Opinion
F048246
9-3-2008
SHARON BONFIELD, Plaintiff, Cross-defendant and Respondent, v. AMY SALAK, Defendant, Cross-complainant and Appellant.
Malcolm G. Ellis for Defendant, Cross-complainant and Appellant. Noriega & Bradshaw and Donald C. Oldaker for Plaintiff, Cross-defendant and Respondent.
Not to be Published
Respondent Sharon Bonfield sued appellant Amy Salak for breach of contract and abuse of process. A jury awarded respondent $260,000 and possession of a horse named Junebug.
Appellant contends that this court should reverse the judgment and direct the trial court to hold a new trial. Appellant argues a new trial is justified because (1) irregularities occurred during the trial, (2) newly discovered evidence shows that respondent committed perjury, (3) the evidence is insufficient to support a finding that appellant falsified a proof a service in a small claims action, and (4) the damages awarded were excessive and not supported by the evidence.
We conclude, among other things, that the purported perjury is not accompanied by circumstances so extraordinary that this court should deviate from the established principles generally applied to posttrial claims of perjury. As a result, we decline to invoke our discretionary authority and order a new trial under the "interests of justice" exception contained in Code of Civil Procedure section 909. We further conclude that appellants other arguments do not merit reversal.
All further statutory references are to the Code of Civil Procedure unless indicated otherwise.
Judgment will be affirmed.
FACTS AND PROCEEDINGS
Appellant and respondent were friends who were interested in horses. They entered into horse breeding agreements with one another starting in 2001. The agreements relevant to this appeal concerned the breeding of three mares. Isabel and Maddie were mares owned by respondent. Juno was a mare owned by appellant.
In February 2001, appellant and respondent agreed to breed respondents mare Isabel to appellants stallion Boomer Slew. Appellant was to own the foal from the first breeding and respondent was to own the foal from the second breeding. This agreement was set forth in a one-page document signed by both parties.
Documents in the record indicate that Boomer Slew was born in 1992 and is the grandson of Seattle Slew, the 1977 winner of the Triple Crown of Thoroughbred Racing. (Funny Cide Ventures, LLC v. Miami Herald Pub. Co. (Fla.Ct.App. 2007) 955 So.2d 1241, 1247, fn. 11 [list of the 11 horses that won all three races since 1919].)
Isabel did not foal for the first year of the contract. During the second year of the contract, because of difficulty in breeding Boomer Slew to Isabel, the mare was bred to a stallion named Capone. As a result, Isabel had a foal named Carmen in the spring of 2003. The parties had agreed appellant would own the foal from the second year. Specifically, respondent testified that the foal Carmen was owned by appellant and that appellant paid the veterinary bills pertaining to the birth of Carmen.
In the summer of 2001, respondent unexpectedly received her mare Maddie back from her trainer. The trainer had been unsuccessful in attempts to breed Maddie. To deal with the surprise of receiving Maddie late in the breeding season, respondent called appellant and asked if she could breed Maddie to Boomer Slew. Appellant agreed. Maddie was bred to Boomer Slew and the foal was stillborn in August 2002.
In the fall of 2002, after Maddies stillborn foal, appellant proposed leasing her mare Juno, which had been bred to Boomer Slew, to respondent and allowing respondent to keep the foal. Respondent testified that appellant proposed that respondent would pay all of the bills for Juno and Junos foal in exchange for receiving the foal. Respondent testified that appellant did not indicate that she wanted anything other than the payment of bills in return for Junos foal. More specifically and contrary to appellants position, respondent testified that appellant never indicated that she wanted a foal from Maddie in exchange for Junos foal.
Appellant disputes respondents view of the agreements relating to Maddie and Juno. Appellant alleged that they orally agreed (1) appellant would receive a foal from Maddie and, in exchange, respondent would receive a foal from Juno; (2) appellant would pay the expenses related to Maddies pregnancy; and (3) respondent would pay the expenses related to Junos pregnancy. Appellant contends that respondent received Junos foal Junebug and that appellant paid thousands of dollars for Maddies medical care, but that respondent denied her a foal out of Maddie.
Respondent testified as follows. Her relationship with appellant became stressful in early 2003. Appellant worked in the mortgage industry and around December 2002 she agreed to get a loan on respondents house to replace respondents construction loan without charging respondent a commission. By June 2003, after many assurances from appellant that the loan was just around the corner, respondent pulled the loan from appellant. Appellants attitude towards respondent changed for the worse.
Appellant contends respondents story about the loan does not make sense because appellant was not getting paid and had no reason to want to do the loan. She further contends that the difficulty in getting the loan was caused by respondents financial problems related to her and her husbands abuse of their credit.
On July 18, 2003, respondent and her husband had an argument with appellant at respondents house. One topic of the discussion was respondents desire that appellant remove her horses from respondents property. The argument did not last long and appellant stormed out of respondents house. About 10 minutes later, respondent went to see appellant at Jerry Coffeys place. Respondent specifically testified that she did not chase appellant through the mountains to Coffeys house. Respondent and appellant had further discussions at Coffeys house. The parties dispute what happened at Coffeys house.
Coffey lived near respondent. He and appellant were close friends. Coffey and respondent both worked for the Los Angeles Fire Department.
Appellants cross-complaint states that the incident occurred on August 18, 2003, and alleged causes of action for trespass and battery against respondent as a result of what occurred at Coffeys house.
On September 11, 2003, appellant appeared at respondents property with a Kern County Sheriffs Deputy to collect three horses. Ownership of a horse was disputed and the deputy advised the parties to resolve the matter in small claims court.
On September 16, 2003, appellant filed in Kern Superior Court, case No. S-1500- CV-251201 a petition for injunction prohibiting harassment. The petition alleged that respondent, who is six feet one inch tall and weighs 185 pounds, chased appellant into Coffeys residence and broke down two doors in an attempt to assault her. The petition also requested an order directing respondent to return Juno and Junebug to appellant and stated: "Ownership papers of these horses are attached to this complaint."
On October 29, 2003, appellant filed a small claims action, case No. T-1504-CS-4605, in the Taft Branch of the Kern Superior Court. The complaint alleged that respondent owed appellant $ 5,000 or the return of her horse. It also alleged that appellant had asked for the return of the animal but respondent had refused.
On November 4, 2003, an order to show cause and temporary restraining order was issued in the harassment action. The order set a hearing for later in the month. On November 12, 2003, appellant filed a proof of service that indicated Justin Curtis had personally served respondent with the order to show cause and temporary restraining order on November 11, 2003.
Prior to the hearing in the harassment action, respondent filed a breach of contract action against appellant in Kern Superior Court that requested specific performance of the contract relating to Junebug and an order directing appellant to execute all registration papers necessary to document respondents ownership of Junebug.
On November 20, 2003, a hearing was held in the harassment action. The superior court set another hearing for December 4, 2003. After that hearing, the superior court denied appellants request for a restraining order and denied both sides their attorney fees.
On December 9, 2003, appellant filed a proof of service in the small claims action that stated Curtis had personally served the complaint on respondent on November 11, 2003. Appellant contends that the petition for injunction prohibiting harassment was served on respondent at the same time.
Appellant appeared in the small claims action on December 15, 2003. Respondent did not appear in the matter. The superior court awarded appellant damages of $5,000 or possession of Junebug and ordered that the horse was not to be removed from the state for the 30-day appeal period. A notice of entry of judgment was mailed to the parties. Respondent testified that her receipt of this notice was the first time that she learned of the small claims action.
Respondent reacted to this new information by (1) amending her breach of contract complaint to include a cause of action for abuse of process and (2) moving to vacate the judgment in the small claims action. The abuse of process claim included allegations that appellant had filed her petition for injunction prohibiting harassment as well as the small claims action for improper purposes and conspired with Curtis to file false proofs of service in both of those lawsuits.
In February 2004, the superior court heard respondents motion to vacate the judgment appellant obtained in the small claims action. The court granted the motion and ordered respondent not to remove the horse.
In April 2004, appellant filed a cross-complaint alleging claims against respondent for breach of contract, conversion, trespass, defamation, battery, fraud and deceit, intentional infliction of emotional distress, and false imprisonment.
The matter was tried to a jury on February 14 through 18, 2005.
At trial, Curtis testified about serving papers on respondent. Curtis stated that he went to respondents house, knocked on the door, and told respondent that he had papers for her. Respondent said she was not accepting the papers and shut the door. Curtis left and then came back to leave the envelope on the doorstep. Respondents husband, Shawn, came out of the house and spoke angrily to Curtis. Curtis left the envelope in the driveway in front of him and said to Shawn that he could read the papers so he could get the information and go to court. Curtis testified that he did not look inside the envelope, although it seemed like it held a lot of papers. For purposes of this appeal, an important point is that Curtis was not able to testify as to the exact contents of the envelope he delivered. Specifically, he could not testify that it contained the complaint from the small claims action or the petition for injunction prohibiting harassment.
Respondent testified that the small claims complaint and the petition for injunction prohibiting harassment were not in the envelope delivered to her on November 11, 2003. Respondent stated the envelope contained a document telling her that she needed to appear in court within a couple of days and that, until then, she was to stay 1,000 feet away from appellant and Jerry Coffeys property.
After testimony and argument, the jury received a special verdict form. Question 1 of that form asked: "Did Sharon Bonfield and Amy Salak enter into a contract regarding either or both of the horses JUNEBUG and MADDY?" The jury answered, "Yes." The jurys answers to questions 2 through 4 indicated that respondent had substantially performed the contract, appellant had not performed her contractual obligations, and respondent was entitled to ownership and possession of Junebug.
Question 11 of the special verdict form asked the jury: "Did Amy Salak either knowingly and wrongfully file a false proof of service in the small claims action or knowingly and wrongfully attempt to use the civil harassment proceeding against Sharon Bonfield for an improper reason?" The jury answered, "Yes." Question 12 asked the jury: "Did Amy Salak intentionally use this legal procedure to cause Sharon Bonfield to incur significant legal expenses for the purpose of harming Sharon Bonfield and forcing Sharon Bonfield voluntarily to give up her claim to Junebug?" The jury answered "Yes" and also found that appellants conduct was a substantial factor in causing harm to respondent.
The jury awarded the following damages to respondent on her abuse of process claim: Past economic loss, $36,000; future economic loss, $4,000; past noneconomic loss, including mental suffering, $150,000; and future noneconomic loss, including mental suffering, $50,000.
After the jury returned a verdict in favor of respondent, the punitive damage phase of the trial was held. The jury found that appellant acted with malice and oppression and awarded respondent $20,000 in punitive damages. Judgment was entered on March 9, 2005.
Appellant filed a motion for a new trial, which is not part of the appellate record. On May 19, 2005, appellant filed a motion for reconsideration of the denial of her motion for new trial. Among the grounds raised in the motion to reconsider was the existence of new evidence that was unavailable at trial. Respondent opposed the motion to reconsider, arguing that the superior court lacked jurisdiction to rule on a motion for new trial because over 60 days had passed since the entry of judgment. In June 2005, the superior court filed an order denying the motion to reconsider and refusing to impose monetary sanctions.
On June 8, 2005, appellant filed a notice of appeal relating to the judgment after trial entered on March 9, 2005.
Newly Discovered Evidence
Appellant has requested this court to consider newly discovered evidence for the purpose of determining whether a new trial should be granted. A description of that evidence follows.
Respondents Alleged Perjury Regarding Her Complaint Against Coffey
Respondent and Coffey both work for the Los Angeles Fire Department. At trial, respondent testified that she never made a written complaint against Coffey, that she discussed what was going on with her chiefs, that she was asked if she wanted to make a complaint, and that she said "no" because she did not want to add fuel to the fire.
Respondents testimony is contradicted by a November 29, 2006, report prepared by the Los Angeles Fire Department. The report was labeled "Attachment B" and was included with appellants "Points To Be Raised On Appeal" filed with this court on August 13, 2007. The report allegedly was generated after the departments investigation of respondents complaint against Coffey that alleged he had harassed her on and off duty, threatened her and her husband, spread malicious gossip about her to other members of the fire department, and committed perjury against her in court.
Page three of the departments report includes the following description of the complaint respondent made against Coffey:
"On or about February 15, 2004, [respondent] submitted her first letter of complaint against Coffey to Chief Bowman (attachment 5). This would appear to be the document that Gildehaus saw a draft of earlier. She was directed by Bowman after hearing her verbal complaints to write the F-225. [Respondent] provided a copy of this document to Chief Cairns during the investigation. Chief Bowman stated to advocates that he never forwarded the letter. Again, Coffey had heard about and was trying desperately to get a copy of the letter. Bowman stated that when Coffey came to him looking for the letter he would not provide it since he had not forwarded it up the chain of command. [¶] [Respondent] had motive for wanting the letter [to] go away. She likely realized that her written complaint against Coffey could cause her to lose her court case."
Page 20 the departments report described a November 8, 2006, telephone interview of Chief Michael Bowman. "He was asked about the letter of complaint he directed Bonfield to write in February of 2004. He acknowledged asking her to write the letter. He said it was requested to document her verbal complaints. He said he does not have the original and does not know where it is or if it was destroyed. He stated that, in reference to Coffeys attempts to obtain it, he treated the letter as if it did not exist because he did not forward it to anyone."
Page 12 of the departments report includes the response of Captain Christopher A. Cooper when he was asked if he encouraged respondent to file a formal complaint against Firefighter Coffey. "Captain Cooper said that he had encouraged her to `gestate on the conversation but that she said `no that she wanted to file a complaint immediately."
Also, the record on appeal contains a declaration dated May 17, 2005, and signed by "Larry Fiero, LAFD Union Representative," which confirms the existence of a letter of complaint written by respondent. Fiero stated that there was a letter of complaint from respondent against Coffey for conduct unbecoming a firefighter and the letter was brought to his attention by Chief Milage Peakes.
Respondents Alleged Perjury Regarding the Cause of Stress
At trial respondent testified that the litigation that took place from the time of the injunction prohibiting harassment up to the time of her testimony had "been a strain" and had "put a lot of stress on us." Appellant contends that this testimony is contradicted by statements respondent made to an investigator who looked into respondents workers compensation claim.
A report prepared by Soni Melgar for Los Angeles County Department of Human Resources concerned respondents claim that "she suffered continuous and ongoing stress and emotional injury from 5/17/04 ultimately rendering her incapable of performing her normal and customary work duties on 2/7/05." The report, like the alleged new evidence of perjury discussed ante, was attached to appellants "Points To Be Raised on Appeal" filed with this court on August 13, 2007. The report stated that respondent alleged that a captain, who had since been transferred from her station, "was the cause and source of her hostile work environment and associated psychological injury."
The trial in the lawsuit between appellant and respondent was held on February 14 through 18, 2005. Appellant contends respondent used the workers compensation claim to get paid for the time she missed from work due to the trial.
Respondent told the investigator during an interview that, by that time, she had significantly resolved the psychological and emotional issues attributed to her claim. The report also stated that during the investigators interview of respondent, the investigator clearly asked respondent if any issues outside work or significant life changes such as financial, marital, familial, or social had occurred during the period in question, and respondent adamantly denied the existence of such issues. Because of information the investigator subsequently obtained about the stressful civil lawsuit between appellant and respondent, the report concluded that the respondent had been less than forthright with the investigator, which caused some suspicion about her honesty and the allegations in her claim.
DISCUSSION
I. The Record on Appeal
The scope of the appellate record is relevant to some of the arguments made by the parties in this appeal. Consequently, we set forth a partial history of the proceedings in this court that relate to the record.
A. Parties Filings and Our Orders
Appellant was representing herself on July 5, 2005, when she filed a designation of reporters and clerks transcripts on appeal. She designated three parts of the reporters transcript: the trial testimony of respondent, the trial testimony of Curtis, and the closing arguments made by respondents counsel.
In February 2007, after the automatic stay from appellants bankruptcy proceeding had been lifted, respondent filed a motion to dismiss the appeal asserting, among other things, that appellant had failed to comply with California Rules of Court, rule 8.130(a) when she did not state the points to be raised in the appeal at the time she designated only a part of the reporters transcript.
All further references to rules are to the California Rules of Court unless indicated otherwise.
In April 2007, appellant opposed the motion to dismiss, stating that she now had hired counsel, her mistakes while proceeding in propria persona were innocent and without malice, and her counsel would attempt to correct all the deficiencies.
On April 10, 2007, this court filed an order denying respondents February 16, 2007, motion to dismiss without prejudice and granted appellant "10 days leave from the date of this order to designate the record on appeal in accordance with the applicable rules of court." The wording of this order was interpreted differently by the parties. Appellant thought she could redesignate the record. Respondent thought appellant was required to provide a statement of points to be raised to accompany her earlier partial designation of the reporters transcript.
On April 24, 2007, counsel for appellant filed a notice with this court that stated a first amended notice to prepare reporters transcripts and a first amended notice to prepare clerks transcript had been filed with the superior court. On April 26, 2007, this court received and filed an original clerks affidavit of a deputy clerk of the Kern Superior Court stating that "a complete record on the above-entitled case was previously produced and mailed to parties August 26, 2005." The affidavits reference to "a complete record" meant the record previously designated by appellant in 2005.
In late May 2007, respondent filed a renewed motion to dismiss that asserted, among other things, that appellant had failed to comply with this courts April 10, 2007, order regarding designation of the record.
On June 26, 2007, a new attorney filed a declaration stating that he was representing appellant, that he had difficulty in getting the file from appellants former attorney, that the file was in the process of being picked up, and after receiving the file he intended to move the case along as speedily as possible.
In an order filed June 28, 2007, this court deemed the declaration to be a request for an extension of time to comply with former rule 8.130(a)(5) and granted the request with 20 days leave to comply.
The rules were amended effective January 1, 2008, and the contents of former rule 8.130(a)(5) are now in rule 8.130(a)(2).
On July 11, 2007, appellants attorney filed a motion that requested "a continuance of the date for an opening brief, so that a transcript can be obtained, but in lieu of that, either a dismissal of the judgment and/or a new trial should be granted." The motion asserted that the superior court clerks office had told the attorney that the court reporter who handled the trial had moved to Texas and that, at that time, they could not find the transcription or tapes of the court reporters record.
The motion asserted that an augmentation of the record was justified. It further asserted that "[i]f the record cannot be augmented to have the availability of the reporters transcript, then the case should be dismissed outright or at least the judgment should be set aside and a new trial ordered."
On August 3, 2007, this court filed an order granting appellant 10 days to state the points to be raised on appeal as required by former rule 8.130(a)(5). On August 13, 2007, appellant filed a document titled "Points To Be Raised On Appeal." Based on that document, this court filed an order on August 15, 2007, that denied without prejudice respondents renewed motion to dismiss and extended the time for appellant to file her opening brief.
On August 24, 2007, respondent filed (1) a motion for order taking judicial notice of the register of action (i.e., docket) maintained by the superior court in this action; (2) a motion to augment the record on appeal to include a copy of the register of action; (3) a motion to strike appellants points to be raised on appeal and an order requiring appellant to hand deliver all future documents; and (4) a motion to affirm the judgment or, alternatively, to dismiss the appeal as frivolous.
This court addressed these four filings in four separate orders. Orders filed December 19, 2007, (1) denied the motion to affirm the judgment or dismiss the appeal as frivolous, (2) denied the motion to strike and to order hand delivery, and (3) granted the motion to augment the record on appeal with the register of action from the superior court. The order addressing the motion to augment also stated that appellants request for summary reversal (it was filed July 11, 2007) was denied and her opening brief was due 30 days from the date of the order.
On December 24, 2007, this court filed an order stating that the ruling on respondents motion for order taking judicial notice of the register of action was deferred. That order also stated, "[i]nsofar as respondent and appellant request relief in addition to that granted above, said requests are denied." This broadly worded denial disposed of the other requests that appellant made in her July 11, 2007, motion. (See fn. 9, post.)
B. Rationale for Denying Appellants Various Requests
Our previous orders did not set forth the rationale underlying this courts rulings. We now do so.
1. Attempts to augment the record
Page four of appellants reply brief asserts that she "made three attempts to augment the record to include all of the testimony from the trial on April 24, 2007, June 26, 2007, and July 11, 2007." She also asserts that this court never ruled on her July 11, 2007, motion and therefore she was unable to augment the record with the remainder of the testimony from the trial.
We disagree with the assertion that this court never ruled on the July 11, 2007, motion. Our December 19, 2007, order addressing respondents motion to augment also denied the request for summary reversal in appellants July 11, 2007, motion. As stated earlier, our broadly worded December 24, 2007, order denied her other requests.
First, appellants April 24, 2007, filing notified this court that amended notices to prepare a clerks and a reporters transcript had been filed in the superior court. That notice was not a motion requesting this court to augment the appellate record. To the extent that it could have been interpreted as an invitation to this court to make its own motion to augment and then order the record to be augmented, we chose not to exercise our discretion in that manner.
Second, we recognize that both the June 26, 2007, declaration of appellants attorney and appellants July 11, 2007, motion made references to augmenting the record. Neither document, however, was a motion to augment the record that complied with the predecessor of rule 8.155(a).
Appellants mistakes in her initial designation of the record were the root cause of the unusual circumstances that existed regarding the record on appeal. We determined that it was not appropriate for this court to liberally interpret those documents—either as motions to augment or requests for this court to make its own motion to augment—as a means of extricating appellant from the consequences of her error. Instead, we determined that appellant should bear the responsibility of complying with applicable procedures and establishing appropriate grounds for any augmentation of the record. Appellant did not meet this responsibility and therefore we did not order the record augmented.
2. Appellants July 11, 2007, motion
Appellants July 11, 2007, motion included a request for an extension of time to file an opening brief. We exercised our discretion and granted that request.
The motion also requested other relief in the form of (1) a dismissal of the judgment in respondents favor, (2) a new trial, or (3) this court sitting as a trier of fact. This request was based on assertions that appellants April 24, 2007, request to augment the record with a complete reporters transcript had not been granted, the judge who presided over the trial was no longer available, and the reporters transcript could not be completed because the reporter had moved and her notes and tapes could not be found.
a. Mistake by pro. per. and grounds for new trial
Pursuant to section 914, appellants July 11, 2007, motion requested a new trial based on the unavailability of the reporters transcript. The reason the transcript was not readily available is appellants mistake of not designating the reporters entire transcript from the trial near the time she filed her notice of appeal. She made this mistake while proceeding in pro. per. We denied appellants request for a new trial on the ground a transcript was not available because that would have allowed her to benefit from her mistake to the detriment of respondent. Our denial was consistent with the principle that a self-representing litigant is treated like any other party appearing before the court of appeal and, therefore, is subject to the same rules of appellate procedure as parties represented by an attorney. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247 [appellant representing self on appeal must follow correct rules of procedure].)
b. Request to sit as a trier of fact
We denied the request to sit as a trier of fact, which apparently was related to the request for a dismissal of the judgment in favor of respondent. Appellant appeared to assert that this court would have found that respondent perjured herself and, as a result, the judgment could be reversed outright.
The discretionary authority of this court to take evidence and sit as a trier of fact is contained in section 909. (See rule 8.252 [findings and evidence on appeal].) The California Supreme Court has directed that the authority to make findings of fact on appeal should be exercised sparingly—that is, "`[a]bsent exceptional circumstances, no such findings should be made." (In re Zeth S. (2003) 31 Cal.4th 396, 405.)
As discussed in part IV.B, post, the possibility that a party committed perjury during trial generally is not regarded as "exceptional circumstances" (In re Zeth S., supra, 31 Cal.4th at p. 405) that justify this court taking evidence "for the purpose of making ... factual determinations ...." (§ 909.) In this case, appellant had not established the existence of exceptional circumstances. Accordingly, we denied appellants request to sit as a trier of fact and the related request to reverse the judgment outright.
We note that section 909 also authorizes a reviewing court to take evidence "for any other purpose in the interests of justice" and that there are circumstances where "the interests of justice" require "a new trial ... on some or all of the issues." This purpose, which the statute states separately from "the purpose of making the factual determinations," is discussed in part IV.B, post.
II. Requests for Judicial Notice
A. Appellants May 16, 2006, Request
On May 16, 2006, appellant filed a request for judicial notice of (1) the original petition for injunction prohibiting harassment filed by appellant in Kern Superior Court, case No. S-1500- CV-251201 and (2) appellants original filing in small claims case No. T-1504-CS-4605.
This court filed an order on June 5, 2006, stating that the ruling on appellants request for judicial notice would be deferred. On August 2, 2006, respondent filed an opposition to appellants request for judicial notice. The opposition asserted that the attachments to the petition for injunction preventing harassment in the superior courts "file appeared to have been tampered with (i.e. the last page had been removed, and a replacement page placed in the file which was not attached to the Petition." Respondents attorney asserted that the superior court clerks office advised him that it would not certify a copy of the petition.
In accordance with the authority given to appellate courts by Evidence Code section 459, we deny appellants May 16, 2006, request for judicial notice. The issues related to these documents can be resolved without the need for copies of the originals.
B. Superior Courts Register of Action
Respondent has filed three separate requests for judicial notice of the register of action maintained by the superior court in this lawsuit. The first was respondents February 16, 2007, request for judicial notice in support of motion to dismiss appeal. (See part I.A, ante.) The second was filed on May 23, 2007, and supported respondents renewed motion to dismiss appeal. Both of these requests were denied impliedly when this court denied the motions to dismiss without prejudice.
Respondents third request was filed on August 24, 2007, as a motion for order taking judicial notice of the register of action. Simultaneously, respondent filed a motion to augment the record on appeal with the register of action.
This court filed an order on December 19, 2007, granting respondents motion to augment and deemed the appellate record to include the register of action, a copy of which was attached to respondents motion. That order stated the court made no determination how the register of action might be used in the appeal.
Pursuant to Evidence Code section 459, we now grant respondents August 24, 2007, request for judicial notice of the register of action the superior court maintained in this lawsuit.
III. Irregularities of the Trial
Appellants opening brief asserts that irregularities occurred during trial and therefore a new trial is warranted. (See § 657, subd. 1 [irregularity in the proceedings is a basis for a new trial].)
A. Report of Mares Bred
Appellant contends that respondents use of a report of mares bred in connection with respondents November 21, 2003, registration of the horse Junebug with the American Warmblood Society proves that the complaint in the small claims action was in fact served on respondent on November 11, 2003. Appellant contends that the report of mares bred was an exhibit to the small claims complaint and was not part of the petition for an injunction prohibiting harassment. Appellant reasons that if respondent had a copy of the report in November 2003, she must have gotten it as part of the small claims complaint served on her. Consequently, appellant concludes that respondent was in fact served with the small claims complaint in November 2003, and her proof of service for the complaint was correct.
We reject appellants argument because it is based on inferences of fact that we, as a court of review, cannot draw. Other inferences, which support rather than undermine the findings made by the jury, are reasonable based on the evidence presented at trial. Consequently, we cannot accept the inferences of fact underlying appellants argument. (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660 [prevailing party is given the benefit of every reasonable inference and conflicts are resolved in its favor].)
Appellants argument is based on the inference that the documents that went into the envelope served on respondent were identical to the documents filed with the court. That inference, while reasonable, is not the only reasonable inference possible. The parties vigorously disputed what the envelope contained when it was served on respondent and opened by her. That dispute cannot be irrefutably settled by the factual assertion that the version of a document that was filed in court must have been the version of the document that was placed in the envelope served on respondent.
For purposes of this discussion, we will assume that the report of mares bred was in the envelope.
For example, there is the possibility that the exhibits to the two pleadings were mixed up and, as a result, the report of mares bred was included in the envelope separately or as an exhibit to the petition for an injunction prohibiting harassment. In other words, there is more than one explanation for how the report of mares bred got into the envelope and some of those explanations are consistent with the exclusion of the small claims petition from the envelope.
In summary, viewing the evidence in the light most favorable to the prevailing party, as we are required to do, we conclude that appellants version of events was only one reasonable explanation that the jury could accept. As a result, appellants argument concerning the mares bred report does not establish reversible error.
B. Verdict Form and Collateral Estoppel
Appellant argues that the verdict form should not have included an abuse of process claim based on her filing of a petition for injunction prohibiting harassment. Appellant contends that "[o]n December 4, 2003, [the trial court] ruled that although there was not enough support to grant the petition, [appellant] had filed the petition in good faith and [the trial court] denied [respondent] her attorneys fees. (RT 101-102)" Appellant argues that because the trial court decided she acted in good faith, the doctrine of collateral estoppel should have precluded the verdict form from asking the jury whether she filed the petition in bad faith and with malice.
Question 11 of the special verdict form asked the jury: "Did Amy Salak either knowingly and wrongfully file a false proof of service in the small claims action or knowingly and wrongfully attempt to use the civil harassment proceeding against Sharon Bonfield for an improper reason?"
The doctrine of collateral estoppel applies only if the following elements have been established:
"First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. [Citations.]" (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341; see generally Heiser, Californias Confusing Collateral Estoppel (Issue Preclusion) Doctrine (1998) 35 San Diego L.Rev. 509.)
Appellants assertion that the trial court ruled she filed the petition in good faith is not supported by her citation of two pages of the reporters transcript. Those pages contain trial testimony of respondent that establishes appellants request for injunctive relief was denied, appellants request for a restraining order was denied, and both sides were denied their attorney fees. That testimony did not identify the issue that the trial court decided as the basis for denying respondents request for attorney fees.
Therefore, appellant has not established the existence of the first three elements of a collateral estoppel defense. She has not shown that her good faith was an issue actually litigated and necessarily decided in the action involving her request for an injunction and restraining order. (See Lucido v. Superior Court, supra, 51 Cal.3d at p. 341.) Accordingly, we reject appellants claim that the special verdict form contains reversible error.
C. Attorney Misconduct
Appellant contends that respondents attorney deliberately misrepresented her statement about a "legal hailstorm." She cites to his use of the phrase twice during closing argument. Respondents attorney stated: "[Appellant] threatened to sue [respondent], do all sorts of things to her, unleash a legal hail storm on her ...." Near the end of his closing argument, he also stated:
"Now, the abuse of process claim involves the uses of the Courts process for an improper purpose, and all that relates to is whether or not you believe that Amy Salak unleashed a hail storm of litigation against Sharon Bonfield, including filing false proofs of service, going and getting judgments without papers having been properly served for the sole purpose of extorting or threatening her into handing over something she wasnt entitled to, and that is Junebug."
Appellant contends that she stated there would be a legal hailstorm on respondents husband, not respondent, if he followed through with his threats to shoot appellants animals. Thus, appellant concludes that respondents attorney misrepresented her statement to the jury.
"`Generally, to preserve for appeal an instance of misconduct of counsel in the presence of the jury, an objection must have been lodged at trial. (Miller v. Elite Ins. Co. (1980) 100 Cal.App.3d 739, 761.)" (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 794.) In this case, the reporters transcript provided does not contain any objection to counsels characterization of appellants legal hailstorm comment as directed at respondent. Also, appellant has not presented any argument or authority for the proposition that she falls within an exception to the general rule that an objection must be lodged at trial. Accordingly, we cannot recognize appellants claim of attorney misconduct is a basis for reversing the judgment and granting a new trial.
IV. Newly Discovered Evidence
A. Contentions of the Parties
Appellant contends that (1) evidence discovered after trial establishes that respondent committed perjury when testifying during trial and used an inaccurate exhibit and (2) this court has the power to consider the new evidence and remand the case for a new trial. Appellant relies on Tupman v. Haberkern (1929) 208 Cal. 256, section 909, and rule 8.252(c).
Respondent argues that appellant has not identified a recognized legal ground for presenting new evidence to an appellate court. Respondents brief asserts that she "has uncovered no cases which allow an appellant to raise `newly discovered evidence for the first time on appeal. From a purely logical standpoint, however, such a claim is not cognizable on appeal since it is not predicated on trial court error."
B. Section 909
The last two sentences of section 909 provide:
"The reviewing court may for the purpose of making the factual determinations or for any other purpose in the interests of justice, take additional evidence of or concerning facts occurring at any time prior to the decision of the appeal, and may give or direct the entry of any judgment or order and may make any further or other order as the case may require. This section shall be liberally construed to the end among others that, where feasible, causes may be finally disposed of by a single appeal and without further proceedings in the trial court except where in the interests of justice a new trial is required on some or all of the issues." (Italics added.)
Appellant appears to argue that this case falls within the exception referenced at the end of section 909. In other words, appellant seems to be arguing that this is a case "where in the interests of justice a new trial is required on some or all of the issues." (§ 909.)
Respondent argues that the discretionary authority granted under section 909 to take evidence and make new findings is limited to cases not tried to a jury. Appellant counters this argument with the assertion that she is not asking this court to make new findings, which is the topic of the first two sentences of section 909, but is asking this court only to order a new trial.
Those sentences are as follows: "In all cases where trial by jury is not a matter of right or where trial by jury has been waived, the reviewing court may make factual determinations contrary to or in addition to those made by the trial court. The factual determinations may be based on the evidence adduced before the trial court either with or without the taking of evidence by the reviewing court." (§ 909.)
We agree with appellants interpretation of the statutory language. The discretionary authority to take additional evidence is not limited to situations where the reviewing courts purpose is to make additional factual determinations. The statute clearly authorizes a reviewing court to take additional evidence "for any other purpose in the interests of justice." (§ 909.) Furthermore, that discretionary authority is not limited by the statutory language to cases that were tried to the court instead of a jury. Consequently, we will not infer the existence of such a limitation when the Legislature omitted such words of limitation from the statute. (§ 1858 [when construing a statute, courts should not insert what has been omitted].)
Based on this statutory interpretation, the next step in our analysis concerns whether the interests of justice warrant this court considering the proposed newly discovered evidence of perjury and concluding that a new trial is required on some or all of the issues.
We conclude that, as a general matter, the "interests of justice" already have been weighed and are reflected in the existing principles of law that address when newly discovered evidence of perjury is an appropriate basis for the granting of a new trial by the trial court. We further conclude that the circumstances of this case are not so extraordinary as to justify a deviation from those established principles. Consequently, we next consider whether a new trial is justified by the application of those established principles.
Because we have decide not to take additional evidence under section 909 for the purpose of determining whether a new trial should be held, we deny Salaks June 24, 2008, request for judicial notice of documents filed in a related case.
C. Timely Motion for New Trial
"Newly discovered evidence, deliberately concealed, and material to the case of the aggrieved party, is undisputably grounds for a new trial in California ...." (Los Angeles Airways, Inc. v. Hughes Tool Co. (1979) 95 Cal.App.3d 1, 6.) Specifically, section 657 authorizes the granting of a motion for new trial on several grounds, including "[n]ewly discovered evidence." (§ 657, subd. 4.) Section 660 sets forth the time limits for bringing and ruling upon a motion for new trial.
In this case, appellant does not contend that she timely filed a motion for new trial based on the newly discovered evidence.
D. Coram Vobis
An appellate court, in certain well-defined situations, can issue a writ of error coram vobis that directs the trial court to reconsider its decision in light of newly discovered evidence. (Betz v. Pankow (1993) 16 Cal.App.4th 931, 941.) The court in In re Rachel M. (2003) 113 Cal.App.4th 1289 listed the five requirements that must be satisfied before the writ of error coram vobis will be issued:
"1. No other remedy, such as a motion for new trial or for reconsideration in the trial court, is available to consider the newly discovered evidence [citation];
"2. The proffered new evidence will either compel or make probable a different result in the trial court [citation];
"3. The proffered new evidence was not presented to the trial court for reasons other than the fault or negligence of the petitioner [citation] and was unknown to the petitioner at any time substantially earlier than filing the petition for the writ [citation];
"4. The proffered new evidence is not presented on an issue adjudicated in the trial court because factual issues that have been adjudicated cannot be reopened except on motion for new trial or for reconsideration [citation]; and
"5. The proffered new evidence was unavailable to the petitioner because of extrinsic fraud that prevented the petitioner from having a meaningful hearing on the issue in question [citations]." (In re Rachel M., supra, 113 Cal.App.4th at p. 1296.)
Generally, courts are reluctant to reopen otherwise final judgments based on newly discovered evidence because it runs contrary to the need to preserve the finality of judgments and judicial economy. (Los Angeles Airways, Inc. v. Hughes Tool Co., supra, 95 Cal.App.3d at pp. 6-7.)
In this case, we cannot treat appellants request to consider the newly discovered evidence as a petition for writ of error coram vobis because all five requirements have not been met. Specifically, the fourth requirement has not been met because the perjured testimony relates to matters that were tried to the jury.
Appellant must "show that the `newly discovered evidence ... [does not go] to the merits of issues tried; issues of fact, once adjudicated, even though incorrectly, cannot be reopened except on motion for new trial. [Citations.] This ... requirement applies even though the evidence in question is not discovered until after the time for moving for a new trial has elapsed or the motion has been denied." (People v. Shipman (1965) 62 Cal.2d 226, 230.)
In this case, respondents testimony regarding her emotional distress and its cause was tried to the jury. Also, matters surrounding appellants letter of complaint to respondents employer were presented to the jury. Furthermore, the use of an inaccurate exhibit clearly relates to a matter presented to the jury. Consequently, appellants newly discovered evidence relates to the merits of issues tried. Accordingly, we cannot interpret appellants request as a petition for writ of error coram vobis because all the requirements for such a writ were not satisfied.
Appellant contends that an incorrect veterinarians bill, introduced as exhibit 53 at trial, was used to undermine her testimony that she paid Maddies expenses.
E. Perjury and Intrinsic or Extrinsic Fraud
A final judgment can be attacked on the grounds that it was obtained through an extrinsic fraud. (Los Angeles Airways, Inc. v. Hughes Tool Co., supra, 95 Cal.App.3d at p. 7.) But California courts have established that perjury is an intrinsic fraud and not a basis for relief from a final judgment. (Ibid.)
"The rule is that fraud internal to the adversary proceeding, such as perjury committed during trial or error or mistake during the trial, is intrinsic and is not a basis for relief; but fraud that prevented the trial of a claim or prevented the defrauded party from getting into court at all, is extrinsic to the proceeding and is a basis for relief." (Los Angeles Airways, Inc. v. Hughes Tool Co., supra, 95 Cal.App.3d at p. 7, italics added.)
Stated otherwise, "[i]nternal misconduct, such as perjury, is not normally grounds for relief. `Ordinarily it is a partys misfortune that he cannot produce evidence in time to support his position and rebut the perjury of his opponent.... ([Restatement of Judgments] § 121, com. a.)" (Los Angeles Airways, Inc. v. Hughes Tool Co., supra, 95 Cal.App.3d at p. 7.)
Under the foregoing principles concerning intrinsic fraud and perjury, respondents alleged perjury or use of an incorrect veterinarians bill is not a ground for relief.
In summary, under the currently applicable rules of California law, when a judgment is obtained through perjured testimony, the perjury presents a ground for vacating that judgment only if (1) it is raised in a timely motion for new trial or (2) extraordinary circumstances justify invoking the interests-of-justice exception in section 909. Neither of these grounds exists in this appeal. Accordingly, appellants request that this court order a new trial based on newly discovered evidence of respondents perjury is denied.
V. Excessive Damages
Appellant argues that the $150,000 awarded for past noneconomic damages, including mental distress, were excessive because (1) respondent never saw a doctor, counselor or mental health professional about the stress, (2) respondent never took any medication for the stress, (3) there was no means for assuring the validity of the claim, (4) respondents workers compensation claim asserted her job was the cause of her stress, and (5) damages for emotional distress cannot be based solely on property damage or economic injury to respondent.
We conclude that appellant has not shown that the damages awarded are unsupported by the evidence or are excessive as a matter of law. Among other things, the appellate record does not contain the trial testimony of respondents husband. His testimony may have corroborated respondents testimony about her distress. Consequently, we cannot conclude that the evidence presented at trial is insufficient to support the award of damages or the amount of that award. (Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1509 [appellants must fully state, with transcript references, the evidence claimed to be insufficient].)
VI. Falsification of Proof of Service
Appellant contends that the evidence is insufficient to show the proof of service for the small claims action was falsified.
Respondent challenges this contention on a number of grounds. First, respondent contends that appellant violated rule 8.204(a)(1)(C) by failing to support the factual assertions in her arguments with appropriate citations to the record. Second, respondent contends that appellant failed to provide an adequate record on appeal necessary to establishing a claim of insufficiency of the evidence. Third, respondent argues that the evidence is sufficient to support her theory of the case—namely, appellant deliberately did not serve respondent with the small claims complaint and tricked Curtis into signing a proof of service that appellant later completed.
The substantial evidence standard of review applies to appellants claim that the evidence is insufficient to show that the proof of service was falsified. Our Supreme Court has described that standard as follows:
"Where 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. (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.) We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court." (Jessup Farms v. Baldwin, supra, 33 Cal.3d at p. 660.)
Evidence is "substantial" for purposes of this standard of review if it is "of `ponderable legal significance, `reasonable in nature, credible, and of solid value .... [Citation.]" (Grappo v. Coventry Financial Corp. (1991) 235 Cal.App.3d 496, 506.)
In this case, respondent testified that the small claims complaint was not in the envelope delivered to her on November 11, 2003. Curtis testified that he left an envelope in the respondents driveway after she refused to take delivery of the envelope. (RT 4:24-5:9)! He testified that he did not look inside the envelope, although it seemed like it held a lot of papers.
Consequently, it appears that the jury believed respondents testimony about the contents of the envelope. (See In re Marriage of Mix (1975) 14 Cal.3d 604, 614 [the testimony of one witness, even a party, may constitute substantial evidence].) Applying the substantial evidence rule, we conclude that respondents testimony and the inferences possible from the testimony of Curtis (who did not look inside the envelope) constitutes sufficient evidence to support a finding that the small claims complaint was not served on respondent in the envelope that Curtis delivered to her on November 11, 2003.
VII. Other Evidence
Appellants opening brief contains a section that asserts "[t]here is a large amount of evidence that suggests a very different verdict in this case." We interpret that section to be the foundation for an implicit contention that the errors purportedly committed at trial were prejudicial. (See Cal. Const., art VI, § 13 [no judgment shall be set aside unless error resulted in miscarriage of justice]; § 475 [no presumption that error is prejudicial].) Our rulings on the other issues make it unnecessary for us to address whether appellant has demonstrated prejudice.
VIII. Appeal Is Not Frivolous
In her appellate brief, respondent requests an award of sanctions based on the contention that appellants appeal is frivolous because there is no arguable basis to reverse the judgment of the trial court. Respondent also contended this appeal was frivolous in an August 24, 2007, motion to dismiss the appeal. This court denied the motion to dismiss in an order filed December 19, 2007.
"When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just." (§ 907; see rule 8.276(a)(1) [sanctions for taking a frivolous appeal].)
An appeal is frivolous and warrants the imposition of sanctions "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. [Citation.]" (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)
We conclude that appellants argument that this court should exercise its discretionary authority under section 909—not to make findings of fact, but to establish that the interests of justice warrant a new trial—was not indisputably without merit. Most of the case law discussing section 909 relates to when an appellate court may take additional evidence for the purposes of making findings of fact. Few, if any, explicitly address the statutory language that concerns when the "interests of justice" permit an appellate court to take evidence, not to make findings of fact, but to determine whether "a new trial is required on some or all of the issues." (§ 909.) Accordingly, we deny respondents request for sanctions.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondent.
We concur:
LEVY, Acting P.J.
KANE, J.