Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Malcolm H. Mackey, Judge., Los Angeles County Super. Ct. No. BC338851
Romero Park & Wiggins and H. Troy Romero for Defendant and Appellant.
B. Paul Husband for Plaintiff and Respondent.
CROSKEY, Acting P. J.
Byrde Hill appeals a judgment after a nonjury trial awarding Raul Cardoso $60,000 in damages for breach of an oral contract. Cardoso alleged and the court found that Hill agreed to purchase two horses from Cardoso for a total price of $80,000, accepted delivery of both horses, but paid only $20,000. Hill contends she agreed to purchase only one stallion, known as Quimbanda (also known as Fabio), for $15,000 and paid an additional $5,000 as a down payment on a conditional purchase of the second stallion, Pinguim. She also contends the alleged contract is unenforceable because it is not in writing, Cardoso failed to mitigate his damages, and the court abused its discretion by setting a trial date so soon after the filing of her answer as to effectively preclude written discovery. We conclude that Hill has shown no error and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. Factual Background
Hill breeds Lusitano horses. She sought to acquire a stallion. Cardoso invited Hill to a ranch in Paramount, California to see his stallions. When she visited the ranch in January 2005, Cardoso showed her two Lusitano stallions, Quimbanda and Pinguim. The parties dispute whether Hill expressed an interest in both stallions, as Cardoso maintains, or only in Quimbanda, as Hill maintains.
Hill and Cardoso spoke by telephone in February 2005 and reached an oral agreement, the terms of which are disputed. Cardoso maintains that Hill agreed to purchase both stallions for $80,000, while Hill maintains that she agreed to purchase only Quimbanda for $15,000. Cardoso and his brother delivered both stallions to Laura Ogden, a trainer who was acting on Hill’s behalf, at a ranch in Rancho Santa Fe, California on February 16, 2005. Hill had the stallions transported by trailer from Rancho Santa Fe to Kirkland, Washington, where they arrived on or about March 1, 2005. Hill maintains that she did not agree to accept the second horse, Pinguim, and had the horse taken to Washington along with Quimbanda and other horses only out of necessity due to heavy rains in Rancho Santa Fe and because the ranch was not hers and she had no permission to keep either Quimbanda or Pinguim there.
Hill wired $10,000 to Cardoso on February 17, 2005, paid him another $10,000 on March 18, 2005, and made no further payment. Cardoso maintains that the payments were part of an agreed $80,000 purchase price for both stallions. Hill maintains that the $20,000 in payments included full payment for Quimbanda plus a $5,000 down payment on the purchase of Pinguim conditioned on confirmation that he was worthy and possessed a certain color gene that produced a white horse with black eyes. The parties never executed a written contract, and there was no written memorandum of their agreement.
Toby Ewing, a doctor of veterinary medicine, examined Pinguim and reported to Hill in a letter dated April 25, 2005, that despite the stallion’s striking appearance, he “possesses conformational faults of the serious and heritable nature, has cataracts, and is currently lame.” Hill informed Cardoso that Pinquim was not suitable and that she would not purchase the stallion. In a letter from her attorney dated August 17, 2005, she sought to return the horses to Cardoso in exchange for his return to her of the $20,000 paid plus additional costs expended to keep the horses.
A later examination performed in October 2005 revealed that Pinguim was sterile. That examination also noted severe abdominal scarring, consistent with surgery, that was not disclosed in the prior examination. Cardoso’s brother testified that he was not present when he delivered Pinguim to Rancho Sante Fe. In May 2006, two weeks before trial, Hill arranged to have Pinguim delivered to Long Beach, California. Pinguim was dropped off at a stable, without any notice to Cardoso.
2. Trial Court Proceedings
Cardoso filed a complaint against Hill on August 25, 2005, alleging a count for breach of contract and a common count for goods sold and delivered. He alleges that he and Hill entered into an oral contract on or about February 17, 2005, for the purchase and sale of Quimbanda and Pinguim. He alleges that Hill agreed to pay $80,000 for the two stallions, including a $10,000 initial payment and seven monthly payments of $10,000, and that she also agreed to allow “10 annual breeding rights” with respect to Pinguim as part of the exchange. Cardoso sought $60,000 in damages for the balance of the purchase price plus $30,000 in damages as the value of the breeding rights.
We take judicial notice of the complaint filed by Cardoso on August 25, 2006. (Evid. Code, § 452, subd. (d).)
Cardoso’s attorney sent a copy of the summons and complaint to Hill’s attorney in Bellevue, Washington on August 25, 2005, together with a notice of acknowledgement and receipt form. Hill’s attorney did not respond or acknowledge service. Cardoso’s attorney then attempted personal service on Hill at her residence in Bellevue through a process server. The process server declared that she spoke with Hill who refused to allow her access to the residence and that she was unable to effect service. Cardoso’s attorney then sent a copy of the summons and complaint to Hill at her residence in Bellevue by certified mail, return receipt requested, but the letter was unclaimed.
After other unsuccessful attempts to serve Hill, the court authorized service by publication. Hill was served by publication in the State of Washington in March 2006. Hill filed an answer to the complaint on April 24, 2006, and filed an amended answer on April 26, 2006. Meanwhile, Hill filed a complaint against Cardoso in the State of Washington on February 9, 2006, alleging counts for declaratory relief, breach of contract, and other counts arising from these same events.
Hill’s attorney stated in a case management statement filed in this action on April 24, 2006, that he intended to file a motion to dismiss the case or transfer the case to the State of Washington based on lack of jurisdiction, that he “intend[ed] to propound written discovery and take Plaintiff’s deposition,” and that the discovery would be completed by November 15, 2006. Hill’s attorney estimated that the trial would take two days. Cardoso’s attorney stated in a case management statement filed on April 24, 2006, that he intended to propound interrogatories and requests for admission and that the discovery would be completed by July 15, 2006. He estimated that the trial would take two hours.
Hill’s attorney failed to appear for the case management conference on May 8, 2006. At the conference, the court scheduled the trial to begin on June 5, 2006, and ordered a discovery cutoff date of May 22, 2006. Hill filed an ex parte application on May 19, 2006, to shorten the time for notice of (1) a motion to continue the trial date, and (2) a motion for dismissal or transfer based on lack of personal jurisdiction. Cardoso opposed the application, and the court denied the application on May 22, 2006.
We take judicial notice of the minute order dated May 22, 2006, in which the court denied Hill’s ex parte application. (Evid. Code, § 452, subd. (d).) The court stated with respect to personal jurisdiction: “The court takes judicial notice that the defendant filed an Answer to the Complaint, making the issue of jurisdiction moot.”
The nonjury trial began on June 5, 2006, and ended the same day. The court orally announced its tentative decision (former Cal. Rules of Court, rule 232(a)), stating that there was an oral contract for the purchase of two horses as alleged by Cardoso, that the horses were delivered to Hill, and that she accepted them. The court stated that the oral contract was executed and therefore was not barred by the statute of frauds, and that Cardoso was entitled to $60,000 in damages. The court stated that Cardoso was not entitled to recover damages for the alleged breeding rights. No party requested a statement of decision (Code Civ. Proc., § 632; former Cal. Rules of Court, rule 232).
The court entered a judgment on June 30, 2006, awarding Cardoso $60,000, plus prejudgment interest and costs. Hill appealed the judgment.
CONTENTIONS
Hill contends (1) the evidence does not prove the existence and terms of an oral contract to purchase Pinguim or the satisfaction of conditions precedent; (2) the alleged contract is unenforceable because it is not in writing, and there was no part performance so as to make the contract enforceable; (3) the court failed to rule on Hill’s affirmative defense of failure to mitigate damages, so the judgment should be reversed and the matter remanded for a finding on that issue; (4) the court erred by scheduling the trial to commence only six weeks after Hill had filed her answer, which effectively precluded written discovery; and (5) the denial of her motion to continue the trial date was error.
DISCUSSION
1. The Evidence Supports the Findings Concerning the Existence and Terms of the Oral Contract
The existence and terms of a contract are questions of fact if the evidence is conflicting. (Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 208; Robinson & Wilson, Inc. v. Stone (1973) 35 Cal.App.3d 396, 407.) We review the findings by the trier of fact on these issues under the substantial evidence standard. Substantial evidence is evidence that a rational trier of fact could find to be reasonable, credible, and of solid value. We view the evidence in the light most favorable to the judgment and accept as true all evidence tending to support the judgment, including all facts that reasonably can be deduced from the evidence. We must affirm the judgment if an examination of the entire record viewed in this light discloses substantial evidence to support the judgment. (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429; Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.)
An appealed judgment is presumed correct, and a reviewing court must indulge all intendments and presumptions in favor of the judgment on matters on which the record is silent. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Absent a statement of decision (Code Civ. Proc., § 632), we presume that the court made all factual findings necessary to support the judgment. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134; Gibbs v. American Savings & Loan Assn. (1990) 217 Cal.App.3d 1372, 1375.)
The evidence with respect to the existence and terms of an oral contract for the purchase and sale of two horses was conflicting, with Hill testifying as to her version of the agreement and Cardoso testifying as to his version. Substantial evidence in the record supports the court’s finding that Hill orally agreed to purchase two horses for a total price of $80,000 without any condition precedent and that she took possession of the horses, through Ogden, in February 2005. We need not discuss that evidence in further detail. Hill’s argument tends to show not that there was no substantial evidence to support the judgment in this regard, but that there was conflicting evidence in her favor that the court could have credited but did not. We conclude that she has not shown error.
Contrary to Hill’s argument, the fact that Dr. Ewing stated in his letter dated April 25, 2005, that he was asked to perform a “prepurchase examination” does not compel the conclusion that there was no oral contract as of the date of the letter.
2. The Absence of a Writing Does Not Make the Contract Unenforceable
California Uniform Commercial Code section 2201, subdivision (1) states that a contract for the sale of goods for the price of $500 or more is unenforceable unless there is some writing sufficient to indicate the parties’ agreement and the writing is signed by the party against whom enforcement is sought or by the party’s authorized agent or broker. A contract that does not satisfy these requirements is enforceable, however, “[w]ith respect to goods for which payment has been made and accepted or which have been received and accepted (Section 2606).” (Id., subd. (3)(c).)
“Goods” is defined, in relevant part, as “all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities (Division 8) and things in action.” (Cal. U. Com. Code, § 2105, subd. (1).) This broad definition encompasses animals, including horses.
“Acceptance of goods occurs when the buyer [¶] (a) After a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their nonconformity; or [¶] (b) Fails to make an effective rejection (subdivision (1) of Section 2602), but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them; or [¶] (c) Does any act inconsistent with the seller’s ownership; but if such act is wrongful as against the seller it is an acceptance only if ratified by him.” (Id., § 2606, subd. (1).) “Rejection of goods must be within a reasonable time after their delivery or tender. It is ineffective unless the buyer seasonably notifies the seller.” (Id., § 2602.) Whether a rejection was made within a reasonable time is a question of fact. (Garetto v. Alamaden Vineyards (1953) 118 Cal.App.2d 99, 102 [applying former Civ. Code, § 1768].)
Hill testified that she informed Cardoso that she rejected Pinguim shortly after the stallion arrived in Kirkland, Washington. She testified further that Cardoso then convinced her to purchase Pinguim and that she agreed to the purchase conditioned on her confirmation of the color gene. Hill cites her testimony concerning a later conversation with Cardoso in which she claims that she definitively rejected Pinguim sometime after the second payment made on March 18, 2005, but her testimony does not indicate when the conversation occurred. The earliest indication in the appellate record of Hill’s definitive rejection of Pinquim appears to be a letter from her attorney dated August 17, 2005. If Hill rejected Pinguim sometime before that date, she has not shown when the rejection occurred. Indulging the presumption in favor of the judgment, viewing the evidence in the light most favorable to the judgment, and accepting as true all evidence in support of the judgment, we conclude that substantial evidence supports the implied findings that Hill had a reasonable opportunity to inspect the two stallions and that the delay from and after February 16, 2005, when Ogden first received the horses on Hill’s behalf, until the time of the rejection was unreasonable.
3. Hill Has Shown No Error in the Court’s Implied Finding on Mitigation of Damages
Hill argues that the trial court was required to decide all material issues presented at trial but failed to decide her affirmative defense of failure to mitigate damages. Courts formerly were required to make express findings on all material issues necessary to support the judgment. Former Code of Civil Procedure section 632 stated that the court’s “decision must be given in writing and filed with the clerk” and that “the facts found and conclusions of law must be separately stated.” (Stats. 1959, ch. 637, § 1, p. 2613.) Under current section 632, however, written findings of fact and conclusions of law are not required in a nonjury trial unless a party timely requests them. (See also Cal. Rules of Court, rule 3.1590 [formerly rule 232].) If no party timely requests a statement of decision, the court has no obligation to make express findings. Absent a timely request for a statement of decision, a reviewing court must presume that the court made all findings necessary to support the judgment, and our review is limited to whether there is substantial evidence to support the judgment. (Gibbs v. American Savings & Loan Assn., supra, 217 Cal.App.3d at p. 1375.) Hill does not challenge the sufficiency of the evidence to support the implied finding that there was no failure to mitigate damages and therefore has not shown error.
“In superior courts, upon the trial of a question of fact by the court, written findings of fact and conclusions of law shall not be required. The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial. The request must be made within 10 days after the court announces a tentative decision unless the trial is concluded within one calendar day or in less than eight hours over more than one day in which event the request must be made prior to the submission of the matter for decision. The request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision. After a party has requested the statement, any party may make proposals as to the content of the statement of decision.
Moreover, Hill mischaracterizes Cardoso’s refusal of her offer of rescission as a failure to mitigate damages. A seller has no obligation to rescind a sale for the benefit of a dissatisfied purchaser.
4. Hill Has Shown No Error in the Setting of the Trial Date
Former rule 212(j) of the California Rules of Court, which was effective at the time of the case management conference on May 8, 2006, stated that the court must consider all of the relevant facts and circumstances in setting a case for trial. Former rule 212(j) stated that those matters may include the type and subject matter of the action, the number of causes of action and affirmative defenses, the number of parties with separate interests, the complexity of the issues to be tried, the date by which the parties were served, the date by which the parties appeared in the action, how long the trial attorneys have been involved in the action, the trial dates proposed by the parties, the amount of discovery that remains to be conducted, the nature and extent of anticipated law and motion proceedings, the amount in controversy and type of remedy sought, the nature and extent of the injuries or damages, the court’s trial calendar, whether the trial will be by jury or by the court, the anticipated length of the trial, and other matters. The setting of a trial date based on the consideration of these and other factors is committed to the sound discretion of the trial court.
An abuse of discretion occurs if, in light of the applicable law and considering all of the relevant circumstances, the court’s decision exceeds the bounds of reason and results in a miscarriage of justice. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479; Denham v. Superior Court, supra, 2 Cal.3d at p. 566; City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297.) This standard of review affords considerable deference to the trial court provided that the court acted in accordance with the governing rules of law. We presume that the court properly applied the law and acted within its discretion unless the appellant affirmatively shows otherwise. (Denham, supra, at p. 564; State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.)
The principal disputed issue at trial involved the terms of the oral contract between Hill and Cardoso. The disputed factual and legal issues were not complex. Although Hill was not formally served in this action until March 2006 and filed her answer in April 2006, she was represented by an attorney in connection with the dispute by August 2005 at the latest, a copy of the complaint was mailed to her attorney in August 2005, and she filed a complaint against Cardoso in the State of Washington arising from the same events in early February 2006. The record shows that the delay in formal service resulted from Hill’s failure to acknowledge service by mail as requested and her persistent efforts to avoid service of process.
The trial date scheduled by the court appears sudden when viewed in reference to the date of formal service in March 2006 and the date of Hill’s initial appearance in April 2006, but when viewed in light of the lack of complexity of the issues to be tried, the length of time that counsel for both parties had been involved in the dispute, Hill’s persistent efforts to avoid service of process, and other circumstances, Hill’s purported need for further time to prepare for trial is less apparent. Hill’s case management statement identified no anticipated law and motion proceedings other than a motion to dismiss the case or transfer the case to the State of Washington based on lack of jurisdiction, yet she failed to show that such a motion would present any significant issues after she had submitted to personal jurisdiction in California by filing an answer (Code Civ. Proc., § 415.50). She referred to the need for discovery, but failed to identify any particular issues on which further discovery was needed. We conclude that in light of all of the relevant facts and circumstances, Hill has not shown that the court exceeded the bounds of reason by setting an early trial date. Hill has shown no abuse of discretion. Moreover, both parties presented evidence on the events prior to their oral agreement and their course of dealings after the agreement, including testimony by several witnesses who participated in those events, and Hill has not shown that she was unable to present relevant evidence or that she was prejudiced in any manner.
5. Hill Has Shown No Error in the Denial of Her Request for a Continuance
Former rule 375(c) of the California Rules of Court, which was effective at the time of the denial of Hill’s ex parte application on May 22, 2006, stated that trial continuances were disfavored and that the court could grant a continuance only on a showing of good cause. It listed several circumstances that may constitute good cause for a continuance, including the unavailability of a witness or party, the unavailability of trial counsel, the substitution of trial counsel if substitution is required in the interests of justice, the addition of a new party if that party or other parties have not had a reasonable opportunity to prepare for trial in regard to the new party, “a party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts,” or “[a] significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.” (Ibid.) Former rule 375(d) stated that the court must consider all of the relevant facts and circumstances in ruling on a request for a trial continuance, and that those matters may include the proximity of the trial date, whether there was a previous continuance or delay of trial caused by any party, the prejudice to the parties or witnesses that would result from a continuance, the court’s calendar and other pending trials, and other matters. The ruling on a motion for a trial continuance is committed to the sound discretion of the trial court. (Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395.)
Hill argues that the bases for the motion to continue the trial were “the needed discovery, the need to resolve the jurisdictional issues between California and Washington,” “the intent to do a summary judgment motion,” and the fact that her trial counsel “was set for trial in Washington State on three different matters within weeks of the June 5 date set by the court.” Yet Hill failed to inform the trial court what discovery was needed or explain why she had failed to conduct that discovery in the Washington action, and failed to identify any cognizable jurisdictional issue. After a trial on the merits, Hill fails to explain how she was prejudiced by the denial of an opportunity to file a summary judgment motion. Her trial attorney’s schedule was an appropriate matter for the court to take into consideration in ruling on the motion to continue the trial date, but Hill has not shown either that the court failed to take that matter into consideration or that her attorney’s schedule was so rigorous and immutable and the demands of this case so great that the only reasonable course of action was to continue the trial. We conclude that Hill has shown no abuse of discretion.
DISPOSITION
The judgment is affirmed. Cardoso is entitled to recover his costs on appeal.
We Concur: KITCHING, J., ALDRICH, J.
“The statement of decision shall be in writing, unless the parties appearing at trial agree otherwise; however, when the trial is concluded within one calendar day or in less than 8 hours over more than one day, the statement of decision may be made orally on the record in the presence of the parties.” (Code Civ. Proc., § 632.)