she had not. Further, wife explained that she had been living in the smaller one-bedroom apartment for two and a half years and that she had moved into it prior to the court’s entry of the judgment of dissolution.

The court again asked wife about the sleeping arrangements. Wife repeated that the girls slept in the single bedroom and wife slept in the living room on the couch.

The court then asked wife to respond to husband’s allegation that she had medicated the children. Wife explained that she had advised husband about the doctor’s appointment and that during the appointment, daughter had received a vaccination that was required to attend school.

The court then permitted husband to respond. Husband reminded the court that he had submitted transcripts of wife’s telephone calls with the daughters. He also explained why he believed he needed to sue various people, including wife’s counsel. Finally, he stated his belief, based on his daughter’s statements to him, that wife slept with younger daughter “99 percent of the time.” Husband did not dispute wife’s testimony that she had moved prior to the entry of judgment or that he had never been inside her apartment.

After hearing the testimony, the court stated that it had reviewed the entire file, the submitted declarations, and the exhibits. The court stated that it found “a number of [husband’s] complaints regarding [wife’s] parenting” not to be credible. The court further observed that the exhibits demonstrated that husband had inappropriately used Talking Parents to threaten wife with litigation and to advance his litigation strategy. Even assuming that the children were struggling in school, the court concluded that husband was partially at fault as he had engaged in excessive litigation and involved the children in litigation. The court denied husband’s request for modification, concluding that there was no material change in circumstances since the time of the 2019 judgment.

The trial court next considered wife’s motion for sanctions. It concluded that “this was an unnecessary motion. [T]here is a history in this litigation of over litigation on the part of [husband].” The court therefore awarded wife $2,500 in attorney fees as a sanction.

2. Legal Analysis

Husband contends that the trial court erred “by failing to state on the record or in writing the reasons for its denial of [his] right to introduce the live testimony of the other party during the hearing.” We find no prejudicial error.

We disagree with husband’s characterization of the trial court’s ruling as one denying him the opportunity to introduce “live testimony.” The court considered the live sworn testimony of both husband and wife. (Cf. In re Marriage of Swain (2018) 21 Cal.App.5th 830, 837, 841 [finding reversible error when trial court modified spousal support order based solely on declaration of ex-wife, who did not appear at the hearing].) Thus, husband’s argument, properly construed, is that the court limited his ability to cross-examine wife, in violation of Evidence Code section 773. We will assume, without expressly deciding, that the court erred in prohibiting husband from cross-examining wife.

Husband has failed to demonstrate that he was prejudiced by any assumed error. (See In re Marriage of Goddard (2004) 33 Cal.4th 49, 56 [generally, most procedural errors will not be reversed absent a showing of prejudice]; see also Diaz v. Carcamo (2011) 51 Cal.4th 1148, 1161 [“To establish prejudice, a party must show ‘a reasonable probability that in the absence of the error, a result more favorable to [it] would have been reached’”].) Husband never explained in the trial court what he expected to elicit from cross-examination, proffering only that such examination would “clarify [his] position.” On appeal, husband contends that the court should have stricken wife’s testimony and declaration, and had it done so, it would have granted husband’s request because his exhibits “support[ed] all of his factual allegations.” We disagree. Most of husband’s exhibits related to conduct that predated the entry of judgment. Further, there was no admissible evidence to support his allegations that daughter did not sleep in her own bed or that wife did not pay sufficient attention to the daughters. Husband cited only his daughter’s hearsay statement that she did not usually sleep in her bed and did not introduce any evidence to support his allegation that his wife did not spend sufficient time with the daughters. On this record, husband cannot demonstrate that but for the court’s assumed error, it was reasonably probable that the court would have found a “‘significant change of circumstances’” and modified the child custody arrangement in his favor. (See In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 956; In re Marriage of McKean (2019) 41 Cal.App.5th 1083, 1089.)

IV. DISPOSITION

The appeal from the May 15, 2019, order is dismissed. The April 2, 2019, judgment, the July 2, 2019, order denying appellant’s motion for relief from judgment, and the September 11, 2019, order denying appellant’s request for modification are affirmed. Because respondent did not appear, no costs are awarded.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

KIM, J.

We concur:

RUBIN, P. J.

BAKER, J.

Filed 10/16/20 Tedesco v. Wells Fargo Bank, N.A. CA4/2

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 TWO

THOMAS S. TEDESCO,

Plaintiff and Appellant,

v.

WELLS FARGO BANK, N.A. et al.,

Defendants and Respondents.

E070407

(Super.Ct.No. PSC1704669)

OPINION

APPEAL from the Superior Court of Riverside County. James T. Latting, Judge. Affirmed.

Herzog, Yuhas, Ehrlich & Ardell, Ian Herzog, Evan D. Marshall; Law Offices of Joseph D. Davis and Joseph D. Davis for Plaintiff and Appellant.

McGuireWoods, Leslie Mark Werlin and Alicia A. Baiardo for Defendants and Respondents.

Plaintiff and appellant Thomas S. Tedesco (Thomas), by his guardian ad litem Stephen Carpenter, appeals from two judgments of dismissal entered on April 5, 2018, after the trial court sustained the demurrers of defendants and respondents Wells Fargo Bank, N.A., and Michael A. Bas (collectively the bank defendants), without leave to amend, to Thomas’s first amended complaint (FAC). The FAC alleged causes of action for, inter alia, negligence, fraud, and breach of fiduciary duty based on the bank defendants’ transfer of control of an account containing some $30 million (the funds), belonging to a limited partnership of which Thomas was the general partner.

On appeal, Thomas contends the bank defendants: (1) breached the duty of due care owed to him as a depositor (breach of fiduciary duty); (2) negligently and wrongfully transferred control of the funds (conversion); and (3) knew or should have known the documents presented to Wells Fargo did not provide a valid basis to transfer control of the funds (financial elder abuse). As to Bas, Thomas contends he: (1) is liable for cancellation and rescission of a series of documents, which transferred control of the funds (cancellation/rescission); (2) breached the duty of care by transferring control of the funds (negligence); (3) participated in the manufacturing of fraudulent documents used to transfer control of the funds (fraud); and (4) was properly joined in the claim for declaratory relief. Thomas further contends the trial court erred in denying him leave to amend. We affirm.

I. PROCEDURAL BACKGROUND AND FACTS

On July 28, 1988, Thomas and Wanda created the Tedesco Family Trust. In 1993, Thomas was the sole general partner and owner of the controlling one percent general partnership interest, and 98 percent limited partnership interest, in TW Tedesco Properties, L.P., a California limited partnership (Tedesco Properties). Following Wanda’s death in 2002, the Tedesco Family Trust was divided into five separate trusts, one of which is the living trust, which was restated in a complete amendment and restatement dated February 11, 2011. On an annual basis, Thomas gifted approximately one-half percent interest in Tedesco Properties to his daughters, Laura K. White, Julie M. Bas, and Sandra L. Kay. Thomas also transferred his interest in Tedesco Properties to his living trust and, therefore, remained the beneficial owner.

On December 13, 2012, Thomas sold a 12.17 percent limited partnership interest in Tedesco Properties to himself as trustee of the living trust. On December 26, 2012, he gifted his one percent general partnership interest in Tedesco Properties to W. Mae, LLC, which is held by his daughters, and gifted 11.7 percent of his limited partnership interest in Tedesco Properties to his daughters’ trusts. A “Seventeenth Amendment to the Agreement of Limited Partnership of TW Tedesco Properties” was executed and filed to reflect these actions.

In early 2013, Thomas became “seriously ill and underwent two surgeries requiring general anesthesia in or about April 2013.” During the following year, he was of “diminished health and mental capacity, and was reliant in part upon his family members, including [his daughters], to assist him in his business and financial affairs. Because of his temporarily diminished health and vitality, [he] was susceptible to the undue influence of others and unable to fully care for his own finances, to understand the influence of persons seeking to have him transfer his funds or assets or control of his property against his self-interest, or to resist fraud.” Effective June 5, 2013, Thomas resigned as trustee of the living trust, and his daughters became successor trustees.

On August 25, 2017, Thomas (who was then 91 years old) initiated this action alleging various misdeeds by his daughters, his former attorneys, and the bank defendants, regarding his ownership interest in Tedesco Properties and his various trusts. More specifically, Thomas claimed his daughters and others participated in the manufacture of documents, which were used to transfer the controlling interest in Tedesco Properties to his daughters and entities controlled by his daughters. By way of the FAC filed on October 20, 2017, Thomas alleged three causes of action against Wells Fargo (negligence, financial elder abuse, & conversion) and seven causes of action against Bas (cancellation/rescission of documents, breach of fiduciary duty, financial elder abuse, fraud/misrepresentation, negligence, conversion, & declaratory relief). Thomas contends the bank defendants breached their fiduciary duties by failing to (1) contact him, (2) take any measure to assure the validity of the documents transferring his control and interest in Tedesco Properties, along with the funds, and (3) investigate the documents’ authenticity or legal validity.

On January 10, 2018, both Wells Fargo and Bas demurred to the FAC; they primarily argued they owed no duty of care to Thomas, and he cannot establish they caused him harm. After hearing the matters, the trial court sustained both demurrers without leave to amend. Thomas appeals.

II. DISCUSSION

A. Preliminary Matters.

1. Thomas’s standing.

Before we address the merits of the issues raised, we acknowledge the bank defendants’ contention that Thomas lacks standing to “sue for any claimed damage to, loss, or impairment of Partnership property” because Tedesco Properties, not Thomas, is the aggrieved party. The bank defendants argue an individual partner may not sue an outsider “for damage to ‘his’ beneficial interest in the partnership property.” (Mayer v. C.W. Driver (2002) 98 Cal.App.4th 48, 60 [“The property was the partnership’s. The [general and limited partners] could not have sued individually for damage to their individual ‘beneficial interest’ in partnership property . . . .”].) Likewise, they assert an individual partner may not sue on behalf of the partnership when his or her claims are individual in nature and not derivative. (Everest Investors 8 v. McNeil Partners (2003) 114 Cal.App.4th 411, 424 [“A partnership is an entity separate and apart from the partners of which it is comprised, and it is the partnership entity which owns its assets, not the partners.”]; see id. at pp. 425-429.)

In response, Thomas asserts the bank defendants “mischaracterize [his] interest in and standing with regard to the subject bank account” because he “has an enforceable interest and standing as the real general partner, as the sole life beneficiary of the trust which owns the partnership, and as the victim of a scheme to destroy his estate plan and personal financial autonomy.” Thomas cites to Everest Investors 8 v. McNeil Partners, supra, 114 Cal.App.4th 411, and argues that since his “daughters as ostensible general partners and tort-feasors are obviously not going to bring an action to restore [his] possession and control of the account, or to restore funds which they wrongfully withdrew, [he] has the right to enforce a claim which the limited partnership possesses against others.”

Arguably, since Thomas’s claims are individual in nature, he lacks standing. Nonetheless, we do not decide the standing issue in this appeal because we choose to address the merits of the issues raised by Thomas.

2. Mootness.

On September 16, 2020, this court was informed that on July 27, 2020, the trial court dismissed the entire underlying action as to all parties and all claims with prejudice. On September 29, the bank defendants requested judicial notice of the lower court’s September 28 order denying Thomas’s motion to vacate the dismissal. The bank defendants contend the appeal should also be dismissed as moot. In the interest of justice, we choose to address the merits of the issues. We therefore deny the request for judicial notice and will not decide the mootness issue.

B. The Bank Defendants’ Demurrer

Thomas contends the FAC sufficiently pled causes of action against the bank defendants. Alternatively, he contends the trial court abused its discretion in denying him leave to amend. We reject his contentions and affirm.

1. Standard of review.

“A ‘demurrer tests the pleading alone, and not the evidence or the facts alleged. Thus, a demurrer will be sustained only where the pleading is defective on its face.’ [Citation.] On appeal from a judgment of dismissal based on an order sustaining a demurrer, ‘we examine the complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory, such facts being assumed true for this purpose.’ [Citation.] We may also consider matters that have been judicially noticed, but must disregard allegations that are contrary to law or facts judicially noticed. [Citations.] Alternatively stated, ‘[w]e treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.’ [Citation.] [¶] . . . [¶] We review a court’s denial of leave to amend on sustaining a demurrer for abuse of discretion. [Citation.] On appeal, the appellant must show there is a reasonable possibility the defect in the complaint can be cured by amendment.” (Citizens for a Responsible Caltrans Decision v. Department of Transportation (2020) 46 Cal.App.5th 1103, 1116-1117.) We may consider exhibits attached to a complaint when reviewing a demurrer, and “[i]f facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence.” (Holland v. Morse Diesel Internat., Inc. (2001) 86 Cal.App.4th 1443, 1447.)

2. The orders sustaining the demurrers were proper.

a. Negligence and breach of fiduciary duty against Wells Fargo and Bas.

Thomas asserts Bas has a “confidential and fiduciary relationship” by reason of his family relationship (Bas is married to one of Thomas’s daughters). He further asserts the existence of a fiduciary duty by reason of the fact Tedesco Properties “maintained one or more bank accounts” with Wells Fargo, holding in excess of $30 million. Thus, he contends the bank defendants breached their fiduciary duty by failing to contact him or otherwise take any measure to assure the validity of the documents, which transferred signatory power and control over the bank funds to W. Mae, LLC, and its managers (Thomas’s daughters). On appeal, Thomas maintains the FAC properly alleged breach of the duty of due care owed to depositors and customers. We disagree.

“‘A fiduciary relationship is “‘any relation existing between parties to a transaction wherein one of the parties is in duty bound to act with the utmost good faith for the benefit of the other party. Such a relation ordinarily arises where a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he voluntarily accepts or assumes to accept the confidence, can take no advantage from his acts relating to the interest of the other party without the latter’s knowledge or consent . . . .’” [Citations.] [¶] “Traditional examples of fiduciary relationships in the commercial context include trustee/beneficiary, directors and majority shareholders of a corporation, business partners, joint adventurers, and agent/principal.”’” (Hodges v. County of Placer (2019) 41 Cal.App.5th 537, 546-547.) However, “the relationship between a bank and its depositor is not fiduciary in character. [Citation.] ‘“The relationship of bank and depositor is founded on contract,” [citation] which is ordinarily memorialized by a signature card that the depositor signs upon opening the account. [Citation.] This contractual relationship does not involve any implied duty “to supervise account activity” [citation] or “to inquire into the purpose for which the funds are being used”’” (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 741 (Das); see Chazen v. Centennial Bank (1998) 61 Cal.App.4th 532, 538 [bank has no duty to police their fiduciary accounts]; Casey v. U.S. Bank Nat. Assn. (2005) 127 Cal.App.4th 1138, 1150 (Casey) [Under California law, a bank owes no duty to nondepositors to investigate or disclose suspicious activities on the part of an account holder.].)

Under these principles, Thomas’s allegations regarding the bank defendants’ conduct in connection with documents transferring signatory power and control over the bank funds to W. Mae, LLC, and its managers (Thomas’s daughters) fail to state claims for breach of fiduciary duty or negligence. The FAC alleges no facts suggesting the bank defendants undertook a special fiduciary duty to him. Although Thomas alleges he did not execute the “Amendment to Certificate of Limited Partnership,” and the bank defendants made no “attempt to contact [him] or otherwise take any measure to assure the validity of the transfer of the general partnership interest,” the documents attached to the FAC, which we may consider, bear Thomas’s signature. Nothing in the FAC suggests the bank defendants discharged their contractual duties in an unreasonable manner or knew of the specific primary wrong they are accused of substantially assisting. When presented with the documents, the bank defendants followed the instructions and transferred control of the funds. (See discussion, infra.) Thus, Thomas’s allegations establish no claim against Wells Fargo or Bas based on breach of fiduciary duty or negligence.

b. Conversion against Bas and Wells Fargo.

The FAC alleges Bas and Wells Fargo committed the tort of conversion because they have approximately $30 million in “their control and possession,” Thomas has the “immediate right of possession,” and they improperly transferred control of these funds to his daughters and their entities. On appeal, Thomas maintains the bank defendants’ unauthorized transfer of the funds constitutes conversion. We conclude the FAC fails to state a cause of action for conversion.

“‘“Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages.”’” (Welco Electronics, Inc. v. Mora (2014) 223 Cal.App.4th 202, 208; see Gruber v. Pacific States Sav. & Loan Co. (1939) 13 Cal.2d 144, 148 [Conversion is any act of dominion wrongfully exerted over the personal property of another.].) It “is an intentional tort. [Citation.] ‘The act [constituting conversion] must be knowingly or intentionally done, but a wrongful intent is not necessary. [Citations.] Because the act must be knowingly done, “neither negligence, active or passive, nor a breach of contract, even though it result[s] in injury to, or loss of, specific property, constitutes a conversion.”’” (Multani v. Knight (2018) 23 Cal.App.5th 837, 853-854.)

Here, the funds are the property of Tedesco Properties, not Thomas personally, and the FAC identifies defendants who have “intentionally and substantially interfered with plaintiff’s property by fraudulently obtaining control of the [Tedesco Properties] accounts and funds and diverting said funds into defendants’ personal accounts, and by preventing plaintiff from having access to the money.” But the FAC does not allege either Wells Fargo or Bas asserted dominion or control over the funds. (Cf. Simonian v. Patterson (1994) 27 Cal.App.4th 773, 781-782 [Under the facts as pled, there was no intention on defendant’s part to “‘convert the owner’s property, or to exercise some act of ownership over it, or to prevent the owner’s taking possession of his property.’”].) Also, as we state in our discussion of Thomas’s other causes of action, nothing in the FAC suggests the bank defendants committed a wrongful act in honoring the legal documents, which effected the transfer of control of the funds, and neither Wells Fargo nor Bas owed a common law fiduciary duty to Thomas. We therefore conclude, as a matter of law, Thomas cannot allege a cause of action for conversion.

c. Financial elder abuse against Wells Fargo and Bas.

The FAC asserts the bank defendants violated Welfare and Institutions Code section 15610.30 and committed financial abuse upon an elder by secreting, appropriating, and retaining Thomas’s assets after demand had been made, and they engaged in undue influence as defined in Civil Code section 1575. On appeal, Thomas contends the bank defendants “certainly knew and should have known that [neither] an unsigned ‘assignment’ [nor the unsigned ‘Amendment’] was . . . a valid basis for transfer of an account.” Thus, he maintains the FAC states a claim against them for financial elder abuse. We disagree.

As defined by statute, financial elder abuse occurs when a person or entity “[t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud” or “assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud.” (Welf. & Inst. Code, § 15610.30, subd. (a)(1), (a)(2).)

Here, the claim for financial elder abuse is dependent on the bank defendants’ actual knowledge of the allegedly fraudulent documents. Thomas repeatedly asserts the bank defendants relied upon “unsigned” documents to assist his daughters in the wrongful and fraudulent transfer of control of the funds. However, included in the exhibits attached to the FAC is the “Assignment of General Partner’s Interest” and an “Amendment to Certificate of Limited Partnership,” both of which were signed by Thomas, and the latter was filed with the California Secretary of State. According to these documents, Thomas agreed to the transfer of his one percent general partnership interest in Tedesco Properties to W. Mae, LLC. More importantly, Thomas signed the “Assignment of General Partner’s Interest” on December 26, 2012 (prior to his “diminished health and mental capacity” in 2013), and it was made “effective immediately.” Again, nothing in the FAC suggests the bank defendants discharged their contractual duties in an unreasonable manner or knew of the specific primary wrong they are accused of substantially assisting. (Das, supra, 186 Cal.App.4th at p. 745 [When “a bank provides ordinary services that effectuate financial abuse by a third party, the bank may be found to have ‘assisted’ the financial abuse only if it knew of the third party’s wrongful conduct.”].)

Although the FAC alleges the bank defendants “knew or should have known” the fraudulent nature of the documents, such abuse allegation, without more, does not give rise to tort liability. We are tasked with “carefully scrutiniz[ing] whether [Thomas] has alleged the bank [defendants] had actual knowledge of the underlying wrong it purportedly aided and abetted.” (Casey, supra, 127 Cal.App.4th at p. 1152.) Given the exhibits attached to the FAC, which contain Thomas’s signature, we conclude the FAC’s general allegation that the bank defendants knew the fraudulent nature of the documents does not sufficiently plead that they had actual knowledge of the documents’ allegedly fraudulent nature.

“In reviewing the sustaining of a demurrer, ‘we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.’” (Casey, supra, 127 Cal.App.4th at p. 1153.) Applying that standard, the FAC fails to state a cause of action for financial elder abuse. Consequently, we conclude the trial court properly sustained the demurrer to this cause of action.

d. Cancellation/rescission and declaratory relief against Bas.

Thomas contends his daughters and Bas manufactured documents to effect the transfer of Thomas’s interests in Tedesco Properties to, inter alia, his daughters and W. Mae, LLC, and the documents are invalid and void. On appeal, Thomas argues Bas is liable for cancellation and rescission of these documents, and he was properly joined in the claim for declaratory relief. Not so.

Both causes of action are based on contract. Since there is no contract between Thomas and Bas, both claims must fail. Under the basic principles of law, a contract is a bargained-for exchange. (Bard v. Kent (1942) 19 Cal.2d 449, 452.) “‘“[T]he consideration for a promise must be an act or a return promise, bargained for and given in exchange for the promise.”’” (Levy v. Bellmar Enterprises (1966) 241 Cal.App.2d 686, 691.) Here, the contracts that accomplished the transfer of property or Thomas’s interest in Tedesco Properties were between Thomas, on the one hand, and his daughters or another entity, on the other. Bas was not a party to any of the documents. As such, he is not the proper target of Thomas’s cause of action for rescission. (See Schauer v. Mandarin Gems of California, Inc. (2005) 125 Cal.App.4th 949, 959-960 [“Civil Code section 1689 limits grant of rescission rights to the contracting parties. . . . [Defendant], not having participated in the agreement, not having undertaken any duty or given any consideration, is a stranger to the agreement, with no legitimate interest in voiding it.”]; Civ. Code, § 1688 [rescission extinguishes a contract between the parties].) In short, Thomas failed to state claims for cancellation/rescission and declaratory relief.

e. Fraud and misrepresentation against Bas.

In his fraud cause of action, Thomas alleged that “defendants misrepresented the nature, substance and authenticity” of the documents, “inducing [him] to execute [them],” and “misrepresenting the authenticity of [his] signature and the validity of his consent to the transfer [of his] interests and control of [Tedesco Properties] to financial institutions, to the Secretary of State and to [him] and other persons.” On appeal, Thomas faults the trial court for not considering “Bas’ liability for participating in the manufacture of fraudulent documents and exploitation of the family relationship as alleged.” He further asserts his fraud claim is “pled with as much specificity as could reasonably be expected from [him] in these circumstances.” We conclude the trial court properly sustained Bas’s demurrer to this cause of action.

“Fraud must be pleaded with specificity, to provide the defendants with the fullest possible details of the charge so they are able to prepare a defense to this serious attack. To withstand a demurrer, the facts constituting every element of the fraud must be alleged with particularity, and the claim cannot be salvaged by references to the general policy favoring the liberal construction of pleadings. [Citation.] Even in a case involving numerous oft-repeated misrepresentations, the plaintiff must, at a minimum, set out a representative selection of the alleged misrepresentations sufficient to permit the trial court to ascertain whether the statements were material and otherwise actionable.” (Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782-783; see Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184 [“‘In California, fraud must be pled specifically; general and conclusory allegations do not suffice.’”].)

Thomas’s cause of action for fraud and misrepresentation does not come close to the required specificity. The FAC accuses 10 defendants (including a legal entity) of misrepresentation and concealment. However, it avers no facts as to what was said or to whom or in what manner. (See Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73 [Plaintiff must plead “facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’”].) We do not know how Bas induced Thomas to execute the documents; when this conduct occurred; where it occurred; or by what means Bas employed to induce Thomas to sign the documents. Absent this specificity, Bas is unable to defend himself. (See Community Cause v. Boatwright (1981) 124 Cal.App.3d 888, 901 [“The rationale for the rule requiring specificity is that allegations of fraud are serious, and the defendant is entitled to receive sufficient details in order to prepare his defense.”].) Having failed to satisfy the strict pleading requirements, Thomas’s cause of action for fraud and misrepresentation fails. 

3. Sustaining the demurrer without leave to amend.

Finally, we consider the trial court’s decision to deny Thomas leave to amend the FAC. Thomas asserts he could amend the FAC to allege the subject account was an investment account “under the tutelage of Wells [Fargo’s] investment advisor Michael Bas,” and thus enhanced the duty of care owed. However, Thomas fails to state how this additional allegation would overcome the obstacles of the documents bearing his signature and the bank defendants’ lack of knowledge of any alleged wrongdoing. For the trial court to permit an amended pleading, the plaintiff must “clearly and specifically” set forth the legal authority for the claims they contend they can allege, the elements of each of those claims, and the specific factual allegations that would establish each of those elements. (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43-44.) Thomas made no attempt to meet this burden. Accordingly, the causes of action against the bank defendants were properly disposed of at the pleading stage. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [It is the plaintiff’s burden to prove a reasonable possibility that a pleading defect could be cured by a further amendment.].)

III. DISPOSITION

The judgments of dismissal for Wells Fargo and Bas are affirmed. Defendants shall recover their costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

SLOUGH

J.

Filed 10/30/20 Marriage of Whitt CA3

NOT TO BE PUBLISHED

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

THIRD APPELLATE DISTRICT

(Sierra)

—-

In re the Marriage of KATHERINE M. and TRAVIS WHITT. C090127

KATHERINE BRADLEY,

Appellant,

v.

TRAVIS WHITT,

Respondent.

(Super. Ct. No. 7420)

Katherine Bradley, formerly Katherine M. Whitt (mother), appeals from an order modifying the amount of child support paid by Travis Whitt (father). She contends the trial court abused its discretion and exceeded its jurisdiction by retroactively modifying support and failing to charge father interest on child support arrearages. These claims lack merit.

Mother further contends that the trial court abused its discretion in deviating from the guideline child support amount and including discretionary add-ons to the guideline amount, further reducing the amount of child support owed. On this record, we find no abuse of discretion.

Finally, mother contends the trial court erred in failing to make the specific findings required to support a deviation from the guideline child support amount. Finding merit in this claim, we reverse the trial court’s order on this ground alone and remand for further proceedings.

I

BACKGROUND

Following a hearing on October 30, 2015, the trial court ordered father to pay mother $1,602 per month for child support and ordered the parties to share equally in any unreimbursed health care costs for their minor child. The court continued the matter to December 7, 2015, for, among other things, a review of child support and custody, as well as a temporary parenting plan.

After the December 7, 2015 hearing, the trial court ordered the parties, on January 7, 2016, to share joint legal custody of their minor child and issued a temporary parenting plan pending completion of a custody evaluation. The court also modified the October 30, 2015 order for support, including an order that child support would decrease to $1,477 per month beginning January 1, 2016. The court reserved jurisdiction over child support “until March 1, 2016 to retroactively modify this decrease” in the event father’s pay was not reduced as anticipated. The court set the matter for a status conference on February 1, 2016.

On November 28, 2016, father filed a request for temporary emergency orders on, among other things, custody, child support, and visitation (parenting time). Father wanted sole legal and physical custody of the parties’ minor child, as well as a modification of the order for child support filed on December 16, 2015.

On November 30, 2016, the parties reached agreement on numerous disputed issues. As part of their agreement, mother agreed to drop her request for a domestic violence restraining order without prejudice, and father agreed to drop his November 28, 2016 request for orders without prejudice. These agreements were subsequently memorialized in a court order filed on December 22, 2016. The court noted the issue of custody remained in dispute.

On July 24, 2017, the parties (both of whom were represented by counsel) executed a stipulation and order, wherein the parties agreed to share joint legal and physical custody of their child and agreed to a detailed parenting plan. The parties also agreed, and the court ordered, that father’s increased parenting time “constitute[d] a material change of circumstances warranting the review of temporary child support and [that they would] meet and confer to try to resolve modifications to support. The court reserve[d] jurisdiction to modify support effective May 1, 2017.”

On December 18, 2017, following a three-day trial in November 2017, the trial court issued a “tentative statement of decision regarding custody and visitation.” In that decision, the trial court ordered supervised exchanges of the minor child and ordered the parties to “equally share in the cost of the exchange supervision.” The court also ordered the child to continue in counseling and ordered the parties to “equally share any out of pocket cost of the therapy.” The “frequency, duration and configuration” of the child’s therapy would be determined by the therapist.

The court concluded its tentative decision by saying that if no timely objection were filed, the tentative decision would become the court’s “Final Statement of Decision.” No objection was filed and on March 26, 2018, judgment was entered with the terms of the final statement of decision attached reflecting only minor changes.

On July 12, 2018, the parties appeared before the trial court for a “review hearing” following the court’s receipt of the custody evaluation report. Having considered that report, and finding it supported by evidence, the court ordered the child to remain primarily in father’s care once school began. The court continued the matter for an evidentiary hearing on August 30, 2018, to allow mother to contest the findings and recommendations contained within the report. At that time, the court also would consider father’s request for attorney fees.

After the August 30, 2018 evidentiary hearing, the trial court issued a “proposed statement of decision re custody, attorney’s fees and sanctions” on November 13, 2018. Within that proposed statement of decision was the parties’ stipulation and the court’s order that “the issue of reallocation of costs related to payment of custody evaluations and supervision of visitation is reserved.” The court ordered the supervised parenting exchanges to continue, and the parties each to “pay one-half of the costs related to exchanges.” The court also ordered the parties to “equally share any out of pocket cost of the [child’s] therapy,” but reserved the right to reallocate those expenses at a later hearing in February 2019.

Regarding child support, the court indicated its hope that counsel would be able to resolve the issue. The court, however, also reserved jurisdiction to modify child support “retroactive to the date of any request filed by a party which has not yet been ruled upon only through and including February 7, 2019.” That proposed statement of decision became the order of the court on February 14, 2019.

On February 6, 2019, father filed a current income and expense declaration with the court. Mother filed a current income and expense declaration on February 28, 2019. In her declaration, mother indicated she paid $500 a month for rent and owed her mother Judith Bradley over $188,000 for “personal loan[s],” which she used to pay her attorneys. Mother also indicated her monthly expenses total $2,410 each month, some of which was “paid by others,” though that amount “varie[d].” She reported her monthly income to be $77 a week.

Before the hearing on March 7, 2019, father submitted to the court a revised DissoMaster. At the March 7, 2019 hearing, however, the court ordered the parties each to submit proposed DissoMaster calculations “for 05/01/2017 to current and include any claims of arrears and any other filings prior to 03/25/2019.” The court also ordered father to pay $2,500 in need-based attorney fees directly to mother’s attorney, but the court reserved jurisdiction “to reallocate at a later time.”

Mother filed another request for order on March 22, 2019. In her request, mother sought orders for sanctions, custody modification, and issues related to the minor child’s therapy.

On March 25, 2019, father filed proposed DissoMaster calculations “for the time period May 1, 2017 through July 31, 2018 and August 1, 2018 through the present date.” Attached to his proposed calculations were father’s paystubs for February through March 2017, as well as his W-2 for 2016.

The parties appeared before the court on March 26, 2019, “for continued hearing on modification of reserved support,” and each were “administered the oath.”

The court subsequently issued its findings and order after hearing on April 25, 2019. The court found that in the July 24, 2017 stipulation and order, it reserved jurisdiction to modify child support retroactive to May 1, 2017. The court adopted the parties’ stipulation that between May 1, 2017, and the date of the hearing, father paid to mother $7,933.80 in child support.

The court ordered guideline child support for the time period between May 1, 2017, and December 1, 2017, to be $974 per month. The court then deviated from the guideline amount, reducing child support to $745 per month for that time period, “taking into consideration [mother’s] housing circumstances and [found that] deviation is in the best interest of the child.”

For the time period between January 1, 2018, and July 31, 2018, the court found guideline child support to be $1,206 per month. Taking into consideration mother’s housing circumstances, which were disputed, the court again deviated from the guideline amount, reducing child support to $900 per month for that period. The court found this amount to be in the child’s best interests. The court then ordered child support be reduced to zero, effective August 1, 2018.

In sum, the court found “the net child support due to [mother] for the period of May 1, 2017 through the present is $4,326.20. No interest is due on this amount.” As “child support add-ons,” the court ordered mother to reimburse father $1,500 for her share of the supervised exchange expenses, and $500 for her share of out-of-pocket therapy costs. The court ordered those amounts to be deducted “from the amount of outstanding child support owed.” Father thus owed mother a total of $2,326.20, to be paid “within 45 days from the date of hearing.”

Mother appeals from this order.

II

DISCUSSION

A. Standard of review

“First, child support awards are reviewed for abuse of discretion. [Citations.] We observe, however, that the trial court has ‘a duty to exercise an informed and considered discretion with respect to the [parent’s child] support obligation . . . .’ [Citation.] Furthermore, ‘in reviewing child support orders we must also recognize that determination of a child support obligation is a highly regulated area of the law, and the only discretion a trial court possesses is the discretion provided by statute or rule. [Citations.]’ [Citation.] In short, the trial court’s discretion is not so broad that it ‘may ignore or contravene the purposes of the law regarding . . . child support. [Citations.]’ [Citation.]” (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282-283, superseded by statute on another matter as stated in In re Marriage of Morton (2018) 27 Cal.App.5th 1025, 1049; Y.R. v. A.F. (2017) 9 Cal.App.5th 974, 982-983 (Y.R.).)

Mother, however, appeals without supplying a reporter’s transcript or settled statement of the hearing culminating in father’s reduced child support obligation. This is called a judgment roll appeal.

In a judgment roll appeal with only a clerk’s transcript we “ ‘must conclusively presume that the evidence is ample to sustain the [trial court]’s findings.’ ” (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154 (Ehrler).) Our review is limited to determining whether any error appears on the face of the record. “The reviewing court will presume that the record in an appeal includes all matters material to deciding the issues raised. If the appeal proceeds without a reporter’s transcript, this presumption applies only if the claimed error appears on the face of the record.” (Cal. Rules of Court, rule 8.163.)

B. Jurisdiction to modify child support

Mother contends the trial court “exceeded its jurisdiction” by modifying child support without a motion pending. Specifically, she contends the trial court exceeded its jurisdiction in July 2017, when the court reserved jurisdiction to modify child support retroactive to May 1, 2017. She contends the trial court exceeded its jurisdiction again at the March 26, 2019 hearing by modifying child support without a motion pending. We are not persuaded.

Modification of a temporary support order “ordinarily requires a noticed motion or an OSC.” (In re Marriage of Gruen (2011) 191 Cal.App.4th 627, 640, italics added.) In July 2017, the parties (represented by counsel) executed a stipulation and order with the court in which the parties stipulated to a review of child support based on a material change of circumstances. The parties also agreed the court would reserve jurisdiction to modify child support retroactive to May 1, 2017. Mother offers no legal authority or cogent argument for why these stipulations did not place the issue of child support squarely within the court’s jurisdiction in July 2017, where it remained until March 26, 2019, when the court finally resolved the issue.

Moreover, to the extent the court did err in executing the July 2017 stipulation and order and issuing the April 25, 2019 order for child support, without a motion pending, mother invited the error by executing the July 2017 stipulation and order leaving the issue open before the court. “It is settled that where a party by his [or her] conduct induces the commission of an error, under the doctrine of invited error he [or she] is estopped from asserting the alleged error as grounds for reversal. [Citations.] Similarly, an appellant waives his [or her] right to attack error by expressly or implicitly agreeing or acquiescing at trial to the ruling or procedure objected to on appeal. [Citations.]” (In re Marriage of Broderick (1989) 209 Cal.App.3d 489, 501.)

C. Deviation from guideline child support

Mother contends there was insufficient evidence to support the trial court’s decision to deviate downward from the guideline child support amount. She further contends the trial court abused its discretion by failing to make the statutory findings required to deviate from the guideline child support amount. Without a reporter’s transcript, mother’s claim regarding the sufficiency of evidence is foreclosed. Her claim the court failed to make the required statutory findings in support of its decision, however, has merit.

1. Sufficiency of the evidence

Mother asserts there was insufficient evidence before the trial court to deviate downward from the guideline amount of child support. Whether there was sufficient evidence to support the trial court’s finding is a question that is foreclosed on a judgment roll appeal. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082.) Without a reporter’s transcript, we must presume there was sufficient evidence to support the trial court’s finding. (Ehrler, supra, 126 Cal.App.3d at p. 154.) Mother’s contention regarding the sufficiency of the evidence thus fails.

2. Required statutory findings

Mother contends the trial court erred in failing to make the required statutory findings to support its decision to deviate downward from the guideline amount of child support. We agree.

Family Code section 4056, subdivision (a)(2) requires the trial court to provide reasons why the award deviates from the guideline amount. Under section 4056, subdivision (a)(3), the court also must explain why an amount below the guideline is in the best interests of the child. (Rojas v. Mitchell (1996) 50 Cal.App.4th 1445, 1450 (Rojas); Y.R., supra, 9 Cal.App.5th at p. 985.) The statement of reasons is mandatory; trial courts must “render the specified information sua sponte when deviating from the guideline formula.” (Rojas, at p. 1450, fn. omitted; Y.R., at pp. 984-985.) Section 4056 requires the court to do “more than issue conclusory findings; it must articulate why it believes the guideline amount exceeded the child’s needs and why the deviation is in the child’s best interests.” (Y.R., at p. 985, fn. 16; McGinley v. Herman (1996) 50 Cal.App.4th 936, 945 [“conclusionary finding falls far short of providing reasons why the level of support that the trial court awarded is consistent with the child’s interests”].)

Here, for the period of May 1, 2017, through December 1, 2017, the trial court’s explanation for why the child support deviates from the guideline amount was a single sentence: “The Court makes a downward deviation to $745.00 per month taking into consideration [mother’s] housing circumstances and finds deviation is in the best interest of the child.” The court offered the same perfunctory explanation for the period from January 1, 2018, through July 31, 2018.

These conclusory findings do not provide reasons why a reduction from the guideline amount is justified and consistent with the minor child’s best interests. (McGinley v. Herman, supra, 50 Cal.App.4th at p. 945; Y.R., supra, 9 Cal.App.5th at p. 985, fn. 16.) There are no specific facts or findings cited as to what mother’s housing circumstances are or how a deviation from the guideline amount given those circumstances is in the child’s best interests. (See Y.R., at p. 985, fn. 16; see also Rojas, supra, 50 Cal.App.4th at pp. 1450-1451.) We thus have no way of knowing whether appropriate consideration was given to whether the guideline result should be varied under the circumstances of this case. (In re Marriage of Hall (2000) 81 Cal.App.4th 313, 319-320.)

We conclude that the trial court’s child support order must be reversed and remanded to allow the trial court to make the required findings. And, while we must reverse and remand this matter for the required information under section 4056, subdivision (a), we are not suggesting the support order is otherwise defective or unsupported by substantial evidence. (See, e.g., § 4057, subd. (b)(1).)

D. Retroactive modification of child support

Mother asserts the trial court “exceeded its jurisdiction” in the April 25, 2019 order by retroactively modifying “child support arrearages.” We disagree.

“[A] trial court lacks jurisdiction to retroactively modify a temporary support order to any date earlier than the date on which a proper pleading seeking modification of such order is filed [citation], unless the trial court expressly reserves jurisdiction to amend the support order such that the parties’ clear expectation is the original support award is not final.” (In re Marriage of Spector (2018) 24 Cal.App.5th 201, 210.)

As discussed previously, in the July 24, 2017 stipulation and order, the trial court expressly reserved jurisdiction to modify child support retroactive to May 1, 2017, with the parties’ mutual consent. As a result, the January 7, 2016 order for child support, the operative order in July 2017, was “not fully dispositive of the rights of the parties with respect to the amount of support to be awarded . . . , and therefore did not constitute [a] final support order[ ]” as to the time period from May 1, 2017, to the final hearing on child support on March 26, 2019. (In re Marriage of Freitas (2012) 209 Cal.App.4th 1059, 1074-1075.) Therefore, the trial court’s April 25, 2019 order modifying child support retroactive to May 1, 2017, was within its jurisdiction.

E. Statutory interest

Mother also contends the trial court erred by failing to “order the statutorily required interest for child support arrearages.” We disagree.

Section 4722 provides: “(a) Any person with a court order for child support, the payments on which are more than 30 days in arrears, may file and then serve a notice of delinquency, as described in this chapter.

“(b) Except as provided in Section 4726, and subject to Section 4727, any amount of child support specified in a notice of delinquency that remains unpaid for more than 30 days after the notice of delinquency has been filed and served shall incur a penalty of 6 percent of the delinquent payment for each month that it remains unpaid, up to a maximum of 72 percent of the unpaid balance due.” (§ 4722, italics added; see also In re Marriage of Hubner (2004) 124 Cal.App.4th 1082, 1087-1088 [father served with notice of delinquency, statutory interest accrued].)

According to the clear language of the statute, without a notice of delinquency, statutory interest will not accrue. There is no evidence in the record that mother ever filed and served father with a notice of delinquency regarding unpaid child support. As a result, the trial court correctly did not impose interest on the amount of child support owed.

F. Discretionary add-ons to guideline child support

Mother asserts the trial court either exceeded its jurisdiction or abused its discretion (she argues both) when it ordered her to reimburse father for “ ‘her share’ ” of supervised exchange costs and the child’s counseling, and categorized those expenses as child support “add-ons.” She also asserts there was insufficient evidence to support father’s claimed expenses. Each of her claims lack merit.

First, any contention that there was insufficient evidence to support the amount father paid for the child’s counseling and supervised exchanges fails on this record. (Allen v. Toten, supra, 172 Cal.App.3d at p. 1082.) Without a reporter’s transcript, we must presume there was sufficient evidence to support the trial court’s finding. (Ehrler, supra, 126 Cal.App.3d at p. 154.)

Second, “[s]ection 4062 ‘makes discretionary (“the court may order”) additional child support for educational or special needs of a child or for travel expenses for visitation. Among the family law bench and bar, these are usually referred to as . . . discretionary add-ons.’ [Citation.] ‘The amounts in Section 4062, if ordered to be paid, shall be considered additional support for the child[ ] and shall be computed in accordance with the following: [¶] (a) If there needs to be an apportionment of expenses pursuant to Section 4062, the expenses shall be divided one-half to each parent, unless either parent requests a different apportionment pursuant to subdivision (b) and presents documentation which demonstrates that a different apportionment would be more appropriate.’ ” (In re Marriage of Schlafly (2007) 149 Cal.App.4th 747, 760, italics omitted.)

Here, the trial court ordered supervised exchanges of the minor child, along with counseling (the frequency and manner of which were to be set by the child’s counselor). Mother cites no authority, and makes no cogent argument, to support her position that a child’s need for supervised exchanges and counseling do not qualify as a “special need,” the cost of which fall within the court’s broad discretion to include as discretionary add-ons to guideline child support. Indeed, we conclude they fall squarely within that discretion. (See, e.g., In re Marriage of Schlafly, supra, 149 Cal.App.4th at pp. 760-761 [extracurricular activities fall within court’s broad discretion to include as an educational need].)

DISPOSITION

The order is reversed and remanded in accordance with this opinion with directions that the trial court comply with section 4056, subdivision (a). The parties to bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3), (5).)

KRAUSE , J.

We concur:

RAYE , P. J.

BLEASE , J.

Filed 10/30/20 Marriage of Franecke and Melkonian CA1/4

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

FIRST APPELLATE DISTRICT

DIVISION FOUR

In re the Marriage of LOUIS FRANECKE and RITA MELKONIAN.
LOUIS S. FRANECKE,

Respondent,

v.

RITA MELKONIAN,

Appellant.

A159776

(Marin County

Super. Ct. No. FL1400242)

Rita Melkonian (Melkonian) appeals from the trial court’s denial without prejudice of her request for attorney fees incurred in a prior appeal as sanctions under Family Code section 271 and as need-based fees under section 2030. We dismiss her appeal of the section 271 ruling because a judgment has not been entered below following our prior remand, and the order denying her sanctions request without prejudice is not appealable. We reverse the trial court’s collateral order denying Melkonian’s request for pendente lite need-based attorney fees, however, and remand the matter for the trial court to exercise its discretion pursuant to the factors under sections 2030 and 2032.

BACKGROUND

In a prior appeal, this court affirmed a May 2017 judgment on reserved issues in this marital dissolution action in most respects, but we reversed the judgment in part, finding that the trial court erred in ruling that Louis Franecke (Franecke) waived his right to separate property contributions to the parties’ community property residence under section 2640. (In re Marriage of Franecke (June 28, 2019, A151670) [nonpub. opn.].) We remanded for the trial court to determine whether Franecke met his burden of proof on his claimed separate property contributions and instructed the trial court to award him any property he was owed under section 2640. Our remittitur issued August 29, 2019.

The trial court held an evidentiary hearing on the remanded matter on December 5, 2019. On December 23, 2019, the court filed and served an order after hearing on remand, finding that Franecke had not established his entitlement to reimbursement under section 2640 and denying his claims. Franecke moved for reconsideration or to vacate this order, apparently under Code of Civil Procedure sections 1008 and 473 , and the court denied his motion on March 11, 2020.

Prior to the trial court’s hearing and order on the remanded issue, Melkonian filed a Request For Order seeking sanctions and need-based attorney fees under sections 271 and 2030 for fees she incurred in A151670 and for fees related to trial court litigation arising from a tax issue following the sale of the parties’ community property residence. After a hearing, on January 8, 2020, the trial court granted part of Melkonian’s request for attorney fees and sanctions with respect to litigation over the tax issue, but it denied without prejudice her request for appellate attorney’s fees and sanctions.

Regarding the request for appellate attorney fees and sanctions, the trial court stated, “Before analyzing Wife’s request according to the standards set forth in FC §§271 and 2030, the court will clarify what is not before it on this RFO. [¶] With respect to the request for appellate fees, although Mr. Thorndal [Melkonian’s counsel] states that he requests fees only for post-judgment trial court proceedings, in his declaration he seems to be requesting fees (in the sum of $55,870) for his efforts in the appellate court with respect to Petitioner/Husband’s first appeal from this court’s judgment (see Exhibit A to Thorndal declaration). Mr. Thorndal also stated that he would be back in this court, seeking more fees, after the remanded issue was finalized. [¶] At oral argument, Wife stated that her request included Mr. Thorndal’s fees for his work on Court of Appeal case number A151670. [¶] A151670 is not over. Mr. Thorndal has been paid for his efforts to date in A151670. The court will deal with the issue of fees in connection with that appeal when it is over. This portion of Wife’s fee request is denied without prejudice.” Regarding Melkonian’s request for other need-based attorney fees, the court found that neither party had been candid about their income or provided all of the required documentation. Nonetheless, based on the information provided, the court determined that Franecke had a somewhat greater ability to pay attorney fees than Melkonian, enhanced by his ability to represent himself as an attorney. It ordered that Franecke pay $6,000 in section 2030 attorney fees and $5,000 in section 271 sanctions.

Melkonian filed a notice of appeal from this order on March 4, 2020.

DISCUSSION

Melkonian argues that the trial court erred in denying without prejudice her request for appellate attorney fees under sections 2030 and 271. She first contends that the court’s ruling effectively barred her from seeking such fees, as she believes a renewed motion would be time-barred. She also asserts that the trial court committed reversible error in failing to exercise its discretion and consider the requisite factors under section 2030 when it denied her request for need-based appellate attorney fees. We dismiss her challenge to the trial court’s section 271 ruling because it is not appealable, but we find merit in her section 2030 argument.

I. Appealability
II.
We first address appealability. (West v. Arent Fox LLP (2015) 237 Cal.App.4th 1065, 1069.) The existence of an appealable order or judgment is a jurisdictional prerequisite to an appeal. (Canandaigua Wine Co., Inc. v. County of Madera (2009) 177 Cal.App.4th 298, 302.) If the judgment or order is not appealable, the appeal must be dismissed. (Ibid.) Melkonian’s notice of appeal indicates an appeal under Code of Civil Procedure section 904.1, subdivision (a)(3)–(13), and, in her brief, she argues that the trial court’s order denying her request for sanctions and need-based attorney fees is appealable under Code of Civil Procedure section 904.1, subdivision (a)(2); Franecke addresses appealability only in the title page of his brief, noting that this appeal is from a postjudgment order. As explained below, we find that only part of the trial court’s January 8, 2020 order is appealable.

To take an appeal from an order made after an appealable judgment, there must first be an appealable judgment. (Code Civ. Proc., § 904.1, subd. (a)(1), (2).) Our partial reversal of the May 2017 judgment and remand for further proceedings left no final judgment disposing of all the reserved issues between the parties in this case. The record contains the December 23, 2019 “Order After Hearing on Remand,” but no further judgment. The January 8, 2020 order at issue thus is not appealable under Code of Civil Procedure section 904.1, subdivision (a)(2).

The court’s order with respect to sanctions under section 271 is similarly not appealable under other statutory provisions. Melkonian’s notice of appeal indicates an appeal from an order under Code of Civil Procedure section 904.1, subdivision (a)(3)–(13), which identifies specific appealable interlocutory orders and judgments, but she is mistaken with respect to appealability under this statute. Under subdivisions (a)(11) and (12) of the statute, a party may appeal from an interlocutory judgment or order directing the payment of sanctions in excess of $5,000, but this provision does not apply to the denial of sanctions. (See Wells Properties v. Popkin (1992) 9 Cal.App.4th 1053, 1055 [“[Former section] 904.1, subdivision (k) permits a party to appeal a judgment or an order directing it to pay monetary sanctions in excess of $750. [Citation.] However, denial of a motion for sanctions is not a judgment and is therefore not appealable”].) Melkonian does not identify any exception to the one final judgment rule that applies to the order denying her motion for sanctions. (See Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 21 [one final judgment rule is “a fundamental principle of appellate practice that prohibits review of intermediate rulings by appeal until final resolution of the case”].)

The court’s denial without prejudice of Melkonian’s section 271 request for sanctions also precludes appeal under the collateral order doctrine because it was not a final determination of her rights regarding such sanctions. (In re Marriage of Skelley (1976) 18 Cal.3d 365, 368 (Skelley) [among other requirements, for the collateral order doctrine to apply, the order must be dispositive of the parties’ rights in relation to the collateral matter].) The timing of an award of section 271 sanctions is left to the trial court’s discretion, and these sanctions may be awarded during or at the conclusion of the litigation. (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2017) ¶ 14:265a; Niko v. Foreman (2006) 144 Cal.App.4th 344, 369 [noting that sanctions under section 271 are ordinarily imposed at the end of the litigation when the extent and severity of the party’s bad conduct can be judged]; George v. Shams-Shirazi (2020) 45 Cal.App.5th 134, 141 [“Courts have broad flexibility to award sanctions under section 271 during the course of litigation to address uncooperative behavior between the parties or ‘at the end of the lawsuit, “when the extent and severity of the party’s bad conduct can be judged” ’ ”].) As the trial court exercised its discretion to address Melkonian’s sanctions request at the end of the litigation, its order was not final on this issue.

Nor are there extraordinary circumstances justifying treatment of the trial court’s ruling on the section 271 sanctions issue as a writ petition. (H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1366–1367 [an appellate court has discretion to treat a purported appeal from a nonappealable order as a petition for writ of mandate in unusual and extraordinary circumstances].) No time bar precludes Melkonian from obtaining the final ruling on her motion for sanctions that the trial court expressly stated it would render. We did not merely affirm the judgment in A151670, but instead reversed the judgment in part and remanded for further proceedings that would entail entry of a new judgment memorializing the trial court’s decision regarding Franecke’s entitlement to separate property contributions under section 2640. California Rules of Court, rule 3.1702(b)(1) thus governs Melkonian’s claim for appellate attorney fees from A151670. (Yuba Cypress Housing Partners, Ltd. v. Area Developers (2002) 98 Cal.App.4th 1077, 1085 [where the appellate court reverses a judgment and remands the matter for further proceedings entailing the entry of a new judgment, rule 3.1702(b)(1) applies to the appellate attorney fees requested; rule 3.1702(c)(1) applies where the appellate court simply affirms the judgment without remanding the matter for further proceedings].) Under rule 3.1702(b)(1), absent extensions under rule 8.108, a motion to claim attorney fees for services up to and including the entry of judgment, including attorney fees on an appeal before the rendition of judgment, must be filed by the earliest of: (1) 60 days after service of a file-endorsed copy of the judgment; (2) 60 days after service of notice of entry of the judgment; or (3) 180 days after entry of the judgment. Rule 3.1702(b)(1) sets an outside time limit (see Carpenter v. Jack in the Box Corp. (2007) 151 Cal.App.4th 454, 468) that has not begun to run in this case because it appears the trial court has not yet entered a new judgment after the post-remand proceedings.

In contrast, with respect to the trial court’s order regarding pendente lite need-based attorney fees, cases have recognized that orders as to pendente lite attorney fees, including those denying such fees, constitute appealable collateral orders. (Askew v. Askew (1994) 22 Cal.App.4th 942, 964, fn. 37 [stating a denial of a pendente lite attorney fee request made under former Civ. Code, § 4370, subd. (a), now § 2030, subd. (a), is appealable]; Skelley, supra, 18 Cal.3d at p. 369 [finding an order reducing temporary spousal support and denying attorney fees constitutes an appealable collateral order]; Lester v. Lennane (2000) 84 Cal.App.4th 536, 564 [stating in dicta that “where a motion for attorney fees has been denied, the moving party has in effect been directed to pay his or her own fees. Thus, temporary support and attorney fee orders, whether granting or denying relief, meet the Sjoberg [v. Hastorf (1948) 33 Cal.2d 116 collateral order] test”]; In re Marriage of Weiss (1996) 42 Cal.App.4th 106, 110, 119 [finding appeal untimely because order awarding pendente lite attorney fees was immediately appealable]; cf. In re Marriage of Hatch (1985) 169 Cal.App.3d 1213 (Hatch) [addressing an appeal from denial of a pendente lite attorney fees request under section 2030’s predecessor without discussing appealability].) In effect, Melkonian made a pendente lite request for need-based attorney fees under section 2030, the court denied this request within the 15 days required by section 2031, subdivision (a)(2), and the court conclusively indicated that it would not entertain further pendente lite requests with respect to the appeal and the remanded issue being litigated. Because the Family Code affords a party the right to seek pendente lite need-based attorney fees (§§ 2030–2032), requires the court to consider certain factors in deciding that request (§ 2030, subd. (a)(2)) and mandates an award of fees if the court finds a disparity in access and ability to pay (ibid.), this part of the court’s order denying need-based pendente lite attorney fees is sufficiently final to constitute an appealable collateral order.

III. Attorney Fees under Section 2030
IV.
“The purpose of an attorney fees award in a marital dissolution proceeding is to provide, as necessary, one of the parties with funds adequate to properly litigate the matter.” (In re Marriage of Bendetti (2013) 214 Cal.App.4th 863, 868.) “When a request for attorney’s fees and costs is made, the court shall make findings on whether an award of attorney’s fees and costs under this section is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties. If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney’s fees and costs.” (§ 2030, subd. (a)(2).) Section 2032, subdivision (a), further provides that the court may make an award of attorney fees under section 2030 “where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties.” Factors considered in determining what is “just and reasonable under the relative circumstances” include, to the extent relevant, those enumerated in section 4320 for determining spousal support. (§ 2032, subd. (b).)

The court may award attorney fees for services rendered “before or after the commencement of the [marriage dissolution] proceeding.” (§ 2030, subd. (b).) The court may also “augment or modify” an award for attorney fees “as may be reasonably necessary for the prosecution or defense of the proceeding, or any proceeding related thereto, including after any appeal has been concluded.” (§ 2030, subd. (c).)

A court has considerable latitude in granting or denying a pendente lite attorney fees request in family law cases, but it must render a decision on these attorney fees requests within 15 days of the hearing (§ 2031, subd. (a)(2)), and its decision must reflect consideration of the appropriate factors. (Hatch, supra, 169 Cal.App.3d at pp. 1218–1219 [interpreting section 2030’s predecessor, former section 4370].) Thus, where a court denies a request for pendente lite need-based attorney fees solely because of a policy of not awarding fees until the conclusion of litigation, such denial constitutes an abuse of discretion. (Id. at p. 1220 [addressing denial at the outset of litigation].) We review an order under section 2030 for abuse of discretion. (In re Marriage of Smith (2015) 242 Cal.App.4th 529, 532.)

Melkonian argues that the trial court did not consider the appropriate factors in denying her request for pendente lite need-based appellate attorney fees, instead stating it would not award attorney fees until the conclusion of the litigation. She is correct. The trial court’s denial without prejudice resulted in a denial of Melkonian’s request for appellate attorney fees pendente lite without consideration of the required statutory factors. It is true that an award of need-based fees is limited to an amount reasonably necessary to maintain or defend the proceeding. (§ 2030, subd. (a)(1).) Here, however, the trial court did not deny appellate attorney fees because they were not reasonably necessary to the conduct of the litigation; it did so because it elected not to award these fees until the end of the litigation. Indeed, the court expressly stated that it was rendering its denial “[b]efore analyzing [Melkonian’s] request according to the standards set forth in [section] 2030[.]” The court’s error lies in denying Melkonian’s request for pendente lite appellate attorney fees without considering the factors relevant to a section 2030 determination.

V. Appellate Sanctions
VI.
Franecke seeks sanctions against Melkonian for a frivolous appeal. We may find an appeal frivolous “when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) Melkonian’s prosecution of this appeal does not warrant sanctions.

DISPOSITION

Melkonian’s appeal of the trial court’s ruling on her section 271 sanctions request is dismissed. The trial court’s order denying Melkonian’s request for need-based appellate attorney fees for A151670 is reversed and remanded to the trial court to exercise its discretion considering the factors under sections 2030 and 2032. The parties shall bear their own costs on appeal.

_________________________

BROWN, J.

WE CONCUR:

_________________________

STREETER, ACTING P. J.

_________________________

TUCHER, J.

Franecke v. Melkonian (A159776)

Filed 10/30/20 Lo v. JSL Plaza Puente Hills, LLC CA2/1

NOT TO BE PUBLISHED IN THE 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

SECOND APPELLATE DISTRICT

DIVISION ONE

DAVID LO,

Plaintiff and Appellant,

v.

JSL PLAZA PUENTE HILLS, LLC,

Defendant and Respondent.

B294527

(Los Angeles County

Super. Ct. No. 676149)

JSL PLAZA PUENTE HILLS, LLC,

Cross-complainant and Respondent,

v.

DAVID LO et al.,

Cross-defendants and Appellants.

APPEAL from judgment and order of the Superior Court of Los Angeles County, Samantha P. Jessner, Judge. Dismissed.

Law Office of Ronald G. Kim and Ronald G. Kim for Plaintiff, Cross-defendant and Appellant David Lo and Cross-defendant and Appellant Hyo Sue Lo.

Raisin & Kavcioglu, Aren Kavcioglu and Harold Jung for Defendant, Cross-complainant and Respondent JSL Plaza Puente Hills, LLC.

___________________________

Before trial, appellants David Lo and Hyo Sue Lo (the Los) and respondent JSL Puente Hills Plaza LLC (JSL) executed a stipulation waiving their respective rights to an appeal in this action. The Los nevertheless purport to appeal from the judgment in this action, as well as an order denying their motion for a new trial. The Los admit they signed the stipulation, but argue that their attorney misrepresented the significance of what they were signing, and that the waiver therefore does not bind them. For reasons we discuss in more detail below, we disagree and, accordingly, grant JSL’s motion to dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

A. Underlying Dispute and Lawsuit

The lawsuit underlying this appeal involves a commercial lease of part of a shopping center owned by JSL. JSL originally leased space in its shopping center to Ying Chi Chen (Chen) on terms set forth in a written lease set to expire on September 30, 2017. At trial, JSL offered into evidence a February 29, 2016 document entitled “assignment and assumption of lease and consent of lessor” (capitalization omitted), which purported to assign Chen’s lease to the Los and extend the period of the lease through September 2027. The document appears to be signed and initialed by the Los. The Los paid JSL rent through September 2017, but vacated the premises on October 1, 2017 and made no further rental payments thereafter. Although the term of the lease under the assignment did not end for another 10 years, the Los claimed they never signed the assignment.

David Lo subsequently sued JSL, seeking a declaration that the assignment was void because the Los had never executed the document. JSL filed a cross-complaint against the Los for breach of contract seeking unpaid rent for the remainder of the lease term.

B. Stipulation Regarding Court Reporter and Right to Appeal

On August 15, 2018, the parties executed two stipulations during a pretrial appearance before the court. First, counsel for both parties executed and presented to the court a written stipulation agreeing to proceed without a court reporter and waiving the right to appeal on behalf of their respective clients. The court requested that counsel obtain a written agreement from their clients as well. In response, Jaime Kim, the Los’ attorney at the time, prepared a handwritten stipulation bearing the title, at the top of the first page of the two page document, “[s]tipulation to waive right to appeal.” As filed, the document provides as follows: “[The Los and JSL] stipulate [and] waive his/her/their right to appeal the [j]udgment arising in and from this action. [¶] Therefore, all parties stipulate to proceed with trial without [the] presence of a court reporter. [¶] Mr. David Lo and Mrs. Hyo Sue Lo was explained of [sic] this matter [b]y their attorney, Jaime Kim, in the Korean language. [JSL] did not need an interpreter. David Lo and Hyo Sue Lo were also explained of [sic] the stipulation by the court certified Korean/English interpreter, Ms. Aeryoung Chi Kim.” It is undisputed that both parties and their counsel signed this stipulation at the courthouse and presented it to the court.

C. Judgment and Motion for New Trial

Trial commenced later that same day, at the conclusion of which the court found in JSL’s favor on all claims and awarded JSL damages and attorney fees. The court rejected the Los’ contention that “[JSL] had inserted the ‘ten-year’ clause into the lease agreement,” as there was “substantial evidence to the contrary” and both “[the Los] and their witnesses lacked credibility.”

The Los secured new counsel and moved for a new trial on the basis that their trial counsel, Jamie Kim, had engaged in misconduct of various types. Specifically, they argued that (1) when questioning Chen as a witness at trial, Kim failed to follow a script she had rehearsed with Chen, causing Chen, who claimed to have limited spoken English language skills, to become confused; and (2) Kim misrepresented to the court that the Los had waived their right to a court reporter and their right to appeal, when, in fact, the Los had not done so.

The Los supported these arguments with declarations from the Los themselves, as well as declarations from Chen and another of the Los’ trial witnesses, Jimmy Chao. Chen and Chao claimed to have witnessed the execution of the August 15, 2018 stipulation at the courthouse. All four declarations set forth—using the same wording—the following version of events: In the courthouse hallway, Jamie Kim had presented a blank sheet of paper to the Los and told them they had to sign it in order to waive their right to a court reporter; Kim did not translate the contents of the stipulation for the Los, did not secure a translation via an interpreter, and did not explain that the document also waived the Los’ right to appeal.

At the hearing on the motion, the court stated that “[t]here was a translated and interpreted waiver of appeal. I watched it with my own eyes.” The court also questioned the necessity of a translation in any event, given that the Los had testified in English. The court did not, however, make any express factual finding regarding the circumstances under which the stipulation was executed, nor did it base its order regarding the Los’ new trial motion on any assessment of the evidence in this regard. Rather, the court generally noted that the Los, Chao, and Chen all had not been credible witnesses at trial, but denied the motion on the separate basis that the type of attorney conduct described in the Los’ motion did not provide grounds for a new trial under Code of Civil Procedure section 657 in any event. The court also noted that the motion was not supported by any evidence suggesting that the Los would have obtained a better result, absent the alleged actions of attorney Kim.

The Los filed a notice of appeal of the judgment, the award of attorney fees contained therein, and the order denying the motion for new trial. JSL filed a motion to dismiss the appeal, based on the parties’ August 15, 2018 stipulation and JSL’s argument that the Los’ appeal is frivolous. We address only the first issue, as we conclude that the parties’ stipulation bars the Los’ appeal.

DISCUSSION

We need not resolve the parties’ factual dispute regarding the circumstances under which the parties executed the stipulation in order to grant JSL’s motion to dismiss, because even assuming the Los’ proposed version of events is true, it would not void the stipulation.

“It is well-settled that a party may expressly waive its right to appeal subject to only a few conditions:” (1) “The attorney must have the authority to waive a party’s right to appeal”; (2) “The waiver must be express and not implied”; and (3) “The waiver must not have been improperly coerced by the trial judge.” (McConnell v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1985) 176 Cal.App.3d 480, 488; see Shepard-Branom v. Diamond (2019) 39 Cal.App.5th Supp. 1, 9 [same].)

Here, authority is not in dispute, as the Los admit they themselves signed the document. Nor can there be any dispute that the waiver the stipulation contains is express and explicit: The document provides that the Los and JSL “[s]tipulate [and] waive his/her/their right to appeal the [j]udgment arising in and from this action,” and is also entitled “[s]tipulation to waive right to appeal.” (See Pratt v. Gursey, Schneider & Co. (2000) 80 Cal.App.4th 1105, 1112; id. at p. 1107 [arbitration agreement stating “ ‘the right to appeal from the arbitrator’s award or any judgment thereby entered or any order made is expressly waived’ ” was sufficiently clear to dismiss appeal from judgment confirming an arbitration award]; cf. Reisman v. Shahverdian (1984) 153 Cal.App.3d 1074, 1089; id. at pp. 1082–1083 [language in arbitration agreement stating “no appeal or further proceeding” after the award “w[ould] be possible” was insufficiently specific to waive right to appeal order confirming arbitration award].)

As to the third condition, the Los do not suggest (nor does the record support) that the trial judge coerced them to sign the stipulation (nor, for that matter, that JSL did so). All conditions for an enforceable waiver of the right to appeal are thus met, even if we accept the Los’ description of the circumstances under which the stipulation was executed.

The Los nevertheless contend that they cannot be bound by the stipulation, because all they signed was a blank piece of paper, which their attorney led them to believe would waive only their right to a court reporter, not an appeal. We are not persuaded.

“ ‘[A] stipulation or consent judgment, being regarded as a contract between the parties, must be construed as any other contract.’ ” (Lanyi v. Goldblum (1986) 177 Cal.App.3d 181, 184, fn. 3, quoting Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 263.) “[O]ne who assents to a contract is bound by its provisions and cannot complain of unfamiliarity with the language of the instrument.” (Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 710; Marin Storage & Trucking, Inc. v. Benco Contracting & Engineering, Inc. (2001) 89 Cal.App.4th 1042, 1049 (Marin Storage) [“ordinarily one who signs an instrument which on its face is a contract is deemed to assent to all its terms”].) “A party cannot avoid the terms of a contract on the ground that he or she failed to read it before signing.” (Marin Storage, supra, at p. 1049; Mission Viejo Emergency Medical Associates v. Beta Healthcare Group (2011) 197 Cal.App.4th 1146, 1156 [“[f]ailing to read a [contract] (or its table of contents) is not sufficient reason to hold a clear and conspicuous [contract] provision unenforceable”].) Even where there is a language barrier, it is the responsibility of a contracting party to understand what she is signing. (Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 163 [“[i]f [the contracting party] cannot read [English], he should have it read or explained to him”], quoting 1 Witkin, Summary of Cal. Law (9th ed. 1987) § 120, p. 145.)

What attorney Kim may have said to the Los regarding the future contents of the blank document they say they signed does not lessen the applicability of these general rules to the stipulation here. The Los claim they signed a document without first assuring they understood what was written on it—indeed, before anything was written on it at all—because attorney Kim led them to misunderstand what they were signing. But it is only when a party misunderstands the nature of what he signs “without negligence on his part” that such a lack of understanding will affect the validity of the resulting document. (C.I.T. Corp. v. Panac (1944) 25 Cal.2d 547, 549 (C.I.T.), quoting 1 Williston on Contracts (3d ed. 1957) § 95A, italics added.) One who—like the Los claim to have done—“ ‘in the absence of extenuating circumstances, relies without investigation of his own on the representations of the person at whose request he signs is guilty of negligence.’ ” (C.I.T. Corp., supra, at pp. 549–550, quoting 1 Williston on Contracts (3d ed. 1957) § 1488.) Thus, even if attorney Kim misrepresented to the Los what she planned to write on the document after they signed, the Los nevertheless freely chose to sign something without first reviewing its contents for themselves, and cannot use that misrepresentation as a basis to avoid the contract their signatures created. (See Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 419–420 [“fraud does not render a written contract void where the defrauded party had a reasonable opportunity to discover the real terms of the contract”].)

DISPOSITION

The appeal is dismissed. Respondent is awarded its costs on appeal.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

BENDIX, J.

SINANIAN, J.*

Case Number: EC067716 Hearing Date: November 03, 2020 Dept: A

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Chou v Suen

Motion for Summary Judgment;

Motion for Order Permitting Financial Discovery

Calendar:

Case No.:

EC067716

Hearing Date:

November 3, 2020

Action Filed:

January 30, 2018

Trial Date:

Not Set

Motion for Summary Judgment

MP:

Plaintiff Lily Chou

RP:

Defendants Vitus F. Suen; Virginia Suen; Patrick Suen; Jeffrey Suen; Andrew Suen; Yuk Ling Chow; Del Mar Gardens LLC

Motion for Order Permitting Financial Discovery

MP:

Plaintiff Lily Chou

RP:

Defendants Vitus F. Suen; Virginia Suen; Patrick Suen; Jeffrey Suen; Andrew Suen; Yuk Ling Chow; Del Mar Gardens LLC

Material added following October 30, 2020 is in bold underlined.

ALLEGATIONS:

The instant action arises from an alleged investment agreement by Plaintiff Lily Chou (“Plaintiff”) with Defendants Vitus F. Suen (“Vitus”), Virginia Suen (“Virginia”), Patrick Suen (“Patrick”), Andrew Suen (“Andrew”), Jeffrey Suen (“Jeffrey”), Yuk Ling Chow (“Yuk”), and the resulting business Del Mar Gardens, LLC (“DMG”) and collectively the “Defendants”) for the purchase and management of real properties 8356, 8360, 8362, and 8364 Sheffield Road, San Gabriel, CA (the “Properties”). Plaintiff alleges that under the operating agreement, the members were required to make initial capital contributions, where Plaintiff made a $112,500 contribution and held a 12.5% interest in Del Mar. Plaintiff alleges that they bought the Properties and then resold it, but that she was given less than 12.5% of the net sale proceeds.

The original Complaint was filed on January 30, 2018, and the First Amended Complaint (“FAC”) was filed May 09, 2018, alleging causes of action sounding in (1) Breach of Fiduciary Duty; (2) Constructive Fraud; (3) Breach of Contract; (4) Negligence; (5) Tortious Interference with Contract; (6) Defamation; and (7) Accounting.

On June 15, 2018, Cross-Complainants Vitus F. Suen, Virginia Suen, Patrick Suen, Andrew Suen, Jeffrey Suen, Yuk Ling Chow, and Del Mar filed a Cross-Complaint (“XC”) against Cross-Defendants Lily Chou, Angela Yu, Stephen Hu (individually and d/b/a J.J. Stephens Real Estate Professionals), and Shau Tang Chen (the “Cross-Defendants”). The XC alleged causes of action sounding in (1) Breach of Written Contract; (2) Breach of the Covenant of Good Faith and Fair Dealing; (3) Breach of Fiduciary Duty; (4) Fraud; (5) Breach of Oral Contract; (6) Constructive Fraud; (7) Breach of Fiduciary Duty; (8) Constructive Fraud; (9) Conspiracy; and (10) Declaratory Relief. Following a demurrer, where the court overruled the pleading on the First, Third, Fourth, Fifth, Sixth, Ninth and Tenth Causes of Action, and sustained on the Second Cause of Action, Cross-Complainants did not file an amended XC.

PRESENTATION:

Plaintiff filed her motion for summary judgment on November 22, 2019, with the original hearing date set for April 17, 2020. On March 25, 2020, in response to the COVID-19 pandemic and pursuant to the March 17, 2020, Administrative Order of the Presiding Judge, the Court continued the instant motion to May 22, 2020. Counsel for Plaintiff was informed telephonically and directed to give notice.

Plaintiff filed her motion for pretrial discovery of Defendants’ financial condition on April 14, 2020.

On April 22, 2020, and in response to the continuing pandemic conditions, the Court continued the instant matters to June 24, 2020. Counsel for Plaintiff was informed and directed to give notice, and a copy of the minute order was mailed to counsel.

On June 23, 2020, the Court continued the matters again to August 7, 2020. Counsel for Plaintiff was telephonically notified, and a copy of the minute order was mailed to counsel.

On August 06, 2020, the Court continued the matters again to October 30, 2020. Counsel for Plaintiff was telephonically notified, and a copy of the minute order was mailed to counsel.

RELIEF REQUESTED:

Plaintiff moves for summary judgment, or in the alternative, adjudication, as to the FAC on the First, Second, Third, Fourth, and Seventh Causes of Action. Additionally, Plaintiff moves for summary judgment, or in the alternative, adjudication, as to the XC, for the First, Third, Fourth, Fifth, Sixth, Ninth, and Tenth Causes of Action.

Plaintiff moves for leave to discover all Defendants’ financial conditions prior to the trial.

DISCUSSION:

Standard of Review – Summary Judgment (Plaintiff) – A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (Code Civ. Proc., §437c, subd. (a).) To prevail on a motion for summary judgment, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., §437c, subd. (c).) In other words, the opposing party cannot present contrary admissible evidence to raise a triable factual dispute.

“A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant or cross-defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(1).)

When ruling on a summary judgment motion, the trial court must consider all inferences from the evidence, even those contradicted by the moving party’s evidence. The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal. App. 4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, “the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” (Jackson v. County of Los Angeles (1997) 60 Cal. App. 4th 171, 179.)

With a summary judgment motion, a three-step analysis is required of the trial court. (AARTS Productions, Inc. v. Crocker Nat’l Bank (1986) 179 Cal. App. 3d 1061, 1064–65.) First, the trial court must identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading. (Id.) Secondly, the court must determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor. (Id.) When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. (Id.) On a plaintiff’s motion for summary judgment, the plaintiff bears the burden of persuasion that each element of the cause of action in question has been proved, and that there is no defense thereto. (Code of Civ. Proc., §437c, subd. (o)(1); Aguilar v. Atlantic Richfield Company, et al. (2001) 25 Cal. 4th 826, 850.)

Evidentiary Objections

Cross-Complainant objects to Exhibit 19 cited in Paragraph 16 of the Declaration of Samuel H. Jones, arguing that the Frank Ong’s email messages are used to prove the truth of the matters referred to in his statements. The Court sustains the instant objection.

Merits – Amended Complaint – First Cause of Action (Breach of Fiduciary Duty) – The elements of a claim for breach of fiduciary duty are (1) the existence of a fiduciary duty, (2) breach, and (3) damages proximately caused by the breach. (Stanley v. Richmond (1995) 35 Cal. App. 4th 1070, 1086.)

Plaintiff fails to establish its prima facie right to summary relief for breach of fiduciary duty. The existence of a fiduciary duty between Plaintiff and Defendants is not disputed by either party. (Response to SSUMF, ¶ 48; Decl. Chou, ¶¶ 11-16.) Plaintiff establishes that Defendants breached their fiduciary duty when they (1) failed to inform Plaintiff of the sale of the Property until it was already in escrow (Decl. Chou, ¶ 21); (2) misrepresented to Plaintiff that she would receive her claimed profit share from the sale if she signed the escrow documents and subsequently stopped payment on the issued check (Decl. Chou, ¶¶ 27-28; Exhibit 15); (3) refused to pay Plaintiff her claimed share (Decl. Chou, ¶ 29); and (4) and refused to provide an accounting despite Plaintiff’s request to do so. Plaintiff alleges damages in excess of $120,323.41 but does not specifically detail and establish how these damages were calculated. (Decl. Chou, ¶¶ 29.) Plaintiff contends she is owed $221,249.54 in profit share from the Property Sale and allegedly received a payment of $100,578, which suggests a difference of $120,671.54, but this calculation is presented by Plaintiff. (Exhibit 14.)

Even if Plaintiff established its prima facie case, Defendants dispute all four allegations of breach, creating triable and material issues on each allegation. Defendants contend (1) Yuk first notified Chou about the pending property sale in November 2017 before the sale closed. (Decl. Chou, ¶ 9.) Defendants also contend (2) Virginia initiated a stop payment for Plaintiff’s check on December 13, 2017 because she needed additional time to determine who paid contribution toward Del Mark Gardens, LLC after discovering an alleged unauthorized commission payment to broker J.J. Stephens on December 12, 2017. (MSJ Oppo., p. 11, lines 16-23.) Defendants further contend (3) Plaintiff failed to make her full monetary contribution. (MSJ Oppo., p. 5, lines 1-2.) Defendants further dispute that (4) there has been a disputed accounting request. (MSJ Oppo., p. 14, lines 21-22.)

Accordingly, Plaintiff has not met its burden to establish each element of its breach of fiduciary duty claim. The Court will deny summary judgment for the first cause of action.

Second Cause of Action (Constructive Fraud) – “Constructive fraud consists: 1. In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him; ¿or, 2. In any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud.” (Civ. Code, § 1573.) “Constructive fraud ‘arises on a breach of duty by one in a confidential or fiduciary relationship to another which induces justifiable reliance by the latter to his prejudice.’ [Citation.] Actual reliance and causation of injury must be shown. [Citation.]” (Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1131) (quoting Tyler v. Chidlren’s Home Society (1994) 29 Cal.App.4th 511, 548.) The elements of constructive fraud are “(1) a fiduciary or confidential relationship; (2) nondisclosure (breach of fiduciary duty); (3) intent to deceive, and (4) reliance and resulting injury (causation).” (Id.)

Plaintiff fails to establish a prima facie right to relief for constructive fraud. As stated above, (1) the existence of a fiduciary duty between Plaintiff and Defendants is not disputed by either party. (Response to SSUMF, ¶ 48; Decl. Chou, ¶¶ 11-16.) Plaintiff also establishes that (2) Defendants failed to inform Plaintiff of the sale of the Property until it was already in escrow (Decl. Chou, ¶ 21) but fails to (3) establish facts supporting Defendants’ intent to deceive. Plaintiff does allege that Defendants falsely claimed an oral settlement is reached in an effort to settle the dispute, but does not contend this allegedly false claim was intended to deceive Plaintiff. (MSJ, p. 13, lines 5-7.)

Accordingly, Plaintiff has not met its burden to establish each element of its constructive fraud claim. The Court will deny summary judgment for the second cause of action.

Third Cause of Action (Breach of Contract) – To plead breach of contract, the Plaintiff must allege (1) the existence of a contract, (2) Plaintiff’s performance or excuse for non-performance, (3) Defendant’s breach, and (4) resulting damage to Plaintiff. (Lortz v. Connell (1969) 273 Cal. App. 2d 286, 290.) Contracts may be written or oral, except when specified by law such as contracts falling under the statute of frauds. Civ. Code §§1622 & 1624.

Plaintiff establishes a prima facie right to relief for breach of contract by establishing that (1) a contract between Plaintiff and Defendants existed (Decl. Chou, ¶ 13), (2) Plaintiff fully performed her obligation by paying $100,000 to DMG (Id.), (3) Defendants failed to disperse Plaintiff’s claimed profit share (Id. at ¶¶ 28-29), and (4) Plaintiff suffered damages through this conduct (Ibid.)

Defendants dispute that (2) Plaintiff performed its obligation, raising a triable and material issue on this claim. Defendants allege that Plaintiff did not contribute the full $100,000 obligated under their agreement. (Decl. Virginia, ¶ 3.)

Accordingly, Defendants have met their burden to show a triable issue of material fact exists. The Court will deny summary judgment for the third cause of action.

Fourth Cause of Action (Negligence) – A complaint for damages for negligent injury to person or property must allege: (1) defendant’s legal duty of care toward plaintiff; (2) defendant’s breach of duty, i.e., the negligent act or omission; (3) injury to plaintiff as a result of the breach, i.e., proximate or legal cause; and (4) damage to plaintiff. Pultz v. Holgerson (1986) 184 Cal. App. 3d 1110, 1117.

Plaintiff fails to establish a prima facie right to relief for negligence. Plaintiff alleges that “Defendants, as members of DMG, owed Plaintiff a duty of care with respect to her pro-rata share of the Property sale proceeds” but fails to establish facts supporting this allegation. The citation for this allegation points to paragraph 58 of the SSUMF, which only numbers up to paragraph 57 and does not contain a paragraph 58.

Accordingly, Plaintiff has not met its burden to establish each element of its negligence claim. The Court will deny summary judgment for the fourth cause of action.

Seventh Cause of Action (Accounting) – “A cause of action for an accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting, and that some balance is due the plaintiff that can only be ascertained by an accounting.” (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 179.) “An action for accounting is not available where the plaintiff alleges the right to recover a sum certain or a sum that can be made certain by calculation.” Id.

Plaintiff fails to establish a prima facie right to relief for accounting. Plaintiff fails to establish facts supporting that “some balance is due the plaintiff that can only be ascertained by an accounting.” (Teselle v. McLoughlin, supra, 173 Cal.App.4th at 179.)

Accordingly, Plaintiff has not met its burden to establish each element of its accounting claim. The Court will deny summary judgment for the seventh cause of action.

Standard of Review – Summary Judgment (Cross-Defendant) – A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (Code Civ. Proc., §437c, subd. (a).) To prevail on a motion for summary judgment, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., §437c, subd. (c).) In other words, the opposing party cannot present contrary admissible evidence to raise a triable factual dispute.

“A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

When ruling on a summary judgment motion, the trial court must consider all inferences from the evidence, even those contradicted by the moving party’s evidence. The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal. App. 4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, “the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” (Jackson v. County of Los Angeles (1997) 60 Cal. App. 4th 171, 179.)

With a summary judgment motion, a three-step analysis is required of the trial court. (AARTS Productions, Inc. v. Crocker Nat’l Bank (1986) 179 Cal. App. 3d 1061, 1064–65.) First, the trial court must identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading. (Id.) Secondly, the court must determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor. (Id.) When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. (Id.) On a plaintiff’s motion for summary judgment, the plaintiff bears the burden of persuasion that each element of the cause of action in question has been proved, and that there is no defense thereto. (Code of Civ. Proc., §437c, subd. (o)(1); Aguilar v. Atlantic Richfield Company, et al. (2001) 25 Cal. 4th 826, 850.)

Merits – Statute of Limitations Affirmative Defense – The statute of limitations concerning fraudulent conduct, breach of contract, and breach of the covenant of good faith and fair dealing is four years each. (Code Civ. Proc., §§ 338, subd. (d), 337; Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205, 220.) The statute of limitations for breach of fiduciary duty is three years where arising from fraud, and up to four years otherwise. (American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1479.) The general rule in California is that a “statute of limitations begins to run when a cause of action accrues, even though the plaintiff is ignorant of the cause of action or of the identity of the wrongdoer.” (Community Cause v. Boatwright (1981) 124 Cal. App. 3d 888, 898.) Traditionally at common law, a “cause of action accrues ‘when [it] is complete with all of its elements’—those elements being wrongdoing, harm, and causation.” Pooshs, at p. 797, (quoting Norgart, at p. 397). This is the “last element” accrual rule: ordinarily, the statute of limitations runs from “the occurrence of the last element essential to the cause of action.” (Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal. 3d 176, 187; accord, Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal. 4th 809, 815; Buttram v. Owens-Corning Fiberglas Corp. (1997) 16 Cal. 4th 520, 531, fn. 4.)

“Under the ‘delayed discovery rule,’ . . . the accrual date of a cause of action is delayed until the plaintiff is aware of his or her injury and its cause. The plaintiff is charged with this awareness as of the date he or she suspects or should suspect that the injury was caused by someone’s wrongful act. The period of limitations, therefore, will begin to run when the plaintiff has a ‘suspicion of wrongdoing’; in other words, when he or she has notice of information of circumstances to put a reasonable person on inquiry.” (Brandon G. v. Gray (2003) 111 Cal. App. 4th 29, 35.)

Plaintiff (here, “Cross-Defendant”) has met its burden to establish an affirmative defense to each of Defendants’ (here, “Cross-Complainants”) claims through the statute of limitations by establishing that Cross-Complainants either suspected or were put on inquiry notice as to the wrongdoing alleged in their claim in either 2004 or 2006. Cross-Defendant establishes that: (1) Cross-Complainants received a copy of the closing statement, purchase agreement, and commission agreement with J. J. Stephens, and so were aware of all documentation regarding the DMG transaction in 2004 (Decl. Chou, ¶ 16); and (2) Virginia began managing the accounts of DMG in 2006, thus putting Cross-Complainants on notice of any financial irregularities from that date (Decl. Chou, ¶ 31). Cross-Defendant additionally alleges that Andrew Suen and Frank Ong were aware of the amount of the loan taken out, but cites the Declaration of Chou, paragraph 13, which does not support the allegation presented. Cross-Defendant contends that the statute of limitations for all actions in the XC are barred whether inquiry notice began in 2004 or 2006, as the applicable statute of limitations range from three to four years and the XC was filed in 2018. Thus, the burden shifts to Cross-Complainants to show a triable issue of material fact exists as to the statute of limitations defense.

Cross-Complainants set forth that Virginia discovered Cross-Defendant’s alleged wrongdoing in December of 2017 through documents discovered in the instant suit. (Decl. Virginia, ¶ 3.) They argue Virginia, acting as a reasonable investor, would only review title documents, the Property Profile, and purchase history on the property at the time of sale. They contend Virginia only discovered the alleged fraud underlying the XC on review of the Property Profile in preparation for sale on November of 2017. (Decl. Virginia, ¶ 27.)

Accordingly, Cross-Complainants have met their burden in demonstrating the existence of a material, triable issue as to the statute of limitations affirmative defense.

First and Fifth Causes of Action (Breach of Written and Oral Contract) – To plead breach of contract, the Plaintiff must allege (1) the existence of a contract, (2) Plaintiff’s performance or excuse for non-performance, (3) Defendant’s breach, and (4) resulting damage to Plaintiff. (Lortz v. Connell (1969) 273 Cal. App. 2d 286, 290.) As for the first element, alleging the existence of a contract has its own additional pleading and proof requirements, or elements. These are (1) parties capable of contracting, (2) their consent, (3) a lawful object, and (4) sufficient cause or consideration. Civ. Code §1550; O’Byrne v. Santa Monica-UCLA Medical Center (2001) 94 Cal. App. 4th 797, 806-807. Contracts may be written or oral, except when specified by law, such as contracts falling under the statute of frauds. Civ. Code §§ 1622 & 1624.

Cross-Defendant argues that no breach of contract occurred because no contract was yet formed at the time of alleged breach (XC, ¶¶ 15-19, 23), and Cross-Complainants suffered no damages (Decl. Jones, ¶ 16, Ex. 19). Cross-Defendant also argues that Cross-Complainants fail to show that Cross-Defendant breached the contract in failing to contribute the requisite 12.5% payment to the Property. In support of this contention, Cross-Defendant cites Frank Ong’s statement and Chow’s deposition. (Decl. Jones, ¶ 16, Ex. 19; ¶ 11, Ex. 8.)

Regarding the failure to show breach argument, Exhibit 19 is subject to a sustained objection, but in Exhibit 8, Chow stated he did not know which parties put what amounts of money into the LLC. (Decl. Jones, ¶ 11, Ex. 8, 17:2-6.) Cross-Defendant thus fulfills her burden to show that Cross-Complainants fail to support their breach of contract claim, and the burden shifts to Cross-Complainants.

In opposition, Cross-Complainants argue that Cross-Defendant breached the operating agreement but presents no evidence in support. (Oppo., 19:15-20, 20:19-24.) Cross-Complainants thus fail to meet their burden, and the Court will grant summary judgment as to the first and fifth causes of action.

Third Cause of Action (Breach of Fiduciary Duty) – The elements of a claim for breach of fiduciary duty are (1) the existence of a fiduciary duty, (2) breach, and (3) damages proximately caused by the breach. (Stanley v. Richmond (1995) 35 Cal. App. 4th 1070, 1086.)

Cross-Defendant argues she had no fiduciary duty to Cross-Complainants at the time of the alleged breach, as the parties’ only relationship then were as investors, citing paragraphs 3-13 of the Declaration of Chou. This argument does not address Cross-Complainants’ allegations that Cross-Defendant received kickbacks from an undisclosed commission relating to DMG’s purchase of real property and channeled DMG monies to Angie Yu, both allegedly occurring after the formation of DMG. (XC, ¶ 31.)

Accordingly, the Court will deny summary adjudication as to the third cause of action.

Fourth and Sixth Causes of Action (Fraud/Constructive Fraud) – Causes of action for ‘fraud’ ‘concealment’ and ‘intentional misrepresentation’ are all causes of action sounding in “deceit based on intentional misrepresentation.” (Manderville v. PCG&S Group (2007) 146 Cal. App. 4th 1486, 1498, fn. 4.) As such, “[t]o establish a claim for deceit based on intentional misrepresentation, the plaintiff must prove seven essential elements: (1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff’s reliance on the defendant’s representation was a substantial factor in causing that harm to the plaintiff.” Id. at 1498. Fraud must also be specifically pled, which means that the allegations in such an action need not be liberally construed, general pleading of the legal conclusion of fraud is insufficient, and every element of the cause of action for fraud must be alleged fully, factually and specifically. (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal. App. 3d 1324, 1331; see also Quelimane Co., Inc. v. Stewart Title Guaranty Co. (1998) 19 Cal. 4th 26, 47) (Specific to fraud is the rule of particularity in pleading; fraud is the only remaining cause of action in which specific pleading is required to enable the court to determine, on the basis of the pleadings alone, whether a foundation exists for the cause.).

The Civil Code specifies several different varieties of fraud, including “[t]he suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact.” (Civ. Code §1710.) “The elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248 (internal quotes omitted); see also Hoffman v. 162 North Wolfe LLC (2014) 228 Cal.App.4th 1178, 1185–1186, as modified on denial of reh’g (Aug. 13, 2014), review denied (Nov. 25, 2014)) (“the necessary elements of a concealment/suppression claim consist of (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud (i.e., to induce reliance); (4) justifiable reliance; and (5) resulting damage.”).

Cross-Defendant argues Cross-Complainants cannot show that it failed to make its required capital contribution (Decl. Jones, ¶ 11, Ex. 8) or tricked Cross-Complainants into believing that she was a Kotai real estate broker (Decl. Jones, ¶ 6, Ex. 3). On the misrepresentation issue, Cross-Defendant further argues that she gave her business card, which identified her association Kotai Timex Finance and Investment, Inc. and did not identify her as a broker, to Cross-Complainants, and so their belief that she was a broker with Kotai Realty, Inc. was not reasonable. (Decl. Jones, ¶ 6, Ex. 3.) Cross-Defendant thus fulfills her burden to show that the concealment element of the real estate broker fraud claim, and the damages element of the failure to contribute fraud claim, cannot be established.

In opposition, Cross-Complainants argue their fraud claims but present no evidence to support their arguments, and so fail to bear their burden to show that a triable issue of material fact exists as to each claim. The Court will thus grant summary judgment as to the fourth and sixth causes of action.

Ninth Cause of Action (Conspiracy) – In order to establish liability for an act based on a civil conspiracy theory a plaintiff must plead that the alleged conspirators (1) formed and operated a conspiracy to harm plaintiff, (2) committed a specific wrongful act or acts done pursuant to the conspiracy, and (3) plaintiff suffered damage resulting from such act or acts. See Bartley v. California Association of Realtors (1980) 115 Cal.App.3d 930, 934.

While the Court notes that a “conspiracy ‘may be inferred from the nature of the acts done, the relations of the parties, the interests of the alleged conspirators, and other circumstances,’” there need to be some allegations that the co-conspirers had an agreement, and acted with scienter in taking the acts that furthered the conspiracy. Bartley, supra, 115 Cal.App.3d at 934; and Schick v. Lerner (1987) 193 Cal. App. 3d 1321, 1328 (“In order to maintain an action against [defendant] on a theory of vicarious liability arising out of his joining an already formed conspiracy, the alleged facts must show either expressly or by reasonable inference that he had knowledge of the object and purpose of the conspiracy, that there was an agreement to injure the plaintiff, that there was a meeting of the minds on the objective and course of action, and that as a result one of the defendants committed an act that resulted in the injury.”).

Cross-Defendant argues Cross-Complainants fail to create a triable issue of fact as to the elements of conspiracy because they do not provide evidence showing Cross-Defendant failed to make her capital contribution (Depo. Chow, 14:5-20), received and concealed a kickback from DMG’s property purchase (Decl. Jones, Ex. 33), or entered into a conspiracy with anyone (Decl. Chou, ¶ 16). Cross-Defendant further argues that Cross-Complainants fail to show how they were damaged. (Decl. Jones, Ex. 19.) As to the damages argument, Exhibit 19 was subject to a sustained objection. As to the kickback argument, Exhibit 33 is a copy of the 2017 Escrow Closing Documents in which most of the accounting is illegible. The legible portion of the evidence states that a check amounting to $1,769,996.28, a closing statement, a rent statement, and a copy of a paid water bill was sent to Virginia by Jade Escrow, Inc. This evidence is not sufficient to support her argument that she did not receive a kickback from the property purchase. As to the conspiracy argument, paragraph 16 of the Declaration of Chou states only that all parties received a copy of the purchase documents and there was no concealment of such documents; Cross-Defendant does not sufficiently explain how these evidence supports her contention that she did not conspire with anyone else. As to the capital contribution argument, regarding the Deposition of Chow, the Court cannot locate a separate Deposition of Chow filing, and the Exhibit 8 deposition previously cited by Cross-Defendant does not contain a page 14. Based on earlier arguments, the Court will assume that Cross-Defendant meant to cite Exhibit 8, lines 17:2-6. (Decl. Jones, ¶ 11, Ex. 8, 17:2-6.) Despite this evidence, the conspiracy claim alleges an undisclosed commission paid to Cross-Defendant by J.J. Stephens, and so Cross-Defendant fails to bear her burden to show that one or more elements of the conspiracy claim are not met.

The Court will thus deny summary judgment as to the ninth cause of action.

Tenth Cause of Action (Declaratory Relief) – An action for declaratory relief the complaint is sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the respective parties under a contract and requests that the rights and duties be adjudged. City Of Tiburon v. Northwestern Pac. R.R. Co. (1970) 4 Cal. App. 3d 160, 170; see Code of Civ. Proc. §1060 (identifying the remedy of declaratory relief). If these requirements are met, the Court must declare the rights of the parties whether or not the facts alleged establish that the plaintiff is entitled to a favorable declaration. Declaratory relief is a broad remedy, and the rule that a complaint is to be liberally construed is particularly applicable to one for declaratory relief. The object of declaratory relief “is to afford a new form of relief where needed and not to furnish a litigant with a second cause of action for the determination of identical issues.” (See Hood v. Superior Court (1995) 33 Cal.App.4th 319, 324) (quoting General of America Ins. Co. v. Lilly (1968) 258 Cal. App. 2d 465, 470.)

Cross-Defendant argues declaratory relief is improper as the issues invoked are also invoked in other causes of action. On review of the XC, the tenth cause of action makes no new allegations, and Cross-Complainants do not dispute this argument.

Accordingly, the Court will grant summary adjudication as to the tenth cause of action.

—

Motion for Order Permitting Financial Discovery

Standard of Review – Financial Discovery – Civ. Code §3295 protects parties from having to reveal financial information to others unless and until the plaintiff “established that there is a substantial probability that the plaintiff will prevail on the claim.” Civ. Code §3295(c). “In this context, we interpret the words ‘substantial probability’ to mean ‘very likely’ or ‘a strong likelihood’ just as their plain meaning suggests. We note that the Legislature did not use the term ‘reasonable probability’ or simply ‘probability,’ which would imply a lower threshold of ‘more likely than not.’” Jabro v. Superior Court (2002) 95 Cal. App. 4th 754, 758. Moreover, the code “allows the trial court, ‘at any time,’ to enter an order permitting the discovery of a defendant’s profits and/or financial condition… [s]o long as the trial court allows the defendant sufficient time, following a determination of liability, to collect his or her financial records for presentation on the issue of the amount of such damages to be awarded, there is nothing prejudicial or unfair about using such a process to try the issue of the amount of punitive damages.” Mike Davidov Co. v. Issod (2000) 78 Cal. App. 4th 597, 609.

Merits – On review of the evidence and arguments made on motion, the Court concludes that Plaintiff has failed to establish a prima facie of success basis for her punitive damages claim. Plaintiff’s discussions on a laches affirmative defense and contention that Defendants violated a fiduciary duty toward Plaintiff are insufficient to support “a strong likelihood” that Defendants acted willfully and maliciously on this state. Other issues where Defendants have presented competing declaration and testimony include (1) precise accounting figures for the property purchase, the capital contribution of each investor, and the loan amount taken out by DMG, as each of these figures are disputed between the parties, while Defendants’ opposition brief presents even a range of figures in their own accounting; (2) what amount of capital contribution Plaintiff contributed, if any; (3) when exactly Virginia could reasonably access the documents required to put her on notice of what Defendants allege to be Plaintiff’s failure to contribute; (4) whether Defendants acted willfully, maliciously, or fraudulently when Virginia Chen placed the stop payment on Plaintiff’s check; (5) the purchase price of the Property itself and the financing amount required to purchase the Property; and (6) whether an oral agreement existed between Virginia and Plaintiff for Plaintiff to accept a reduced payment in lieu of her original claimed profit share.

Further, the Court notes that even if it were to consider Plaintiff’s argument sufficient to establish “a strong likelihood” of success, Civ. Code § 3295(c) is not a mandatory provision that obligates the Court to grant the relief requested, but a discretionary provision. As such, the Court considers that the discovery of the financial condition of Defendants should be set after a determination of liability is reached by the factfinder. Customarily this is done by giving a notice to produce on a timely basis to defendant, seeking financial records; the records are maintained in the courtroom until the underlying antecedent for punitive damages is found by the finder of fact, and then utilized for the second phase of the trial.

Accordingly, the Court will deny the motion.

—

RULING: below,

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Plaintiff Lily Chou’s Motion for Summary Judgment or Adjudication, and Motion for Leave to Discover Defendants’ Financial Condition came on regularly for hearing on October 30, 2020, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION FOR SUMMARY JUDGMENT AS TO THE COMPLAINT IS DENIED.

THE MOTION FOR SUMMARY JUDGMENT AS TO THE CROSS-COMPLAINT IS DENIED AS TO THE FIRST, THIRD, FOURTH, FIFTH, SIXTH, AND NINTH CAUSES OF ACTION; THE MOTION IS GRANTED AS TO THE TENTH CAUSE OF ACTION.

THE MOTION FOR LEAVE TO DISCOVER DEFENDANTS’ FINANCIAL CONDITION IS DENIED.

DATE: _______________ _______________________________

JUDGE

Docket (Register of Actions)
Chaker v. San Diego Superior Court
Case Number D075494

Date Description Notes

03/14/2019 Notice of appeal lodged/received. Filed 12/3/18 by Darren Chaker

03/14/2019 Application filed. Appellant’s request to file new litigation

03/14/2019 Received default notice 8.121(a) designation not filed. Dated: 1/22/19

03/14/2019 Appellant’s notice designating record on appeal filed in trial court on: 2/5/19

03/14/2019 Received default notice 8.121(a) designation not filed. Dated: 2/26/19

03/19/2019 Appellate package sent.

03/19/2019 Vexatious litigant application granted Appellant’s March 14, 2019, request for permission to appeal is GRANTED. (Code of Civ. Proc. sec. 391.7, subd. (b).) The matter will proceed in accordance with the California Rules of Court.

03/19/2019 Default notice sent-appellant notified per rule 8.100(c).

03/21/2019 Default notice received-appellant notified per rule 8.140(a)(1). 3/20/19

03/26/2019 Application for waiver of filing fee filed.

03/27/2019 Order waiving filing fee.

04/12/2019 Appeal dismissed per rule 8.140(b). Pursuant to California Rules of Court, rule 8.140, the appeal filed December 3, 2018, is DISMISSED for appellant’s failure to timely designate the record (Cal. Rules of Court, rule 8.121(a)).

05/13/2019 Motion filed. Motion to ReInstate Appeal

05/13/2019 Order filed. Appellant’s request to reinstate his appeal is GRANTED. Appellant’s appeal filed December 3, 2018, is hereby REINSTATED. The San Diego Superior Court is directed to
prepare the record on appeal as outlined in appellant’s notice designating the record on appeal. The record is due 30 days from the date of this order.

06/07/2019 Received default notice 8.121(a) designation not filed. Dated: June 6, 2019

06/11/2019 Received copy of document filed in trial court. Designation

06/11/2019 Received default notice 8.121(a) designation not filed. Dated: June 10, 2019

06/24/2019 Received copy of document filed in trial court. Appellant’s Designation

07/25/2019 RECORD ON APPEAL FILED.************ **Clerk’s Transcript-1 (31)

08/29/2019 Granted – extension of time.
APPELLANT’S OPENING BRIEF. Due on 10/03/2019 By 30 Day(s)

10/16/2019 Appellant notified re failure to timely file opening brief.

11/01/2019 Granted – extension of time. LAST EXTENSION

11/12/2019 APPELLANT’S OPENING BRIEF. Plaintiff and Appellant: Darren Chaker
Pro Per

11/12/2019 Request for judicial notice filed.

12/04/2019 Ruling on request for judicial notice deferred Appellant’s request for judicial notice filed November 12, 2019, will be considered concurrently with the appeal.

12/26/2019 Respondent notified re failure to file respondent’s brief.

01/22/2020 Case on ready list; no reply by respondent to notice re failure to file brief. Defendant and Respondent: San Diego Superior Court
Attorney: Susanne C. Washington

01/22/2020 CASE FULLY BRIEFED.

01/22/2020 Oral argument waiver notice sent. February 3, 2020
O/A letter to Appellant only – NO RB

09/18/2020 Submission order filed.

10/08/2020 Original entry stricken – sequence no. not removed. (Signed Unpublished)Opinion filed. (Rehearing Granted on 11.6.2020)

10/26/2020 Rehearing petition filed. Plaintiff and Appellant: Darren Chaker
Pro Per
10/27/2020 Filed request to publish opinion.

10/28/2020 Order filed. On October 26, 2020, appellant Darren Chaker filed a petition for rehearing (Petition). Among other claims, appellant contends this court should not have taken judicial notice of the portions of the Superior Court file which are referenced in our opinion filed on October 8, 2020. Pursuant to California Rules of Court, rule 8.268, the Court requests that respondent San Diego Superior Court file an answer addressing whether rehearing should be granted, and supplemental briefing should be obtained, solely on the issue of whether judicial notice may be taken of the Superior Court files. Respondent may also address any of the remaining issues in the Petition. The answer is due no later than 5:00 p.m., Monday, November 2, 2020. The clerk shall promptly send the parties a copy of this order and immediately notify them by email.

11/02/2020 Answer to petition filed

11/05/2020 Order denying publication filed. The request for publication of the opinion filed October 8, 2020 is denied. Dato, J., deeming himself disqualified, did not participate.

11/06/2020 Order granting rehearing petition filed. On October 26, 2020, appellant Darren Chaker filed a petition for rehearing (Petition). Among other claims, appellant contends this court should not have taken judicial notice of the portions of the Superior Court file which are referenced in our opinion filed on October 8, 2020. Pursuant to California Rules of Court, rule 8.268, the Court grants in part appellant’s Petition and orders rehearing solely on the issue of whether judicial notice may be taken of the Superior Court files referenced in the opinion.

The parties may file a supplemental brief addressing only the issue of whether judicial notice may be taken of the Superior Court files referenced in our opinion filed on October 8, 2020. Any supplemental brief must be filed and served on or before November 18, 2020 by 5:00 p.m., and shall not exceed ten pages.

If either party seeks oral argument, the party must file a request no later than five days after the deadline to file a supplemental brief.

This order vacates the decision and opinion filed on October 8, 2020. (Cal. Rules of Court, rule 8.268(d).)

The clerk shall promptly send the parties a copy of this order and immediately notify them by email.

Dato, J., deeming himself disqualified, did not participate.

11/18/2020 Granted – extension of time.

Letter brief filed. Due on 11/30/2020 By 12 Day(s)

Filed 11/12/20 Marriage of Mould CA3

NOT TO BE PUBLISHED

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

THIRD APPELLATE DISTRICT

(Yolo)

—-

In re the Marriage of SUSANNA L. and KEVIN S. MOULD. C085068

SUSANNA L. MOULD,

Appellant,

v.

KEVIN S. MOULD,

Respondent.

(Super. Ct. No. FL-12-1022 )

In this appeal, Susanna L. Mould challenges a trial court order denying her motion to set aside a judgment entered on a marital settlement agreement (MSA); to increase the spousal support obligation of her former spouse, Kevin S. Mould; and to award her attorney fees and sanctions.

In denying the motion to set aside the judgment, the trial court rejected Susanna’s duress claim. The trial court rejected Susanna’s claim she had been physically abused by Kevin. The trial court found that “[t]here is also nothing in the record to support [Susanna’s] claim that either the trial judge or the judge pro tempore pressured her into the MSA.” Instead, Susanna “was treated with respect by the trial judge at all times during the course of the proceedings.”

The trial court also rejected Susanna’s request for increased spousal support in 10 pages of detailed analysis in its statement of decision. Taking the factors enumerated in Family Code section 4320 into account, the trial court found spousal support was reasonable and declined to order an increase.

And the trial court denied Susanna’s request for need-based attorney fees after it “carefully considered the respective financial circumstances and needs of the parties and, importantly, weighed all the factors under . . . sec. 4320.” The statement of decision also denied separate requests by Kevin and Susanna for attorney fees as sanctions under section 271.

On appeal, Susanna alleges numerous instances of judicial bias and misconduct by judges on the Yolo County Superior Court. She asserts Judge Samuel T. McAdam (who ruled on the motion to set aside the judgment) engaged in judicial misconduct in discussing a confidential case file with Judge Janet Gaard (who entered judgment on the MSA). Susanna also alleges Judge McAdam intentionally violated judicial ethics by delivering documents to only one party without providing copies to the other, attempted to coerce her into dropping her duress claim, manipulated the case against her, attempted to discredit her “with stereotypes and innuendo,” and displayed “an irrational readiness to take [Kevin’s] unsupported statements at face value.”

Susanna also argues she was deprived of due process because Judge McAdam engaged in numerous acts of judicial misconduct involving her confidential file as well as coercing her into waiving her right to present evidence.

Susanna claims the trial court’s 22-page statement of decision is deficient in numerous respects and is unsupported by substantial evidence. Specifically, she argues the trial court failed to properly consider several factors set forth in section 4320 in denying her motion to modify spousal support. She also argues the trial court’s finding in support of the denial of her request for sanctions is inadequate. Fearing a continuation of “court-wide involvement in concealing” records and bias against her due to the superior court judges’ “loyalty to disfavor [her] in future proceedings,” Susanna requests that the case be remanded to a jurisdiction other than Yolo County.

After the completion of briefing, Susanna filed an “abandonment of issues and arguments related to [the] confidential file.” Consequently, we do not consider her challenges to the trial court’s order based on an assertion of judicial misconduct relating to the confidential file. As to the remaining issues, we conclude Susanna’s claims of judicial bias and misconduct are noncognizable on direct appeal insofar as she requests disqualification. For that remedy, a writ of mandate is the sole appellate vehicle. As to her claim of coercion, there is no record of objection by her attorney even though she was represented by legal counsel at the time she claims the trial court engaged in coercive conduct. There is no claim her attorney was coerced or that an objection would have been futile. Moreover, there is no prejudice because she did not actually surrender any right due to the claimed coercion. Susanna’s claim of judicial misconduct by Judge McAdam in ignoring important parts of her claim is forfeited for lack of adequate citation to the appellate record of legal citation. Susanna’s argument Judge McAdam was biased against her as a “victim of non-physical domestic violence” is refuted by the appellate record. Susanna cannot now complain the trial court considered her poor mental health and erratic behavior after she made it the centerpiece of her motion to set aside the judgment. We reject Susanna’s claim of Judge McAdam’s “predisposition” to rule in favor of Kevin as well as willingness to “manipulate” the case in his favor as unsupported by the record and noncognizable for lack of timely objection. We reject Susanna’s due process claims because she received a lengthy hearing on her motion and all of her contentions were adequately considered in the statement of decision. The trial court’s statement of decision is not deficient. Instead, the statement of decision is carefully reasoned and exhaustive in its analysis. In particular, the analysis regarding her entitlement to spousal support under section 4320 spanned 10 pages and indicated careful consideration of all the issues in contention. And the statement of decision adequately addressed the considerations required for ruling on a motion for need-based attorney fees. We further conclude Susanna does not demonstrate any error in the trial court’s denial of her request for sanctions. Accordingly, we affirm the trial court’s order.

FACTUAL AND PROCEDURAL HISTORY

The MSA

Susanna and Kevin married in 1993. The marriage produced two children. The parties separated sometime between April and June 2012. Susanna filed a petition for dissolution of marriage on June 6, 2012.

On November 3, 2014, the parties appeared in court before Judge Gaard. Judge Gaard noted Raquel Silva was present and available to serve as a settlement conference judge. Kevin’s attorney opined that “[t]he case should be settled in about ten minutes” because the parties did not have a business to evaluate or other complicating factors. In response to a question from Judge Gaard regarding whether Susanna was willing “to see whether or not you can try to work something out,” Susanna answered: “Your Honor, I will, because I have been trying to settle this from the beginning. I will try.” Before the hearing ended, Kevin’s trial attorney called Susanna “maybe a little goofy,” and Susanna accused trial counsel of consistently making false statements. However, the parties proceeded to negotiate and, with the help of the settlement judge, were able to reach agreement on terms for the MSA. The MSA was typed, signed by Susanna and Kevin, and approved by Judge Gaard.

On the record, Judge Gaard confirmed with Susanna that she read and understood everything in the MSA, did not have any questions about any of the terms of the agreement, had personally signed the MSA, and understood it was binding and enforceable. Judge Gaard confirmed the same with Kevin. The MSA was filed the same day, November 3, 2014.

On December 22, 2014, Kevin filed a motion to enter judgment on the MSA under Code of Civil Procedure section 664.6. In the motion, Kevin noted Susanna had attempted to make unilateral changes to the MSA. Susanna opposed the motion, and submitted her own proposed version of the judgment.

On January 21, 2015, Judge Gaard heard the matter. Susanna requested a delay in entry of judgment on the MSA because she could not afford health insurance until the marital residence was sold. Susanna also asserted Kevin’s child support was below guideline amounts. Kevin opposed any child support because the child at issue lived solely with him and spent no time with Susanna. Judge Gaard noted the MSA reached agreement on all issues, but spousal and child support could still be modified in the future. Judge Gaard took the matter under submission.

On February 2, 2015, Judge Gaard entered judgment on the MSA with the modification Silva added to the document as the settlement officer. Susanna’s requests to defer entry of judgment and attorney fees were denied. On April 6, 2015, Judge Gaard recused herself from the action after Susanna alleged Judge Gaard was biased and engaged in judicial misconduct.

Susanna’s Motions to Set Aside

On July 8, 2015, Susanna filed her first motion to set aside the judgment. Her motion was premised on assertions that the judgment was altered without her knowledge, and that the judgment violated Family Code guidelines for support. Susanna also asserted demeaning treatment by Judge Gaard and Kevin’s trial attorney. She also alleged she had been “under indescribabl[e] pressure from . . . Silva.” Susanna summed up that “[t]he entire experience had left me traumatized.”

On August 5, 2015, Susanna filed an “urgent” request “to immediately withdraw motion” to set aside the judgment. She wrote to Judge McAdam: “I respectfully request to withdraw the motion currently pending before Your Honor for hearing at 9:00 a.m. on August 14, 2015, with prejudice, effective immediately. . . . [¶] . . . [¶] The parties respectfully request the Court issue confirmation that this motion is dismissed with prejudice . . . .”

More than a year later, on November 2, 2016, Susanna filed a second motion to set aside the judgment, for modification of spousal support, and for attorney fees. Kevin opposed the motion – arguing, in part, that Susanna had not shown how setting aside the judgment would materially benefit her. On May 31, 2017, Judge McAdam filed a statement of decision denying the motion. Judge McAdam denied the motion to set aside the judgment on two separate grounds.

The first ground was that Judge McAdam found no evidence of duress or coercion. The statement of decision explains: “Focusing on [Kevin’s] conduct, [Susanna] has not produced any specific and substantial evidence that he made any sort of threat against her. The claim that he engaged in a long-standing pattern of domestic violence is not supported by the evidence. (Family Code sec. 6203, 6320.) In her two declarations, [Susanna] has done nothing more than recount a series of unhappy moments in her 19 year marriage. There was never any violence. Rather, at most, [Susanna] recalled a few isolated incidents where [Kevin] raised his voice, called her names or demeaned her in front of the children. Moreover, her recitation of the history of the divorce litigation merely reflects moments in time when [Kevin] would not necessarily agree with her own demands. . . . Her medical records also do not – in any way—support a claim that [Kevin] . . . abused her.”

The second ground was that Judge McAdam found Susanna would not materially benefit from setting aside the judgment. In reaching this conclusion, Judge McAdam examined each term in the MSA to conclude the agreement was fair to Susanna. Judge McAdam also rejected Susanna’s requests for modification of spousal support and for attorney fees.

Susanna filed an objection to the statement of decision. In response, the trial court set a hearing on her objections for May 18, 2017. Before the hearing could be conducted, however, Susanna’s trial attorney filed a motion to disqualify all judges and commissioners serving in Yolo County. The motion to disqualify was based on Code of Civil Procedure sections 170, 170.1, and 170.3. Acting Presiding Judge Paul K. Richardson ordered the motion stricken insofar as it was directed to judges who were not assigned to the case and Judges Gaard and Kathleen M. White, who were already disqualified. Judge McAdam separately answered the motion and denied the allegations of bias and misconduct. Judge McAdam ordered the motion to disqualify stricken as to the remainder that had not been dismissed by Judge Richardson.

On May 31, 2017, Judge McAdam issued a final statement of decision and order on the motion to set aside the judgment. Susanna thereafter filed a timely notice of appeal.

DISCUSSION

I

Alleged Judicial Bias and Misconduct

Susanna alleges numerous instances of judicial bias and antipathy against her by judges on the Yolo County Superior Court. Specifically, Susanna seeks relief on direct appeal based on her allegations Judge McAdam attempted to coerce her into dropping her duress claim, manipulated the case against her, attempted to discredit her “with stereotypes and innuendo,” and displayed “an irrational readiness to take [Kevin’s] unsupported statements at face value.” Susanna’s allegations are noncognizable insofar as they seek the remedy of disqualification in this direct appeal. The remainder of her allegations lack merit.

A.

“Slanting Proceedings”

Susanna accuses Judge McAdam of “slanting proceedings to protect Judge Gaard’s reputation.” She argues the basis for Judge McAdam’s judicial misconduct is that he and Judge Gaard “interacted frequently and knew each other well.” She also finds additional motive for judicial misconduct in the fact Judges Gaard and McAdam were appointed by the same governor. Rather than citing evidence in the record, Susanna believes her assertions are so obvious we just take judicial notice of them. “The burden is on the party seeking judicial notice to provide sufficient information to allow the court to take judicial notice. (Willis v. State of California (1994) 22 Cal.App.4th 287, 291 [court refused to take judicial notice of State Administrative Manual where certified copies were not provided and plaintiff failed to demonstrate manual’s legal effect].)” (Ross v. Creel Printing & Publishing Co. (2002) 100 Cal.App.4th 736, 744.) Here, Susanna has not complied with “the rule requiring an appellant to provide a record sufficient to determine whether the asserted errors are meritorious.” (Silva v. See’s Candy Shops, Inc. (2016) 7 Cal.App.5th 235, 260.) The contention is forfeited.

In a related argument, Susanna appears to assert Judge McAdam should have recused himself by citing an opinion by the California Judges Association Ethics Committee. In the trial court, Susanna sought to disqualify the entire Yolo County bench under Code of Civil Procedure sections 170.1 and 170.3. In support, she asserted that “[t]he levels of impropriety implicated in this instance are breathtaking.”

In this direct appeal, Susanna’s argument regarding recusal of Judge McAdam is noncognizable. “The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought only by the parties to the proceeding.” (Code Civ. Proc., § 170.3, subd. (d).) It is well established that “ ‘[u]nder our statutory scheme, a petition for writ of mandate is the exclusive method of obtaining review of a denial of a judicial disqualification motion.’ ” (People v. Freeman (2010) 47 Cal.4th 993, 1000.)

B.

Coercion by the Trial Court

Susanna next asserts Judge McAdam attempted to coerce her to eliminate the issue of duress from the proceedings. She premises this argument on a comment made by the trial court during a hearing on February 16, 2017.

During the February 16, 2017, hearing on the motion to set aside the judgment, Susanna was represented by Attorney Charles Jensen. Jensen addressed the court as follows:

“THE COURT: So you’re not raising – – you’re not seeking to reopen the college-support issue. So that one’s off the table.

“All right. And so now that leaves me with one last issue here and that’s an equitable redistribution of the credit debt.

“Are you seeking a remedy there?

“MR. JENSEN: Let me ask Ms – –

“THE COURT: Well, and let me put it bluntly, Mr. Jensen, if you drop these, then we don’t have to worry about duress, and then we just go to spousal support, and you deal with change of circumstances, which is a legal standard we can all understand and move forward.

“Duress is a heavy burden for [Susanna] here, and if – – if you want to do that to get to this equitable redistribution credit debt, and I suppose – – I suppose I’ll hear the – – I’ve seen the papers, but – –

“MR. JENSEN: Thank you, your Honor.

“THE COURT: – – I’ll hear the argument.” (Italics added.)

Next, Susanna was granted permission to address the court. The trial court and counsel clarified the issues that needed to be addressed, including duress. The trial court then confirmed duress was at issue by asking for final argument and stating: “Okay. All right. And so we have that. [¶] And then is there any additional argument if the Court were to find duress and reopen on the credit distribution, are the parties submitting on the papers there?” Both attorneys offered brief legal arguments and the trial court deemed the matter submitted.

We reject Susanna’s claim of attempted coercion for lack of timely objection or prejudice. When the trial court made the comment Susanna now attacks on appeal for the first time, she was represented by counsel. Her attorney, Jensen, did not object to any claimed attempt by the trial court to coerce Susanna into abandoning her duress claim. Susanna does not claim her attorney was intimidated or coerced by the trial court or that a timely objection would have been futile. For lack of timely objection by her attorney or by her personally, the claim was not preserved for appellate review. “In order to preserve an issue for appeal, a party ordinarily must raise the objection in the trial court.” (In re S.C. (2006) 138 Cal.App.4th 396, 406.)

The argument also lacks merit. “The coercion must induce the assent of the coerced party, who has no reasonable alternative to succumbing.” (In re Marriage of Baltins (1989) 212 Cal.App.3d 66, 84.) Susanna has not demonstrated prejudice because she did not actually succumb to the coercion. She therefore has not demonstrated prejudice. (Cal. Const., art. VI, § 13 [reversal only where error has resulted in miscarriage of justice]; Code Civ. Proc., § 475 [reversal only where error is prejudicial].) Prejudice is shown only “when there is a ‛ “reasonable probability” ’ that the error affected the outcome of the trial.” (Martin-Bragg v. Moore (2013) 219 Cal.App.4th 367, 395, italics added.) Here, the record shows the issue of duress was never removed from the trial court’s consideration. Instead, the issue of duress was addressed by the trial court in the statement of decision. For lack of prejudice, we reject the argument.

C.

Scope of the Claim

Susanna next contends Judge McAdam “gave himself license to ignore or only nominally address psychological and emotional manipulation by [Kevin] and his attorneys between 2012 and 2014; the atmosphere of oppression and humiliation in Judge Gaard’s courtroom in the months preceding settlement; Judge Gaard’s refusal to consider [Susanna’s] attorney fee requests; and her unwillingness to apply substantive law favoring [Susanna].” As a result of this alleged misconduct, Susanna claims Judge McAdam “manipulated [the] inquiry” to avoid passing judgment on Judge Gaard’s prior conduct in the action.

In support of her allegation of bias, Susanna cites to the portion of the appellate record in which the statement of decision set forth a detailed analysis of whether the circumstances surrounding the settlement conference actually caused her duress. The argument is not supported with record citations establishing the alleged psychological manipulation by Kevin, humiliation by Judge Gaard, or Judge McAdam’s judicial misconduct in ignoring legal issues. “When an appellant’s brief makes no reference to the pages of the record where a point can be found, an appellate court need not search through the record in an effort to discover the point purportedly made. [Citations.] We can simply deem the contention to lack foundation and, thus, to be forfeited.” (In re S.C., supra, 138 Cal.App.4th at pp. 406-407.) We deem the argument forfeited for lack of record citations.

Susanna also offers no legal authority in support of her claim that the trial court’s analysis was erroneously narrow. The single case cited in the opening brief is Catchpole v. Brannon (1995) 36 Cal.App.4th 237. Catchpole was disapproved by the California Supreme Court in People v. Freeman, supra, 47 Cal.4th at page 1006, footnote 4. Even apart from questions regarding the continuing validity of Catchpole, it did not involve any claim or analysis of duress. As this court recently noted, “ ‘It is axiomatic that cases are not authority for propositions not considered.’ ” (Howard Jarvis Taxpayers Assn. v. Newsom (2019) 39 Cal.App.5th 158, 169, quoting People v. Ault (2004) 33 Cal.4th 1250, 1268, fn. 10.) Thus, Susanna’s single legal citation does not support her duress argument. For lack of authority in support of the argument, the contention is deemed forfeited. (In re S.C., supra, 138 Cal.App.4th at p. 408.)

D.

“Non-physical Domestic Violence”

Susanna next claims the trial court displayed “bias against [her] as [a] victim of non-physical domestic violence.” Susanna bases her claim on the italicized portion of the following in the trial court’s statement of decision:

“Focusing on [Kevin’s] conduct, [Susanna] has not produced any specific and substantial evidence that he made any sort of threat against her. The claim that he engaged in a long-standing pattern of domestic violence is not supported by the evidence. (. . . sec. 6203, 6320.) In her two declarations, [Susanna] has done nothing more than recount a series of unhappy moments in her 19 year marriage. There was never any violence. Rather, at most, [Susanna] recalled a few isolated incidents where [Kevin] raised his voice, called her names or demeaned her in front of the children. Moreover, her recitation of the history of the divorce litigation merely reflects moments in time when [Kevin] would not necessarily agree with her own demands. . . . Her medical records also do not – in any way – support a claim that [Kevin] . . . abused her.” (Italics added.)

The record – and this portion of the statement of decision, in particular – does not support Susanna’s underlying premise that she is a victim of “non-physical domestic violence.” The portion of the statement of decision to which Susanna points as an indication of bias constitutes the factual findings of the trial court regarding her duress claim. The trial court’s factual findings are supported by the e-mail exchanges between the parties in which Kevin sent nonthreatening e-mails even when insulted by Susanna, a police report made by Kevin after Susanna asked one of their children to retrieve an item from his house, and medical records that are devoid of indication Susanna suffered from abuse by Kevin. Substantial evidence supports the trial court’s factual findings that Susanna had not proven any abuse by Kevin.

Although Susanna asserts, “the record is replete with testimony and evidence” supporting her claim as a victim of various forms of emotional abuse, she cites only one page in which she alleges emotional abuse without any description. The cited page represents her argument in the trial court that factors favored a modification of spousal support under section 4320. Thus, the assertion is not substantiated by evidence in the record.

We also reject Susanna’s contention that the “tone and conclusions [in the statement of decision] are themselves abusive, inherently mocking [her] trauma and pain.” The trial court’s findings are objective and supported by substantial evidence. “When making a ruling, a judge interprets the evidence, weighs credibility, and makes findings. In doing so, the judge necessarily makes and expresses determinations in favor of and against parties. How could it be otherwise? We will not hold that every statement a judge makes to explain his or her reasons for ruling against a party constitutes evidence of judicial bias. [¶] ‘[W]hen the state of mind of the trial judge appears to be adverse to one of the parties but is based upon actual observance of the witnesses and the evidence given during the trial of an action, it does not amount to that prejudice against a litigant which disqualifies him [or her] in the trial of the action. It is his [or her] duty to consider and pass upon the evidence produced before him [or her], and when the evidence is in conflict, to resolve that conflict in favor of the party whose evidence outweighs that of the opposing party. The opinion thus formed, being the result of a judicial hearing, does not amount to [improper] bias and prejudice . . . .’ (Kreling v. Superior Court (1944) 25 Cal.2d 305, 312.)” (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1219-1220.) The trial court’s statement of decision does not display bias against Susanna.

E.

“Stereotypes and Innuendo”

Susanna contends Judge McAdam “resort[ed] to presenting a skewed image of [her] as mentally ill to accomplish this through stereotypes and innuendo.” In particular, Susanna focuses on references by the trial court in the statement of decision to her mental health and erratic behavior. We conclude Susanna is estopped from advancing this argument.

In the trial court, Susanna argued for setting aside the judgment based on her assertions she “was (irrationally) astonished and wounded” that Kevin did not want to maintain “cooperation and friendship” after she filed her petition for dissolution of marriage. (Original parenthetical.) She alleged that during the process of negotiation and discovery: “I was now so emotionally overwhelmed, I was paralyzed.” And Susanna sought relief in the trial court based on her declaration: “My emotional instability spiraled out of control, and I once again lost my composure in court – this time to such an extreme the bailiff repeatedly had to approach and warn me to stop.” Susanna also introduced a letter from her psychologist, Dr. Stephen Tessler, that stated: “In recent months I am observing noticeable deterioration in [Susanna’s] emotional and behavioral state. There is onset and escalating suicidal ideation, which is of concern. She has difficulties with emotional regulation in all subject matter relating to her divorce . . . . I continue [to] advise her to discontinue representing herself in family law court in the matter of her divorce and seek representation of a qualified family law attorney. I write this with her understanding that I would expect the judge to review this and the hope the judge will order her to discontinue representing herself in court.” (Ellipsis, italics, and underscoring added in Susanna’s declaration in support of the motion aside.)

The record indicates Susanna sought to establish duress in moving to set aside the judgment on the same grounds to which she now objects to the trial court having considered in ruling on her motion. Having introduced evidence of her mental health for the trial court to consider, she cannot now assert error in the trial court’s consideration of that evidence. (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181.)

F.

“Predisposition”

Susanna asserts Judge McAdam displayed a “predisposition to rule in [Kevin’s] favor.” This appears to be an assertion of judicial bias based on her citation of a case concerning judicial bias, i.e., Webber v. Webber (1948) 33 Cal.2d 153, 161. On this record, the claim of bias in being predisposed to rule in Kevin’s favor is nonmeritorious.

Susanna was given the opportunity to address the trial court during her motion to set aside the judgment even though she was represented by legal counsel during that hearing. In addressing the trial court, Susanna offered to drop the request for a continuance to address the discovery issues. The trial court responded, and the following colloquy ensued:

“THE COURT: Let me address that point. On [Kevin’s trial attorney], on the discovery, if something was requested and wasn’t turned over, then I don’t see why the Court shouldn’t evaluate that and weigh that when determining the merits of the spousal-support issue.

“[Kevin’s counsel]: Well, this is – this is –

“THE COURT: If I believe that it’s particularly relevant.

“[Kevin’s counsel]: Right, yeah.

“THE COURT: I’m not interested in sanctioning anybody. I don’t have a formal motion.

“[Kevin’s counsel]: Yes. . . .” (Italics added.)

Susanna argues the italicized portion of the trial court’s comments reflected bias in Kevin’s favor. However, we conclude Judge McAdam did not display a predisposition or bias by not sanctioning a party in the absence of a formal sanctions motion. Careful examination of Susanna’s opening brief reveals she does not assert there was a pending formal sanctions motion. Instead, she believes the trial court’s bias occurred because Judge McAdam simply “accepted [Kevin’s] denials at face value.” However, there was no objection by Susanna or her trial attorney on this ground. Indeed, the next time her trial attorney spoke after the colloquy recounted above, it was to agree Susanna was still interested in an equitable redistribution of marital debt. In the absence of an objection or any kind of statement the trial court had a sanctions motion before it to rule on, the argument has not been preserved for appeal. (In re S.C., supra, 138 Cal.App.4th at p. 406.)

G.

“Manipulation of Facts”

Susanna next contends Judge McAdam issued a statement of decision that “falsely portrays Judge Gaard as having ‘treated [her] with respect . . . at all times,’ ” relied on “non-existent facts to portray Judge Gaard as sensitive and indulgent,” and fabricated “out of whole cloth” findings related to earlier orders of Judge Gaard. We reject the contentions.

Numerous factual assertions underlie this argument, which is focused on factual findings of the trial court in its statement of decision. Regarding the statement of decision, and its factual findings in particular, we must presume the trial court’s findings to be correct. A trial court’s “judgment is presumed to be correct, and it is appellant’s burden to affirmatively show error.” (In re S.C., supra, 138 Cal.App.4th at p. 408.) And, “[w]here findings of fact are challenged on a civil appeal, we are bound by the ‘elementary, but often overlooked principle of law, that . . . the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,’ to support the findings below.” (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660, quoting Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.) “Moreover, neither conflicts in the evidence nor ‘ “testimony which is subject to justifiable suspicion . . . justif[ies] the reversal of a judgment, for it is the exclusive province of the [trier of fact] to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.” ’ ” (Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1065, quoting Evje v. City Title Ins. Co. (1953) 120 Cal.App.2d 488, 492.)

Judge McAdam issued a statement of decision in which he noted he “review[ed] the court record” before issuing his findings of fact. As pertinent to this issue, the statement of decision explains Susanna “recounts feeling pressured at the October 24, 2014 ex parte hearing. The transcript clearly reflects her erratic behavior. Even then though, the trial judge granted her ex parte application. The transcript of the November 3, 2014 proceeding is markedly different, whereby [Susanna] appears much more calm and focused on the record. It is not lost also that [Susanna] had previously moved to continue the trial back in August – which was granted. In sum, over the several months leading up to the settlement, [Susanna] had made numerous procedural motions – all of which were granted by the trial judge.”

We have reviewed the reporter’s transcripts of the hearings conducted on October 24, 2014, and November 3, 2014. These transcripts constitute substantial evidence in support of Judge McAdam’s findings Susanna appeared more calm and focused on the record on November 3, 2014, than in the earlier proceeding. During the earlier proceeding, the bailiff had to step in several times as Susanna continued to interrupt Judge Gaard. Susanna made faces at Judge Gaard and was seemingly unable to restrain herself from talking over the judge. During this earlier proceeding, Susanna ended up apologizing to Judge Gaard for being disrespectful the court. Throughout the proceeding on October 24, 2014, the record shows Judge Gaard demonstrated patience under trying circumstances.

The transcript of the hearing on November 3, 2014, stands in marked contrast. On that day, Susanna was accompanied by Attorney Jensen. Much of the hearing focused on moving the case to trial. The latter portion of the hearing began the exploration of whether the case could be settled, with all parties indicating the case should be settled. Susanna participated in the proceedings without any need for the bailiff to intervene, her statements in support of settlement were appropriate, and the trial court did not note any conduct such as Susanna’s making faces or being agitated as it had during the earlier hearing. In short, the transcripts of the hearings on October 24 and November 3, 2014, support the trial court’s factual findings in the statement of decision on the motion to set aside the judgment.

We reject Susanna’s assertion regarding Judge Gaard’s failure to rule on “substantive arguments” purportedly pending during these hearings. (Italics omitted.) Susanna does not identify these “substantive arguments” in her opening brief, nor does she attempt to show how Judge Gaard’s failure to rule constituted prejudice as to the motion to set aside the judgment. (Italics omitted.) “We are not required to examine undeveloped claims or to supply arguments for the litigants.” (Allen v. City of Sacramento, supra, 234 Cal.App.4th at p. 52.) The assertion is undeveloped and therefore forfeited.

II

Due Process

Susanna argues she was deprived of procedural due process by a “judicially-coerced waiver of right to present evidence.” We reject this procedural due process argument.

In its statement of decision, the trial court noted it “made clear at the hearing that the parties were waiving any right to an evidentiary hearing. The Court had previously advised the parties to file witness lists and give notice of live testimony and neither party did so. There was an agreement to submit the matter on the papers, which was repeatedly confirmed on the record at the hearing.” (Italics added.) This finding is supported by the reporter’s transcript of the hearing on the motion to set aside the judgment.

On that date, Susanna was represented by Attorney Jensen. Jensen indicated he was prepared to submit the motion to set aside the judgment on the moving papers, declarations, and “multitude of documents that are already there.” The trial court asked whether Jensen intended to introduce any live testimony in support of the motion, and Jensen responded: “I did not give notice to anyone because we’ve tried to eliminate live testimony and do it by declaration with attachments.” Attorneys for both parties agreed the best procedure would be to first address the motion to set aside the judgment and then address the request for modification of spousal support.

Jensen indicated he had not yet finished conducting discovery on the motion to set aside. The trial court asked why a hearing had been scheduled on an issue for which discovery had not yet been completed, and Jensen indicated the parties appeared in response to a court order. The trial court then addressed the claim for equitable redistribution of debt as follows:

“THE COURT: Well, and let me put it bluntly, [counsel], if you drop these [issues], then we don’t have to worry about duress, and then we just go to spousal support, and you deal with change of circumstances, which is a legal standard we can all understand and move forward.

“Duress is a heavy burden for the Plaintiff here, and if – if you want to do that to get to this equitable redistribution credit debt, and I suppose – I suppose I’ll hear the – I’ve seen the papers, but – [¶] . . . [¶]

“. . . I’ll hear the argument.”

Immediately after making this comment, the trial court granted Jensen’s request to let Susanna personally address the court. Susanna stated she would be willing to forego a continuance to complete discovery:

“Your Honor, unfortunately, it appears we don’t have my initial declaration with us today, but I believe it addresses and requests all of the following relief. I can’t say for sure because I don’t have it, but what I had sought was – well, as a preliminary matter, I – I am – I am happy to drop the request for a continuance to address the discovery issues. If the Court will consider the abuses that we’ve outlined in – in that part of resolving my claim and particularly in the form of estoppel on some of things in the request.

“What I had asked for and I’m trying to find –” (Italics added.)

Thereafter, the trial court and counsel further addressed the discovery issue. Kevin’s trial counsel represented to the trial court, “We provided everything we had or could get.” The court concluded the discovery matter by noting it would draw adverse factual inferences against Kevin if turned out he wrongfully withheld information from discovery. Neither Susanna nor her trial attorney objected to this ruling. Instead, the parties proceeded to move on to the merits of the set-aside motion. Susanna personally addressed the court to assert she had been pressured into accepting the MSA. The trial court summarized: “So I understand what you’re saying, is that that particular term you are arguing was part of the intense pressure you were under, and so you’re using that as evidence that there was duress because you had oral agreements and promises before . . . .” The following exchange then took place:

“THE PETITIONER: That’s almost right, your Honor.

“THE COURT: Okay.

“THE PETITIONER: I have actually submitted evidence attached to my reply brief of Kevin stating that commitment [to pay limited college expenses] on the – – in sworn court documents.

“THE COURT: Okay. All right.

“THE PETITIONER: And then the only other thing I’d just like the record to reflect that it is utterly false that — for him to assert that he’s paying for all of [the] college expenses.” (Italics added.)

In support of her procedural due process argument, Susanna cites In re Marriage of Eustice (2015) 242 Cal.App.4th 1291 (Eustice), In re Marriage of Adkins (1982) 137 Cal.App.3d 68 (Adkins), and Smith v. Superior Court (1996) 41 Cal.App.4th 1014 (Smith). None of these cases supports her assertion of a denial of procedural due process.

In Eustice, the Fourth District noted that “ ‘[i]t is a fundamental concept of due process that a judgment against a defendant cannot be entered unless he [or she] was given proper notice and an opportunity to defend.’ ” (Eustice, supra, 242 Cal.App.4th at p. 1302.) Consistent with due process, the Eustice court noted defendants in California are guaranteed adequate notice of the maximum judgment that may be assessed against them. (Id. at p. 1303.) In regard to marital dissolution actions, this rule precludes a trial court from awarding more than demanded in the dissolution petition. (Ibid.) Here, Susanna received a hearing in which both she and her trial attorney were able to assert her positions and arguments at length. Indeed, when given the opportunity to continue the hearing into the afternoon, Susanna’s trial attorney declined the offer of additional time.

For similar reasons we reject Susanna’s reliance on Adkins, supra, 137 Cal.App.3d 68. The Adkins court held that “a final judgment may be set aside upon a showing that extrinsic factors have prevented one party from presenting his or her case in court.” (Id. at p. 75, italics added.) Here, nothing prevented Susanna from presenting her case in court. To the contrary, she received an extensive hearing on her motion to set aside the judgment. The fact that her attorney declined the invitation to extend the hearing refutes the assertion of inadequate procedural due process.

Finally, Smith does not mention due process at all. (Smith, supra, 41 Cal.App.4th 1014.) Instead, Smith held California courts are not required to recognize an out-of-state injunction under the full faith and credit clause of the United States Constitution where some of the parties to the California action had not participated in – or even received notice of – the out-of-state action. (Smith, at p. 1025.) The Smith court further noted the out-of-state proceeding disallowed key testimony. (Id. at p. 1026.) Here, however, the hearing on Susanna’s motion did not include a request to introduce testimony. Instead, her attorney informed the court the motion was being submitted on documentary evidence. Based on this representation and in the absence of any objection on this ground, Susanna cannot fault the trial court for resolving the issues on documentary evidence.

III

Issues Related to the Statement of Decision’s Discussion of Duress

A.

Ability to Resist Pressure

Susanna argues the statement of decision is inadequate because it “nowhere addresses [her] ability to resist pressure at the time of settlement.” We conclude the argument has not been preserved for appeal.

In response to the statement of decision, Susanna articulated numerous objections in the trial court, including to the finding that “Judge [Gaard] did not pressure [her] into accepting [the] MSA.” Similarly, she objected to the finding that the “pro tem [judge] did not pressure [her] into accepting [the] MSA.” However, Susanna did not object to the statement of decision for failure to make a factual finding on her ability to resist pressure at the time the parties entered into the marital settlement agreement.

A party “must state any objection to the statement in order to avoid an implied finding on appeal in favor of the prevailing party.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133, fn. omitted.) Moreover, “objections to a statement of decision must be ‘specific.’ (Golden Eagle Ins. Co. v. Foremost Ins. Co. [(1993)] 20 Cal.App.4th [1372,] 1380.) The alleged omission or ambiguity must be identified with sufficient particularity to allow the trial court to correct the defect.” (Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 498.) In the absence of an objection to the omission of a required factual finding, the issue is forfeited for purposes of appeal. (Arceneaux, at pp. 1133-1134.)

B.

Rejection of Wife’s Testimony

Susanna argues the statement of decision’s “wholesale, unexplained rejection of [her] testimony” constitutes reversible error. Susanna further argues there was a “lack of evidence supporting rejection of duress” and “multiple prejudicial legal errors regarding duress.” We are not persuaded.

As a fundamental rule of appellate review, “the credibility of a witness and the weight to be accorded his [or her] testimony are questions directed to the trial judge, which under proper circumstances may accept all or such part of the testimony of any witness as he [or she] believes to be true, or may reject all or any part which he [or she] believes to be untrue.” (Wright v. Delta Properties, Inc. (1947) 79 Cal.App.2d 470, 476.) Here, Susanna argues the trial court committed reversible error by giving her testimony insufficient consideration. “Clearly this whole argument is purely factual in character and cannot successfully be addressed to an appellate court.” (Id. at p. 477.) Accordingly, we reject the argument.

C.

“Multiple Prejudicial Legal Errors”

In a catch-all argument, Susanna asserts Judge McAdam committed “multiple prejudicial legal errors regarding duress.” Even while asserting multiple prejudicial errors, Susanna contends she need not show prejudice to secure a reversal. We disagree. As noted above, an appellant must show prejudice to secure a reversal. (Cal. Const., art. VI, § 13 [reversal only where error has resulted in miscarriage of justice]; Code Civ. Proc., § 475 [reversal only where error is prejudicial].) Because Susanna has not attempted to show prejudice, her claims cannot succeed. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)

IV

Modification of Spousal Support

Susanna contends trial court’s statement of decision is deficient “for failure to adequately discuss several relevant [section] 4320 [f]actors.” We disagree.

A.

Section 4320

Section 4320 provides that “[i]n ordering spousal support under this part, the court shall consider” enumerated circumstances, including the parties’ earning capacities, ability to pay support, needs based on the standard of living during the marriage, ability to engage in gainful employment, and other factors. (Italics added.) Section 4320 does not require the trial court to make any particular findings on the record or in a statement of decision. Instead, “a statement of decision ‘need do no more than state the grounds upon which the judgment rests, without necessarily specifying the particular evidence considered by the trial court in reaching its decision.’ ” (In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 50, quoting Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1125, fn. omitted.)

Once a trial court considers the factors enumerated in section 4320, “ ‘the ultimate decision as to amount and duration of spousal support rests within its broad discretion and will not be reversed on appeal absent an abuse of that discretion. [Citation.]’ ” (In re Marriage of Khera & Sameer (2012) 206 Cal.App.4th 1467, 1480, quoting In re Marriage of Kerr (1999) 77 Cal.App.4th 87, 93.) Under the abuse of discretion standard of review, “[t]he test is not what order we would have made if one of us had been the trial judge. [¶] ‘Our role as an appellate court is not that of factfinder; that is the role of the trial court.’ (In re Marriage of Prietsch & Calhoun [(1987)] 190 Cal.App.3d [645,] 656.) The role of the appellate court is not to second-guess the trial judge.” (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 493-494.)

B.

Adequacy of the Statement of Decision

Susanna asserts the statement of decision failed to adequately address the factors informing spousal support listed in section 4320, subdivisions (b) (contribution by supported party to education, training, career position by supporting party), (d) and (e) (needs of each party along with obligations and assets), (h) (age and health of the parties), and (j) (tax consequences to each party).

In addressing Susanna’s request for modification of spousal support, the trial court engaged in 10 pages of factual findings and detailed analysis. As to contributions by Susanna to Kevin’s education and career, Susann acknowledges the trial court expressly addressed this factor. However, she claims the trial court’s discussion was inadequate. We disagree. The statement of decision indicates subdivision (b) of section 4320 was considered by the trial court and gave Susanna credit for supporting Kevin for part of the marriage. To the extent Susanna intends to assert error regarding the trial court’s understatement of her contribution, the assertion of error is forfeited. (Evans v. Centerstone Development Co. (2005) 134 Cal.App.4th 151, 160 (Evans) [holding appellate court may disregard points raised in a footnote rather than properly presented under a discrete heading with appropriate analysis].)

Likewise, we reject Susanna’s contention the statement of decision excludes her debts among her needs. In fact, the statement of decision devotes the better part of a page to the parties’ needs and obligations – including express findings on wife’s $80,650 in debt on 11 credit cards. The trial court found Susanna had funds available at the time of the dissolution to pay down this debt, but “[c]learly, [Susanna] chose not to do so and instead chose to continue to live beyond her means.” The statement of decision is sufficient in addressing the needs, assets, and obligations of the parties.

The statement of decision contains a section titled, “Health of the Parties,” in which the trial court addressed Susanna’s health and age. The statement of decision’s exploration of this factor reveals this factor received consideration.

Finally, we reject Susanna’s contention the statement of decision only “vaguely acknowledges” tax benefits to Kevin while omitting “negative tax consequences” to her. She does not mention what these negative tax consequences might be, nor does she provide any record citation to where she pointed out to the trial court what these negative tax consequences might be. Accordingly, the contention is forfeited. (In re S.C., supra, 138 Cal.App.4th at pp. 406-407.)

V

Denial of Need-based Attorney Fees

Susanna next argues the trial court’s statement of decision is deficient because it did not make express findings on two of the three mandatory considerations set forth in section 2030, subdivision (a)(2). We disagree.

Section 2030 requires the trial court to make findings when a party requests need-based attorney fees. “ ‘When a request for attorney’s fees and costs is made, the court shall make findings on whether an award of attorney’s fees and costs under this section is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties.’ (§ 2030, subd. (a)(2).) In determining whether to award attorney fees and costs in postdissolution proceedings, the trial court must consider ‘ “how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances.” ’ ” (In re Marriage of Shimkus (2016) 244 Cal.App.4th 1262, 1279 (Shimkus), quoting In re Marriage of Terry (2000) 80 Cal.App.4th 921, 933.) The Shimkus court reversed a trial court order denying a request for attorney fees and costs merely by reciting there had been no showing of disparity in the parties’ ability to pay for counsel, the party who had been requested to pay attorney fees was unable to afford counsel for both parties, and the fees and costs were not reasonable or necessary. (Id. at pp. 1279-1280.)

In contrast to the order in Shimkus, the trial court in this case made express findings that satisfied the requirements of section 2030, subdivision (a)(2). Here, the trial court’s statement of decision explains as follows:

“The Court has carefully considered the respective financial circumstances and needs of the parties, and importantly, weighed all the factors under . . . sec. 4320. Pursuant to . . . sec. 2032 [subdivision] (b), it would not be just and reasonable to order fees in this case. The Court has done a thorough analysis and concluded that there was no basis for the motion. [Susanna] has a substantial income from which to pay fees, including $5,100 per month in spousal support and as much as $1,700 per month in other sources of income. She also was awarded separate property assets from the dissolution of the marriage, as set forth in the MSA. A party to a divorce action cannot claim a hardship and request fees under section 2030 by accruing debt at an unreasonable rate (here, 11 credit[] cards with a total balance over $80,000 plus personal loans). The Court must consider all equities.”

The trial court’s statement of decision made the findings required by section 2030, subdivision (a)(2). Specifically, the statement of decision (1) finds it inequitable to award wife need-based attorney fees at the same time she as accrued debt at an unreasonable rate, and (2) Susanna had adequate resources to pay for her own attorney in light of her monthly income of more than $5,100 per month, $1,700 in earning capacity, and substantial assets received through the MSA. These findings that Susanna has sufficient resources to pay for her own attorney obviated the need to consider whether Kevin had the ability to pay for both parties’ attorney fees. In short, the requirement of section 2030 that the trial court make findings upon request for need-based attorney fees was satisfied.

VI

Denial of Attorney Fees as Sanctions

In her final argument, Susanna asserts the statement of decision is inadequate because it “contains only one reference to [her] sanctions request.” The reference on which Susanna focuses is the following sentence: “The parties’ respective requests for attorney’s fees as a sanction pursuant to [section] 271 is DENIED.” We reject her argument.

Subdivision (a) of section 271 provides, in pertinent part, that “[i]n making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties’ incomes, assets, and liabilities.” Thus, section 271 requires the trial court to take various factors into consideration but does not require the court to make specific findings on the record or in a statement of decision. Indeed, “[a] trial court is not required to issue a statement of decision for an attorney fee award.” (In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 981; accord In re Marriage of Quay (1993) 18 Cal.App.4th 961, 970 [noting an order on sanctions need not be made in writing].)

We also reject Susanna’s assertion sanctions were warranted due to Kevin’s conduct. The assertion is not presented under a separate heading with record citations in support. Accordingly, the assertion is forfeited. (Evans, supra, 134 Cal.App.4th at p. 160; In re S.C. (2006) 138 Cal.App.4th 396, 406-407.)

DISPOSITION

The order is affirmed. Respondent Kevin S. Mould shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

/s/

HOCH, J.

We concur:

/s/

HULL, Acting P. J.

/s/

MURRAY, J.

Filed 11/12/20 Garcia v. Orange County Animal Care 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

ILEANA GARCIA,

Plaintiff and Appellant,

v.

ORANGE COUNTY ANIMAL CARE et al.,

Defendants and Respondents.

G058438

(Super. Ct. No. 30-2019-01067423)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Thomas A. Delaney, Judge. Affirmed. Appellant’s request for judicial notice denied.

Marla A. Tauscher for Plaintiff and Appellant.

Leon J. Page, County Counsel, and Kayla N. Watson, Deputy County Counsel, for Defendants and Respondents.

* * *

Ileana Garcia appeals from the trial court’s ruling sustaining the demurrer filed by the County of Orange and its animal control agency, Orange County Animal Care (OCAC), without leave for Garcia to amend her underlying petition for a writ of administrative mandate. (Code Civ. Proc., § 1094.5.) Garcia filed the petition to overturn a county hearing officer’s determination that her pit bull—following attacks on three people on three separate occasions—was a vicious dog requiring euthanization.

We find no merit in Garcia’s core claim on appeal that the county lacked jurisdiction to designate the superior court as a forum authorized by the Legislature to hear vicious dog appeals de novo. (Food & Agr. Code, § 31622; all further undesignated statutory references are to this code.) Garcia does not assert there is anything inadequate in this remedy provided by law—only that it is not, in fact, an authorized appellate forum. We disagree with Garcia that the county’s ordinance establishing its procedures for initial vicious dog administrative adjudications precluded appeal to the superior court for de novo review. To the contrary, both the ordinance and state law authorize this procedure.

Thus, we find no basis for reversal in Garcia’s claim that the court hearing her mandamus petition lacked jurisdiction to direct her to reinstate her administrative appeal to the superior court as the proper means to challenge the underlying vicious dog determination. Instead, Garcia chose to pursue only her mandamus petition and declined to appear at the de novo vicious dog hearing in the superior court, which was decided against her. As a result, a different trial judge, hearing her mandamus petition, sustained the demurrer on res judicata grounds. As we explain, the court’s demurrer ruling was correct. We therefore deny Garcia’s request on appeal to reverse the demurrer order and reinstate her mandamus petition.

FACTUAL AND PROCEDURAL BACKGROUND

This matter has generated a large record with multiple stops first at the administrative hearing level and then in several trial court departments. In the trial court, parallel mandamus and administrative appeal proceedings were punctuated at the outset by peremptory challenges (Code Civ. Proc., § 170.6), reassignments, ex parte hearings, and writs taken to this court and denied. Assorted other proceedings followed before the court issued its final demurrer ruling, which is the subject of this appeal. Nevertheless, the relevant background can be summarized briefly.

In September 2018, Garcia’s dog, Raider, while on a leash lunged at and bit a passing jogger on a Huntington Beach bike path. In March 2019, Raider and another pit bull escaped Garcia’s residence, attacked a dog in the apartment complex’s common area, opening several wounds in the dog, and then attacked the dog’s owner, who was bitten and scratched several times. OCAC officers took Raider into custody following the second attack.

Three days later, Raider knocked over an OCAC kennel attendant, circled and then charged and bit her before latching onto her right forearm. Raider then readjusted his bite, bore down, and pulled the attendant to the ground. The dog inflicted horrific injuries to the attendant’s forearm before she was able to radio for help and escape.

Following the first two incidents, OCAC issued a preliminary assessment declaring Raider a “Potentially Dangerous Dog” pursuant to Orange County Codified Ordinance (OCCO) section 4-1-23(a)(2). After the third incident, OCAC sent Garcia a “Declaration Letter” on April 4, 2019, identifying Raider as a “Vicious Dog” pursuant to OCCO section 4-1-23(b)(1). Garcia contested the “Vicious Dog” designation and an administrative hearing was held. The hearing officer found Raider qualified as a vicious dog and ordered that he be “humanely euthanized as set forth in the April 4 Declaration Letter.”

The county sent Garcia the hearing officer’s detailed “notice of decision” and advised her in boldface type: “You have five (5) calendar days from the receipt of this letter to file an appeal with the Orange County Superior Court.” The notice specified, “Pursuant to Food and Agricultural Codes 31621 and 31622, if you disagree with this decision [by the hearing officer], you may file an appeal in the limited civil division of the appropriate justice center branch of the Orange County Superior Court having jurisdiction over your location of residence.” The letter emphasized the necessity of filing a “Notice of Appeal, Menacing Dog,” and provided further filing information including the superior court’s telephone number.

In e-mail correspondence with county counsel, Garcia’s attorney disputed the relevance of the cited statutory sections, asserting to the contrary that “the City of Fullerton,” where Garcia resided, “adopted the Orange County Municipal Code related to potentially dangerous and vicious dogs, not the Food & Ag. Code.” Garcia’s attorney therefore requested information regarding the local administrative appeal procedure, if any. County counsel replied advising Garcia’s attorney that “no local appeal process for vicious or potentially dangerous dogs exists in Fullerton or the County of Orange . . . [, stating instead that a]ll vicious and potentially dangerous dog appeals in both jurisdictions are held pursuant to section 31622.”

On May 2, 2019, instead of filing an appeal in the superior court, Garcia filed her petition for administrative mandamus that underlies this appeal, along with an ex parte request for a temporary restraining order (TRO) and a request for a preliminary injunction. The trial court granted the TRO the next day and set an order to show cause hearing regarding the preliminary injunction request, warning Garcia that if she “did not exercise her appeal rights this case may be dismissed.”

That same day, Garcia filed her appeal in the superior court. Later, after filing peremptory challenges related to both the appeal and her writ proceeding, which were pending under different case numbers, she voluntarily filed a request to dismiss her appeal with prejudice.

In the writ proceeding, the trial court by minute order, converted the TRO to a preliminary injunction pending a further hearing on Garcia’s administrative mandamus petition and ordered Garcia to reinstate her appeal. Specifically, the court directed “the parties to conduct an appeal of the administrative hearing, pursuant to the procedures of Food & Agricultural Code section 31622, in the form of a Trial de Novo . . . .”

The court directed that the appeal be heard before the judicial officer assigned to the appeal before Garcia dismissed it, citing the applicable local rule. (See Super. Ct. Orange County, Local Rules, rule 309 [“Whenever a case is dismissed and thereafter another case is filed involving the same, or essentially the same, parties, facts, or causes of action as the prior case, the plaintiff in any such subsequently filed case must disclose such facts on the face of the new complaint. The subsequently filed case will be assigned to the same judicial officer for all purposes as the prior case”].)

Garcia was granted a two-week continuance of the trial setting conference to set a hearing date in the appeal, which pursuant to statute (§ 31622) would be a de novo review by the superior court of the hearing officer’s administrative decision. After the court set the appeal hearing date for September 3, 2019, Garcia sought writ relief in this court to vacate the de novo appeal, which we denied.

Thereafter, Garcia filed a “Notice of Intent Not to Appear” for the administrative appeal in the trial court. The court conducted the de novo hearing as scheduled, considered the documents on file, heard argument by county counsel, noted Garcia’s absence, and issued its ruling denying Garcia relief by means of appeal under section 31622 “based on her intent to not appear this date.”

Respondents previously had filed in the mandamus proceedings a demurrer to Garcia’s petition for a writ of mandate and a motion to dissolve the preliminary injunction, both of which the court heard on October 4, 2019. The court sustained the demurrer without leave to amend on grounds that the de novo appeal “cured any due process complaints that Petition[er] had concerning the previous administrative hearing.” The court concluded, “Based on res judicata, Petitioner is foreclosed from relitigating the due process issues.” The court similarly indicated it would dissolve the preliminary injunction, finding that “[s]ince the appeal has been determined on the merits, Petitioner cannot prevail on the merits.”

Garcia then filed this appeal.

DISCUSSION

1. Appealability and Mootness

Garcia does not furnish in the record on appeal any indication that the trial court entered a dismissal of her petition following its demurrer ruling. Ordinarily, “[a]n order sustaining a demurrer without leave to amend is not appealable, and [instead] appeal is proper only after entry of a dismissal on such an order.” (Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1396.) Nonetheless, to avoid wasting judicial resources by remanding the matter for entry of a dismissal, which would only result in a second appeal raising the same challenges, we exercise our discretion to treat the appeal as a petition for a writ of mandate. (Olson v. Cory (1983) 35 Cal.3d 390, 401.)

Respondents contend Garcia’s appeal should be dismissed as moot because Raider has been euthanized. In October 2019, this court denied Garcia’s petition for a writ of supersedeas and request for an immediate stay pending appeal, and the dog was subsequently put down in November 2019.

The mandamus petition underlying Garcia’s appeal sought writ relief from the trial court to “invalidat[e] the decision of [the county hearing officer] in its entirety,” requiring a new hearing at the local level to remedy what Garcia asserted were “Procedural Defects in the County’s Conduct of the Administrative Hearing.” (Capitalization adjusted.) Garcia also sought in her mandamus petition her attorney fees, costs, and “any fees paid to OCAC and/or the County of Orange in connection with this matter.” Garcia premised her bid for fees on a statute providing that the trial court, in its discretion, “may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest.” (Code Civ. Proc., § 1021.5.) Garcia sought through her mandamus petition to vindicate her belief that “OCAC Did Not Conduct a Fair ‘Trial’ (Administrative Hearing).”

Although a new administrative hearing complete with the due process protections Garcia claims were originally absent would be a moot undertaking now that Raider has been euthanized, we deny respondents’ request for dismissal for two reasons. First, Garcia’s request for fees and costs would remain for the trial court to decide on remand if she prevailed on appeal in demonstrating that a new, local administrative hearing should have been held. Second and related, given the weighty interests at stake related to the death of a pet, we proceed to the merits regardless of fee considerations to explain why the trial court’s demurrer ruling was correct: no new administrative rehearing was required.

2. Standard of Review

“Our review is governed by settled standards, which apply equally whether a demurrer challenges a complaint or a petition.” (SJJC Aviation Services, supra, 12 Cal.App.5th at p. 1051.) Whether the underlying proceedings have been initiated by a writ petition or by a complaint, we review each “de novo ‘to determine whether it alleges facts stating a cause of action under any legal theory . . . .’” (Ibid.)

Here, the legal question is one of jurisdiction. Garcia’s core contention is that the county and the trial court lacked jurisdiction under state law or a local ordinance to require her to pursue a de novo appeal of the hearing officer’s vicious dog determination in the superior court. To resolve this contention, we must interpret the relevant statutes and ordinance. We review issues of statutory construction, including the interpretation of local ordinances and municipal codes, de novo. (City of San Diego v. San Diego City Employees’ Retirement System (2010) 186 Cal.App.4th 69, 78.) ““‘[O]ur fundamental task in construing a statute is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.’”” (Orange County Water Dist. v. Public Employment Relations Bd. (2017) 8 Cal.App.5th 52, 63-64.)

3. Jurisdiction

A. State Law Framework

Because “[p]otentially dangerous and vicious dogs have become a serious and widespread threat to the safety and welfare of citizens,” the Legislature has established provisions “for the regulation and control” of such animals. (§ 31601, subds. (a), (c).)

These provisions include a nonjury “judicial process” for a hearing as “a limited civil case” in the superior court, in which the court “may find, upon a preponderance of the evidence, that the dog is potentially dangerous or vicious and make other orders authorized by this chapter.” (§ 31621.) Those orders may relate to fines (§ 31662), licensing and vaccination requirements (§ 31641), other restrictions on retaining such animals (§ 31642), outright prohibition against owning or custody of individual dogs so designated (§ 31646), and their destruction (§ 31645, subd. (a)).

The statutory framework allows for parallel local programs that “may incorporate all, part, or none of this chapter,” with a sole restriction that is inapplicable here: the local program may not adopt regulations that apply only to particular breeds rather than all dogs. (§ 31683.) Specifically, the statute states, “Nothing in this chapter shall be construed to prevent a city or county from adopting or enforcing its own program for the control of potentially dangerous or vicious dogs that may incorporate all, part, or none of this chapter, or that may punish a violation of this chapter as a misdemeanor or may impose a more restrictive program to control potentially dangerous or vicious dogs. Except as provided in [s]ection 122331 of the Health and Safety Code, no program regulating any dog shall be specific as to breed.” (§ 31683.)

The initial hearing in this process may be in “the superior court of the county in which the dog is owned or kept.” (§ 31621.) Or, as contemplated by section 31683’s authorization of local programs, “[a] city or county may establish an administrative hearing procedure to hear and dispose of petitions filed pursuant to this chapter.” (§ 31621.) The process contemplated by the Legislature includes the right to “appeal the decision of the court or hearing entity of original jurisdiction.” (§ 31622, subd. (a), italics added.) Nevertheless, the Legislature specified in section 31683 that local programs “may incorporate all, part, or none” of the Legislature’s provisions. If an appeal is authorized when the original administrative hearing “was before a hearing entity other than a court of the jurisdiction, appeal shall be to the superior court.” (§ 31622, subd. (a).) Appeals in cases first heard in the superior court are to a superior court judge “other than the judge who originally heard the petition.” (Ibid.)

Appeals authorized by the Legislature consist of “a hearing de novo, without a jury,” in which the superior court “make[s] its own determination as to potential danger and viciousness and [may] make other orders authorized by this chapter, based upon the evidence presented.” (§ 31622, subd. (b).) The preponderance of the evidence standard governs, and the court “may admit all relevant evidence, including incident reports and the affidavits of witnesses, limit the scope of discovery, and may shorten the time to produce records or witnesses.” (Ibid.) The appellate determination is final: “The determination of the court hearing the appeal shall be final and conclusive upon all parties.” (§ 31624.) If a dog is deemed vicious or potentially dangerous on appeal, the “time schedule to ensure compliance with this chapter” must be expedited, usually within no more than 30 days after the determination. (§ 31622, subd. (b).)

B. Analysis

We find no merit in Garcia’s two contentions that the state law appellate procedure described above did not apply to her. First, she relies on an inapplicable exception. Section 31609 specifies that the chapter regarding vicious dogs does not apply to dogs used by “any law enforcement officer in the performance of police work” (id., subd. (b)), nor generally “to licensed kennels, humane society shelters, animal control facilities, or veterinarians” (id., subd. (a), italics added).

The broad latter exception, which Garcia invokes, does not apply to her situation. Garcia argues that because OCAC performs animal control functions (see § 31606), the Legislature’s vicious dog provisions did not apply to Raider because he was confined to OCAC’s kennel. We disagree. The notion that legislation specifically designed to combat “the serious and widespread threat” posed by vicious dogs (§ 31601) is not applicable to a canine passing through an animal control facility contravenes the purpose of the enactment. In interpreting a statute, we must avoid constructions “‘that would produce absurd consequences, which we presume the Legislature did not intend.”’ (In re Greg F. (2012) 55 Cal.4th 393, 406.)

The exception identified in section 31609, subdivision (a), is by its terms applicable to certain enumerated facilities—not to individual animals or their owners. Statutes must be read in context, harmonizing their various parts. (In re Greg F., supra, 55 Cal.4th at p. 406.) The statutory scheme expressly applies to dog owners and their dogs, including the manner in which owners keep their dogs “on the owner’s property” (§ 31642), and other far-reaching restrictions and “conditions upon the ownership of the dog” (§ 31645), with penalties, depending upon the circumstances of each case, up to and including destruction of the dog. (Id., subd. (a)). These restrictions and potential penalties apply “even if the owner or keeper fails to appear” at a vicious dog hearing or on appeal (§ 31623). There is no contradiction in construing these provisions to apply to Garcia and Raider despite his brief stay at OCAC’s kennel. The exception on which Garcia relies does not apply to her since she is not an animal control facility or other enumerated entity.

Garcia’s alternative argument to evade the appeal procedure identified in section 31622 is likewise unconvincing. She contends that the county did not adopt the procedure, and therefore Fullerton did not either when it adopted the county’s vicious dog ordinance. We are not persuaded.

The county’s municipal code includes OCCO section 4-1-95, which is entitled, “Declaration and possession of [a] vicious or potentially dangerous dog.” This code section sets out a local administrative procedure, as authorized by the Legislature in section 31683, for finding that a dog qualifies as “vicious” or “potentially dangerous,” using definitions of those terms (see OCCO § 4-1-23) that mirror those adopted by the Legislature in sections 31602 and 31603. In light of this overlap, we find the manifest intent of the ordinance was to adopt, as authorized by the Legislature, a local “administrative hearing procedure to hear and dispose of petitions filed pursuant to this chapter.” (§ 31621.)

In other words, the local procedure is an analogue that substitutes for the initial judicial process provided by the Legislature for that same determination in the superior court. (§ 31621.) This initial administrative proceeding comports with the Legislature’s authorization of local programs adopted by a city or county “for the control of potentially dangerous or vicious dogs,” incorporating “all, part, or none of this chapter . . . .” (§ 31683.)

The ordinance provides for selection of a hearing officer “from among those individuals appointed by the County Executive Officer, or designee, for the purpose of conducting administrative hearings.” (OCCO § 4-1-95(d).) The ordinance also establishes general rules of procedure for the hearing, including that it “need not be conducted according to technical rules relating to evidence and witnesses.” (Ibid.) Instead, admissible evidence consists of “evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions.” (Ibid.)

Despite the ordinance’s relative detail concerning the initial administrative hearing to determine whether a dog is vicious or potentially dangerous—including time limits in which the hearing must occur and when the hearing officer must render his or her decision (OCCO § 4-1-95(d))—the ordinance does not expressly specify any manner of appeal.

Instead, it provides the following: “The Director shall have the discretion, in any event, to directly petition the court to seek a determination whether or not the dog in question should be declared potentially dangerous or vicious and, if applicable, whether the ownership or possession of any dog by the owner or custodian of the declared vicious dog would create a significant threat to the public health, safety or welfare.” (OCCO § 4-1-95(k).) The “Director” is defined by the ordinance as “the Health Officer of Orange County, his agents or deputies.” (OCCO § 4-1-5.)

The ordinance continues with language that provides insight into the enacting body’s intent regarding appeals: “The Director shall follow the procedures set forth in Food and Agriculture Code [s]ections 31621 and following for this purpose.” (OCCO § 4-1-95(k), italics added.)

Garcia does not dispute county counsel’s representation in her e-mail to Garcia’s attorney early in the proceedings that, in Fullerton and the county generally, “All vicious and potentially dangerous dog appeals in both jurisdictions are held pursuant to section 31622.” The county similarly represented below as its governing practice that Garcia’s right to appeal was to the superior court pursuant to sections 31621 and 31622. It thus appears to be undisputed that the county’s established practice was to extend the right to appeal in their own name to dog owners themselves, rather than to the Director.

We find no fault with this procedure. The ordinance implicitly authorized the Director to approve such appeals, by providing that “[t]he Director shall follow the procedures set forth in Food and Agriculture Code [s]ections 31621 and following for this purpose”—with that purpose being a final determination “whether or not the dog in question should be declared potentially dangerous or vicious . . . .” (OCCO § 4-1-95(k).) Section 31621 specifies that, consistent with section 31683’s authorization of hybrid procedures incorporating “all, part, or none of this chapter,” the underlying administrative hearing may originate in the “city or county,” rather than the superior court. Section 31622, in turn, similarly recognizes the underlying administrative hearing may have been “before a hearing entity other than a [superior] court of the jurisdiction” in which the dog owner resides, but the “de novo” appeal is nevertheless to the superior court. (§ 31622, subds. (a) & (b).)

Although not altogether clear, Garcia at oral argument seemed to suggest the county could not lawfully incorporate section 31622’s appellate procedure absent publication in a manner she claims did not occur here. She asserts that when enacting its vicious dog ordinance, the county was required to publish not only notice of a hearing on the proposed enactment of the ordinance, but also notice specifying any statute to be incorporated and the text of the statute. Garcia argues in her brief that because “Orange County has done none of this with regard to [any portion of] Food & Agric. Code § 31601, et seq.,” the County did not incorporate section 31622’s appellate process.

We disagree. Publication requirements apply to the local ordinance itself—not to publishing the code section or sections it adopts—when “the adoption” of the underlying code is “permitted as a condition of compliance with a state statute . . . .” (Gov. Code, § 50022.2.) Such is the case here where section 31683 expressly permits the incorporation in local law of “all, part, or none” of the Legislature’s framework for addressing vicious dogs—including adoption of the statutory appellate process. The code adoption may be “by reference” to the code in the ordinance (Gov. Code, § 50022.2). The county here complied with this procedure. (OCCO § 4-1-95(k).)

Notably, section 31622 authorizes such appeals by “the owner or keeper of the dog,” provided he or she “serve[s] . . . notice of the appeal upon the other party.” (Id., subd. (a).) In directing the Director to “follow the procedures set forth in . . . [s]ections 31621 and following” (OCCO § 4-1-95(k) (italics added)), the ordinance provides ample authority for the Director to authorize such appeals to the superior court by dog owners. Nothing in our record suggests the Director has not done so, nor does Garcia claim as much. The record is uncontradicted that this procedure is well established as the county’s uniform practice for all vicious or potentially dangerous dog appeals. Nothing the Legislature has enacted prevents this; to the contrary, it is fully within the hybridization of administrative and superior court proceedings contemplated by sections 31621, 31622, and 31683.

Under these circumstances there is no basis to overturn the trial court’s demurrer ruling. The trial court was correct in concluding that there was an adequate remedy at law for Garcia to obtain redress for her due process complaints about the original hearing procedure. That remedy was a de novo appeal authorized explicitly by the Legislature in section 31622 and implicitly in OCCO section 4-1-95(k).

Consequently, the trial court did not err in concluding that Garcia’s remedy was to pursue such an appeal in the superior court, rather than mandamus. A party seeking a writ of administrative mandamus (Code Civ. Proc., § 1094.5) is subject to the same “principles, requirements and limitations” that apply generally to mandamus. (Grant v. Board of Medical Examiners (1965) 232 Cal.App.2d 820, 826.) The petitioner therefore must establish he or she has no “plain, speedy, and adequate remedy . . . in the ordinary course of law.” (Code Civ. Proc., § 1086.) Given Garcia’s right to a de novo appeal in the superior court which she declined to exercise, she cannot meet her burden.

It follows therefore that, even assuming arguendo the trial court hearing Garcia’s mandamus petition erred in ordering her to reinstate her appeal after she chose to dismiss it, the fact that she earlier chose to dismiss the appeal with prejudice forecloses any possible relief by mandamus. We hasten to add that we do not here decide whether or not the trial court erred by ordering the reinstatement. The point is that the court’s demurrer ruling in the mandamus proceedings was correct. Res judicata—whether effectuated by the superior court’s resolution of Garcia’s reinstated appeal against her when she did not appear, or by her earlier dismissal of the appeal—constituted a binding decision against her. In either case, the superior court’s decision against Garcia—on appeal or by dismissal with prejudice at her request—was made in the venue afforded by law for review of the underlying administrative hearing, namely, a de novo appeal.

The trial court in the mandamus proceedings therefore properly sustained respondents’ demurrer without leave for Garcia to amend her petition.

DISPOSITION

The trial court’s demurrer ruling is affirmed. Respondents are entitled to their costs on appeal.

GOETHALS, J.

WE CONCUR:

FYBEL, ACTING P. J.

IKOLA, J.

Filed 11/17/20 Ortega v. Perez CA2/4

NOT TO BE PUBLISHED IN THE 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

SECOND APPELLATE DISTRICT

DIVISION FOUR

 CRUZ ORTEGA,

Plaintiff, Cross-Defendant

and Respondent,

v.

ROGER PEREZ,

Defendant, Cross- Complainant and Appellant,

and

ALEX PEREZ,

Defendant and Appellant.  

         B296706

      (Los Angeles County  

      Super. Ct. No. BC657707)
  

APPEAL from a judgment of the Superior Court of Los Angeles County, Joseph R. Kalin, Judge.  Affirmed.

Erick Garcia for Defendant, Cross-Complainant and Appellant Roger Perez, and Defendant and Appellant Alex Perez.

No appearance for Plaintiff, Cross-Defendant and Respondent.  

In June 2013, plaintiff, cross-defendant and respondent, Cruz Ortega, quitclaimed his interest in a parcel of real property to defendant, cross-complainant and appellant, Roger Perez. Four years later, Ortega filed the underlying action against Roger and his brother, defendant and appellant Alex Perez, purportedly alleging claims for fraud, declaratory relief, quiet title, and cancellation of instrument. Roger, in turn, filed a cross-complaint against Ortega for fraud, quantum meruit and unjust enrichment in June 2017.

Pursuant to a pretrial stipulation between the parties, Ortega’s complaint was dismissed in exchange for Roger’s agreement to quitclaim the property back to Ortega, and Ortega’s agreement to reimburse defendants for costs and expenses incurred for work they performed on the property, in an amount to be determined by the court. Following a bench trial, the court rejected defendants’ claim that they were owed more than $190,000 for construction and other services performed on the parcel during 2017. Instead, the court found Ortega owed defendants approximately $38,600 in reimbursement, and that Roger failed to establish an entitlement to any recovery on his cross-complaint for fraud.

Roger and Alex appealed from the judgment. They contend that trial court erroneously applied the “clear and convincing evidence” burden of proof to Roger’s cross-complaint claim for fraud (the only claim at issue here and at trial), and that the issue of the damages Ortega owes must be remanded for retrial under the appropriate “preponderance of the evidence” standard. We conclude that even if such error occurred, it was harmless. Accordingly, we affirm the judgment.

BACKGROUND

By quitclaim deed executed and recorded on June 26, 2013, Ortega transferred a parcel of real property located at 6317-6319 South San Pedro Street in Los Angeles (Property), to Roger. The deed states Ortega received “A VALUABLE CONSIDERATION” in the exchange but also states, “THIS IS A BONAFIDE GIFT AND THE GRANTOR RECEIVED NOTHING IN RETURN.” At trial, Roger testified he acquired the Property in June 2013 from Ortega “like a gift.” Ortega never told Roger why he had gifted him the Property. Roger testified that, once the quitclaim deed was filed, he believed he owned the Property. He also claimed that, notwithstanding his gift, Ortega had promised to continue making the mortgage payments, but Roger was free to make improvements and/or sell the Property.

Roger retained a broker in February 2017 to sell the Property. In April 2017, Ortega sued defendants for fraud and quiet title, among other things, seeking to recover the Property. Roger and Alex answered the complaint, and Roger filed a cross-complaint against Ortega alleging claims for fraud, quantum meruit and unjust enrichment. Roger alleged that, since June 2013, he has made sure all “mortgage payments were made,” and has made improvements to and paid utilities for the Property. Roger claimed Ortega concealed from him the fact that he had quitclaimed the Property to Roger in order to evade creditors.

A three-day bench trial was conducted between August and October 2018. Prior to trial, the parties executed a written stipulation stating:

“1. On June 26, 2013, [Ortega] executed a quitclaim [deed] . . . recorded [the same day] . . . . The quitclaim transferred [Ortega’s] interest in the [Property] to Roger Perez.

“2. In reliance on the transfer of the [Property] by [Ortega], Defendants incurred costs related to the [Property].

“3. [Roger] will quitclaim his interest in the [Property] back to [Ortega] on the condition that Defendants be reimbursed for any and all costs associated with the [Property] incurred by Defendants as determined by the court at trial.

“4. The issue to be determined by the court is how much [Ortega] must pay Defendants. The parties stipulate that the court shall determine how much [Ortega] must reimburse Defendants. The costs to be reimbursed are costs to manage the [P]roperty, repairs, costs, expenses, improvements, increase in value of . . . and all other expenses related to the [P]roperty. The court shall determine if the reimbursements are appropriate and in what amount.

“5. Each party reserves their right to assert defenses.

“6. The court shall not draw any inference from the foregoing stipulations.

“7. The stipulation is reached for the purposes of reducing the issues and in the interest of judicial economy.”

The parties also stipulated that Ortega would reimburse defendants $39,252.84 as follows: $21,652.84 (mortgage payments, plus utilities, permits, insurance and appraisal expenses incurred from April-December 2017); $5,100 (purchase and installation of windows); $5,500 (labor costs associated with plumbing and the installation of water heaters); and $7,000 (materials and labor associated with the remodel of one unit). Finally, the parties stipulated that Ortega made all mortgage payments except those made from April to December 2017.

Trial proceeded on the issue whether Ortega owed any additional reimbursement, and Roger’s claim Ortega owed him more than $192,000 for repairs performed and expenses he incurred in reliance on “Ortega’s promises.”

Amalia Canales

Alex’s niece, Amalia Canales, is employed in an administrative capacity by her uncle’s company, Alex Perez Construction, Inc. (company). She created spreadsheets reflecting, on a monthly basis, the final invoice to Roger for work the company performed and expenses it incurred in connection with the Property from April 21, 2017 through December 2017. These spreadsheets were not provided to Ortega’s counsel until the day before trial. None of the spreadsheets (exhibits admitted in evidence at trial, but not lodged on appeal) was supported by any receipts, cancelled checks or other substantiating documentation. Canales testified the spreadsheets accurately reflected the company’s expenses and payroll for seven employees who worked on the Property during that period, each of whom was paid $55 per hour (except Alex, who received $60-75 per hour), and the company’s payroll ranged from $16,000 to $30,000 every month. Employees were paid in cash. Canales, in turn, earns $17 per hour, which she is paid by check after the company makes withdrawals for taxes and other costs. Canales testified that each spreadsheet contained only the final billing for a month. The company does not provide more detailed invoices unless a client requests it.

Roger Perez

Roger’s testimony was frequently unclear and riddled with contradictions. He testified Ortega deeded him the Property “like a gift” in June 2013, but never explained why. After the quitclaim deed was executed, Roger believed the Property was his and he could make any improvements or repairs or could sell the Property. He understood the Property had equity when Ortega gifted it to him but did not know how much. Thereafter, Ortega never told Roger the Property was not a gift or that he changed his mind and wanted it back.

Roger and Ortega each live in one of four units on the Property. Roger testified that neither he nor Ortega pays rent, nor have tenants in the other two units paid rent since June 2013. Roger never tried to evict Ortega, but did hire Alex to evict other tenants. Roger testified that he managed the Property and collected rents for the last six months of 2013, that Ramon Diaz had managed the Property and collected the rent since 2013, and that Roger had hired Alex to manage the Property. Roger claimed to have made mortgage payments—which Ortega initially had promised he would continue to pay—with funds Alex lent to him, but also testified the payments were (mostly) covered by rent collected from tenants.

Roger hired Alex and his company to manage the Property and make numerous improvements and repairs between 2016 and sometime in 2017. After Roger received two offers to purchase the Property in early 2017, Ortega told him to stop work. Roger claimed he would not have hired Alex’s company to perform repairs had he not believed he owned the Property as a result of Ortega’s gift. Alex presented Roger with numerous invoices, none of which has been paid. Roger still owes Alex $171,000 for work performed on the Property by his company. The only improvements and repairs identified at trial were those that had been demanded by the city after it performed an inspection in 2017. Roger did not know which repairs the city had mandated, nor could he recall what Alex charged him for painting. Roger did not object to a rate of $55 per hour for each of Alex’s employees because he “hop[ed] that [his] brother would be paid that sum of money” by Ortega.

Alex Perez

Alex is a general contractor whose company has six employees. Canales manages the company’s invoices, but Alex keeps all original receipts to send to a notary for taxes. Clients are invoiced twice a month, but Alex sometimes advances client costs for big jobs.

In April or May 2017, following a city inspection, Roger hired Alex to manage the Property and retained his company to perform required repairs, maintenance and improvements. Due to setbacks caused by tenants, Alex and his employees took four months to perform “preparation work” and painting. Some of the work had to be re-done as many as five times due to tenant interference. Alex testified that, on average, three of his employees worked eight hours per day at the Property, but also claimed he and his employees had worked as many as 15 hours per day, five days per week for four months to perform the work necessary to pass inspection. Alex charged Roger $75 per hour for his management and construction services and paid each of six employees $55 per hour (approximately $25,000 per month). Contradicting testimony given during his deposition (in which he said employees were paid by check), Alex testified first that he always paid employees in cash, and later that he paid them both by check and in cash. Alex had no cancelled checks or other receipts to show whether or how much his employees were paid.

All fees for repair work performed—initially and each time it had to be re-done—were billed to Roger. Ortega was aware Alex’s company was doing repair work but never told Alex to stop. Alex testified that he is owed over $192,000 for the labor and materials his company devoted to work performed on the Property. Alex conceded he had not had $192,000 in the bank, but also claimed he withdrew $192,000 from his account and deposited that cash in Roger’s account for Property related expenses. Alex had no documentation to substantiate this claim.

Florentine Ochoa

The final witness at trial, Florentine Ochoa, has lived in the same unit on the Property for over 30 years, and has always made his rent payments to Ortega. Ochoa, who is retired, is almost “always” at home. He saw three people painting the exterior of the Property in 2017; they worked about four days. Alex had not been among those workers, and Ochoa never saw him working at the Property 15 hours per day, five days a week at any time from April through July 2017.

Trial Court’s Ruling

After the parties submitted closing briefs, the trial court issued its Statement of Decision (SOD). Pursuant to the parties’ stipulation, Ortega was ordered to reimburse Roger and Alex $38,652.84 for out-of-pocket expenditures, and defendants were ordered concurrently to execute grant deeds conveying their interest in the Property to Ortega. The trial court observed that defendants, who bore the burden of proof on the issue, “failed to submit any other credible, reliable or satisfactory evidence of additional damages.” According to the SOD, the court found Alex’s testimony “not credible” and gave “no weight to the exhibits submitted by defendants” which “lacked specificity and documentary evidence to support the alleged expense.” Accordingly, the court “refuse[d] to award any additional damages.” As to the cross-complaint, the court found Roger failed to establish that Ortega committed fraud.

DISCUSSION

On appeal, defendants contend the trial court erred when it applied a “clear and convincing evidence” standard to find Roger failed to establish Ortega committed fraud in conveying the Property to him in the “guise of a gift.” They also maintain that, had the court made its determination based on the appropriate evidentiary standard of a preponderance of evidence, Roger established that he was a victim of fraud. We conclude that any error is harmless. Whatever standard of proof is applied, Roger failed to establish a civil claim of fraud.

The court found Roger failed to establish a claim of fraud based on the following:

“Under California law, a cause of action for fraud requires the [Defendant] to prove (a) a knowingly false misrepresentation by the [Plaintiff], (b) made with the intent to deceive or to induce reliance by the [Defendant], (c) justifiable reliance by the [Defendant], and (d) resulting damages. (Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807.)

“The elements of fraud must be pleaded specifically and with particularity. Every element of fraud must be alleged properly and with sufficient specificity to allow Defendant to understand fully the nature of the charge made. [Citation.] (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

“The evidence must be supported by clear and convincing evidence. There was an absence of evidence to support each element.

“As such, the court finds that [Ortega] is not liable to Defendants for fraud.” (Italics added.)

Relying on Liodas v. Sahadi (1977) 19 Cal.3d 278 (Liodas), defendants correctly observe a claim for civil fraud need only be proved by a preponderance of the evidence. (Id. at pp. 286, 288–291; Weiner v. Fleischman (1991) 54 Cal.3d 476, 484–485; Evid. Code, § 115 [“Except as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence”]) We review the appeal in context. Roger did not initially allege a straightforward claim of civil fraud. Rather his cross-complaint is premised on the contention that to further Ortega’s intention fraudulently to convey title to the Property in order to evade his creditors, Roger nevertheless reasonably relied on Ortega’s intentionally false representation that the Property was a gift, and suffered injury as a result.

Roger reads Liodas, supra, 19 Cal.3d 278, too broadly. In holding that the standard of proof in civil cases in which fraud is an issue is preponderance of the evidence (id. at pp. 286–293), the Supreme Court did not reject the clear and convincing standard of proof for all civil cases. “‘In fact, Liodas noted that under Evidence Code section 115, the clear and convincing evidence standard is “an alternative” standard of proof that “is required on certain issues” by statute or by case law . . . .’ [Citation.]” (DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 61; see 5 Witkin, Summary of Cal. Law (11th ed. 2020) Torts, § 886, p. 1214 [observing that the Supreme Court has held that, “in fraudulent conveyance cases as well as others in which the issue of fraud [is] involved,” the preponderance of evidence standard controls]; see e.g., Conservatorship of Wendland (2001) 26 Cal.4th 519, 546 [default standard of proof in civil cases is preponderance of the evidence].)

Again, Ortega’s complaint is not in the appellate record. Thus, we know only that Roger’s cross-complaint was filed in response to Ortega’s claims of, among others, fraud and quiet title. Ortega’s claims clearly arose from his 2013 conveyance of real property. However, before trial, the parties agreed Ortega would dismiss his action in exchange for a reconveyance to him of title to the Property. Thus, the action proceeded to trial only on the question of damages, that is, what amount Ortega admittedly owed defendants to reimburse then for work performed on his Property, and whether and in what amount Roger suffered injury as a result of Ortega’s alleged garden variety fraud.

Had Roger sought to maintain ownership of the Property based on a claim that Ortega’s “gift” was actually a fraudulent conveyance, the court is correct that Roger would have to establish such a claim by clear and convincing evidence. But it appears this was not the case. The logical implication of the parties’ stipulation regarding Roger’s duty to retransfer title is that the quitclaim deed was invalid and the Property belonged to Ortega. (Hansford v. Lassar (1975) 53 Cal.App.3d 364, 377–379, overturned by legislation re insolvency (Civ. Code, § 3439.02).) Whatever the parties’ initial allegations, by the time the case proceeded to trial, it was apparently agreed that Ortega owned the Property, and the only remaining disputes were how much he owed defendants for work performed on his Property, and whether he committed fraud.

Nonetheless, assuming the trial court erred, we conclude that, regardless of the governing evidentiary standard, it is abundantly clear on this record that the court correctly found Roger failed completely to produce competent, credible evidence to establish each element of a claim of civil fraud.

“‘[W]e review the entire record in the light most favorable to the judgment to determine whether there are sufficient facts, contradicted or not contradicted, to support the judgment.’” (Patricia A. Murray Dental Corp. v. Dentsply Internat., Inc. (2018) 19 Cal.App.5th 258, 270.) “‘Where, as here, the judgment is against the party who has the burden of proof, it is almost impossible for him to prevail on appeal by arguing the evidence compels a judgment in his favor. That is because unless the trial court makes specific findings of fact in favor of the losing [party], we presume the trial court found [that party’s] evidence lacks sufficient weight and credibility to carry the burden of proof. [Citations.] We have no power on appeal to judge the credibility of witnesses or to reweigh the evidence.’ [Citation.]” (Ibid.) “It is settled that, ‘in a bench trial, the trial court is the “sole judge” of witness credibility.’” (Davis v. Kahn (1970) 7 Cal.App.3d 868, 874.) Its credibility determinations are subject to extremely deferential review. (La Jolla Casa deManana v. Hopkins (1950) 98 Cal.App.2d 339, 345–346 [“[A] trial judge has an inherent right to disregard the testimony of any witness . . . [and] is the arbiter of the credibility of the witnesses”].) (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 582 [the appellate court’s “job is only to see if substantial evidence exists to support the verdict in favor of the prevailing party, not to determine whether substantial evidence might support the losing party’s version of events”]; Jennifer K. v. Shane K. (2020) 47 Cal.App.5th 558, 579.) “Evidence of witnesses, especially those who have a biased or prejudiced interest in the result of the trial in which they testify, need not be accepted at face value.” (Koivunen v. States Line (9th Cir. 1967) 371 F.2d 781, 783.)

Even if, as Roger alleged, Ortega transferred the Property to evade creditors, it is implicit in the record that, far from being a victim of Ortega’s fraud, Roger was likely complicit in that effort for which he was rewarded (having lived rent free since 2013). More importantly, the trial court found no credible evidence to support defendants’ claim that Ortega owed Roger $192,000 for damages he and his brother suffered due to Roger’s reasonable reliance on Ortega’s “gift.” There is no evidence Ortega owes defendants anything for work performed beyond the $38,000 already awarded. Roger clearly had nothing more than a rudimentary understanding of the type or amount of work performed by Alex’s company, or what he was billed for that work. As for Alex, the trial court found he was not credible. It also found that defendants, who had the burden, failed to provide any reliable evidence to substantiate their claimed injuries.

In sum, the trial court’s credibility findings compel the conclusion that, regardless of the standard of proof, Roger failed to establish he reasonably relied on Ortega’s false representations or that he suffered injury as a result. In short, evidence that is not credible or does not exist cannot, as a matter of law, prevail under any standard of proof.

DISPOSITION

The judgment is affirmed. Neither party is awarded costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P. J.

We concur:

COLLINS, J. CURREY, J.

Filed 11/17/20 Doan v. Ghoshal CA3

NOT TO BE PUBLISHED

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

THIRD APPELLATE DISTRICT

(Sacramento)

—-

WILLIAM DOAN,

Plaintiff and Appellant,

v.

ASISH GHOSHAL,

Defendant and Respondent.

C088128

(Super. Ct. No. 34201700214451CUMCGDS)

On June 21, 2017, plaintiff, serving as a caretaker, transported a patient to defendant’s medical office. When plaintiff presented the receptionist with the patient’s insurance card, the receptionist bent the card and got into a loud verbal altercation with plaintiff and the patient, culminating in plaintiff and the patient being ejected from the office. Plaintiff commenced this action asserting causes of action to recover damages under Civil Code section 52.1 and for intentional infliction of emotional distress. The trial court sustained defendant’s demurrer to the original complaint with leave to amend. After numerous additional procedural steps, the trial court sustained defendant’s demurrer to plaintiff’s third amended complaint without leave to amend and entered judgment in favor of defendant.

Plaintiff, appearing in propria persona, asserts on appeal: (1) the trial court abused its discretion in sustaining the demurrer without leave to amend, (2) plaintiff’s proposed amendments relate to the same general set of facts, and (3) his proposed third amended complaint was not a sham pleading.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Alleged Facts

Plaintiff transported the patient to defendant’s medical practice. Upon their arrival, the receptionist directed plaintiff to fill out an admittance form and requested the patient’s insurance card. The patient was a MediCal recipient who ordinarily had both a MediCal card and a Health Management Organization (HMO) card issued by the contracted health care provider for MediCal. At the time, however, the patient only had her MediCal card with her. The receptionist “rejected the MediCal card, stating that it was the wrong card.” Plaintiff attempted to explain the patient’s insurance circumstances and urged the receptionist to contact the patient’s insurer. However, the receptionist “refused to do so and immediately bent the patient’s MediCal card in an attempt to destroy the card.” Plaintiff stopped the receptionist before she could destroy the patient’s MediCal card. A loud verbal altercation ensued. According to plaintiff, defendant failed to intervene “to stop [the receptionist’s] rude and boisterous demeanor toward Plaintiff and the patient.” Indeed, according to plaintiff, defendant “physically pushed Plaintiff and the patient out of the medical clinic through the front door.” A number of weeks passed before the patient obtained another referral from the HMO.

Procedural Background Prior to the Third Amended Complaint

Plaintiff filed a complaint against defendant and “Jane Doe,” asserting causes of action to recover damages for violation of section 52.1, former subdivision (b), and intentional infliction of emotional distress.

Defendant demurred to plaintiff’s complaint. The trial court affirmed its tentative ruling, sustaining defendant’s demurrer with leave to amend. The trial court determined plaintiff failed to state a cause of action under section 52.1, former subdivision (b), because the right of action is personal, the patient was not a named plaintiff, and assignment of personal injury claims asserted against third parties is void. As for the intentional infliction of emotional distress cause of action, the trial court determined that plaintiff alleged insufficient detail to support each element. The court further stated that it was not clear whether plaintiff was asserting the cause of action based on the conduct of Jane Doe, defendant, or both.

Plaintiff filed a first amended complaint, asserting causes of action sounding in trespass to chattel, intentional infliction of emotional distress, negligent hiring and retention, assault, and battery. Defendant again demurred. In granting, as unopposed, defendant’s motion to strike portions of the first amended complaint, the trial court granted plaintiff leave to file a second amended complaint “only as to the two causes of action set forth in the original complaint . . . .”

Plaintiff sought leave to file a second amended complaint. The proposed second amended complaint asserted the same causes of action asserted in the first amended complaint. After oral argument, the trial court granted plaintiff leave to file a second amended complaint only as to the two causes of action set forth in the original complaint— violation of section 52.1, former subdivision (b), and intentional infliction of emotional distress. The trial court stated that plaintiff failed to comply with California Rules of Court, rule 3.1324, addressed to amended pleadings, which requires, among other things, an explanation as to “ ‘Why the amendment is necessary and proper’ ”; “ ‘When the facts giving rise to the amended allegation were discovered’ ”; and “ ‘The reasons why the request for amendment was not made earlier.’ ” (Cal. Rules of Court, rule 3.1324.)

Plaintiff filed a motion for reconsideration pursuant to Code of Civil Procedure section 1008. Plaintiff asserted that, since the trial court’s order, he had discovered new facts. Specifically, plaintiff had discovered that defendant Jane Doe was Anita Ghoshal, defendant’s wife. Plaintiff alleged that both Anita Ghoshal and defendant worked at the medical office, and both were corporate officers of Asish Ghoshal MD, Inc. Plaintiff also asserted: “Both Anita Ghoshal and Asish Ghoshal, as husband and wife, own the real property, located at Anita Ghoshal and Asish Ghoshal [sic].” Plaintiff asserted that, because both Anita Ghoshal and Asish Ghoshal owned the land and operated the business as corporate officers, they owed greater duties to the public and were subject to greater liabilities, and thus the “legal landscape changed with these new facts.” (Underlining and italics omitted.) He asserted that the newly discovered facts gave rise to different circumstances.

The trial court denied plaintiff’s motion for reconsideration. The court stated that plaintiff failed to aver when he learned of the new evidence and why he could not discover it earlier. “More importantly,” the court stated that plaintiff’s discovery that Jane Doe is Anita Ghoshal “is largely immaterial as to the Court’s denial of the prior motion” for leave to amend. The trial court stated that plaintiff failed to establish any reason he should be excused for failing to satisfy the requirements of California Rules of Court, rule 3.1324.

Third Amended Complaint

Plaintiff filed his “third amended complaint” (see fn. 3, ante), asserting causes of action to recover damages for violation of section 52.1, former subdivision (b), and intentional infliction of emotional distress.

In the first cause of action, asserted against defendant and Jane Doe, to recover damages for violation of section 52.1, plaintiff asserted that Jane Doe “exceeded her privilege as a medical office staff by engaging in conducts [sic] incompatible with a health care provider by attempting the destroy [sic] the patient’s medical card and by evicting Plaintiff and the patient.” Plaintiff asserted that “[b]oth defendants discriminated against Plaintiff and the accompanied patient because Plaintiff and the patient spoke their primary language — Vietnamese.”

In the second cause of action, asserted against Jane Doe, to recover damages for intentional infliction of emotional distress, plaintiff asserted that there was a special relationship between defendants, as health care providers, and plaintiff and the patient. Plaintiff asserted that Jane Doe “abused this relationship by attempting to destroy” the patient’s MediCal card, by failing to verify the patient’s insurance status, and by “physically throwing out the patient and the patient’s care taker.” Plaintiff maintained that Jane Doe’s conduct was directed at him. He further asserted that Jane Doe “was acting in the capacity of an employee, i.e. the receptionist. Jane Doe was acting as an employee with the full knowledge, consent, condoning, and agreement of Defendant Asish Ghoshal.” Plaintiff asserted that Jane Doe’s conduct was outrageous, intentional, malicious, and beyond the bounds of that tolerated in a decent society. Plaintiff asserted that, as a proximate result of Jane Doe’s conduct, he suffered severe emotional distress.

Defendant’s Demurrer and Plaintiff’s Opposition

Defendant demurred to the third amended complaint.

Defendant asserted that plaintiff lacked standing as to the first cause of action. He asserted that the patient, not plaintiff, was the real party in interest in that cause of action. Defendant further asserted that the first cause of action failed to state a cause of action and failed to plead facts with requisite specificity.

Defendant asserted that the second cause of action failed to plead sufficient facts to constitute a cause of action for intentional infliction of emotional distress.

In his opposition, plaintiff noted, among other things, that, while the intentional infliction of emotional distress cause of action in the original complaint was asserted against all defendants, the corresponding cause of action in the third amended complaint was asserted solely against Jane Doe.

The Trial Court Ruling on the Third Amended Complaint

In a tentative ruling on August 3, 2018, the trial court indicated its intent to sustain the demurrer to the third amended complaint without leave to amend.

As to the first cause of action, the trial court stated: “Even accepting the truth of Plaintiff’s allegations that he was discriminated against by Defendants because he speaks Vietnamese, Plaintiff has failed to allege any other facts that would support a prima facie case for violation of section 52.1(b),[ ] such as how he was harmed. All of the alleged harm, if any, concerns the patient (not Plaintiff) being denied medical treatment and having her medical card bent.” Additionally, because plaintiff did not provide any facts that would cure the defects, and because he had already had two attempts to amend his complaint, the trial court stated that it would not grant plaintiff further leave to amend.

As to the second cause of action, the trial court stated that the alleged facts constituting outrageous conduct “all concern actions taken by Jane Doe. None of the allegations concern any conduct undertaken by Dr. Ghoshal.” The court further stated: “At most, Plaintiff alleges Jane Doe was acting as Dr. Ghoshal’s employee ‘with the full knowledge, consent, condoning, and agreement of’ Dr. Ghoshal.” The court determined that this was “insufficient.” The court stated that there were “no allegations that Dr. Ghoshal’s conduct is at issue for purposes of this cause of action. Indeed, Plaintiff even admits in his opposition that his claim for [intentional infliction of emotional distress] is alleged against Jane Doe.” Again stating that plaintiff failed to furnish facts that would cure the defects and that plaintiff had already had two opportunities to amend, the trial court declined to afford plaintiff leave to amend.

There being no request for oral argument, the trial court affirmed its tentative ruling.

Order, Judgment, and Appeal

In an order filed August 24, 2018, the trial court essentially reiterated its tentative ruling, sustaining defendant’s demurrer to the third amended complaint without leave to amend. In a judgment filed the same day, the trial court dismissed defendant Asish Ghoshal, M.D., from the action, with prejudice, and entered judgment in his favor. Plaintiff filed a notice of appeal on September 28, 2018, appealing from the judgment of dismissal after an order sustaining a demurrer.

DISCUSSION

I. Ruling on the Demurrer to the Third Amended Complaint

A. Plaintiff’s Contentions and Standard of Review

Plaintiff asserts that the trial court abused its discretion in sustaining defendant’s demurrer without leave to amend.

A demurrer tests the sufficiency of the complaint as a matter of law, and it raises only questions of law. (Code Civ. Proc., § 589, subd. (a); see also Code Civ. Proc., § 430.30, subd. (a) [“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading”].) “We review a trial court’s decision to sustain a demurrer for an abuse of discretion.” (Zipperer v. County of Santa Clara (2005) 133 Cal.App.4th 1013, 1019.) “ ‘ “ ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the [complaint] a reasonable interpretation, reading it as a whole and its parts in their context.” ’ ” (Finch Aerospace Corp. v. City of San Diego (2017) 8 Cal.App.5th 1248, 1251-1252.) “[T]he complaint must be liberally construed and survives a general demurrer insofar as it states, however inartfully, facts disclosing some right to relief.” (Longshore v. County of Ventura (1979) 25 Cal.3d 14, 22; see also Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1162 [we decide “whether a cause of action has been stated under any legal theory when the allegations are liberally construed”].)

“The party against whom a complaint . . . has been filed may object, by demurrer” on the ground, among others, that the complaint “does not state facts sufficient to constitute a cause of action.” (§ 430.10, subd. (e).)

B. Analysis

1. First Cause of Action—Violation of Section 52.1

a. Section 52.1—The Tom Bane Civil Rights Act

Section 52.1 is referred to as the Tom Bane Civil Rights Act. (§ 52.1, subd. (a).)

At the time of the underlying incident, when plaintiff filed his complaint, and at the time of judgment, section 52.1, former subdivision (b), provided: “Any individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with, as described in subdivision (a), may institute and prosecute in his or her own name and on his or her own behalf a civil action for damages, including, but not limited to, damages under Section 52, injunctive relief, and other appropriate equitable relief to protect the peaceable exercise or enjoyment of the right or rights secured, including appropriate equitable and declaratory relief to eliminate a pattern or practice of conduct as described in subdivision (a).” (§ 52.1, former subd. (b).) The identical provision can now be found in subdivision (c) of section 52.1.

“ ‘The essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., “threats, intimidation or coercion”), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law.’ ” (Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947, 955-956.) “The legislative history of section 52.1, enacted in 1987, makes clear that the crucial motivation behind passage of section 52.1 was to address the increasing incidence of hate crimes in California.” (Id. at p. 956.) “However, the statutory language does not limit its application to hate crimes. Notably, the statute does not require a plaintiff to allege the defendant acted with discriminatory animus or intent based upon the plaintiff’s membership in a protected class of persons.” (Ibid.; accord, Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 841.) “A defendant is liable if he or she interfered with or attempted to interfere with the plaintiff’s constitutional rights by the requisite threats, intimidation, or coercion.” (Shoyoye, at p. 956.)

To establish a cause of action pursuant to section 52.1, former subdivision (b) and current subdivision (c), plaintiff would have to establish the following: (1) by threats, intimidation or coercion, defendant caused him to reasonably believe that if he exercised a particular right, defendant would commit violence against him or his property and that defendant had the apparent ability to carry out the threats or that defendant acted violently against plaintiff and plaintiff’s property to prevent him from exercising his right in order to retaliate against plaintiff for having exercised his right; (2) defendant intended to deprive plaintiff of his enjoyment of the interests protected by his right; (3) plaintiff was harmed; and (4) defendant’s conduct was a substantial factor in causing plaintiff’s harm. (CACI No. 3066; accord, Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 882, quoting former CACI No. 3025.)

The third amended complaint alleged that defendant and Jane Doe discriminated against him, and the patient, because they spoke Vietnamese. The first cause of action alleged that Jane Doe “exceeded her privilege as a medical office staff by engaging in conducts [sic] incompatible with a health care provider by attempting the [sic] destroy the patient’s medical card and by evicting Plaintiff and the patient.” Plaintiff alleged that Jane Doe bent the patient’s MediCal card, and that defendant’s ejection of the patient from his medical practice resulted in a delay in the patient receiving medical treatment.

While plaintiff may have alleged discrimination, he did not allege other facts sufficient to support a cause of action pursuant to section 52.1. As the trial court determined, plaintiff has not succeeded in alleging any harm or injury. The harm he has alleged was harm that befell the patient—damage to her insurance card and a delay in her medical treatment. The third amended complaint does not allege that defendant or Jane Doe intended to deprive plaintiff of his enjoyment of the interests protected by his right to speak Vietnamese. Moreover, we note the express language of section 52.1 limits a plaintiff to asserting a cause of action “in his or her own name and on his or her own behalf . . . .” (§ 52.1, subd. (c); see also § 52.1, former subd. (b).)

Plaintiff failed to state facts sufficient to constitute a cause of action pursuant to section 52.1.

b. Section 51—The Unruh Civil Rights Act

The trial court addressed the first cause of action, at least in part, as an alleged Unruh Civil Rights Act violation. The Unruh Civil Rights Act and the Tom Bane Civil Rights Act are not the same; a claim under the latter is not a claim under the former, and the latter is not a component of the former. (Stamps v. Superior Court (2006) 136 Cal.App.4th 1441, 1452.) In asserting his statutorily based first cause of action in pleadings in the trial court, plaintiff relied on section 52.1, not section 51, the Unruh Civil Rights Act. In any event, “[i]n reviewing an order sustaining a demurrer, we examine the operative complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory.” (T.H. v. Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162 (Novartis).)

“All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (§ 51, subd. (b), italics added.) To establish a cause of action under the Unruh Civil Rights Act, a plaintiff must prove (1) the defendant denied the plaintiff full and equal accommodations, (2) a substantial motivating reason for the defendant’s conduct was the defendant’s perception of the plaintiff’s actionable characteristic, (3) the plaintiff was harmed, and (4) the defendant’s conduct was a substantial factor in causing the plaintiff’s harm. (CACI No. 3060.)

With regard to harm or injury, in Koire v. Metro Car Wash (1985) 40 Cal.3d 24 (Koire), a case involving sex discrimination by businesses, the defendants asserted, as to harm, that the plaintiff suffered no injury as a result of their gender-based price discounts in the form of “Ladies’ Day” and “Ladies Night” promotions, and therefore the promotions did not violate the Unruh Civil Rights Act. (Id. at p. 33.) Rejecting this contention, our high court held that, “by passing the Unruh Act, the Legislature established that arbitrary sex discrimination by businesses is per se injurious.” (Ibid.) Among other things, our high court noted that section 51 requires equal treatment, and section 52 provides for minimum statutory damages regardless of the plaintiff’s actual damages. (Koire, at p. 33.) Our high court went on to conclude that the plaintiff was, in fact, injured. He had to pay more than his female counterparts at the defendants’ bar and car washes. (Id. at p. 34.) Moreover, “differential pricing based on sex may be generally detrimental to both men and women, because it reinforces harmful stereotypes.” (Ibid.) Thus, in Koire, our high court “interpreted the [Unruh Civil Rights] Act as broadly condemning any business establishment’s policy of gender-based price discounts,” and “determined that injury occurs when the discriminatory policy is applied to the plaintiff—that is, at the time the plaintiff patronizes the business establishment, tendering the nondiscounted price of admission.” (Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 175 (Angelucci).)

However, as our high court stated in Angelucci, “[e]ven in light of the Koire decision’s broad definition of injury, of course, a plaintiff must have standing to bring an action under the” Unruh Civil Rights Act. (Angelucci, supra, 41 Cal.4th at p. 175.) Our high court agreed with the statement of the Court of Appeal in that case (although it disagreed with that court’s ultimate determination), that “ ‘a plaintiff cannot sue for discrimination in the abstract, but must actually suffer the discriminatory conduct.’ ” (Ibid.) “In general terms, in order to have standing, the plaintiff must be able to allege injury—that is, some ‘invasion of the plaintiff’s legally protected interests.’ ” (Ibid., quoting 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 862, p. 320.) “Standing rules for actions based upon statute may vary according to the intent of the Legislature and the purpose of the enactment.” (Angelucci, at p. 175.) “[A]n individual plaintiff has standing under the [Unruh Civil Rights] Act if he or she has been the victim of the defendant’s discriminatory act.” (Angelucci, at p. 175, italics added.)

Here, it was the patient who was the victim of the alleged discriminatory act. As a result of defendant’s alleged conduct, the patient suffered damage to her insurance card, defendant’s failure to treat her, and a delay in her medical treatment after defendant forced the patient and plaintiff to leave. Plaintiff did not suffer any injury as a result of defendant’s conduct. He did not suffer personal injury from any damage to the insurance card or the alleged refusal of treatment. He has not alleged any cognizable invasion of his legally protected interests, or that he was the victim of defendant’s alleged discriminatory act. (See Angelucci, supra, 41 Cal.4th at p. 175.) Thus, we conclude plaintiff has failed to state a cause of action pursuant to section 51.

2. Second Cause of Action—Intentional Infliction of Emotional Distress

“A cause of action for intentional infliction of emotional distress exists when there is ‘ “ ‘ “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” ’ ” ’ [Citations.] A defendant’s conduct is ‘outrageous’ when it is so ‘ “ ‘extreme as to exceed all bounds of that usually tolerated in a civilized community.’ ” ’ [Citation.] And the defendant’s conduct must be ‘ “ ‘intended to inflict injury or engaged in with the realization that injury will result.’ ” ’ ” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051.)

The trial court correctly noted that plaintiff has asserted this cause of action against Jane Doe only. The third amended complaint expressly states that the second cause of action was asserted “against defendant Jane Doe.” (Capitalization, bold, and underlining omitted.) In the second cause of action, plaintiff asserted that Jane Doe “abused this relationship by attempting to destroy” the patient’s MediCal card, by failing to verify the patient’s insurance status, and by “physically throwing out the patient and the patient’s care taker.” Plaintiff maintained that Jane Doe’s conduct was directed at him. Plaintiff asserted that Jane Doe’s conduct was outrageous, intentional, malicious, and beyond the bounds of that tolerated in a decent society. Plaintiff asserted that, as a proximate result of Jane Doe’s conduct, he suffered severe emotional distress. In his opposition to defendant’s demurrer to the third amended complaint, plaintiff specifically stated that the second cause of action in the third amended complaint was asserted solely against Jane Doe.

Inasmuch as the second cause of action was not asserted against defendant, the trial court properly sustained defendant’s demurrer as to that cause of action. The second cause of action “does not state facts sufficient to constitute a cause of action” for intentional infliction of emotional distress against defendant. (Code Civ. Proc., § 430.10, subd. (e).) On appeal, plaintiff does not argue that defendant is potentially liable under the second cause of action on any theory.

Consequently, plaintiff has failed to satisfy his burden of affirmatively demonstrating that the trial court erroneously sustained defendant’s demurrer to the second cause of action.

II. Sustaining Defendant’s Demurrer Without Leave to Amend

A. Standard of Review

“Where, as here, the trial court sustains the demurrer without leave to amend, we must decide whether there is a reasonable possibility the plaintiff can cure the defect with an amendment. [Citation.] If we find that an amendment could cure the defect, we must find the court abused its discretion and reverse. If not, the court has not abused its discretion.” (Mendoza v. JPMorgan Chase Bank, N.A. (2016) 6 Cal.App.5th 802, 809 (Mendoza); accord, Novartis, supra, 4 Cal.5th at p. 162.) It is well-settled that, on appeal, the plaintiff bears the burden of proving an amendment would cure the defect. (Novartis, at p. 162; Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081 (Schifando); Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank); Mendoza, at p. 809; Friends of Shingle Springs Interchange, Inc. v. County of El Dorado (2011) 200 Cal.App.4th 1470, 1485 (Shingle Springs).)

B. Analysis

Plaintiff in his opening brief raises the issue of whether the trial court abused its discretion by denying leave to amend. He describes our review for abuse of discretion. He then asserts that defendant would not have been misled or prejudiced in any way by amendment, and therefore asserts the trial court abused its discretion in denying leave to amend. Plaintiff also contends that the trial court abused its discretion in denying leave to amend because the pleading had only been amended once. Under a separate heading, plaintiff asserts that the trial court abused its discretion in denying him the opportunity to amend his pleading to add new causes of action, and that all facts in the proposed amendments relate to the same general set of facts as already pled in prior pleadings.

What plaintiff fails to do in his opening brief is set forth his proposed amendments and establish how his proposed amendments will cure the defects in his third amended complaint. As noted, on appeal, the plaintiff bears the burden of proving an amendment would cure the defect. (Novartis, supra, 4 Cal.5th at p. 162; Schifando, supra, 31 Cal.4th at p. 1081; Blank, supra, 39 Cal.3d at p. 318; Mendoza, supra, 6 Cal.App.5th at p. 809; Shingle Springs, supra, 200 Cal.App.4th at p. 1485.) In plaintiff’s opening brief, he simply does not address these determinative issues. Plaintiff did not file a reply brief, and, in any event, it would be improper to raise new arguments in reply. (See Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52, 56 [rejecting points raised for the first time in reply brief on appeal without good cause in reviewing trial court’s ruling sustaining a demurrer without leave to amend].)

While plaintiff is representing himself, he is nonetheless held to the same standards and rules of procedure as an attorney. (See Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) “ ‘[S]uch a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys.’ ” (Id. at p. 1247.)

In short, plaintiff on appeal has not identified how he would amend his third amended complaint and he has not suggested how any proposed amendments would cure the defects in his pleading. Plaintiff has advanced no substantive argument whatsoever on these dispositive issues. Therefore, plaintiff has failed to satisfy his burden of proving an amendment would cure the defects in his third amended complaint. (See Novartis, supra, 4 Cal.5th at p. 162; Schifando, supra, 31 Cal.4th at p. 1081; Blank, supra, 39 Cal.3d at p. 318; Mendoza, supra, 6 Cal.App.5th at p. 809; Shingle Springs, supra, 200 Cal.App.4th at p. 1485.)

“While a plaintiff even on appeal . . . can most certainly make a showing that an amendment to the complaint will change its legal effect [citation], it is the plaintiff—not the court—who has the burden of showing that an amendment will have such an effect.” (Medina v. Safe-Guard Products, Internat., Inc. (2008) 164 Cal.App.4th 105, 112, fn. 8 (Medina), citing Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ¶ 7:130, p. 7–50.) “As the Rutter Practice Guide states: ‘It is not up to the judge to figure out how the complaint can be amended to state a cause of action. Rather, the burden is on the plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading.’ ” (Medina, at p. 112, fn. 8, quoting Weil & Brown, ¶ 7:130, p. 7–50.) “ ‘While such a showing can be made for the first time to the reviewing court [citation], it must be made.’ ” (Medina, at p. 112, fn. 8, quoting Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 711.) Plaintiff has not made such a showing here. Thus, plaintiff failed to carry his burden of demonstrating that the trial court abused its discretion in sustaining defendant’s demurrer without leave to amend.

III. Sham Pleading

In the third of his three argument headings in his opening brief, plaintiff asserts that his third amended complaint (see fn. 4, ante) is not a sham pleading. (See generally Womack v. Lovell (2015) 237 Cal.App.4th 772, 787 [discussing the sham pleading doctrine]; Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425-426 [same]; Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 383-384 [same].) We need not address this contention in any detail here. In light of our determination that plaintiff has failed to establish that the trial court abused its discretion in sustaining defendant’s demurrer without leave to amend, plaintiff’s contention that his third amended complaint is not a sham pleading is moot.

DISPOSITION

The judgment is affirmed. Defendant shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

/s/

MURRAY, J.

We concur:

/s/

BLEASE, Acting P. J.

/s/

RENNER, J.

Filed 11/18/20 Perez v. Blay CA4/1

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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

MAX PEREZ,

Plaintiff and Appellant,

v.

RICHARD J. BLAY et al.,

Defendant and Respondent. D075751

(Super. Ct. No. 37-2017-00023570-

CU-FR-NC)

APPEAL from a judgment of the Superior Court of San Diego County, Jacqueline M. Stern, Judge. Affirmed.

Griffin Law Firm and David Ryan Griffin for Plaintiff and Appellant.

Gordon Rees Scully Mansukhani, Matthew Gregory Kleiner and Andrea K. Scripps for Defendants and Respondents.

Appellant Max Perez bought a parcel of land and then sought to rescind the purchase. He challenges the trial court’s denial of his request and, in particular, its finding that the lot was not part of a common interest development. Finding no error based on the incomplete record before us, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 2015, Perez bought a parcel of land in Bonsall from Richard and Ann Whalen Blay. It was one of eight lots they inherited from Richard’s mother. The Blays never lived on the land but knew all parcels were subject to various covenants and restrictions (CC&R’s) which were referenced in the property listing.

Perez was apparently eager to close the sale. He submitted an offer, accepted the Blay’s counteroffer, and completed the purchase in less than a month. At some point Perez seemingly discovered that the CC&R’s would inhibit his construction plans on the lot. He filed suit against the Blays and other codefendants involved in the sale (parties who were later dismissed), seeking rescission based on fraud, negligent misrepresentation, and breach of contract. Perez alleged that the Blays misrepresented that there was no owner’s association and that the CC&R’s were invalid, inducing him to purchase the lot in reliance on these false statements. For his breach of contract claim, Perez said the Blays did not disclose certain documents they were contractually mandated to provide.

The case proceeded to a bench trial, where the court found in favor of the Blays and specifically stated that Perez failed to carry his burden, offering “no evidence against these defendants of fraudulent acts or misrepresentations” and “no evidence that they failed to provide any required documentation to plaintiff.” The trial was not reported.

DISCUSSION

On appeal, Perez argues the court erred as a matter of law by concluding that the CC&R’s, a map of the property subdivision, and a private road maintenance agreement did not create a common interest development under the Davis-Stirling Common Interest Development Act (the Act). (Civ. Code, § 4000 et seq.) Despite the trial court’s factual findings to the contrary, he also reiterates his position that he is entitled to rescission because the Blays breached their contractual obligations by failing to provide disclosures regarding a homeowner’s association. Alternatively, he claims that the documents they did provide came late and prevented him from making an informed decision about the purchase.

As to his first argument, it is not at all clear that Perez would have fared better if the trial court had made the opposite finding—that these documents proved the lot was part of a common interest development. Regardless, there was no demonstrable error on this point. We provide a brief overview of the statutory scheme to frame our discussion.

In 1985, the Act gathered the various codes governing common interest developments within one statutory framework. Because subsequent amendments rendered the sections confusing, it was overhauled and recodified in 2014. (Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 378; Sproul et al., Advising Cal. Common Interest Communities (Cont.Ed.Bar. 2d. ed. 2020) §§ 1.3‒1.4.) The Act recognizes four types of common interest communities: community apartments, condominiums, planned developments, and stock cooperatives. (§ 4100.) The lots at issue in this case could only be considered part of a planned development, which is defined as a real property development other than an apartment, condominium, or stock cooperative. (§ 4175.) Generally, a common interest development is created through a two-step process: (1) “a separate interest, coupled with an interest in the common area or membership in the association” is conveyed, and (2) a declaration and parcel map that complies with the Subdivision Map Act are both recorded. (Civ. Code, § 4200; Gov. Code, § 66410.) In planned developments, a separate interest is defined as a “separately owned lot, parcel, area, or space” (§ 4185, subd. (a)(3)), while the common area is negatively defined as “the entire common interest development except the separate interests therein.” (§ 4095, subd. (a).) Properties that lack a common area are not common interest developments and the Act is inapplicable to their governance. (§ 4201; see also Committee to Save the Beverly Highlands Homes Ass’n v. Beverly Highlands Homes Ass’n (2001) 92 Cal.App.4th 1247, 1268.)

The question before us is whether, as a matter of law, the three documents Perez points to necessarily show the parcel he currently (though unhappily) owns is part of a planned development. Because the eight lots clearly qualify as separate interests, our analysis turns on whether the property includes a “common area” as defined by the statute.

In planned developments, a common area can be established in one of two ways. Under subdivision (a) of section 4175, the common area can be either owned by an association or owned in common by the owners of the separate interests who “possess appurtenant rights to the beneficial use and enjoyment of the common area.” Subdivision (b) provides an alternative, where the common area is maintained by an association “with the power to levy assessments that may become a lien upon the separate interests.”

These common areas typically consist of green space or recreation areas. (See, e.g., Branciforte Heights, LLC v. City of Santa Cruz (2006) 138 Cal.App.4th 914, 921; Bruce et al., Forming Cal. Common Interest Developments (Cont.Ed.Bar. 2019) § 1.35.) Construing his brief liberally, Perez seems to argue that the two private roads bordering the property, Disney Lane and Kellyn Lane, are the common area. While it is certainly possible for private roads to satisfy this requirement, their existence alone is not enough. Perez must show the roads constitute a common area under section 4175, which lists the factors that qualify.

Subdivision (a) of section 4175 focuses on ownership of the common area and contemplates that either an association will own it or that the separate interest owners will hold it in common. As to the first ownership structure, there are no indications in either the CC&R’s or the map that an association owns the roads. To the contrary, the map shows that most of the parcels (numbers two through eight) extend to incorporate parts of Disney Lane. It thus appears that sections of the road are actually within the separate interest lots. By its very definition, a common area cannot be part of a separately owned interest. A map like this, that shows sections of road incorporated into distinct lots, seems to preclude the possibility that the separate interest owners hold the roads together, undivided, as tenants in common. (See, e.g., Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 232 [condominium common area was an undivided interest held in common]; Bruce et al., Forming Cal. Common Interest Developments, supra, § 1.35 [noting the two ownership structures for common areas in planned developments are ownership by an association or by separate interest owners as tenants in common].) To further understand the ownership structure of the roads and the lots, we would need to review the deeds, which were not provided in this record.

Subdivision (b) does not focus on common area ownership but does require that an association exist to maintain the roads. Such an association must also possess the power to levy assessments that may become liens on the separate interests. (§ 4175.) Neither the map nor the CC&R’s establish there was ever an association tasked with road maintenance. In addition, the CC&R’s only contemplated one association—the Architectural Control Committee—for approving construction plans on the lots. The lack of any other entity established in the CC&R’s, coupled with the trial court’s finding that the Architectural committee was defunct as of 2010, undermines Perez’s position.

He advances one other theory that he maintains would make the roads a common area, but it stems from a misunderstanding of the statutory scheme. The Act’s definition in some cases permits a common area to “consist of mutual or reciprocal easement rights.” (§ 4095, subd. (b).) Seizing on this language, Perez points out that the lots have mutual easement rights to traverse Disney and Kellyn lanes. He seems to believe the mere existence of the easements satisfies the common area requirement. But by the terms of the statute, easement rights can only be considered a common area where an association also exists. Moreover, the association must have the particular powers and responsibilities enumerated in section 4175, subdivision (b) as discussed above. (See § 4095, subd. (b).) Perez, who has failed to provide evidence of these specific conditions, cannot rely on this part of the law to support his argument.

Perez’s remaining claims amount to nothing more than attempts to relitigate unfavorable findings made by the trial court. We usually afford these findings great deference, overturning them only if they are unsupported by substantial evidence. (See Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 465; Escobar v. Flores (2010) 183 Cal.App.4th 737, 752.) Here, we assume their propriety since we have no record of the trial to review and only a partial clerk’s transcript. (See Estate of Fain (1999) 75 Cal.App.4th 973, 992; National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 522.)

We do have the court’s statement of decision. Of particular relevance, the court memorialized Perez’s failure to carry his burden. Specifically, it stated that he presented “no evidence against these defendants of fraudulent acts or misrepresentations” and “no evidence defendants failed to provide any required documentation.” He was also given the CC&R’s, map, and road maintenance agreement to inform his property purchase and he “signed off on the preliminary title report several days before the close of escrow,” completing the transaction without objection or even a request for additional time. Perez’s continued insistence that rescission is warranted, either due to a mistake or because the Blays withheld documents they were required to provide, is contradicted by the findings of the trial court—to which this court must defer.

DISPOSITION

The judgment is affirmed. Respondents are entitled to their costs on appeal.

DATO, J.

WE CONCUR:

O’ROURKE, Acting P. J.

AARON, J.

Filed 11/19/20 Regueiro v. FCA US, LLC CA2/1

NOT TO BE PUBLISHED IN THE 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

SECOND APPELLATE DISTRICT

DIVISION ONE

FRANCISCO REGUEIRO, et al.,

Plaintiffs and Respondents,

v.

FCA US, LLC,

Defendant and Appellant.

B301772

(Los Angeles County

Super. Ct. No. BC620823)

APPEAL from an order of the Superior Court of Los Angeles County, Dennis J. Landin, Judge. Affirmed.

Hawkins Parnell & Young and Ryan K. Marden for Defendant and Appellant.

Knight Law Group, Steve Mikhov, Roger Kirnos, Amy Morse; Wirtz Law, Richard M. Wirtz; Greines, Martin, Stein & Richland, Cynthia E. Tobisman and Marc J. Poster for Plaintiffs and Respondents.

_______________________

Defendant FCA US, LLC (FCA) appeals the trial court’s award of attorney fees to the prevailing plaintiffs in their action under the Song-Beverly Consumer Warranty Act (Song-Beverly Act), pursuant to Civil Code section 1794, subdivision (d). FCA contends the trial court erred by awarding attorney fees incurred by the plaintiffs after FCA made its initial settlement offer, because this initial offer was greater than the amount ultimately recovered by the plaintiffs at trial. We have jurisdiction under Code of Civil Procedure section 904.1, subdivision (a)(1). We affirm.

BACKGROUND

On or around September 17, 2011, plaintiffs Francisco and Elizabeth Regueiro purchased a new 2011 Jeep Grand Cherokee manufactured by FCA from Cerritos Dodge, Inc., a local automotive dealer. Subsequent to this purchase, the Regueiros experienced problems with the vehicle that they attributed to defects in the power module with which the vehicle was equipped.

On May 18, 2016, the Regueiros filed this action against FCA. The complaint alleged theories of (a) breach of express warranty in violation of the Song-Beverly Act, (b) breach of implied warranty in violation of the Song-Beverly Act, and (c) fraudulent inducement/concealment. The case was tried, and on April 5, 2019, the jury returned a verdict of $25,586.90 in favor of the Regueiros based on the implied warranty claim. The jury returned defense verdicts on the express warranty and fraud claims.

During the pendency of the litigation, FCA served three successive offers to compromise under section 998 of the Code of Civil Procedure (section 998). The first, dated June 13, 2016, offered the Regueiros $50,000 in exchange for dismissal of the action with prejudice and the return of the vehicle. On October 25, 2017, FCA made a second offer increasing the amount offered to $92,695. On May 25, 2018, FCA served a third offer with a proposed settlement amount of $141,000.

Following the jury verdict, counsel for the Regueiros filed a motion for attorney fees under the Song-Beverly Act, citing Civil Code section 1794, subdivision (d). The request was for $362,467.50 in base fees along with a “lodestar” enhancement of $181,233.75, for a total of $543,701.25.

FCA opposed the Regueiros’ fee request on several grounds. Of relevance to this appeal, it argued that attorney fees accrued by the Regueiros after the initial section 998 offer were not “reasonably incurred” within the meaning of Civil Code section 1794, subdivision (d).

In a written ruling, the trial court concluded that section 998 applied to the Regueiros’ recovery of costs in the action. The trial court found the initial June 13, 2016, section 998 offer by FCA was valid and operative. Applying section 998 to the case, the trial court found the plaintiffs’ verdict of $25,586.90 was less favorable than the $50,000 offered by FCA. Accordingly, the trial court found the Regueiros were not entitled to recover their costs incurred after June 13, 2016, by reason of section 998. This portion of the trial court’s ruling is not challenged on appeal.

The trial court applied the Song-Beverly Act to award attorney fees of $83,000 to the Regueiros, employing the lodestar approach to determine the amount of fees reasonably incurred.

This appeal followed.

DISCUSSION

FCA does not contest the application of the Song-Beverly Act’s attorney fees provision, but notes the Act limits recovery to the fees reasonably incurred. (Civ. Code, § 1794, subd. (d). ) It raises a limited issue on appeal, arguing that the trial court abused its discretion by awarding attorney fees incurred after the Regueiros rejected FCA’s June 13, 2016, section 998 offer.

We review an award of attorney fees under the Song-Beverly Act for abuse of discretion, applying a presumption that the trial court’s award of attorney fees is correct. (Etcheson v. FCA US LLC (2018) 30 Cal.App.5th 831, 840.)

In its ruling on the request for attorney fees, the trial court noted that the bulk of the case had to do with efforts to prove the cause of certain defects, the fraud cause of action, and the claim for punitive damages, all of which were resolved in favor of FCA. The trial court accordingly computed what it considered reasonable time and hourly rates associated with the implied warranty claim on which the Regueiros were successful. The court awarded $27,000 for trial time and $56,000 for pretrial and posttrial motion practice, for a total of $83,000. In doing so, the court reasoned that it was “clear that this case went to trial based on plaintiffs’ belief that they would prevail on the Song-Beverly cause of action, for which civil penalties are available.” The trial court reached this conclusion because the Regueiros “rejected offers that would have compensated them for the damages that could have been reasonably obtained for the implied warranty” claim.

The trial court did not specifically state its reasons for failing to limit the award of attorney fees to those fees incurred prior to the initial section 998 offer. Nonetheless, its ruling clearly shows the court was aware of the impact of the Regueiros’ rejection of the section 998 offers on its award of costs. In considering the request for attorney fees, the trial court recognized the Regueiros pressed forward to trial despite the section 998 offers because they believed they would prevail and obtain civil penalties. Therefore, to the extent FCA contends the trial court failed to consider the impact of the section 998 offer in awarding attorney fees, the record does not support its position.

FCA also argues the trial court erred by failing to limit the fee award to the fees incurred as of the time of its initial section 998 offer. We do not agree. The case law examining this issue has failed to adopt such a bright line rule, and instead indicates that a trial court must consider all the circumstances of the individual case to determine if the plaintiff acted reasonably in pursuing litigation after rejecting a section 998 settlement offer. (See Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462, 471 [affirming award of fees incurred after the plaintiff’s reasonable rejection of § 998 offer]; see also Etcheson v. FCA US LLC, supra, 30 Cal.App.5th at p. 840 [reversing fee award that was limited to fees incurred up to tender of a § 998 offer, where the plaintiff acted reasonably in rejecting the offer]; McKenzie v. Ford Motor Co. (2015) 238 Cal.App.4th 695, 708 [reversing denial of fees incurred following rejection of § 998 offer, where the plaintiff acted reasonably in rejecting the offer].) The cases do not say that a trial court cannot take the section 998 history into account as part of its analysis of the fees “reasonably incurred.” However, the statutory language of section 998 does not on its face mandate the cessation of fees in the same manner as costs, and FCA has directed us to no authority specifically applying section 998 in this manner.

The trial court’s failure to cut off all fee recovery as of the date of the first section 998 offer by FCA was not error, and the fees awarded do not represent an abuse of discretion.

DISPOSITION

The order awarding attorney fees to plaintiffs is affirmed. The Regueiros shall recover their costs on appeal.

NOT TO BE PUBLISHED

FEDERMAN, J.

We concur:

ROTHSCHILD, P. J. CHANEY, J.

Filed 11/19/20 Cervantes v. Lucky B, Inc. CA2/4

NOT TO BE PUBLISHED IN THE 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

SECOND APPELLATE DISTRICT

DIVISION FOUR

CUSTODIO CERVANTES,

Plaintiff and Respondent,

v.

LUCKY B, INC., et al.,

Defendants and Appellants.

B302380

(Los Angeles County

Super. Ct. No. BC680517)

APPEAL from a judgment of the Superior Court of Los Angeles County, Teresa Beaudet, Judge. Affirmed.

Law Offices of Gregory W. Patterson and Gregory W. Patterson for Defendants and Appellants.

Gould & Associates, Michael A. Gould, and Aarin A. Zeif for Plaintiff and Respondent.

INTRODUCTION

Respondent Custodio Cervantes sued his former employer, appellant Lucky B, Inc., and a related entity, appellant Lucky BZ, Inc., for failure to pay overtime. Appellants contended respondent was an exempt executive and was thus not entitled to overtime pay. Following a bench trial, the trial court found that respondent was not exempt because he spent most of his time engaged in nonexempt work, including five to seven hours per day doing paperwork in his office. On appeal, appellants challenge the court’s classification of respondent’s paperwork as nonexempt. Finding no error, we affirm.

BACKGROUND

A. The Parties and This Action
B.
From September 2016 to July 2017, respondent worked as a salaried warehouse manager for Lucky B, which sells packaging supplies to other companies. After his employment with the company ended, respondent sued appellants for various pay-related Labor Code violations, including, as relevant here, failure to pay overtime compensation. He asserted the company misclassified him as an executive who was exempt from overtime pay requirements. The matter proceeded to a bench trial.

C. The Trial
D.
The evidence at trial focused on appellants’ affirmative defense that respondent was an exempt executive who spent most of his time doing managerial work and was thus not entitled to overtime wages. Multiple witnesses testified about respondent’s job duties: supervising and dispatching delivery drivers, reviewing and signing orders, organizing the warehouse (either by instructing subordinates or by using a forklift or a pallet jack to move inventory himself), preparing orders by “pulling” and wrapping inventory (either himself or by instructing subordinates), and doing paperwork, which included logging all orders, invoice numbers, and deliveries in the computer, and ensuring all documents were properly signed by drivers and customers. There was conflicting testimony as to how much time respondent spent on various tasks.

As to respondent’s paperwork, Saghar Sarah Zarabian, Lucky B’s owner, testified: “[Respondent] had to record every invoice number going out, every pickup that was done. . . . make sure all documents were signed. Drivers have to sign. Pullers need to sign. Warehouse manager needs to sign that the order is correct. Once the drivers come back in, he was required to make sure signature of the customer was on there, if there was a pickup check, it was done. If purchase order for an item was made, it was picked up correctly, delivered, signed for, no back orders. [H]e had to record all this on a daily log that had to be submitted with these documents.” Zarabian also testified that if a certain item was out of stock or running low, respondent was supposed to let management know. Respondent testified, however, that he was not responsible for ordering or “controlling stock in the warehouse.” Khristina Quilban, Lucky B’s HR and payroll administrator, testified that in doing his office work, respondent was “doing the parts for the whole,” and noted, for example, that he would log drivers’ arrival into the computer “so all of us can see the live report from the system.”

E. The Trial Court’s Statement of Decision and Judgment
F.
Following trial, the trial court issued a 24-page statement of decision, finding respondent was not an exempt executive because he spent most of his time doing nonexempt work. The court found that respondent typically worked 10 to 10.5 hours per day. According to the court’s finding, respondent spent one and a half to two and a half hours per day doing “nonexempt pulling and other similar nonexempt work.” While the court found that respondent spent “some amount of time” on exempt management activities, such as dispatching drivers and organizing activities in the warehouse, it found he spent much of his time — five to seven hours per day — doing paperwork. The court concluded the tasks involved in respondent’s paperwork were nonexempt, explaining: “Accepting Zarabian’s testimony as to the nature of the computer or paper work as accurate, recording invoice numbers, ensuring there is a signature on a document, and creating a daily log of orders in and out, is not management activity. There is no discretion or judgment involved in deciding which orders to log in and any clerical employee could input the information described by Zarabian.”

Accordingly, the trial court concluded respondent was entitled to overtime compensation and awarded him about $15,000 in overtime pay. Appellants timely appealed, challenging only the court’s classification of respondent’s paperwork.

DISCUSSION

A. Governing Legal Principles
B.
1. The Labor Code and the IWC’s Wage Orders
2.
“California’s Labor Code mandates overtime pay for employees who work more than 40 hours in a given work week. (Lab. Code, § 510, subd. (a).) However, the Legislature authorized the Industrial Welfare Commission (IWC) to establish exemptions for various categories of employees, including ‘executive . . . employees,’ where the employee is ‘primarily engaged in the duties that meet the test of the exemption,’ the employee ‘customarily and regularly exercises discretion and independent judgment in performing those duties,’ and the employee ‘earns a monthly salary equivalent to no less than two times the state minimum wage for full-time employment.’ (Lab. Code, § 515, subd. (a).)” (Batze v. Safeway, Inc. (2017) 10 Cal.App.5th 440, 471, fn. omitted.)

Pursuant to its statutory authority, the IWC promulgated several Wage Orders, codified in the California Code of Regulations, providing criteria for determining whether an employee may be classified as an exempt executive. (See Cal. Code Regs., tit. 8, § 11010 et seq.) Wage Order No. 7-2001 governs employees of the “mercantile industry.” (Cal. Code Regs., tit. 8, § 11070 (Wage Order).) To be an exempt executive under this Wage Order, an employee must be “primarily engaged in duties which meet the test of the exemption.” (Id., § 11070, subd. (1)(A)(1)(e).) For purposes of the Wage Order, “[p]rimarily” means “more than one-half the employee’s work time.” (Cal. Code Regs., tit. 8, § 11070, subd. 2(K).) As to the nature of the duties that meet the test of the exemption, the Wage Order instructs that “exempt work” and “non-exempt work” “shall be construed in the same manner as such items are construed in the following regulations under the Fair Labor Standards Act effective as of the date of this order [2001]: 29 C.F.R. Sections 541.102, 541.104-111, and 541.115-116.” (Cal. Code Regs., tit. 8, § 11070, subd. 1(A)(1)(e).)

3. The Federal Regulations
4.
a. Exempt Managerial Work
b.
“According to the 2001 version of the federal regulations, determining whether a particular kind of work is exempt or nonexempt should usually be an easy task. ‘In the vast majority of cases[,] the bona fide executive employee performs managerial and supervisory functions which are easily recognized as within the scope of the exemption.’ (§ 541.102(a) (2001).) Such functions include: ‘[i]nterviewing, selecting, and training of employees; setting and adjusting their rates of pay and hours of work; directing their work; maintaining their production or sales records for use in supervision or control; appraising their productivity and efficiency for the purpose of recommending promotions or other changes in their status; handling their complaints and grievances and disciplining them when necessary; planning the work; determining the techniques to be used; apportioning the work among the workers; determining the type of materials, supplies, machinery or tools to be used or merchandise to be bought, stocked and sold; controlling the flow and distribution of materials or merchandise and supplies; providing for the safety of the men and the property.’ (§ 541.102(b) (2001).)” (Safeway Wage & Hour Cases (2019) 43 Cal.App.5th 665, 676-677.)

c. Work “Directly and Closely Related” to Managerial Functions
d.
“[T]he federal regulations also recognize a category of exempt tasks that may not be so easily identifiable as exempt — work ‘directly and closely related’ to the management of a department and the supervision of employees.” (Safeway Wage & Hour Cases, supra, 43 Cal.App.5th at 677, quoting § 541.108.) This category brings within the scope of exempt work “not only the actual management of the department and the supervision of the employees therein, but also activities which are closely associated with the performance of the duties involved in such managerial and supervisory functions or responsibilities.” (§ 541.108(a).) Section 541.108(a) explains: “The supervision of employees and the management of a department include a great many directly and closely related tasks which are different from the work performed by subordinates and are commonly performed by supervisors because they are helpful in supervising the employees or contribute to the smooth functioning of the department for which they are responsible. Frequently such exempt work is of a kind which in establishments that are organized differently or which are larger and have greater specialization of function, may be performed by a nonexempt employee hired especially for that purpose.”

This category of exempt work is “narrow.” (Safeway Wage & Hour Cases, supra, 43 Cal.App.5th at 682.) It is not intended “to expand the exemption, but simply to recognize that there are limited instances when production-type activities must be utilized to carry out the duties of the otherwise exempt employee.” (Division of Labor Standards Enforcement, Policies and Interpretations Manual (2002 update) (DLSE Manual), § 51.4.2.) “[I]f work of this kind takes up a large part of the employee’s time it would be evidence that . . . such work is a production operation rather than a function directly and closely related to the [employee’s] supervisory or managerial duties . . . .” (§ 541.108(g).)

The regulations recognize that it may be hard to distinguish work “directly and closely related” to managerial functions from “production operation[s].” (§ 541.108(g).) Thus, in Heyen v. Safeway, Inc. (2013) 216 Cal.App.4th 795, 822 (Heyen), we stated that “[u]nderstanding the manager’s purpose in engaging in such tasks . . . is critical to the task’s proper categorization.” We explained that a task may be exempt when a supervisor undertakes it “because it is ‘helpful in supervising the employees or contribute[s] to the smooth functioning of the department,’” but will be nonexempt if “performed for a different, nonmanagerial reason . . . .” (Ibid.)

Notably, however, in Safeway Wage & Hour Cases, supra, 43 Cal.App.5th at 682, we clarified that a task will not be exempt merely because it “‘contributes to the smooth functioning’” of the relevant department. (Ibid. [noting that manager of supermarket store “arguably intends to facilitate the smooth functioning of the store in performing any task otherwise done by hourly employees, be it mopping floors or returning shopping carts” (italics omitted)].) Rather, the purpose inquiry in the context of work “‘directly and closely related’” to management must be anchored in the limiting principles set forth in the regulations. (Ibid.) As relevant here, to be considered exempt under this category, the work must be “closely associated with the performance of the duties involved in [the employee’s] managerial and supervisory functions or responsibilities.” (§ 541.108(a).) “And if work that is not inherently managerial ‘takes up a large part of the employee’s time,’ it is evidence that this work ‘is a production operation rather than a function directly and closely related to the [employee’s] supervisory or managerial duties . . . .’” (Safeway Wage & Hour Cases, supra, at 683, quoting § 541.108(g).)

e. Nonexempt Work
f.
The regulations define nonexempt work to include all work that is neither management or supervision, nor directly and closely related to those functions. (§ 541.111(a).) Section 541.111 explains: “Nonexempt work is easily identifiable where, as in the usual case, it consists of work of the same nature as that performed by the nonexempt subordinates of the ‘executive.’ It is more difficult to identify in cases where supervisory employees spend a significant amount of time in activities not performed by any of their subordinates and not consisting of actual supervision and management. In such cases[,] careful analysis of the employee’s duties with reference to the phrase ‘directly and closely related . . .’ will usually be necessary in arriving at a determination.” (§ 541.111(b).)

Of particular relevance here, the regulations in section 541.115 discuss the specific case of a “working foreman,” “who regularly performs ‘production’ work or other work which is unrelated or only remotely related to his supervisory activities.” (§ 541.115(a).) Under the regulations, the working foreman cannot be classified as an exempt executive. (Ibid.) One type of working foreman “is one who spends a substantial amount of time in work which, although not performed by his own subordinates, consists of ordinary production work or other routine, recurrent, repetitive tasks which are a regular part of his duties.” (§ 541.115(c).) “Such an employee is in effect holding a dual job. . . . His nonsupervisory duties in such instances are unrelated to anything he must do to supervise the employees under him or to manage the department. They are in many instances mere ‘fill-in’ tasks performed because the job does not involve sufficient executive duties to occupy an employee’s full time.” (Ibid.) Typical employees fitting this description include “[f]oremen or supervisors who perform clerical work other than the maintenance of the time and production records of their subordinates; for example, the foreman of the shipping room who makes out the bills of lading and other shipping records, the warehouse foreman who also acts as inventory clerk, the head shipper who also has charge of a finished goods stock room, assisting in placing goods on shelves and keeping perpetual inventory records, or the office manager, head bookkeeper, or chief clerk who performs routine bookkeeping.” (§ 541.115(c)(3).)

C. Analysis
D.
Appellants challenge the trial court’s classification of respondent’s paperwork as nonexempt. The classification of tasks as exempt or nonexempt is a mixed question of law and fact. (Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 794.) “We review the trial court’s factual findings for substantial evidence and independently determine issues of law . . . .” (Walker v. Physical Therapy Bd. of California (2017) 16 Cal.App.5th 1219, 1227.) Substantial evidence is evidence of ponderable legal significance that is reasonable, credible, and of solid value. (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.) Because appellants had the burden to prove that the executive exemption applied to respondent, the question on appeal is whether the trial court was compelled to find the exemption applicable. (See Safeway Wage & Hour Cases, supra, 43 Cal.App.5th at 671 [executive exemption is an affirmative defense that employer must prove]; Ajaxo, Inc. v. E*Trade Financial Corp. (2020) 48 Cal.App.5th 129, 163 [“‘where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law’”].)

As an initial matter, appellants contend the court misapplied the legal standard because it based its classification of respondent’s paperwork on its finding that “any clerical employee” could have done it. They argue the court failed to consider the purpose for which respondent performed the work.

The trial court did not misapply the legal standard. We read the court’s statement that any clerical employee could have done respondent’s paperwork to mean that this work served no managerial purpose. To the extent appellants contend the court’s statement was ambiguous or suggest the court should have made additional findings, they have forfeited any such contention by failing to object to the statement of decision below. (See In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1134 [party claiming deficiencies in statement of decision must bring them to trial court’s attention].) The remaining question, therefore, is whether the record supported the trial court’s conclusions. We conclude it did.

Respondent’s paperwork was by no means inherently managerial. Contrary to appellants’ argument, this work — recording invoice numbers, logging orders, and ensuring documents were signed — did not “itself control[] the distribution or flow of merchandise.”

Nor was the trial court compelled to find respondent’s paperwork directly and closely related to his managerial functions. According to the court’s uncontested findings, respondent’s clerical office work took up the bulk of his time, five to seven hours per day or about 50%-70% of his average workday. This fact alone sufficed for the court to find these tasks were not directly and closely related to respondent’s managerial functions and were thus nonexempt. (See Safeway Wage & Hour Cases, supra, 43 Cal.App.5th at 683, quoting § 541.108(g).) But respondent also spent an additional one and a half to two and a half hours per day, about 15%-25% of his average workday, on undisputedly nonexempt physical tasks, such as using a forklift to move inventory. Given that respondent spent the bulk of his time on tasks that were not inherently managerial, his managerial functions, such as dispatching drivers and organizing activities in the warehouse, were relatively minimal, further supporting the court’s finding that his clerical work was not undertaken to aid him in performing his managerial duties.

Appellants claim the amount of time respondent spent doing paperwork is immaterial because his subordinates did not perform similar work. They are mistaken. Whether subordinates perform similar tasks has no bearing on the regulations’ unfavorable treatment of work that consumes a large part of the employee’s time. (See § 541.108(g).)

The trial court was also entitled to find respondent’s paperwork nonexempt based on its nature and its lack of connection to his managerial functions. Appellants present argument of varying levels of plausibility regarding the purported connection between the relevant tasks — data entry and verification of signatures on documents — and respondent’s managerial duties. They contend this work was “helpful” to respondent’s functions of “‘controlling the flow and distribution of materials or merchandise and supplies’ into and out of the warehouse,” “‘maintaining production or sales records for use in supervision or control,’” “‘apportioning work among workers,’” and “optimizing and organizing the warehouse . . . .” Yet a task is not exempt merely because it could conceivably be done in aid of managerial responsibilities; rather, the relevant employee must undertake it because it furthers his or her managerial duties. (Heyen, supra, 216 Cal.App.4th at 822.) Appellants point to no evidence showing whether and to what extent respondent actually used his paperwork in furtherance of his managerial functions. In fact, there was evidence suggesting that the purpose of at least some of respondent’s clerical work was to aid other managers’ work. Quilban testified that in his office work, respondent would do “the parts for the whole,” including by logging drivers’ arrival into the computer, “so all of us can see the live report from the system.”

The record therefore supported a conclusion that respondent was a nonexempt “working foreman” who regularly performed work that was “unrelated or only remotely related to his supervisory activities.” (§ 541.115(a).) In particular, respondent appears to have fit the description of a nonexempt foreman or supervisor who performed clerical work other than the maintenance of the time and production records of his subordinates, such as “the foreman of the shipping room who makes out the bills of lading and other shipping records” or “the warehouse foreman who also acts as inventory clerk.” (§ 541.115(c)(3).) In short, the trial court did not err in finding respondent’s paperwork activities were nonexempt, and thus it did not err in finding respondent was not an exempt executive.

DISPOSITION

The judgment is affirmed. Respondent is awarded his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL

REPORTS

MANELLA, P. J.

We concur:

WILLHITE, J.

COLLINS, J.

Filed 11/19/20 Yannoulatos v. Superior Court CA2/4

NOT TO BE PUBLISHED IN THE 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

SECOND APPELLATE DISTRICT

DIVISION FOUR

JOHN YANNOULATOS et al.,

Petitioners,

v.

THE SUPERIOR COURT OF LOS ANGELES COUNTY,

Respondents,

RALPHS GROCERY COMPANY,

Real Party in Interest.

B306989

(Los Angeles County
Super. Ct. Nos. BC632679, 20STCV04200)

ORIGINAL PROCEEDINGS in mandate. Patricia Nieto, Judge. Petition granted, alternative writ discharged.

Law Office of Michael V. Jehdian and Michael V. Jehdian; Knapp, Petersen & Clarke, K.L. Myles, Andre E. Jardini for Petitioners.

No appearance for Respondent Superior Court of Los Angeles.

Morrison & Foerster, Tritia M. Murata, Wendy J. Ray, Karen J. Kubin, James R. Sigel for Real Parties in Interest.

Petitioner Jill LaFace filed a representative action under the Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.) (PAGA) against her employer, real party in interest Ralphs Grocery Co. (Ralphs), alleging that Ralphs failed to provide suitable seating for its checkstand cashiers. Following a bench trial, the court found in favor of Ralphs.

After trial, but prior to entry of judgment in that case, LaFace and petitioner John Yannoulatos filed a second PAGA action against Ralphs, alleging that Ralphs failed to provide seating for employees working in the self-checkout area. The second action was deemed related to the first and reassigned to the same judge. Petitioners filed a peremptory challenge to the trial judge pursuant to Code of Civil Procedure section 170.6. The respondent court struck the challenge as untimely on the grounds that the second action was identical to, and therefore a continuation of, the first action.

LaFace and Yannoulatos petitioned for an extraordinary writ of mandate directing the trial court to vacate its order. They contend that the second lawsuit includes an additional plaintiff (Yannoulatos), covers a different time period, and focuses on the failure to provide seating for self-checkout attendants, a claim never alleged in the first lawsuit. Ralphs argues that petitioners’ claim regarding self-checkout cashiers was subsumed within LaFace’s allegations in the first lawsuit regarding checkstand cashiers, and therefore that the second lawsuit is merely a continuation of the first. We find no evidence to support Ralphs’ contention that LaFace asserted, and then abandoned, a claim covering self-checkout attendants in the first lawsuit. Thus, we conclude that the trial court erred by striking the peremptory challenge based on a finding that the second case was a continuation of the first one. We therefore grant the petition.

FACTUAL AND PROCEDURAL HISTORY

I. LaFace Action

LaFace filed the first lawsuit, case number BC632679, against Ralphs in September 2016 (LaFace). Ralphs operates a grocery store chain in California. LaFace worked as a “checker and/or cashier” in a Ralphs store. LaFace brought a representative action under PAGA, alleging a single cause of action contending Ralphs violated Industrial Wage Commission (IWC) Wage Order No. 7, section 14(A), by failing to provide suitable seats to LaFace “and other checkers and/or cashiers.” She further alleged that the “cubicle area is sufficiently spacious to provide adequate room to provide a seat for a checker and/or cashier.” LaFace sought civil penalties under PAGA on behalf of herself and other “checkers and/or cashiers” working at Ralphs.

In initial discovery, the parties adduced some evidence regarding the different types of checkout locations. For example, in interrogatory responses served in June 2017, Ralphs stated that its stores had “multiple types of checkstands, with differing locations, configurations, and dimensions.” The store where LaFace worked had “seven checkstands with an incoming conveyor belt that is in-line with a scanner and an outgoing conveyor,” as well as “a self-checkout area with four checkstands where customers can scan and bag their own items. The cashier in this self-checkout area has an override station where they have a cash box and access to the transactions that are occurring on each self-checkout register.” Both types of checkstands were located at the “front-end” of the store. Ralphs also produced schematics for its self-check machines.

In addition, Ralphs responded that in an ordinary customer transaction at a checkstand, the cashier’s duties included scanning or weighing the items placed on the conveyor belt, then passing the items to the bagging area, ringing up the purchase, and often bagging items for the customer. Ralphs stated that it did not provide seating in the checkstands because of the “cashier’s dynamic work,” “the limited space within the checkstand for a seat,” and the fact that “the space behind the cashier’s area is often a passage way for the customers being serviced at the next checkstand.”

In response to questions by Ralphs’ counsel at her deposition in May 2017, LaFace testified that she sometimes worked as a cashier supervising the self-checkout stations, which differed from the job of someone working at one of the registers. She explained that the cashier overseeing the self-checkout stations was responsible for helping customers who needed assistance with the self-checkout machines. LaFace also agreed that the cashier at the self-checkout station would have nowhere to put a chair, because it could get in the way of customers and the cashier needed to be able to walk among the four self-checkout stations.

At a case management conference on August 17, 2017, the court had the following exchange with LaFace’s counsel:

Court:

“Are we talking about only cashiers who are working regular registers?

“Mr. Jardini [plaintiff’s counsel]: Yes, your honor, we are.

Court: So we’re not talking about cashiers who are assisting people at the self serve checkout sort of things?

“Mr. Jardini: No . . . . That person actually has to be serving five or six, eight, I don’t know, however many stations. So that person cannot have a chair, I don’t believe.”

The court’s minute order from the hearing memorialized this statement that the case would deal “only with regular cashiers, not self-serve attendants.”

Subsequently, the parties’ discovery excluded the self-checkout area. Ralphs objected in its later written discovery responses to the definitions of “workstation” and “checkstand,” “to the extent [they] include[d] self-checkout lanes,” and expressly limited its responses to include front-end checkstands and exclude self-checkout areas. LaFace’s expert conducted site inspections at Ralphs’ stores, which expressly excluded inspection of self-check registers.

The case culminated in a 13-day bench trial before the Honorable Patricia Nieto, between November 12, 2019 and January 6, 2020. LaFace and fellow longtime cashier Yannoulatos testified during trial. It is undisputed that the parties did not present evidence at trial regarding the self-checkout area.

The court issued a lengthy statement of decision on March 20, 2020, finding in favor of Ralphs and against LaFace. Relying on the factors set forth in Kilby v. CVS Pharmacy, Inc. (2016) 63 Cal.4th 1 (Kilby), the court concluded that LaFace failed to meet her burden “to show that the nature of the work of Ralphs cashiers reasonably permits the use of seats.” Specifically, the court found that “throughout the time they are checking out customer orders, Ralphs cashiers engage in continuous dynamic movement. They are scanning, reaching, pulling, pushing, bagging, handling items, accepting payment, moving in and around the checkstands, and exiting the checkstands, among other things.” The court also cited evidence that cashiers “constantly move in and around” the cashier well, handle and lift heavy items, bag groceries, either inside the cashier well or at the back of the checkstand, and leave their checkstands for various reasons. When not assisting customers, cashiers had other duties at their checkstands and around the store.

The court cited testimony of Ralphs’ expert, Dr. Fernandez, that cashiers “continuously engage in extended reaches while checking out customer orders,” including reaching to retrieve items coming down the incoming conveyor belt and sorting items on the outgoing belt. The court relied on Dr. Fernandez’s “robust quantitative analysis and qualitative assessment of the nature of the work of Ralphs cashiers and the physical layout of the Front End checkstand configurations.” The court found that “the evidence presented by Ralphs was overwhelming with respect to the physical layout of the front-end checkstands and the fact that they cannot reasonably accommodate a seated cashier.”

The court entered judgment for Ralphs on March 20, 2020. LaFace filed a notice of appeal on April 1, 2020. That appeal is currently pending.

II. Yannoulatos Action

On January 31, 2020, after trial in LaFace had concluded but before the court issued its statement of decision, LaFace and Yannoulatos filed a second PAGA action against Ralphs (case number 20STCV4200) (Yannoulatos). The complaint again alleged a single cause of action contending Ralphs violated IWC Wage Order No. 7, section 14(A). This time, petitioners alleged that Ralphs failed to provide suitable seats for “plaintiffs and other similarly situated self-checkout attendants.” In their complaint, petitioners sought civil penalties under PAGA on behalf of themselves and other cashiers working at self-checkout stations.

Ralphs filed a notice of related cases pursuant to California Rules of Court, rule 3.300 in April 2020. LaFace objected, contending that the cases were not related. On June 30, 2020, the court issued a minute order finding that the cases were related and transferring Yannoulatos to Judge Nieto.

On July 9, 2020, petitioners filed a peremptory challenge under section 170.6. Ralphs opposed, arguing that Yannoulatos was a continuation of LaFace and involved “contested factual issues on which Judge Nieto has already ruled and made material factual findings.” Ralphs further argued that petitioners were attempting to resurrect a claim regarding the feasibility of seats for self-checkout cashiers that “they consciously, deliberately abandoned” in the first case. It pointed to its discovery responses in LaFace that included information about the self-checkout area and deposition testimony of Ralphs’ employees as evidence that “the self-checkout register is just another type of front-end register where Ralphs cashiers work.” Ralphs also contended that LaFace and her counsel admitted during the first case that a cashier working at a self-checkout station would have nowhere to put a chair. Ralphs acknowledged that LaFace’s ergonomics expert did not inspect any self-checkout stations during discovery, but contended that she never requested such access. Thus, Ralphs argued that the court should deny the peremptory challenge because Yannoulatos was a continuation of prior proceedings in LaFace, and in LaFace, the court had ruled on “contested fact issues relevant to” Yannoulatos.

Petitioners replied, arguing that Yannoulatos focused exclusively on seating at the self-checkout stations, that no claims were made in LaFace regarding self-checkout seating, and all the evidence at trial in LaFace focused on the regular, front-end checkstands. As such, they contended that the two cases were distinct from each other.

The court denied the peremptory challenge on July 29, 2020. The court found that (1) Yannoulatos was “a continuation of prior proceedings before this Court” in LaFace; and (2) in LaFace, “this Court ruled on contested fact issues relevant to [Yannoulatos].” First, the court found that both actions “involve the same parties,” because LaFace was a named plaintiff in both actions, Yannoulatos was a named plaintiff in Yannoulatos and an “allegedly aggrieved cashier” in LaFace, and both actions were brought against Ralphs. The court also found that petitioners “sued in their representative capacities on behalf of the same group of allegedly aggrieved employees.” The court characterized LaFace as a PAGA action “brought on behalf of all allegedly aggrieved employees who worked for Ralphs as checkers and/or cashiers at front-end checkstand locations in California,” with potential penalties running from June 28, 2015. The court described Yannoulatos as a PAGA action “brought on behalf of all allegedly aggrieved employees who worked for Ralphs at self-checkout stations (one type of front-end checkstand location),” with potential penalties running from November 27, 2018. Thus, the court concluded that “because LaFace is a named plaintiff (represented by the same counsel) in both cases, and the group of allegedly aggrieved employees in LaFace . . . subsumes the allegedly aggrieved employees in [Yannoulatos], the parties in both actions are identical.”

The court also found that Yannoulatos “arises out of conduct in and orders arising out of LaFace. . . . Both cases involve the question of whether the nature of the work of Ralphs cashiers reasonably permits the use of seats in or at the front-end checkstand locations at Ralphs stores.” Therefore, the court concluded that both cases involved “the same parties and questions of fact and law.”

Petitioners timely filed this petition for writ of mandate directing the trial court to vacate its order and accept their peremptory challenge against Judge Nieto. We issued an alternative writ, ordering the trial court to vacate its order and enter a new order accepting the peremptory challenge, or to show cause why a peremptory writ requiring it to do so should not issue. After the trial court declined to vacate its order, Ralphs filed a written return to the petition and petitioners filed a reply.

DISCUSSION

I. Standard of Review

We review the denial of a peremptory challenge for an abuse of discretion. (Grant v. Superior Court (2001) 90 Cal.App.4th 518, 523; see also Zilog, Inc. v. Superior Court (2001) 86 Cal.App.4th 1309, 1315.) Petitioners argue that the independent standard of review applies in instances, such as this case, where “proper application of the disqualification statute turns on undisputed facts.” (Pickett v. Superior Court (2012) 203 Cal.App.4th 887, 892 (Pickett), citing Swift v. Superior Court (2009) 172 Cal.App.4th 878, 882.) However, the central dispute here is a factual one—whether LaFace raised a claim regarding self-checkout workstations as part of the first lawsuit. Under either standard, we would conclude that the trial court erred in denying the peremptory challenge.

II. Peremptory Challenge and the Continuation Rule

Section 170.6 permits summary disqualification of an assigned judge upon a timely peremptory challenge. (§ 170.6, subd. (a).) If a peremptory challenge pursuant to section 170.6 is raised in a timely manner, a trial court must accept it without further inquiry. (Stephens v. Superior Court (2002) 96 Cal.App.4th 54, 59.) “The right to exercise a peremptory challenge under Code of Civil Procedure section 170.6 is a substantial right and an important part of California’s system of due process that promotes fair and impartial trials and confidence in the judiciary.” (National Financial Lending, LLC v. Superior Court (2013) 222 Cal.App.4th 262, 270.) “As a remedial statute, section 170.6 is to be liberally construed in favor of allowing a peremptory challenge, and a challenge should be denied only if the statute absolutely forbids it.” (Ibid., citing Stephens v. Superior Court, supra, 96 Cal.App.4th at pp. 61-62.)

A party is only allowed one such challenge per action.

(§ 170.6, subd. (a)(4).) In addition, this peremptory challenge must be made within 10 days after notice of an all purpose assignment to that judge. (§ 170.6, subd. (a)(2).) This single challenge rule also applies where a separate proceeding is merely a “continuation of the original action out of which it arises and it involves ‘substantially the same issues’ as the original action.” (McClenny v. Superior Court (1964) 60 Cal.2d 677, 684 (McClenny); see Jacobs v. Superior Court (1959) 53 Cal.2d 187, 190 (Jacobs).) Thus, because the trial court here deemed Yannoulatos a continuation of LaFace, it found the peremptory challenge filed in the latter action untimely.

To conclude that one action is a continuation of another requires more than a simple determination that the two actions involve similar parties litigating similar claims. (NutraGenetics, LLC v. Superior Court (2009) 179 Cal.App.4th 243, 258 (NutraGenetics); Bravo v. Superior Court (2007) 149 Cal.App.4th 1489, 1494 (Bravo).) Rather, there must be a subsequent proceeding, the gravamen of which is rooted in, or supplementary to, the initial proceeding. (NutraGenetics, supra, 179 Cal.App.4th at pp. 252–257.) The second proceeding must involve “the same parties at a later stage of their litigation with each other, or . . . arise out of conduct in or orders made during the earlier proceeding.” (Id. at p. 257, italics omitted; see also Pickett, supra, 203 Cal.App.4th at p. 893.)

Thus, for example, courts have found the following matters to be a continuation of an earlier, pending matter: a petition to modify a child custody order in earlier proceedings (Jacobs, supra, 53 Cal.2d at p. 190); a contempt proceeding occasioned by a husband’s violation of visitation and receivership orders in divorce proceedings (McClenny, supra, 60 Cal.2d at pp. 678–679, 684); and a criminal matter in which the prosecutor dismissed the first action after unfavorable pretrial rulings, refiled the same charges under a new case number, and there was “clear evidence of the District Attorney’s singular intent to avoid an unfavorable ruling in the prior proceeding” (Birts v. Superior Court (2018) 22 Cal.App.5th 53, 60.)

By contrast, in NutraGenetics, supra, 179 Cal.App.4th 243, the plaintiff filed an action against individual defendants who induced him to invest in a company. When faced with a motion to compel arbitration and stay the litigation, the plaintiff filed a second action against the company itself, raising some similar and some new claims based on the same alleged misconduct. (Id. at pp. 247-248.) The court held that the trial judge properly disqualified herself pursuant to peremptory challenge because the second action was not a continuation of the first. (Ibid.)

The NutraGenetics court reasoned that although the plaintiffs were identical, and the wrongful conduct alleged was the same, some defendants and some of the relief sought were different in the second action. (NutraGenetics, supra, 179 Cal.App.4th at pp. 258–259.) In addition, the second action did not “arise from conduct in, or involve enforcement or modification of an order in, the first lawsuit.” (Id. at p. 247.) Thus, the second action was not a continuation of the first. (Ibid.) In sum, the court reiterated “the underlying principle of the continuation rule: the second proceeding involves the same parties (on both sides of the case) as the first proceeding, and the second proceeding arises out of the first proceeding, not just out of the same set of facts that gave rise to the first proceeding.” (Id. at p. 254.)

Similarly, in Bravo, supra, 149 Cal.App.4th at p. 1489, a plaintiff whose first complaint for employment discrimination was dismissed immediately filed a second complaint against the same defendant, again alleging employment discrimination claims. The court found the second action was not a continuation of the first, because the second complaint addressed discrimination on dates subsequent to those described in the first complaint. (Id. at p. 1494.) Nor were two cases considered continuations of a third when three plaintiffs filed three actions suing the same defendant for the same manufacturing defect, but “aris[ing] out of different injuries and damages, occurring in automobile accidents involving different vehicles at different times and places, and under different fact patterns” in each of their vehicles. (Nissan Motor Corp. v. Superior Court (1992) 6 Cal.App.4th 150, 153–154, 155; see also Pickett, supra, 203 Cal.App.4th at p. 894-896 [PAGA action against employer was not a continuation of a related prior action where the named plaintiffs were not identical and the second plaintiff sought additional relief].)

III. Analysis

Ralphs’ central contention is that the two actions involved “identical” claims because LaFace included the issue of seating for self-checkout employees in the first lawsuit, but then “abandoned” that claim during discovery. Petitioners counter that LaFace focused only on regular checkstands and never “address[ed] the rights of employees who are assigned to the self-checkout station.”

The record before us supports petitioners. The LaFace complaint alleged a claim on behalf of “checkers and/or cashiers” and further alleged that “the cubicle area” for those employees was “sufficiently spacious to provide adequate room to provide a seat.” Similarly, in her pre-filing notice letter, LaFace claimed that the “area where cashier duties are performed—a cubicle with a cash register—is sufficiently large” to accommodate seating. Ralphs offers no explanation for how this description of the covered employees’ workstations could be interpreted to include the self-checkout area. Ralphs also points to the evidence that LaFace worked in both areas and acknowledged in her deposition her belief that it would not be feasible to include a chair for self-checkout attendants. Neither of these facts support the contention that she included a claim for self-checkout attendants in her complaint, where it was not otherwise alleged. Further, Ralphs’ decision in its initial discovery responses to include information regarding multiple types of checkstands, including regular and self-check, does not support its contention that LaFace’s claim included self-checkout areas. We have seen no evidence that LaFace propounded discovery in the first action targeted at self-checkout attendants. Notably, when detailing cashier duties and discussing the feasibility of seating, Ralphs limited its responses to regular checkstands.

Moreover, when asked about the scope of the case at the case management conference, LaFace’s counsel responded that self-checkout areas were not part of LaFace’s claims. Ralphs’ suggestion that the court asked whether LaFace “would continue to pursue” a claim regarding self-checkout areas, and that LaFace’s subsequent “abandonment” of that claim was memorialized in the court’s minute order is, at best, inaccurate, if not misleading. Consequently, we find no evidence to support Ralphs’ claim that LaFace asserted and then abandoned a claim regarding self-checkout areas in the first lawsuit.

In seeming contradiction to its argument that LaFace abandoned her self-checkout claim prior to trial in LaFace, Ralphs also argues that the trial court’s statement of decision properly included self-checkout areas as a type of front-end checkstand. As such, it contends the trial court was within its discretion to find that the claims in Yannoulatos were subsumed within the claims in LaFace, and therefore the second case was a continuation of the first one. We disagree.

First, we find no support in the record for the trial court’s finding that the parties in both actions were identical. LaFace involved one named plaintiff against Ralphs, while Yannoulatos involved two plaintiffs. Further, there is no evidence in the record before us supporting the court’s conclusion that the “group of allegedly aggrieved employees in LaFace . . . subsumes the allegedly aggrieved employees” in Yannoulatos. Although it appears undisputed that a self-checkout attendant is a type of cashier, and that at least some cashiers, including LaFace, worked at both types of checkstands, there is no evidence that all cashiers did so. We find no evidence supporting the implication that the group of employees covered under Yannoulatos (self-checkout attendants beginning in November 2018) was identical to the group covered under LaFace (regular checkstand cashiers beginning in June 2015). Notably, although the trial court recognized the differing time frames of the two complaints, both Ralphs and the court ignored the issue in their analyses. (See Bravo, supra, 149 Cal.App.4th at p. 1494 [“although the two cases involve the same employee and the same employer, the current action arises out of later events distinct from those in the previous action,” and thus was not a continuation of the previous action].)

Second, the cases did not involve the same claim. The complaints alleged different harms, which the trial court acknowledged when describing the cases but rejected by claiming that self-checkout stations were a “type of front-end checkstand locations.” Whether or not the self-checkout stations are properly defined as a type of front-end checkstand, the parties did not present evidence regarding self-checkout stations at trial in LaFace. Ralphs has not pointed to any testimony or evidence about the layout of the self-checkout area, the duties of the self-checkout attendant, the actions they perform in a typical shift, or the feasibility of placing a seat in that part of the store. Indeed, LaFace’s expert did not inspect the self-checkout area and her attorney expressly declined to question Ralphs’ expert about that issue at trial, noting that he had “also looked at self-check, but we’re not going to ask you about that.”

As such, there was no evidence from which the court could reach any conclusions about the feasibility of seating for self-checkout attendants. The court’s denial of the peremptory challenge based on the finding that both cases involved the same issue of feasibility was an abuse of discretion.

We also disagree with Ralphs that the trial court properly denied the peremptory challenge because in LaFace it “resolved a number of contested factual issues that are material to—if not dispositive of—the merits of Petitioners’ subsequent action.” The trial court found that both cases involved the same “questions of fact and law,” because both cases turned on “the question of whether the nature of the work of Ralphs cashiers reasonably permits the use of seats in or at the front-end checkstand locations at Ralphs stores.” Ralphs further contends, without support, that the court’s factual findings about the work of Ralphs’ cashiers “hold true regardless of which particular task they are performing—working in an employee-run checkstand or overseeing the self-checkout area.” This argument and the trial court’s conclusions lack any basis in the record. It is undisputed that there was no evidence specific to self-checkout at trial.

Moreover, we are not persuaded that the court’s findings in LaFace regarding cashiers—such as that they are “never idle” and that the dynamic nature of their work did not reasonably permit the use of seats—would be applicable to petitioners’ allegations in Yannoulatos regarding self-checkout attendants. The court’s findings relied on the specific nature of the work performed by a cashier at a regular checkstand, including the need for the cashier to move items down the conveyor belt and bag groceries, as well as the constraints of the physical layout of the cashier well. In reaching these findings, the court relied heavily on Ralphs’ expert, whose testimony focused on regular checkstands and the activities of cashiers working there. None of these findings would apply to petitioners’ claims regarding self-checkout attendants.

Whether the court might ultimately reach the same conclusion for self-checkout attendants, based on the same or similar factors, does not mean that the court in LaFace resolved factual issues applicable to Yannoulatos. As the trial court recognized, a determination whether the “nature of the work reasonably permits the use of seats” requires the court to consider the “nature of the work” and the “total tasks and duties by location.” (Kilby, supra,63 Cal.4th at pp. 18-19.) Thus, the court in Yannoulatos would have to consider evidence specific to the nature of the work performed by self-checkout attendants and the layout of that workstation.

In sum, the evidence supports the conclusion that the two cases involved similar issues arising from a similar set of facts. That is insufficient to deem Yannoulatos a continuation of LaFace. (See NutraGenetics, supra, 179 Cal.App.4th at p. 257 [“the second proceeding must arise out of the first proceeding—not merely . . . out of the same incidents or events that gave rise to the first proceeding”].) They are therefore “separate and distinct cases, entitled to separate challenges under section 170.6.” (Nissan, supra, 6 Cal.App.4th at p. 155.) The trial court’s denial of the peremptory challenge because Yannoulatos was a continuation of LaFace was therefore an abuse of its discretion.

DISPOSITION

Let a peremptory writ of mandate issue directing the respondent court to vacate its order of July 29, 2020 denying petitioners’ peremptory challenge, and enter a new order granting the challenge. The alternative writ is discharged. Petitioners are entitled to recover their costs in this proceeding.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

MANELLA, P. J.

WILLHITE, J.

Filed 11/20/20 West American Ins. Co. v. Valles CA2/1

NOT TO BE PUBLISHED IN THE 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

SECOND APPELLATE DISTRICT

DIVISION ONE

WEST AMERICAN INSURANCE COMPANY,

Plaintiff and Respondent,

v.

LUIS VALLES,

Defendant and Appellant.

B296771

(Los Angeles County

Super. Ct. No. BC697805)

APPEAL from a judgment of the Superior Court of Los Angeles County, William F. Fahey, Judge. Reversed and remanded with instructions.

Law Office of Fred Hanassab, Fariborz Fred Hanassab; Jeff Lewis Law, Jeffrey Lewis and Sean C. Rotstan for Defendant and Appellant.

Lindahl Beck and Kelley K. Beck for Plaintiff and Respondent.

____________________________

Luis Valles appeals from a declaratory judgment entered in favor of West American Insurance Company (WAIC). The trial court ruled that Valles could not recover medical expenses and full wage loss through an uninsured motorist policy issued by WAIC because Valles could have, but did not, obtain those benefits through workers’ compensation.

We conclude the judgment was premature given Valles’s pending workers’ compensation claim, the resolution of which may undercut critical factual assumptions underlying the judgment for which there was no record. Accordingly, we reverse the judgment, and instruct the trial court to stay further proceedings pending resolution of Valles’s workers’ compensation claim.

FACTUAL AND PROCEDURAL BACKGROUND

The evidentiary record in this case is slim at best. No witnesses appeared at trial, and the only evidence introduced at trial was a copy of WAIC’s insurance policy. Our summary of the underlying facts is taken from WAIC’s proposed findings of fact and conclusions of law, which the trial court adopted in full. We summarize additional facts from the complaint and from Valles’s proposed findings of fact and conclusions of law, although the trial court did not adopt them. We provide this factual summary for context only, and our characterization of the facts is not binding on any future proceedings. By including facts here, moreover, we express no opinion as to their validity or admissibility.

While driving a vehicle belonging to his employer, Valles was injured in an accident with another vehicle. Valles’s employer had an insurance policy issued by WAIC that provided uninsured motorist coverage with a limit of $1 million per accident (the WAIC policy). The other vehicle involved in the accident qualified as an uninsured motor vehicle under the WAIC policy.

Valles timely filed a claim for workers’ compensation benefits for his injuries from the accident. According to Valles, he first obtained medical care through workers’ compensation, “but he concluded his medical care and treatment, including surgical procedures, with other medical providers.” Valles then submitted an uninsured motorist claim to WAIC for medical expenses of $369,000, as well as future medical expenses and wage loss.

WAIC filed an action for a declaratory judgment as to its coverage obligations. WAIC invoked an exclusion in paragraph C.3 of its policy stating that the uninsured motorist coverage “does not apply to any of the following: [¶] . . . The direct or indirect benefit of any insurer or self-insurer under any workers’ compensation, disability benefits or similar law . . . .”

WAIC contended that it would be to the “indirect benefit” of the workers’ compensation insurer if Valles could “simply elect to receive medical treatment outside workers’ compensation and forego pursuing disability benefits,” and instead seek coverage for treatment and disability from WAIC. Therefore, WAIC asserted, Valles was precluded from recovering from WAIC what could have been obtained through workers’ compensation had Valles pursued those benefits. WAIC further asserted that Valles could have obtained all necessary medical treatment through workers’ compensation, as well as disability payments, and thus WAIC should not be responsible for any of it.

As noted above, the parties presented no witnesses or evidence at trial apart from the WAIC policy, and thus the trial consisted entirely of argument. Following trial, the parties submitted proposed findings of fact and conclusions of law. The trial court adopted WAIC’s proposed findings and conclusions without modification, which tracked the argument summarized above.

The trial court issued the following declaratory judgment in favor of WAIC: “A. Valles is not entitled to recover in settlement or arbitration of his [uninsured motorist] claim against WAIC for past or future medical expenses, because he could have obtained (and might still obtain) reasonably necessary medical treatment, and benefits for same, through the workers’ compensation system, rather than electing to incur medical expenses outside of workers’ compensation and claiming them as part of his [uninsured motorist] claim; and [¶] B. Valles is not entitled to recover in settlement or arbitration of his [uninsured motorist] claim against WAIC for past or future wage losses, based upon a claimed disability, without offset for disability benefits that could have been recovered (or may yet be recovered) as workers’ compensation benefits if pursued.”

Valles timely appealed.

DISCUSSION

“Under Insurance Code section 11580.2 . . . , automobile insurance policies must offer [uninsured motorist] coverage and provide for binding arbitration of certain disputes relating to [uninsured motorist] benefits.” (Case v. State Farm Mutual Automobile Ins. Co., Inc. (2018) 30 Cal.App.5th 397, 403 (Case).) Insurance Code section 11580.2 “sets forth a mandatory minimum required by law,” and therefore “[a] policy that purports to limit or provide more restrictive coverage will not be given effect.” (Daun v. USAA Casualty Ins. Co. (2005) 125 Cal.App.4th 599, 606.)

“Section 11580.2 includes two provisions designed to prevent double recovery of [uninsured motorist] benefits and workers’ compensation benefits for the same injury.” (Case, supra, 30 Cal.App.5th at p. 403.) Those provisions are found under section 11580.2, subdivisions (f) and (h). (Case, at pp. 403–404.)

Under section 11580.2, subdivision (h)(1), “Any loss payable under the terms of the uninsured motorist . . . coverage to or for any person may be reduced: [¶] . . . By the amount paid and the present value of all amounts payable to him or her . . . under any workers’ compensation law, exclusive of nonoccupational disability benefits.”

To ensure the uninsured motorist arbitrator can determine the amount to offset under section 11580.2, subdivision (h), the statute imposes a stay on the uninsured motorist arbitration “until the insured’s physical condition is stationary and ratable” in the workers’ compensation system. (§ 11580.2, subd. (f).) Put another way, section 11580.2, subdivision (f) “permits the insurer to wait until the workers’ compensation award has been determined before paying benefits to the insured, in the absence of a showing of good cause.” (Rangel v. Interinsurance Exchange (1992) 4 Cal.4th 1, 16.) Consistent with this principle, courts have rejected claims that insurers acted in bad faith by delaying benefits until certain determinations are made within the workers’ compensation system. (See, e.g., Rangel, at p. 5; Case, supra, 30 Cal.App.5th at pp. 414–415.)

According to WAIC, the instant case presents an issue not addressed by 11580.2 subdivisions (f) and (h), namely, what happens when a person eligible for workers’ compensation benefits chooses to bypass that system entirely and seek benefits from the uninsured motorist insurer instead? Under that circumstance, there would be no award under workers’ compensation against which to reduce the payment owed by the uninsured motorist insurer under 11580.2, subdivision (h), leaving the uninsured motorist insurer to bear the full cost.

WAIC contends, and the trial court accepted, that section 11580.2 prevents this outcome through language in subdivision (c)(4), which provides, “The insurance coverage provided for in this section does not apply either as primary or as excess coverage . . . [¶] (4) In any instance where it would inure directly or indirectly to the benefit of any workers’ compensation carrier or to any person qualified as a self-insurer under any workers’ compensation law, or directly to the benefit of the United States, or any state or any political subdivision thereof.” As noted above, the WAIC policy contained an exclusion using similar language. WAIC argues that any payments it makes that the workers’ compensation carrier otherwise would have made, but for Valles’s choice to seek medical treatment outside the workers’ compensation system, are to the indirect benefit of the workers’ compensation carrier, and therefore are excluded under section 11580.2, subdivision (c)(4) and the equivalent language in the WAIC policy.

WAIC’s argument raises a question: If a worker has never sought benefits under workers’ compensation, how can we know what benefits that worker might have obtained had he pursued them? WAIC’s response is Labor Code section 4600, part of the workers’ compensation statutory scheme, which requires an employer to provide all medical treatment “reasonably required” to address the employee’s injuries. (Lab. Code, § 4600, subd. (a).) WAIC contends that as a matter of law, Valles could have obtained all necessary medical treatment through workers’ compensation, and therefore, if WAIC were to pay for Valles’s medical treatment, the workers compensation insurer would receive an indirect benefit from WAIC’s payment. WAIC makes a similar argument concerning disability benefits, which WAIC contends are compensable under workers’ compensation and provide partial compensation for wage loss.

As noted, the trial court accepted WAIC’s argument and issued a declaratory judgment barring Valles from recovering past or future medical costs from WAIC, or recovering for past or future wage loss to the extent that loss is recoverable as disability benefits under workers’ compensation.

Appealing from that judgment, Valles disputes WAIC’s and the trial court’s interpretation of section 11580.2, and argues the statute merely bars double recovery in the event Valles obtains benefits from workers’ compensation. He asks us to reverse the judgment. In the alternative, he asks that the matter be remanded and stayed pending resolution of his unresolved workers’ compensation claim. Valles contends the trial court “made assumptions about a possible outcome that is yet unknown.”

We agree with Valles’s alternative position that the declaratory judgment in this case was premature, and that the record needs further development. Among other things, WAIC’s argument, and the trial court’s judgment, rely on an unstated assumption that, because Valles chose his own doctors to obtain medical treatment, workers’ compensation will not cover those costs. If this assumption is incorrect, and Valles obtains workers’ compensation benefits, then the case no longer fits the factual scenario advanced by WAIC, in which Valles has entirely bypassed the workers’ compensation system. Instead, although we do not decide the question, the case arguably could fall within the regime governed by section 11580.2, subdivision (h), under which WAIC would offset the amounts owed to Valles by whatever was paid or determined to be payable under workers’ compensation.

The record at this stage is insufficient for us, or the trial court, to determine which, if either, of the above factual scenarios applies. It is true that “[e]mployers and their insurers may establish or contract with a medical provider network to treat injured employees,” and an injured employee may only seek treatment outside that network under certain circumstances, such as when the employee predesignates a personal physician or the employer fails in its obligation to instruct the employee as to “ ‘what to do and whom to see.’ ” (Chorn v. Workers’ Comp. Appeals Bd. (2016) 245 Cal.App.4th 1370, 1377.) Here, no evidence was presented as to whether Valles’s employer had such a network, and if so, whether Valles’s circumstances were such that he could go outside that network. Indeed, there was no evidence or discussion of this issue at all.

Also, the record is insufficient to justify the breadth of the declaratory judgment, which precludes Valles from obtaining any recovery of medical costs from WAIC. It is conceivable that some of his medical expenses may be, or would have been, denied for a reason other than the fact that he incurred them outside the workers’ compensation system. That is, there may be a category of medical expenses that he could not have recovered through workers’ compensation even if he had sought them through that system initially. Even accepting WAIC’s position, Valles arguably should not be precluded from recovering those costs from WAIC, because it is not to the workers’ compensation insurer’s indirect benefit for WAIC to pay costs the workers’ compensation insurer would never have paid in the first place. The declaratory judgment does not account for that possibility, and the record is inadequate for us to rule that such a scenario would never exist.

At oral argument, WAIC appeared to suggest that, even if the workers’ compensation system determines Valles is entitled to benefits, WAIC should not be responsible for any medical costs in excess of what workers’ compensation awards. This argument would appear to dissolve the distinction between injured workers who bypass workers’ compensation to seek treatment, as WAIC alleges Valles did, and those who pursue all available treatment through the workers’ compensation system but then seek additional medical coverage through an uninsured motorist policy. We are unwilling to decide on this record that there is no significance to the distinction between those two scenarios; the question is best resolved once the record makes clear into which camp Valles falls, if indeed he falls into either. At that point the parties may make arguments appropriate to Valles’s particular circumstances, and this opinion should not be read to foreclose any arguments the parties would wish to make.

We do not intend to catalogue the full range of deficiencies in the record; the above examples are sufficient to illustrate that the record leaves many questions unanswered and that it is premature to decide the issues argued in this appeal. Accordingly, we express no view regarding any other issues in this case, including the proper interpretation of section 11580.2, subdivision (c)(4). At the risk of being repetitive, this opinion should not be read to foreclose future arguments the parties may wish to make on a more fully developed record.

DISPOSITION

The judgment is reversed and the matter remanded. The trial court is ordered to stay further proceedings pending resolution of Valles’s workers’ compensation claim. The parties are to bear their own costs on appeal.

NOT TO BE PUBLISHED.

BENDIX, Acting P. J.

We concur:

CHANEY, J.

FEDERMAN, J.*

Filed 11/20/20 Glickman v. Krolikowski 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

WILLIAM GLICKMAN,

Plaintiff and Respondent,

v.

CHARLES S. KROLIKOWSKI et al.,

Defendants and Appellants.

G057879

(Super. Ct. No. 30-2019-01049771)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Theodore R. Howard, Judge. Affirmed.

Manning & Kass, Ellrod, Ramirez, Trester, Frederic W. Trester and Steven J. Renick for Defendants and Appellants.

Tracy L. Anielski for Plaintiff and Respondent.

* * *

Respondent William Glickman sued appellants Charles S. Krolikowski and his law firm, Newmeyer & Dillion LLP (collectively “N&D”) for legal malpractice. N&D moved to compel arbitration, arguing the dispute was governed by an arbitration agreement contained in a prior written retainer agreement between the parties. The trial court denied the motion to compel arbitration, and N&D appealed.

N&D argues the trial court erred in concluding the prior retainer agreement did not apply to the instant action. It contends that under paragraph 13 of the prior agreement, Glickman agreed to arbitrate any disputes arising from any later representations. After independently reviewing paragraph 13, we conclude Glickman did not agree the prior written agreement would govern future representations. In addition, as discussed below, we conclude Business and Professions Code section 6148, subdivision (d)(2) (all further citations are to the Business & Professions Code, unless otherwise stated), does not establish the existence of a valid arbitration agreement because that statutory provision applies only to fee provisions in prior retainer agreements. Accordingly, we affirm the order denying N&D’s motion to compel arbitration.

I

FACTUAL AND PROCEDURAL BACKGROUND

The facts are largely undisputed. In November 2016, Glickman retained N&D to provide legal advice regarding a dispute with the City of Dana Point. He signed a written retainer agreement, hereinafter referred to as the “Letter Agreement” or “LA.” The Letter Agreement referenced “Glickman adv. City of Dana Point,” and described the scope of N&D’s representation as providing “general representation and advice to you in the above-referenced eminent domain matter.” The LA contained a clause requiring binding arbitration for any dispute between the parties arising from the representation. In paragraph 13 of the LA, under the heading “New Matters,” it provides: “Unless otherwise agreed in writing, if you engage us to provide any new or additional matters or if the nature of the matter for which we have been engaged changes, the terms of such agreement, other than as to its scope, shall be in accordance with the terms set forth in this letter. Nothing in this Agreement obligates N&D to represent Client for new matters, and no such representation will exist unless and until N&D agrees to represent Client for that new matter.” Glickman signed the LA, acknowledging he agreed to the terms, and that he had received a signed duplicate of the agreement.

A year later, Glickman retained N&D to provide legal services involving a dispute with his neighbor, the “Glickman v. Meston” matter. Glickman did not sign a new or additional written agreement. Several months later, Glickman filed an action against N&D alleging malpractice and related claims arising from this second representation. Glickman noted the existence of the LA, which was attached to the complaint, but purported to rescind it.

N&D filed a motion to compel arbitration, arguing the LA, including its arbitration provisions, “governed the terms of the engagement, pursuant to the terms of paragraph 13.”

Glickman opposed the motion to compel arbitration, arguing the LA did not apply to the second representation for three reasons. First, the LA was unenforceable because its terms were unconscionable. Second, the LA had been rescinded. Finally, Glickman argued the LA did not comply with the requirements of section 6148 as to the second representation, and thus was voidable. Glickman argued that contrary to the requirements of section 6148, the LA did not provide an accurate statement of the scope of the second representation and he did not receive a copy of the LA. Glickman contended he invoked his right to void the LA when he rescinded it.

In reply, N&D disputed whether the LA was unenforceable or had been rescinded. N&D also contended Glickman had received a copy of the LA. N&D further argued the description of services in the LA was sufficiently broad to include the legal work in the second representation. Finally, N&D argued that even if the LA had been voided, the terms of the LA nonetheless applied to the second representation pursuant to section 6148, subdivision (d)(2), which provides an exception to the “entire requirement of a written engagement agreement” when an attorney provides services “of the same general kind as previously rendered to and paid for by the client.”

The trial court denied the motion to compel arbitration. After noting that the only arbitration agreement N&D presented was the LA, it concluded the LA did not apply to the second representation. The court did not make a finding whether Glickman actually received a copy of the LA, but concluded that even had Glickman received a copy, the LA nonetheless failed to meet the requirement of section 6148 to describe the scope of the legal services. The court noted the LA expressly stated it would apply to the “Glickman adv. City of Dana Point,” but did not reference the “Glickman v Meston” matter. The court further concluded that section 6148, subdivision (d)(2), did not apply to save the arbitration provisions because that statutory provision applied only to fee provisions.

II

DISCUSSION

Code of Civil Procedure section 1281.2 provides: “On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that:

(a) The right to compel arbitration has been waived by the petitioner; or [¶] (b) Grounds exist for rescission of the agreement.” “As the party seeking to compel arbitration, [N&D] bore the burden of proving the existence of a valid arbitration agreement.” (Fagelbaum & Heller LLP v. Smylie (2009) 174 Cal.App.4th 1351, 1363.)

“Because the trial court sits as a trier of fact in ruling on . . . a petition [to compel arbitration], its decision on the existence of a valid arbitration agreement will be affirmed on appeal if substantial evidence supports the ruling. [Citation.] Where, as here, ‘there is no “factual dispute as to the language of [the] agreement” [citation] or “conflicting extrinsic evidence” regarding the terms of the contract [citation], our standard of review of a trial court order granting or denying a motion to compel arbitration under [Code of Civil Procedure] section 1281.2 is de novo.’ [Citation.] ‘We are not bound by the trial court’s construction or interpretation.’ [Citation.]” (Rice v. Downs (2016) 248 Cal.App.4th 175, 185.) “Any ambiguity in a retainer agreement is construed in favor of the client and against the attorney.” (Banning Ranch Conservancy v. Superior Court (2011) 193 Cal.App.4th 903, 913.)

To the extent the trial court’s order denying N&D’s motion to compel arbitration requires an interpretation of section 6148, we independently review the court’s application of section 6148. (See Robertson v. Health Net of California, Inc. (2005) 132 Cal.App.4th 1419, 1425 [“It is well settled that the interpretation and application of a statutory scheme presents a pure question of law and is subject to independent review by the courts of appeal.”].)

N&D contends that under paragraph 13 of the LA, Glickman agreed to arbitrate the claims arising from the second representation. We disagree.

Per paragraph 13 of the LA, Glickman agreed that if he engaged N&D for any new or additional matters, “the terms of such engagement, other than as to its scope, shall be in accordance with the terms set forth in” the LA. Thus, if Glickman agreed to retain N&D for a new or additional matter, the terms of the new agreement would be the same as the terms in the LA, except as to the scope of the legal representation. Glickman did not agree that the LA itself would be the agreement governing the new representation. Nor did Glickman agree to waive any challenges to the existence of a new arbitration agreement. (See Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 29 [“If a contract includes an arbitration agreement, and grounds exist to revoke the entire contract, such grounds would also vitiate the arbitration agreement.”]; § 6148, subd. (c) [“Failure to comply with any provision of this section [6148] renders the [retainer] agreement voidable at the option of the client. . . .”].)

N&D’s reliance on Reigelsperger v. Siller (2007) 40 Cal.4th 574, is misplaced. There, the plaintiff patient sought treatment from the defendant chiropractor. The patient signed a consent form in which he agreed that “‘I intend this consent form to cover the entire course of treatment for my present condition and for any future condition(s) for which I seek treatment.’” (Id. at p. 580.) The patient also agreed to arbitrate “‘any dispute as to medical malpractice,’” and specifically agreed that the arbitration agreement “‘is intended to bind the patient and the health care provider . . . who now or in the future treat[s] the patient. . . .’” (Id. at p. 577.) Based on the foregoing language, the court concluded the patient had agreed to arbitrate a medical malpractice claim arising from treatment for a different condition two years later. (Id. at p. 576.) No similar language appears in the LA. Paragraph 13 of the LA only contemplates that any new contract for services would have the same terms as the current agreement. It does not provide that the LA would apply to subsequent representations.

Finally, applying section 6148, subdivision (d), would not result in a valid agreement to arbitrate disputes arising from the second representation. Section 6148, subdivision (a), provides that in “any case . . . in which it is reasonably foreseeable that total expense to a client, including attorney fees, will exceed one thousand dollars ($1,000), the contract for services in the case shall be in writing.” Moreover, “[t]he written contract shall contain all of the following:

“(1) Any basis of compensation including, but not limited to, hourly rates, statutory fees or flat fees, and other standard rates, fees, and charges applicable to the case.

“(2) The general nature of the legal services to be provided to the client.

“(3) The respective responsibilities of the attorney and the client as to the performance of the contract.”

Section 6148, subdivision (d), exempts the legal provider from complying with the requirements of section 6148, subdivision (a), in four circumstances, including where there is “[a]n arrangement as to the fee implied by the fact that the attorney’s services are of the same general kind as previously rendered to and paid for by the client.” (Italics added)

As the italicized language makes clear, section 6148, subdivision (d), does not apply to nonfee provisions in a contract for services. It is limited to fee provisions that may be inferred from past representations or prior contracts for legal services. Thus, while N&D may rely on section 6148, subdivision (d), to argue it is entitled to the same fee structure in the second representation as in the first representation, it cannot rely on section 6148, subdivision (d), to argue it is entitled to the same arbitration provisions. In sum, N&D has not met its burden to show the existence of a valid agreement to arbitrate disputes arising from its second representation. Accordingly, the trial court properly denied N&D’s motion to compel arbitration.

III

DISPOSITION

The order denying N&D’s motion to compel arbitration is affirmed. Glickman is entitled to his costs on appeal.

ARONSON, ACTING P. J.

WE CONCUR:

FYBEL, J.

GOETHALS, J.

Filed 11/20/20 Advanced Pain Treatment etc. v. Mitre CA2/4

NOT TO BE PUBLISHED IN THE 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

SECOND APPELLATE DISTRICT

DIVISION FOUR

ADVANCED PAIN TREATMENT MEDICAL CENTER,

Plaintiff and Respondent,

v.

GREG MITRE,

Defendant and Appellant.

B298595

(Los Angeles County
Super. Ct. No. NC061442)

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael P. Vicencia, Judge. Reversed and remanded.

Hinshaw & Culbertson, Eugene Brown, Jr., for Defendant and Appellant.

Andrew P. Altholz for Plaintiff and Respondent.

Appellant Greg Mitre received treatment for back pain at respondent Advanced Pain Treatment Medical Center (Advanced Pain). Mitre’s health insurance paid for the treatments but did not pay associated “facility fees” totaling $30,000. Four years later, Advanced Pain sued Mitre to recover the facility fees under both contract and quantum meruit theories.

In a special verdict, the jury found that Advanced Pain and Mitre entered into a contract, under which Advanced Pain performed and Mitre did not. The jury found that Advanced Pain was not harmed by Mitre’s breach, however, and awarded no contract damages. In accordance with the instructions on the special verdict form, to which no objections were raised, the jury proceeded to consider a quantum meruit theory and awarded Advanced Pain $15,000 as the reasonable value of the services it provided. The trial court subsequently denied Mitre’s motion for judgment notwithstanding the verdict (JNOV).

In this appeal, Mitre contends the jury’s verdict on the quantum meruit claim must be reversed for two reasons. First, he argues that the jury rendered an inconsistent and legally impermissible verdict by finding both that there was a contract and awarding recovery in quantum meruit for the services covered by the contract. Second, Mitre argues that the quantum meruit claim is barred by the statute of limitations. Advanced Pain responds that Mitre forfeited or invited error as to both arguments, which it further contends are incorrect.

We reverse. As a matter of law, a plaintiff may not recover on a quantum meruit claim if the parties have an enforceable agreement regarding the same subject matter. The jury’s special verdict findings accordingly were inconsistent. Because the inconsistent findings are equally against the law, we reject Mitre’s request to reverse only the quantum meruit findings and instead remand for new trial.

FACTUAL BACKGROUND

On February 19, 2013, Mitre visited Advanced Pain to be evaluated for pain treatment. During that visit, he signed a form that stated, “I hereby authorize my insurance to pay directly to Dr. Kamran Ghadimi and Advanced Pain Treatment Medical Center all insurance benefits that I am entitled. I also authorize Dr. Kamran Ghadimi to release any information as required for insurance billing purposes. I am also aware that I am responsible for any balance above and beyond that which my insurance carrier does not cover.” The form did not list the prices of any of Advanced Pain’s services or the fees it charged.

Mitre visited Advanced Pain for pain treatment on February 21, 2013 and April 11, 2013. On both occasions, pain management physician Dr. Kamran Ghadimi, the sole owner of Advanced Pain, gave Mitre a lumbar epidural steroid injection. Mitre was sedated during part of the procedures, which he tolerated well.

Advanced Pain obtained preauthorization from Mitre’s health insurance before Dr. Ghadimi performed the injections. It billed the insurance for Dr. Ghadimi’s services, as well as an associated facility fee of $15,000 per procedure. After doing “everything we could to get paid from the insurance,” Advanced Pain sent Mitre a bill for the unpaid $30,000 in facility fees on July 10, 2017. The accompanying letter stated that the balance was “payable and now due.” It directed Mitre to contact his health insurer with questions, and stated, “You have received several denials from them. The balance now has been transferred to your responsibility.” Mitre did not pay the fees.

At trial, Advanced Pain presented expert testimony that the $15,000 facility fee was the upper end of the reasonable range for such fees. Mitre presented expert testimony that office-based surgery centers like Advanced Pain do not charge facility fees.

PROCEDURAL HISTORY

Advanced Pain filed a complaint against Mitre on October 23, 2017. It asserted three causes of action: breach of contract, money due on an open book account, and quantum meruit. Mitre answered the complaint on April 3, 2018. He denied the allegations of the complaint and asserted 33 affirmative defenses, including the statute of limitations.

Mitre filed a motion for summary adjudication on November 21, 2018. He argued that there was no enforceable contract between himself and Advanced Pain, and that both the breach of contract and quantum meruit causes of action were barred by the statute of limitations. Advanced Pain opposed the motion, arguing that both the existence of a contract and the operation of the statute of limitations were triable issues of material fact. The trial court denied the motion without explanation in a minute order on February 5, 2019. There is no reporter’s transcript of the hearing in the appellate record. Mitre did not seek writ relief.

Trial on the breach of contract and quantum meruit causes of action began on March 12, 2019. Prior to trial, Mitre filed a trial brief. The brief did not mention the statute of limitations. Neither Advanced Pain nor Mitre mentioned the statute of limitations during the lengthy pretrial conference with the court or during opening statements. During trial, the parties presented evidence of the facts summarized above.

After both sides rested, the court provided its rulings on the parties’ proposed jury instructions. As relevant here, it denied both sides’ request for CACI No. 338, “Affirmative Defense—Statute of Limitations.” Neither side objected to the court’s jury instructions ruling or mentioned the statute of limitations during closing argument.

The court rejected both parties’ proposed special verdict forms as “either improper or insufficient” and provided the jury with a special verdict form of its own design without objection. The court’s form, based on CACI VF-300 and CACI No. 371, contained a total of nine questions. Questions one through five pertained to the contract cause of action, and questions six through nine pertained to the quantum meruit cause of action.

The jury answered “yes” to questions one, two, and three, finding that there was a contract, Advanced Pain performed, and Mitre did not. It answered “no” to question four, finding that Advanced Pain suffered no harm from Mitre’s breach. The jury wrote “0” for the total amount of damages in question five. During jury polling, the foreperson explained that the jury had not discussed question five, in accordance with the form’s instruction to skip question five and proceed to question six if the answer to question four was no: “I was just filling in like a none [sic] applicable zero, just a null space.”

The verdict form next asked questions concerning the quantum meruit cause of action. The jury answered “yes” to questions six, seven, and eight, finding that Mitre requested beneficial services, Advanced Pain rendered the services as requested, and Mitre failed to pay for the services. The jury then answered question nine, setting the reasonable value of the services Advanced Pain rendered at $15,000.

Advanced Pain prepared a proposed judgment. Mitre objected on the sole ground that the proposed judgment “seeks [prejudgment] interest in violation of Civil Code § 3287 et. seq., and as such cannot be awarded as claimed.” The trial court entered judgment, including prejudgment interest, on April 12, 2019. Advanced Pain served Mitre with notice of entry of judgment on April 19, 2019.

On May 8, 2019, Mitre filed a motion to correct the judgment to delete the award of prejudgment interest. On May 20, 2019, the trial court took the motion off calendar, explaining, “It was stricken before I signed it. I don’t know how you got the thing that you got. But it was stricken before I signed it.” Advanced Pain served notice of the corrected judgment on May 29, 2019.

On May 30, 2019, Mitre moved for JNOV. In his motion, he argued that both causes of action were barred by the statute of limitations. Advanced Pain opposed the JNOV motion on the grounds that it was untimely filed under Code of Civil Procedure section 629, subdivision (b), and “substantial uncontroverted evidence was produced at trial that vitiates Defendant’s statute of limitations defense and supports the Verdict.” The trial court heard the motion on June 27, 2019. There is no reporter’s transcript of the hearing in the appellate record. The reporter’s transcript for June 27, 2019 included in the record is from a different case. The minute order documenting the hearing states only that the motion was denied.

Mitre filed his notice of appeal from the judgment on June 18, 2019. He did not file a subsequent notice of appeal from the denial of his motion for JNOV.

DISCUSSION

I. Inconsistent Special Verdict Findings

Mitre contends the jury’s verdict on the quantum meruit cause of action must be reversed because, “as a matter of law no quantum meruit claim can exist where, as here, the parties had a written contract regarding the same subject matter.” Advanced Pain responds that Mitre is barred from making this argument because he did not raise it below. However, “inconsistent jury findings in a special verdict are not subject to waiver by a party.” (Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1093, fn. 6 (Zagami).)

We review a special verdict for inconsistency de novo. (Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 358 (Singh); Zagami, supra, 160 Cal.App.4that p. 1092.) “With a special verdict, unlike a general verdict or a general verdict with special findings, a reviewing court will not infer findings to support the verdict.” (Singh, supra, 186 Cal.App.4th at p. 358.) That is, “there is no presumption in favor of upholding a special verdict when the inconsistency is between two questions in a special verdict.” (Zagami, supra, 160 Cal.App.4th at p. 1092.) “‘Where there is an inconsistency between or among answers within a special verdict, both or all the questions are equally against the law.’ [Citations.]” (Ibid.) We are not permitted to pick and choose between inconsistent answers. (Singh, supra, 186 Cal.App.4th at p. 358.) If the findings contradict on material issues, and the correct determination of such issues is necessary to sustain the judgment, the inconsistency is reversible error. (Ibid.)

The special verdict here involved a contract claim and a quantum meruit claim. The contract claim sought enforcement of a written contract, the form Mitre signed on February 19, 2013, agreeing to pay any balance not paid by his insurance. The quantum meruit claim asked the jury to fashion an implied contract to pay for the reasonable value of services that were not gratuitously rendered. (Huskinson & Brown v. Wolf (2004) 32 Cal.4th 453, 458; see also Maglica v. Maglica (1998) 66 Cal.App.4th 442, 449.) Advanced Pain was permitted to allege and advance these inconsistent theories, but it was not permitted to “pursue or recover on a quasi-contract claim if the parties have an enforceable agreement regarding a particular subject matter.” (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1388, 1389.) “When parties have an actual contract covering a subject, a court cannot—not even under the guise of equity jurisprudence—substitute the court’s own concepts of fairness regarding that subject in place of the parties’ own contract.” (Hedging Concepts, Inc. v. First Alliance Mortgage Co. (1996) 41 Cal.App.4th 1410, 1420.) One reason for this rule is rooted in equity: “‘where the parties have freely, fairly and voluntarily bargained for certain benefits in exchange for undertaking certain obligations, it would be inequitable to imply a different liability.’” (Id. at p. 1419.) Another is rooted in practicality: “[a] quantum meruit analysis cannot supply ‘missing’ terms that are not missing.” (Ibid.)

The only contract identified by the pleadings, evidence, and argument was the form Mitre signed on February 19, 2013. Mitre argued that the form was not an enforceable contract to pay any amount his insurance failed to pay, but the jury disagreed. It expressly found, in answering “yes” to question one, that “Advanced Pain Treatment Medical Center and Greg Mitre enter[ed] into a contract” covering the fees at issue. After that point, quantum meruit was no longer available as a basis of recovery. The special verdict form nevertheless directed the jury to proceed to the quantum meruit questions if it answered “no” to questions two (did Advanced Pain perform?), three (did Mitre fail to perform?), or four (was Advanced Pain harmed?). The jury answered “no” to question four. In accordance with the instructions on the verdict form, as well as additional guidance the trial court delivered orally, the jury then proceeded to answer the questions pertaining to quantum meruit and awarded Advanced Pain $15,000 under that theory. The jury’s special verdict finding that Mitre was obligated to pay the fees under a contract is irreconcilably inconsistent with its finding that Advanced Pain is entitled to the reasonable value of those same fees under quantum meruit.

Advanced Pain contends the findings are consistent and must be upheld. In its view, “it is entirely reasonable to infer from the record on appeal, that Appellant agreed and contemplated that Advanced [Dr. Ghadimi] could try to recover payment from the [health insurance] Plan, that the same could take a long time, and that Appellant would remain liable for any sums that the Plan did not pay.” We reject this contention for two reasons. First, as noted above, we make no presumption in favor of upholding a special verdict and do not infer findings to support it. Second, the central premise of the argument—that a special verdict is not inconsistent unless its answers are impossible to reconcile— is faulty. The rule that a verdict should not be modified “‘if there is any “possibility of reconciliation under any possible application of the evidence and instructions”’” does not apply when the inconsistency at issue is between two questions within a special verdict. (Mendoza v. Club Car, Inc. (2000) 81 Cal.App.4th 287, 302-303; see also Trejo v. Johnson & Johnson (2017) 13 Cal.App.5th 110, 124, fn. 5.)

Advanced Pain also argues that Mitre invited error by failing to request appropriate instructions on the special verdict form. We are not persuaded. The special verdict form was largely devised by the trial court after it rejected both parties’ proposed forms. Neither side objected, and there is no indication in the record that Mitre knowingly created or foresaw any problem. (See Lambert v. General Motors (1998) 67 Cal.App.4th 1179, 1183.) “‘[W]aiver is not found where the record indicates that the failure to object was not the result of a desire to reap a “technical advantage” or engage in a “litigious strategy.” [Citations.]’ [Citation.] Nor is an objection required when the verdict is fatally inconsistent.” (Behr v. Redmond (2011) 193 Cal.App.4th 517, 530.)

For all of these reasons, we agree with Mitre that the special verdict is inconsistent and cannot stand. However, we reject his contention that the error entitles him to judgment on the quantum meruit claim. “‘Where there is an inconsistency between or among answers within a special verdict, both or all the questions are equally against the law.’ [Citations.]” (Zagami, supra, 160 Cal.App.4th at p.1092.) Mitre’s argument would require us to accept as definitive the jury’s answers to the questions regarding the contract and disregard its answers on the quantum meruit claim. We cannot do this.

“The proper remedy for an inconsistent special verdict is a new trial.” (Singh, supra, 186 Cal.App.4th at p. 358.) On remand, the parties and court should make clear that a contract and quantum meruit recovery are mutually exclusive by instructing the jury that it may not answer questions concerning quantum meruit if it finds that the parties had a valid contract regarding the fees.

II. Statute of Limitations

Mitre alternatively argues that the quantum meruit verdict must be reversed because the two-year statute of limitations in Code of Civil Procedure section 339 expired before Advanced Pain brought its quantum meruit claim. (See Reeve v. Meleyco (2020) 46 Cal.App.5th 1092, 1100.) Advanced Pain responds that Mitre has forfeited this contention by failing to raise it at trial, and, in the alternative, that it timely filed its claim. We agree with Advanced Pain that Mitre has not preserved his statute of limitations argument.

The statute of limitations is an affirmative defense that “exists to promote the diligent assertion of claims, ensure defendants the opportunity to collect evidence while still fresh, and provide repose and protection from dilatory suits once excess time has passed.” (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191.) It must be asserted by the defendant in its answer and at trial to be preserved for appeal. (Rubinstein v. Fakheri (2020) 49 Cal.App.5th 797, 808.)

Mitre asserts that he preserved the defense by raising it in his answer, in his motion for summary adjudication, in a rejected jury instruction, and in his motion for JNOV. He does not cite any authority in support of this position, which we do not find persuasive. Mitre did not challenge the trial court’s denial of his summary adjudication motion either by writ or in his opening brief. Even if he had challenged the denial of the summary adjudication motion prior to his reply brief, the appellate record does not reveal the basis for the denial of the motion, and we must presume the ruling was correct. (Jameson v. Desta (2018) 5 Cal.5th 594, 609.)

After asserting the statute of limitations defense in his answer and motion for summary adjudication, Mitre said nothing on the subject in his pretrial motion or throughout the parties’ lengthy pretrial conference with the trial court. He did not mention the statute of limitations in his opening statement or closing argument, and did not present any evidence regarding the accrual date of the quantum meruit claim. Mitre proposed a jury instruction on the statute of limitations, but did not object or seek explanation when the court declined to give the instruction. (See Code Civ. Proc. § 647.) Moreover, he does not contend that the trial court erred in declining to provide the instruction.

Mitre revived his statute of limitations defense in his motion for JNOV, but he has not appealed the court’s ruling denying that motion. (See Code Civ. Proc., § 904.1, subd. (a)(4) [JNOV is an appealable order]; Sole Energy Co. v. Petrominearals Corp. (2005) 128 Cal.App.4th 212, 239.) In short, he neither took steps to ensure the defense was presented to the jury nor preserved the issue for appeal. We accordingly do not reach the merits of the claim.

DISPOSTION

The judgment of the trial court is reversed, and the matter is remanded for new trial. Mitre is awarded his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

MANELLA, P. J. CURREY, J

Filed 11/24/20 Paulek v. City of Moreno Valley CA4/2

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 TWO

ALBERT PAULEK et al.,

Plaintiffs and Respondents,

v.

CITY OF MORENO VALLEY et al.,

Defendants and Appellants;

HF PROPERTIES et al.,

Real Parties in Interest and Appellants;

(And four other cases.)

E071184

(Super.Ct.Nos. RIC510967,

RIC1511195, RIC1511279,

RIC1511327 & RIC1511421)

OPINION

APPEAL from the Superior Court of Riverside County. Sharon J. Waters, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.). Dismissed.

Earthjustice, Adriano L. Martinez and Oscar Espino-Padron Counsel for Plaintiffs and Appellants Community Action and Environmental Justice, Center for Biological Diversity, Coalition for Clean Air, and San Bernardino Valley Audubon Society and Sierra Club.

Lozeau Drury, Richard T. Drury and Brian B. Flynn for Plaintiff and Appellant Laborers’ International Union of North America, Local 1184.

Shute, Mihaly & Weinberger, Kevin P. Bundy and Rachel B. Hooper for Plaintiff and Appellant Sierra Club.

Center for Biological Diversity and Aruna Prabhala for Plaintiff and Appellant Center for Biological Diversity.

Office of the City Attorney Steven B. Quintanilla and Martin D. Koczanowicz for Defendants and Appellants City of Moreno Valley and Moreno Valley Community Services District.

Cox, Castle & Nicholson, Kenneth B. Bley for Real Party in Interests and Appellants, HF Properties, Sunnymead Properties, Theodore Properties Partners, 13451 Theodore and HL Property Partners.

Frank G. Wells Environmental Law Clinic, Cara A. Horowitz and Julia E. Stein as Amicus Curia for Appellant.

Law Office of Susan Nash and Susan Nash for Plaintiffs and Respondents, Albert T. Paulek and Friends of the Northern San Jacinto Valley.

Blum Collins, Steven A. Blum, Craig M. Collins and Gary Ho for Plaintiff and Respondent, SoCal Environmental Justice Alliance.

Law Offices of Abaigail Smith and Abigail Smith for Plaintiff and Respondent Residents for A Livable Moreno Valley.

Xavier Becerra, Attorney General, Robert W. Byrne, Assistant Attorney General, Edward H. Ochoa, Sarah E. Morrison, Annadel A. Almendras, Randy Barrow, Gwynne B. Hunter Michael S. Dorsi and Heather C. Leslie, Deputy Attorneys General for California Air Resources Board as Amicus Curiae on behalf of Plaintiffs and Respondents.

I.

INTRODUCTION

The World Logistics Center (the Project) is a proposed “logistics campus” that would be built by 2031 on over 40 million square feet of undeveloped land in Moreno Valley (the City). In 2015, the Moreno Valley City Council certified a final Environmental Impact Report (EIR) for the Project and approved its construction.

Petitioners, various individuals and environmental organizations, filed petitions for a writ of mandate under the California Environmental Quality Act (CEQA) (Pub. Res. Code §§ 21000 et seq.), challenging the EIR as inadequate in numerous respects. The trial court found the EIR was faulty for five reasons and granted the petitions in part, but rejected petitioners’ remaining arguments.

We agree that Petitioners’ appeal of the greenhouse gas (GHG) analysis issue is moot and therefore dismiss the appeal. We also exercise our discretion to dismiss the City’s cross-appeal.

II.

FACTUAL AND PROCEDURAL BACKGROUND

Highland Fairview submitted its application for the Project in 2012. The City released a draft Environmental Impact Report (DEIR) for the Project, which found the Project would have a number of “significant” environmental impacts. After receiving public comments on the DEIR, the City released the EIR, which the City later certified and adopted.

Petitioners filed verified petitions for a writ of mandate challenging the EIR as inadequate under CEQA. The trial court ruled in petitioners’ favor on five issues, finding that (1) the EIR failed to conduct a good faith analysis of potential sources of renewable energy for the Project; (2) the EIR improperly described an area near the Project as a “buffer zone”; (3) the EIR improperly analyzed the Project’s noise impacts; (4) the EIR failed to determine whether the Project would have significant effects on farmland and how to mitigate those effects; and (5) the EIR’s cumulative impacts analysis relied on outdated and incomplete information and failed to determine whether the Project’s individual insignificant impacts were cumulatively significant. The trial court rejected Petitioners’ remaining arguments, including that the EIR’s GHG analysis was improper.

The trial court therefore granted Petitioners’ writs of mandate in part, entered judgment in their favor, and awarded them attorney’s fees. The trial court ordered the City to vacate its approval of the parcel map associated with the Project and to proceed consistent with the trial court’s orders in any subsequent CEQA review for the Project.

Petitioners appealed the trial court’s upholding the EIR’s GHG analysis. The City cross-appealed the trial court’s finding that the EIR violated CEQA in five respects. In May 2020, we issued a tentative opinion in which we held that the EIR’s GHG analysis violates CEQA and that the trial court incorrectly analyzed one issue, but affirmed the judgment in all other respects. In late July 2020, about two weeks before oral argument, the City moved to dismiss the appeal and cross-appeal as moot because (1) the City vacated the EIR and adopted a new one that uses a different GHG analysis, and (2) the City has complied with the trial court’s orders granting petitioners’ writ petitions.

III.

DISCUSSION

A. Petitioners’ Appeal Is Moot
B.
The only issue Petitioners raise in their appeal is whether the trial court erroneously found that the EIR’s GHG analysis does not violate CEQA. We conclude the issue is moot.

1. Additional background
2.
a. CARB’s Cap-and-Trade Program
b.
Because the California Air Resources Board’s (CARB) cap-and-trade program (C&T Program) is central to petitioners’ appeal and the City’s motion to dismiss, we outline it at the outset.

As part of the California Global Warming Solutions Act of 2006, also known as Assembly Bill No. 32 (AB 32), “CARB pursued a number of strategies for reducing greenhouse gas emissions. One of those strategies was a cap-and-trade program, which CARB implemented by promulgating regulations in 2011. [Citations.]” (Association of Irritated Residents v. Kern County Bd. of Supervisors (2017) 17 Cal.App.5th 708, 734 (AIR).)

“‘Cap-and-trade is a market-based approach to reducing pollution. The “cap” creates a limit on the total amount of emissions from a group of regulated sources, and generally imposes no particular emissions limit on any one firm or source.’” (Association of Irritated Residents v. State Air Resources Bd. (2012) 206 Cal.App.4th 1487, 1489 fn. 6.) “‘By establishing a declining, firm limit on the total pollution that can be released, a cap-and-trade program guarantees that the covered sources meet predetermined emissions targets.’ ‘The “trade” aspect of a cap-and-trade program creates an incentive for businesses to seek out cost-effective reductions, while also encouraging rapid action to reduce emissions quickly.’” (Ibid.)

The purpose of the C&T Program is “to reduce emissions of greenhouse gases associated with entities identified in this article through the establishment, administration, and enforcement of the California Greenhouse Gas Cap-and-Trade Program by applying an aggregate greenhouse gas allowance budget on covered entities and providing a trading mechanism for compliance instruments.” (Cal. Code Regs., tit. 17, § 95801.)

“‘“Compliance Instrument”’ is defined as an ‘allowance’ or ‘offset’ issued by CARB or by an external trading system to which California’s cap-and-trade program has been linked pursuant to the regulations. [Citation.] ‘“Allowance”’ is a limited tradable authorization to emit up to one metric ton of CO2e. [Citation.] An ‘“Offset credit”’ is a tradable compliance instrument issued by CARB that represents a greenhouse gas reduction or greenhouse gas removal enhancement of one metric ton of [carbon dioxide equivalent].[ ] [Citation.]” (AIR, supra, 17 Cal.App.5th at p. 734.)

California Code of Regulations section 95811 enumerates an exhaustive list of “covered entities” subject to the C&T Program, including various production facilities, suppliers of natural gas, fuel importers, and electricity generating facilities. These “entities receive allowances—either through auction, for free, or a combination of both—with each allowances representing the right to emit a ton of greenhouse gas emissions. At specified intervals, regulated businesses must surrender an allowance for each ton of GHG . . . pollution they release. Over time, the total amount of allowances available to all sources is reduced, meaning overall emissions from those sources must be also reduced. If an individual source does not need all of the allowances it has in a given period, it may “bank” those allowances to surrender later or sell them to another registered party. The ability to sell allowances to other businesses that need them creates a market price for pollution reductions and an incentive for businesses to achieve the maximum reductions possible at the lowest cost.” (Association of Irritated Residents v. State Air Resources Bd., supra, 206 Cal.App.4th at p. 1489, fn. 6.)

c. The Project’s EIR Process
d.
The DEIR used the South Coast Air Quality Management District (South Coast District) “significance threshold” of 10,000 metric tons for GHGs, meaning that the Project’s GHG emissions would be “significant” if they exceeded 10,000 metric tons. (See CEQA Guidelines, § 15064.7 subd. (a).) The DEIR found that the Project’s expected annual GHG emissions would exceed 127,000 metric tons in 2014 and would incrementally increase each year until reaching 665,000 metric tons of carbon dioxide equivalent by 2022. The DEIR found that about 40 percent of the Project’s GHGs would be emitted from trucks coming and going from the Project site in 2014, increasing to about 55 percent in 2022. The DEIR therefore found that the Project’s GHG emissions would be “significant” because they would exceed the South Coast District’s significance threshold of 10,000 metric tons.

The DEIR outlined various state and federal GHG reduction strategies that the Project could implement to reduce its GHG emissions. The DEIR noted that one potentially strategy was the C&T Program, but determined that it was “[n]ot [a]pplicable” to the Project. The DEIR explained that “[l]arge industrial uses are the most likely source of participants for this program, and it is not likely individual logistics warehousing will be an active participant in this program.” (Italics added.)

The EIR estimated that the Project’s GHG emissions “at buildout” (i.e., when the Project is completed in 2031) would total about 416,000 metric tons per year. The EIR designated about 95 percent of those emissions (396,754 metric tons) as “AB 32 capped emissions,” whereas the remainder (19,237 metric tons) were designated as “Uncapped Emissions.” The Capped Emissions would be emitted primarily from mobile sources (namely, “daily automobile and truck trips” to and from the Project) and electricity, while the remainder would be emitted by construction fuel, yard trucks, natural gas, generators, and forklifts. Uncapped Emissions would be emitted from waste, land use, refrigerants, and construction. GHGs associated with fossil fuels used for “vehicle miles traveled” (VMT) by vehicles to and from the Project would constitute “by far the largest source of [P]roject GHG emissions.”

Like the DEIR, the EIR found that the C&T Program was “[n]ot [a]pplicable.” The EIR explained that the C&T Program “covers products or services (such as electricity) and the cost of the cap-and-trade system would be transferred to the consumers. Large industrial uses are the most likely source of participants for this program, and it is not likely individual logistics warehousing will be an active participant in this program. Under AB 32, emissions from natural gas use, transportation fuel use, and electricity generation are covered under the cap-and-trade program and subject to the program’s emission reduction requirements.”

However, the EIR provided that “AB 32 capped emissions are shown for informational purposes, as those emissions are not compared with the . . . significance threshold.” The EIR reasoned that GHGs from the combustion of fossil fuels “do not count” against the significance threshold because they are “subject to Cap-and-Trade requirements.” The EIR therefore did not consider Capped Emissions in determining whether the Project’s GHG emissions would have a significant impact. Instead, the EIR analyzed the effect of mitigation measures on the Uncapped Emissions and found that “the mitigated uncapped emissions” would be under the significance threshold.

The crux of Petitioners’ appeal is whether the C&T Program applies to the Project and thus whether the EIR appropriately did not take Capped Emissions into account when determining whether the Project’s GHG emissions would be significant.

e. The Revised Final EIR
f.
In June 2020, the City adopted a resolution vacating the EIR and certifying a Revised Final EIR for the Project. The Revised Final EIR adopts “a new mitigation measure, Mitigation Measure 4.7.7.1.,” in order to “address the significance of the Project’s GHG emissions without consideration of [the C&T Program] (capped emissions).” This mitigation measure requires the “Project’s GHG emissions to be mitigated to net zero.” To do so, the Project’s developer must purchase “carbon offset credits” equal to the amount of the Project’s GHG emissions.

g. The City’s Motion to Dismiss Petitioners’ Appeal
h.
The City moved to dismiss Petitioners’ appeal as moot. The City argues the appeal is moot because the only issue it concerns is Petitioners’ challenge to the EIR’s consideration of the C&T Program to assess the significance of the Project’s GHG emissions, but the Revised Final EIR does not consider the C&T Program. The City thus contends this court cannot grant Petitioners the only relief they seek—that the City not consider the C&T Program in its CEQA analysis—because the City no longer does so in the Revised Final EIR.

Petitioners opposed the motion, arguing that their appeal is not moot. They claim the Revised Final EIR continues to improperly rely on the C&T Program, and that the parties are currently litigating the issue in another case in the trial court. Petitioners alternatively argue that even if the appeal is moot, we should issue—and publish—our previous tentative decision, which we withdrew in light of the City’s motion to dismiss, holding the EIR’s GHG analysis violates CEQA. Petitioners urge us to do so in order to resolve an important issue of continuing public interest: “whether an EIR can rely on the [C&T Program] to dismiss the significance of GHG emissions for projects not subject to the [C&T Program].”

3. Analysis
4.
An appeal is moot if events while the appeal is pending render it impossible for the appellate court to grant appellant effective relief. (La Mirada Avenue Neighborhood Assn. of Hollywood v. City of Los Angeles (2016) 2 Cal.App.5th 586, 590 (La Mirada).) Subsequent legislation can render a pending appeal moot. (Ibid., quoting Equi v. San Francisco (1936) 13 Cal.App.2d 140, 141-142).) Because appellate courts will decide only actual controversies, “‘an action which originally was based upon a justiciable controversy cannot be maintained on appeal if the questions raised therein have become moot by subsequent acts or events.’” (La Mirada, at p. 590, quoting Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 10).)

We conclude Petitioners’ appeal is moot. As the City correctly notes—and Petitioners do not dispute—the only issue presented in Petitioners’ appeal is whether the EIR properly relied on the C&T Program in its GHG analysis. The Final Revised EIR, however, replaced the EIR and does not use the C&T Program in its GHG analysis. The Final Revised EIR employs a new mitigation measure, not present in the EIR, “[t]o address the significance of the Project’s GHG emissions without consideration of” the C&T Program. The Final Revised EIR therefore does not consider the C&T Program when evaluating the Project’s GHG impacts.

Petitioners disagree. They claim that, much like the EIR, the Final Revised EIR still impermissibly relies on the C&T Program in its GHG analysis. In support, Petitioners cite a letter from CARB commenting on the Final Revised EIR in which CARB states that the Final Revised EIR “continues to rely on” the EIR’s faulty GHG analysis. CARB, however, does not cite anything from the Final Revised EIR to support its position. As noted, the Final Revised EIR unambiguously states that it “address[es] the significance of the Project’s GHG emissions without consideration of” the C&T Program. Petitioners likewise do not point to anything in the Final Revised EIR that indicates it relies on the C&T Program in its GHG analysis.

Because the EIR has been vacated and the Final Revised EIR does not use the GHG analysis that the EIR does, we cannot grant Petitioners any effective relief related to the EIR’s GHG analysis. Their appeal is therefore moot. (La Mirada, supra, 2 Cal.App.5th at p. 590.)

However, “there are three discretionary exceptions to the rules regarding mootness: (1) when the case presents an issue of broad public interest that is likely to recur [citation]; (2) when there may be a recurrence of the controversy between the parties [citation]; and (3) when a material question remains for the court’s determination [citation].” (Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479 [Fourth Dist., Div. Two].) Petitioners argue the first and second exceptions apply here. We disagree.

Although we agree with the parties that Petitioners’ appeal presents an issue of “broad public interest,” nothing suggests it is “likely to recur” in future litigation. (See Friends of Cuyamaca Valley v. Lake Cuyamaca Recreation & Park Dist. (1994) 28 Cal.App.4th 419, 425 [public interest exception to mootness applies when appeal affects the public interest “and there is reasonable probability that the same questions will again be litigated and appealed”].) The Final Revised EIR does not rely on the EIR’s GHG analysis, and we are unaware of any entity that currently does so in its CEQA analysis or intends to do so in the future. (See Cleveland National Forest Foundation v. San Diego Assn. of Governments (2017) 17 Cal.App.5th 413, 424 [“continuing public interest” exception to mootness applied because decision on moot appeal would affect agency’s current or future versions of EIR].) As it stands, Petitioners’ concern that other agencies likely will use a GHG analysis like the EIR’s is entirely speculative.

Petitioners also argue we should not dismiss their appeal as moot under the “recurrence of the controversy” exception to mootness. (See Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga, supra, 82 Cal.App.4th at p. 479.) Petitioners contend the issue of whether the EIR’s GHG analysis was proper is likely to recur in the future because two other agencies, the South Coast District and the San Joaquin Valley Air Pollution Control District (San Joaquin District), have relied on the C&T Program to assess a project’s GHG impacts.

There is scant evidence in the record about the South Coast District’s alleged reliance on the C&T Program. The EIR briefly summarizes the South Coast District’s two Negative Declarations from 2013 purportedly “stating that GHG emissions subject to the ARB Cap-and-Trade Program do not count against the 10,000 [metric ton of GHGs] significance threshold the [South Coast District] applies when acting as a lead agency.” The EIR provides no further explanation or description of the Negative Declarations, which are not in the record. Without more, we cannot determine whether the South Coast District has used a GHG analysis similar to that in the EIR. Further, Petitioners claim the EIR improperly relies on the C&T Program because the Project’s GHG emissions are not subject to the C&T Program, and the South Coast District’s Negative Declarations pertain to GHG emissions that are subject to the C&T Program. So whatever the South Coast District’s GHG analysis entails, it is not the same as the EIR’s GHG analysis.

The San Joaquin District’s policy is no different. Its policy Petitioners allude to provides that “GHG emissions increases that are covered under ARB’s Cap-and-Trade regulation cannot constitute significant increases under CEQA.” Thus, like the South Coast District’s policy, the San Joaquin District’s policy contemplates GHG emissions that are subject to the C&T Program, whereas Petitioners challenge the EIR’s reliance on the C&T Program because the Project’s GHG emissions are not subject to the C&T Program.

In short, there is nothing in the record that suggests the EIR’s allegedly faulty GHG analysis will be employed in the future. For that reason, the “continuing public interest” and “recurrence of the controversy” exceptions to mootness do not apply here.

Relying exclusively on Monty v. Leis (2011) 193 Cal.App.4th 1367 (Monty), Petitioners argue we should not dismiss their appeal “‘in the interest of judicial economy.’” Monty does not help petitioners. In that case, the plaintiffs unsuccessfully sought a preliminary injunction to prevent a merger. (Id. at p. 1369.) “While the matter was on appeal, the transaction closed, rendering the petition for injunction moot.” (Ibid.) The Monty court declined to dismiss the appeal as moot because “the questions presented . . . remain[ed] at issue between the parties.” (Id. at p. 1372.) It therefore made “no sense to return the matter to the trial court only to have the issues raised on appeal again.” (Ibid.)

Here, the only issue presented in Petitioners’ appeal is whether the EIR’s GHG analysis violated CEQA. Because the City no longer relies on that analysis in the Final Revised EIR and the EIR was vacated, Petitioners’ appeal does not present a live controversy between the parties. And because we cannot grant Petitioners any effective relief, we dismiss their appeal as moot.

C. The City’s Cross-Appeal
D.
The trial court found that the EIR was deficient in five respects. Shortly afterward, the City circulated a document titled, “Revised Sections of the Final Environmental Impact Report,” in order to remedy the deficiencies in the EIR identified by the trial court.

The City nonetheless appealed the trial court’s judgment “to protect [its] rights.” The City now moves to dismiss its cross-appeal, arguing that it is moot because it has complied with the trial court’s orders granting Petitioners’ writ petition. Petitioners oppose the motion on the ground that the trial court, not this court, should decide whether the City has complied with its orders in the first instance.

We need not resolve the issue because we exercise our discretion to dismiss the City’s cross-appeal. We construe the City’s motion to dismiss its cross-appeal as a request to dismiss under California Rules of Court, rule 8.244, subd. (c). An appellant may not dismiss an appeal as a matter of right. (Huschke v. Slater (2008) 168 Cal.App.4th 1153, 1160 [imposing $6,000 sanctions on attorney for unreasonable delay in notifying appellate court that parties had settled and dismissed the underlying case].) Rather, pursuant to California Rules of Court, rule 8.244(c)(2), “[o]n receipt of a request or stipulation to dismiss, the court may dismiss the appeal and direct immediate issuance of the remittitur.” (Italics added.) Thus, dismissal is discretionary. We grant the request and dismiss the City’s cross-appeal.

IV.

DISPOSITION

Petitioners’ appeal and the City’s cross-appeal are dismissed. Petitioners are awarded their costs on appeal as the prevailing parties. (Rule of Court, rule 8.278, subd. (a)(2).)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

McKINSTER

Acting P. J.

MILLER

J.