Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. EC040130 Alan S. Kalkin, Judge.
Law Offices of Lenore Albert and Lenore Albert for Plaintiff and Appellant.
Arent Fox, LLP, Jerrold Abeles and Amy I. Borlund for Defendant and Respondent.
ZELON, J.
Plaintiff Norval Crutcher was defamed by the Chandler Lodge Foundation. Crutcher alleges that the trial court made numerous errors in the course of the bench trial. We reverse the award of costs, which was made on the basis of an erroneous decision that the Foundation was the prevailing party, and remand for a new determination of those costs; in all other respects we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Crutcher was a board member of the Chandler Lodge Foundation, a nonprofit living facility that offers support and treatment for alcoholics. The Foundation removed Crutcher from the board in 2004 on the basis of alleged dishonesty. Crutcher sued the Foundation, alleging defamation, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, and negligent training and supervision.
The Foundation filed a cross-complaint alleging unauthorized distribution and breach of contract, and seeking indemnification and an accounting. Prior to trial, the Foundation dismissed the cause of action for breach of contract against Crutcher without prejudice.
A bench trial commenced on November 28, 2006. During the course of the trial, the Foundation orally moved for a dismissal of the cross-complaint. The trial court granted the motion to dismiss.
At the conclusion of trial, the trial court issued a lengthy statement of decision. The court concluded that Crutcher had failed to prove his cause of actions for intentional infliction of emotional distress, negligent infliction of emotional distress, negligence, and negligent supervision and training. The court found that the Foundation had defamed Crutcher and awarded him damages in the amount of $5,000. The trial court concluded that the Foundation’s conduct was not despicable and that it was motivated by the desire to protect the Foundation, not for purposes of oppression or fraud.
We note that the document in Crutcher’s appendix that purports to be the court’s statement of decision is unsigned and bears no stamp indicating that the court filed it. As both appellant and respondent appear to accept this document as the statement of decision, we will overlook the deficiency of the record in this regard.
Prior to trial, the Foundation had made an offer to compromise under Code of Civil Procedure section 998 in the amount of $5,001, with each party bearing its own costs and fees. The trial court determined that the Foundation was the prevailing party under section 998 on the complaint and in the case as a whole, and entered judgment for the Foundation in the amount of $23,163.65. Crutcher appeals.
Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.
DISCUSSION
I. Consideration of Nonprofit Status in Making Damages Award
Crutcher filed a motion in limine (Motion in Limine No. 8) to exclude evidence that the Foundation was a nonprofit organization. Crutcher’s counsel, Lenore Albert, states in the opening brief, “The judge denied that motion,” and repeats her assertion that the motion was denied several times in her arguments.
Albert includes no record citations to support her assertion that the motion was denied, which is not surprising because it never happened. When the trial court turned to that motion in limine, Albert withdrew it, saying, “Your Honor, in light of the fact this is a bench trial, I’m sure that Your Honor is not going to use that for his own passion and prejudice, so I withdraw this motion.” Albert fails to mention that she withdrew the motion in limine and blatantly misrepresents the trial court’s action, in violation of her duty, under Business and Professions Code section 6068, subdivision (d), “[t]o employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.” (See also Rules Prof. Conduct, rule 5-200.)
After dispensing with Albert’s misrepresentations, what remains of the argument is an assertion that the trial court improperly considered evidence to which Crutcher withdrew his objection prior to trial. Crutcher has not identified the specific evidence that he claims should have been excluded, merely referring to “discussions regarding the relative wealth of the parties.” Moreover, no page references are provided for any testimony or documents that he claims should not have been admitted into evidence. This is insufficient to raise an issue on appeal. (Givens v. Southern Pacific Co. (1961) 194 Cal.App.2d 39, 47-48.)
Crutcher, moreover, has not identified in the record any objection to whatever evidence he now claims was inadmissible, beyond the motion in limine that he withdrew. To preserve the right to challenge the admission of evidence on appeal, a party must timely object in the trial court. (Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212, 1227.) Crutcher forfeited his objection to this evidence by failing to assert it in the trial court.
Crutcher even failed to cite to the portion of the appendix where the motion in limine could be located.
Crutcher further contends that the court found “inappropriate” his arguments that he should receive that amount which would compensate him fully to restore his reputation and that the award should be based on the injury suffered rather than the defendant’s resources. He argues that the court “determine[ed] the amount of damages based on the defendant [Chandler Lodge Foundation]’s lack of wealth as a non profit organization,” and he further argues that the court “noted that it would be ‘unfair’ in awarding an amount of damages in the full and fair amount.” None of these assertions is supported by a citation to the record. “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.” (In re S.C. (2006) 138 Cal.App.4th 396, 406.) “‘It is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations.’ [Citations.] If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived.” (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)
Crutcher’s claims, in any event, appear to be contradicted by the trial court’s statement of decision, which describes the basis for the damages award without any reference to the fact that the Foundation was a nonprofit organization. The court wrote, “The law assumes Plaintiff’s reputation has been harmed, as discussed above; the evidence of further damage is weak. This Court cannot find any actual damages. However, the Plaintiff is entitled to nominal damages. In assessing such damages, this Court takes into consideration the lack of actual monetary damages to Plaintiff and his hurt feelings. In view of the lack of evidence of causation of any harm to Plaintiff, this Court sets damages at the sum of $5,000.” Crutcher has not met his burden of affirmatively establishing error. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610 [burden of demonstrating error rests on appellant].)
II. Designation of Prevailing Party and Application of Section 998
The trial court designated the Foundation as the prevailing party under section 998. The court concluded that the Foundation was entitled to recover its costs of $28,163.65 as the prevailing party, and made a final award of $23,163.65 (subtracting the $5,000 in damages awarded to Crutcher on the defamation claim) to the Foundation under section 998, subdivision (e). The trial court erred by conflating the procedures required by sections 1032 and 998.
Section 1032 governs the determination of which party is the prevailing party, and provides that such party is entitled as a matter of right to recover the costs of suit in any action or proceeding. (§ 1032, subd. (b).) Applying that statute here, Crutcher was the prevailing party on both the complaint and the cross complaint because he obtained a net monetary recovery on the complaint and the cross-complaint against him was dismissed. (§ 1032, subd. (a)(4); Michell v. Olick (1996) 49 Cal.App.4th 1194, 1199 [party who prevails on only one of several causes of action and against whom cross-complaint is dropped is the prevailing party under section 1032].) The trial court erred in declaring the Foundation to be the prevailing party under section 998: section 998 does not alter the determination of whether a party is the prevailing party, but instead causes the augmentation or withholding of costs that would otherwise be awarded under sections 1031 and 1032. (§ 998, subd. (a).) Having made this incorrect determination of the prevailing party, the court then failed to make any determinations concerning Crutcher’s costs, such as what the costs were under section 1033.5 and whether section 1033, subdivision (a) applied to make a cost award discretionary rather than mandatory.
The court also erred in its application of section 998. The Foundation had served an offer to compromise under section 998 on August 11, 2006, proposing the entry of judgment on the complaint and cross-complaint in the amount of $5,001 in Crutcher’s favor, with each party to bear its own costs and fees. Section 998 provides that the costs allowed under section 1032 shall be withheld or augmented when offers to compromise are made and not accepted, if the party not accepting the offer to compromise ultimately fails to obtain a more favorable judgment or award. The purpose of these provisions is to “encourage settlement by providing a strong financial disincentive to a party—whether it be a plaintiff or a defendant—who fails to achieve a better result than that party could have achieved by accepting his or her opponent’s settlement offer.” (Bank of San Pedro v. Superior Court (1992) 3 Cal.4th 797, 804.)
The trial court erred in failing to consider Crutcher’s pre-offer costs in determining whether the ultimate award was more favorable than the settlement offer. (Stallman v. Bell (1991) 235 Cal.App.3d 740, 747-749 [error to refuse to add preoffer costs to verdict for purpose of making determination of whether party obtained a more favorable verdict than the section 998 offer to compromise amount, even where section 998 provided that parties were to bear their own costs]; see also Shain v. City of Albany (1980) 106 Cal.App.3d 294, 299; Kelly v. Yee (1989) 213 Cal.App.3d 336, 342; Duale v. Mercedes-Benz USA (2007) 148 Cal.App.4th 718, 725, fn. 3.)
The decisions on which the Foundation relies to argue to the contrary do not compel a different result. In Heritage Engineering Construction, Inc. v. City of Industry (1998) 65 Cal.App.4th 1435, 1441, the court held that when a defendant’s offer includes costs, it is to be compared with the plaintiff’s judgment plus pre-offer costs. As the Foundation acknowledges, the offer here is “unlike” that in Heritage; and the Heritage court did not purport to hold that when costs are not included in a settlement offer, they are to be disregarded in the determination of whether a plaintiff obtained a more favorable judgment. In fact, the Heritage court noted that legislative amendments to section 998 have returned the operative law to the state where pre-offer costs are added to the judgment in determining whether a more favorable judgment has been obtained. (Id. at p. 1441.) Even less relevant is Arias v. Katella Townhouse Homeowners Assn., Inc. (2005) 127 Cal.App.4th 847, which concerns not pre-offer costs but post-offer costs under section 998; the citation offered by counsel to this case is to the trial court ruling set forth in the statement of facts, not to any rule of law set forth in the case. Finally, counsel for the Foundation cited to an unpublished decision of the Court of Appeal. Citing an unpublished decision where there is no applicable exception in California Rules of Court, Rule 8.1115(b) clearly violates California Rules of Court, Rule 8.1115(a). The fact that counsel acknowledged that the decision was not binding, characterized the decision as “instructive,” and included the citation in a footnote does not minimize or remedy this violation of our Rules of Court. We condemn this conduct, do not consider this decision in our analysis, and expect that counsel will not violate this Rule of Court in the future.
The trial court appears to have made no effort to calculate Crutcher’s reasonable preoffer costs, let alone to include them for the purpose of its calculations. Given that the difference between the award and the offer to compromise was only one dollar, it appears certain that had the court considered Crutcher’s preoffer costs in determining whether he obtained a more favorable result, the expenditure of at least one dollar and one cent prior to the offer to compromise would have been deemed reasonable: Certainly the filing fee for Crutcher’s complaint, set forth in Crutcher’s memorandum of costs as $299.50, would be recoverable. Even if no other pre-offer cost was properly added into the judgment for the purposes of the section 998 analysis, this amount alone would increase Crutcher’s award to more than the $5,000 awarded by the trial court. We can thus say with certainty that the cost-shifting provisions of section 998 do not apply here, because Crutcher’s award and pre-offer costs unquestionably add up to more than the amount of the offer to compromise.
Both parties submitted memoranda of costs to the trial court.
The court made additional errors in the application of section 998 that were noted by Crutcher: the trial court erred in failing to award him his preoffer costs on the basis of its section 998 determination, for even when a plaintiff rejects a settlement offer that is greater than the recovery it ultimately obtains, that plaintiff may recover its preoffer costs to which it would otherwise be entitled. (Scott Co. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1112.) Also, section 998 provides that when a plaintiff does not accept a section 998 settlement offer and then fails to obtain a more favorable judgment or award, the opponent’s costs “from the time of the offer” are to be deducted from the plaintiff’s recovery. (§ 998, subd. (e).) Here, from the dates listed in the Foundation’s memorandum of costs, it is apparent that the costs awarded by the trial court included preoffer costs and not merely postoffer costs. Our determination that section 998 was improperly applied obviates the need for extended discussion of these problems with the judgment.
Because the trial court erred in its application of sections 998 and 1032, we vacate the judgment and remand for a redetermination of the proper award of costs.
III. Submission of Offers Under Section 998
Crutcher argues that Foundation “in essence, put the [section] 998 offer to compromise into evidence in the trial” because it submitted a copy of Crutcher’s section 998 offer to the trial court before it had ruled on the case and because it submitted its own section 998 offer before the objections to the tentative ruling were heard and the ruling became final. As a result, Crutcher claims, a new trial should be ordered on the issue of damages. This argument has a distinct aspect suggesting “trifl[ing] with the courts by standing silently by, thus permitting the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable.” (In re Urayna L. (1999) 75 Cal.App.4th 883, 886.)
Crutcher’s conduct is the reason that these documents needed to be filed—Crutcher filed his memorandum of costs as soon as the cross-complaint was dismissed, before decision was rendered on the complaint. This placed the Foundation in the difficult position of having to file its motion to tax costs before the statement of decision was issued, and that necessitated submission of Crutcher’s section 998 offer as evidentiary support for the motion. The Foundation tried to avoid submitting the document to the trial court, but the court denied its ex parte application for an order to extend the filing deadline for the motion to tax or to set the hearing on the motion far enough into the future that the court would not have to review the motion papers until after the statement of decision would have been issued. Had Crutcher been concerned about the submission of the section 998 offer to the court, he could have agreed to extend the time for serving and filing these documents pursuant to California Rules of Court, section 3.1700(b)(3). He did not do so and refused to agree to the relief the Foundation requested. Moreover, he did not object to the consideration of these documents by the trial court. To the contrary, Crutcher urged the trial court that his section 998 offer “needs to be read as a whole,” made arguments concerning the language of the offer itself, and presented arguments about the favorability of the outcome under section 998 that necessarily required the court to consult the section 998 offer. While the motion to tax costs was pending, the trial court issued its statement of decision, and the Foundation then needed to submit its own section 998 offer to attempt to deny Crutcher costs under that section. In light of these events, Crutcher invited any error and is estopped from arguing error on appeal. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403.)
Crutcher, moreover, has failed to demonstrate any prejudice as a result of these documents having been submitted to the trial court. “Only prejudicial error results in reversal of a judgment. Error is prejudicial when it is probable that the party against whom it was made would have achieved a better result but for the error. [Citations.]” (Sargent Fletcher, Inc. v. Able Corp. (2003) 110 Cal.App.4th 1658, 1674.) Crutcher’s counsel writes, “One can only speculate as to whether the court used the [section] 998 offer in determining the amount of damages it awarded . . .” and we agree that it would be nothing more than speculation. Crutcher has not established prejudicial error here.
IV. Denial of Crutcher’s Motion in Limine No. 3
Crutcher’s third motion in limine was a motion for judgment on the pleadings on the cross-complaint. The trial court denied the motion in limine. Crutcher, again making no reference to the location in the record where the motion papers, opposition, and ruling can be found, now seeks to have the judgment on the complaint reversed based on the denial of the motion in limine to prevent the presentation of evidence on the cross-complaint. The judgment on the complaint is not susceptible to reversal based on a denial of a motion in limine that pertains to the cross-complaint where there is no contention, let alone any showing, that any evidence was presented with respect to the cross-complaint that would not have been presented had the parties proceeded to trial on the complaint alone, nor is there any indication that Crutcher’s prosecution of the complaint was impacted in the slightest by the denial of this motion. Crutcher has not established error. (State Farm Fire & Casualty Co. v. Pietak, supra, 90 Cal.App.4th at p. 610.)
Crutcher claims that he was prejudiced by the denial of the motion in limine because he was forced to defend against the cross-complaint’s claims, the Foundation later dismissed the claims, and Crutcher was not determined to be the prevailing party: in other words, he suffered costs that were not reimbursed because he was forced to put on a defense to the cross-complaint and was not subsequently declared the prevailing party as he should have been. Crutcher has not made any showing that he suffered prejudice as a result of the denial of this motion in limine that would not be relieved by a proper application of the statutes concerning the prevailing party and the determination of costs. Crutcher’s alleged prejudice appears to be fully addressed by our conclusion that the trial court erred when it declared the Foundation the prevailing party and made the costs award accordingly.
V. Granting of the Foundation’s Motion in Limine No. 2
The Foundation filed a motion in limine seeking to exclude from evidence two letters written by Crutcher’s past acquaintances attesting to his character. The trial court granted the motion on the ground that character references from 50 years ago were too remote. We review the trial court’s ruling on the admissibility of evidence for an abuse of discretion. (In re Marriage of Slayton & Biggums-Slayton (2001) 86 Cal.App.4th 653, 661.) There was no abuse of discretion here. The two letters of recommendation were written in the 1940s and the trial court was well within its discretion to determine that they were far too remote in time to have any relevance to the issues in the instant litigation. (See, e.g., Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 133 [courts have wide discretion to exclude evidence on the basis of many fact-specific factors, including remoteness as measured in the factual context of the matter], disapproved on other grounds by Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 678.) Moreover, counsel was permitted to introduce abundant character evidence throughout the trial, so even if this ruling were in error there is no evidence of prejudice and no basis for reversal of the judgment. (Evid. Code, § 354.)
We also note that Crutcher’s argument on this topic is disjointed, contains misstatements, and is not properly supported by citations to the record. The argument’s heading states that the asserted error is the granting of Motion in Limine No. 2. Counsel does not provide any citation to the record so that the court may locate the motion in limine, the evidence that motion in limine sought to exclude, Crutcher’s opposition, or the transcript of the hearing at which the motion in limine was ruled upon. This alone would permit us to reject Crutcher’s argument. (In re S.C., supra, 138 Cal.App.4th at pp. 406-407 [argument forfeited if not supported by record citations]; Placer County Local Agency Formation Com. v. Nevada County Local Agency Formation Com. (2006) 135 Cal.App.4th 793, 814 [“We need not address points in appellate briefs that are unsupported by adequate factual or legal analysis”].)
Crutcher’s argument, moreover, improperly ranges far beyond the issue of Motion in Limine No. 2. That motion sought to exclude from evidence two recommendation letters written for Crutcher in the 1940s. Yet Crutcher claims that the court “granted defendant’s motion in limine to exclude evidence or testimony that Mr. Crutcher was a WWII veteran and his good reputation . . . .” The motion in limine did not seek to preclude the introduction of all evidence that Crutcher was a veteran of World War II, nor that he had a good reputation: it merely sought to exclude two letters of recommendation that were more than 50 years old.
Crutcher also contends that as a result of this ruling “the plaintiff could not introduce testimony including prior awards earned within the entertainment industry.” Not only is that a misstatement of the impact of the ruling on Motion in Limine No. 2, which did not speak to that issue at all, but it is also another blatant misrepresentation of the record. Counsel cites to two pages in the Reporter’s Transcript in which counsel for the Foundation objected to the introduction of additional evidence of awards earned by Crutcher in his film career. What Albert fails to disclose is that the trial court overruled the Foundation’s objection and its standing objections to the admissibility of evidence of Crutcher’s awards. Albert has again misrepresented the record in violation of her ethical obligations. (Bus. & Prof. Code § 6068, subd. (d); Rules Prof. Conduct, rule 5-200.)
Next, still under the heading of Motion in Limine No. 2, Crutcher asserts that “testimony about the plaintiff’s prior similar acts on the MPSE Board and Union Guild where he oversaw their projects and no accusations of unlawful distributions or being dishonest is relevant to the central issue in this case.” Crutcher’s brief gives us no indication of what this unrelated argument is about, but it surely is not within the scope of Motion in Limine No. 2. Counsel gives a list of citations to 10 pages of the Reporter’s Transcript, but she does not identify what rulings on those pages she is complaining about, nor is Motion in Limine No. 2 mentioned in any of those locations. This is wholly inadequate to raise an issue on appeal. “[A]ppellant’s brief ‘must’ ‘[s]tate each point under a separate heading or subheading summarizing the point . . . .’ [Citations.] This is not a mere technical requirement; it is ‘designed to lighten the labors of the appellate tribunals by requiring the litigants to present their cause systematically and so arranged that those upon whom the duty devolves of ascertaining the rule of law to apply may be advised, as they read, of the exact question under consideration, instead of being compelled to extricate it from the mass.’ [Citations.] [¶] The contention under heading 2 of appellant’s brief, entitled ‘THE COURT ERRED IN FAILING TO DISMISS THE PETITIONS, THEREBY VIOLATING MOTHER’S CONSTITUTIONAL RIGHTS,’ runs afoul of the above rules (1) by raising what appear to be five separate complaints that, because of the manner in which they are presented, are painful to read and difficult to understand, and (2) by failing to provide meaningful legal analysis and record citations for complaints raised under this heading.” (In re S.C., supra, 138 Cal.App.4th at p. 408; see also Cal. Rules of Court, rule 8.204(a)(1)(B).) Crutcher has not established any error here.
VI. Failure to Award Actual and Punitive Damages to Crutcher
A, Damages Award
On the subject of actual damages, the court said this: “The law assumes Plaintiff’s reputation has been harmed, as discussed above; the evidence of further damage is weak. This Court cannot find any actual damages. However, the Plaintiff is entitled to nominal damages. In assessing such damages, this Court takes into consideration the lack of actual monetary damages to Plaintiff and his hurt feelings. In view of the lack of evidence of causation of any harm to Plaintiff, this Court sets damages at the sum of $5,000.” Crutcher argues that the trial court “found ample evidence to award actual damages” and it therefore should have done so; it is ambiguous whether the court awarded $5,000 for hurt feelings or whether the court found that there were no hurt feelings; and the court should have awarded general damages but did not do so because Crutcher was a volunteer board member.
Some of Crutcher’s argument is not supported by the record. We discern no ambiguity in the statement of decision with respect to whether or not the court found that Crutcher suffered hurt feelings. The court said that it had considered his hurt feelings in making the award, along with the lack of actual monetary damages. Also, we are unable to determine any factual origin for Crutcher’s contention that “the trial court refused to award any sum for pain and suffering or general damages on the grounds that Mr. Crutcher was a volunteer board member.” Crutcher does not cite to any portion of the statement of decision or the reporter’s transcript to support this statement. We are not obligated to hunt around in the record for evidence to support his contention (Metzenbaum v. Metzenbaum (1950) 96 Cal.App.2d 197, 199), and our review of the statement of decision revealed no reference to Crutcher’s status as a volunteer board member as a basis for denying damages for pain and suffering on the defamation cause of action. With these arguments Crutcher has not established any error in the damages award.
The rest of Crutcher’s argument is a collection of assertions that the damage award was insufficient in light of the evidence of the actual damages Crutcher sustained. Crutcher should have raised that issue in a new trial motion, but there is no indication in the record that he did so. (§ 657, subd. 5.) A claim of inadequate damages based on factual matters rather than on legal issues cannot be raised on appeal unless the appellant raised the issue in a motion for new trial. (County of Los Angeles v. Southern California Edison Co. (2003) 112 Cal.App.4th 1108, 1121.)
B. Punitive Damages
The trial court denied punitive damages, stating: “The Court finds that the intent of the Defendant and members of the board of directors was to protect the Defendant. There was no awareness of any dangerous consequences of their conduct. [¶] There was no oppression, the conduct was not despicable that is, conduct that is so mean, rude, base or contemptible that it would be looked down on and despised by reasonable people. [¶] There was no fraud, meaning intent to misrepresent or conceal any material fact. [¶] Therefore this Court cannot award punitive damages.”
Crutcher argues that the court should have awarded punitive damages. Crutcher claims that he proved by clear and convincing evidence that the Foundation lacked reasonable grounds for belief in the truth of the statements and therefore acted in reckless disregard of his rights. He includes a series of sentences asserting what the evidence and court’s decision purportedly showed, none of which is supported by any citation to the record, and then concludes, “So the court erred when it refused to grant punitive damages to Mr. Crutcher in this case.” At that point, he offers a citation to 15 pages scattered through the Reporter’s Transcript, with no indication of what those pages state or how they demonstrate error. There is also no citation to the evidence that would support the trial court’s finding. This argument is insufficient to demonstrate that the trial court made any error when it concluded that the Foundation’s conduct did not merit the imposition of punitive damages. “‘It is well established that a reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact.’ [Citations.] Defendants’ contention herein ‘requires defendants to demonstrate that there is no substantial evidence to support the challenged findings.’ (Italics added.) [Citations.] A recitation of only defendants’ evidence is not the ‘demonstration’ contemplated under the above rule. [Citation.] Accordingly, if, as defendants here contend, ‘some particular issue of fact is not sustained, they are required to set forth in their brief all the material evidence on the point and not merely their own evidence. Unless this is done the error is deemed to be waived.’ (Italics added.) [Citations.]” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; see also Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)
C. Unrelated Arguments
The heading for this portion of Crutcher’s brief was, “SUBSTANTIAL EVIDENCE WAS FOUND TO SUPPORT AN AWARD OF ACTUAL DAMAGES TO MR. CRUTCHER YET THE COURT DID NOT AWARD ANY,” an argument that clearly pertains to Crutcher’s disagreement with the trial court’s failure to make a larger damages award on the one cause of action for which the Foundation was found liable (the defamation claim). In addition to the arguments discussed above in this section, Crutcher has also included two evidently unrelated sub-arguments under this same heading in the brief. In the first argument, Crutcher contends that there was factual evidence from which the trial court should have found in his favor on his negligence claim. In the second argument, Crutcher claims that the court should have found in his favor on the negligent infliction of emotional distress cause of action. We are unable to understand how the court’s purported failure to rule in his favor on one cause of action has any bearing on the question of whether the trial court should have made an additional damages award pursuant to another cause of action. We also find that Crutcher has not properly raised these issues on appeal.
1. Negligence Cause of Action
Crutcher’s first unrelated argument, that he should have prevailed on his negligence claim, is deficient not merely because it bears no relationship to the asserted subject of his argument but also because it lacks any citations to the record. Crutcher merely asserts what the evidence purportedly showed, without citations to the pages in the record where that evidence may be found. This is insufficient to preserve his claim of error on appeal. “[A]n appellate court cannot be expected to search through a voluminous record to discover evidence on a point raised by appellant when his brief makes no reference to the pages where the evidence on the point can be found in the record.” (Metzenbaum v. Metzenbaum, supra, 96 Cal.App.2d at p. 199; Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at pp. 881-882.) His argument also includes only two citations to authority—one case defining the elements of negligence and one statute in the Corporations Code—and makes only a conclusory argument as to why the court’s ruling on the negligence cause of action was error. “When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary.” (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.) Crutcher has failed to “present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error.” (In re S.C., supra, 138 Cal.App.4th at p. 408.)
2. Negligent Infliction of Emotional Distress Cause of Action
Here, Crutcher contends that the court “failed to find negligent infliction of emotional distress on the grounds that there was no medical expert testimony on th[e] issue” of emotional distress and that the court “found that expert medical testimony was required to prove emotional distress.” This is another misrepresentation of the record. What the court said in the statement of decision was that judgment was entered for the defendant on this cause of action because there was insufficient evidence of damages. The court explained: “The Plaintiff was a volunteer member of Defendant’s board of directors. He did not receive any compensation for his service. Defendant (sic) was retired from his business and had enjoyed serving on other nonprofit boards. He was very proud of having served as a chair of Defendant’s board of directors and listed this accomplishment in his resume. Plaintiff did not lose any money or business opportunities, and he still received the same retirement income. Every one of his associates who were not affiliated with Chandler Lodge testified that this incident did not change their opinion of his reputation. There was no medical evidence that his pre-existing heart disease was affected by his termination from the defendant’s board of directors. He did employ a friend from Chandler Lodge as an occasional housekeeper; however, Plaintiff is 84 years old and probably needed a housekeeper anyway. There is insufficient evidence to prove that the need for a housekeeper was caused by being terminated by the board. His ego was bruised by his treatment by Defendant. [¶] There was no medical evidence about the depth of Plaintiff’s emotional distress. This Court cannot determine whether Defendant’s negligence, if any, was a substantial factor in causing emotional distress or whether his symptoms were the result of the passage of time. This Court finds that an ordinary reasonable person would be able to deal with whatever emotional distress existed. This is a different situation than a person being terminated from his or her employment due to being defamed. Plaintiff was retired from his profession and could show none of the damages required except for hurt feelings. The Court finds that there was insufficient evidence of damages, so on this count there is judgment for Defendant.”
As Crutcher’s characterizations of the court’s ruling are not borne out by the actual ruling, Crutcher has not met his burden of demonstrating error here. Moreover, the only citations to the record in this argument are references to the statement of decision. If Crutcher wished to argue that there was in fact sufficient evidence of damages such that the court erred as a matter of law in determining that the evidence was insufficient, Crutcher would need to show where in the record that evidence exists. He did not do so and cannot therefore prevail on appeal. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at pp. 881-882.)
VII. Asserted Ambiguities in the Statement of Decision
The next section of Crutcher’s argument on appeal is entitled, “THE JUDGMENT MUST BE REVERSED DUE TO THE AMBIGUOUS FINDINGS IN THE STATEMENT OF DECISION.” Crutcher includes two general statements of the law about ambiguous statements of decision, then proceeds to a single subheading: “THE COURT ERRED IN ALLOWING TESTIMONY CONTRARY TO CLF’S [the Foundation’s] PRIOR ADMISSIONS.” One paragraph follows, in which Crutcher claims that the court should not have denied his motion in limine to exclude evidence or testimony that contradicted admissions made in response to discovery requests. He claims that this violated section 2033.410, subdivision (a), and that as a result he was prejudiced when testimony that was contradicted by the admissions was permitted “because the purpose in removing those issues from trial is so that there would be less expense and delay in proving/disproving the point all over again.”
We are perplexed by this series of assertions thrown together as an argument for reversal of the judgment. We cannot begin to perceive how this evidentiary argument bears any connection to any unidentified purported ambiguity in the statement of decision. “It is not our responsibility to develop an appellant’s argument.” (Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1206, fn. 11.) Next, Crutcher has not identified a single instance in the record in which testimony contrary to a discovery admission was permitted, or where an objection to such evidence was made, and has therefore forfeited any claim of error. (In re S.C., supra, 138 Cal.App.4th at pp. 406-407; Placer County Local Agency Formation Com. v. Nevada County Local Agency Formation Com., supra, 135 Cal.App.4th at p. 814.) Last, Crutcher has not demonstrated how proving one’s “point” at trial can possibly constitute cognizable prejudice. “Error is prejudicial when it is probable that the party against whom it was made would have achieved a better result but for the error.” (Sargent Fletcher, Inc. v. Able Corp., supra, 110 Cal.App.4th at p. 1674.) Crutcher has demonstrated neither error nor prejudice with this argument.
VIII. Purported Missing Findings in the Statement of Decision
Crutcher argues that the statement of decision was defective because “[t]he court failed to findings [sic] on issues raised in the pleadings as to the second cause of action for intentional infliction of emotional distress. It did not list the elements for the claim or any factual findings.” What the court said was, “This Court finds no evidence to support this cause of action. Plaintiff withdrew his mental health expert’s expert designation prior to trial, and presented no evidence at trial that he experienced severe emotional distress. For these reasons, there is judgment for Defendant.” Nothing is missing here. The court found that there was no evidence of severe emotional distress, a required element of an intentional infliction of emotional distress cause of action. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903 [elements of cause of action include “the plaintiff’s suffering severe or extreme emotional distress”].) The court’s statement of decision clearly stated that the cause of action failed because Crutcher had not presented evidence on this element. This clearly “explain[ed] the factual and legal basis for its decision” (§ 632) on all controverted issues necessary for a decision on this cause of action, and nothing more was required. (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 67-68.)
IX. Miscellaneous Contentions
Under the vague heading, “PREJUDICIAL ERROR RESULTING IN A MANIFEST INJUSTICE TOWARD THE PLAINTIFF/CROSS-DEFENDANT RESULTED [sic],” Crutcher makes two contentions: that the dismissal of the cross-complaint took place too late; and that the Foundation improperly filed a notice of related case concerning a malicious prosecution case. Both arguments are meritless.
Crutcher’s argument on the cross-complaint dismissal begins with a citation to a case describing what constitutes a miscarriage of justice. Then he announces, “After trial the court found there was no evidence to support [the Foundation’s] cross-complaint.” There is a record citation here, but the page in the record to which it refers makes no mention of the cross-complaint. Crutcher then offers a non sequitur: “However, [the Foundation] did not submit its dismissal with prejudice until 10 days after trial concluded and the court took the case under submission. There was no legitimate reason for this delay.” There are no record citations here, and no acknowledgment of the fact that dismissal was orally requested and granted during the trial. “Mere suggestions of error without supporting argument or authority other than general abstract principles do not properly present grounds for appellate review.” (Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2002) 100 Cal.App.4th 1066, 1078.)
Crutcher’s position appears to be that he was prejudiced by the fact that the dismissal paperwork was filed after the presentation of evidence had concluded. He thinks that judgment in his favor, rather than dismissal, should have been entered. Crutcher appears to allege as prejudice that he was not declared the prevailing party, as he would have been if judgment was entered in his favor. But a dismissal has the same effect as a judgment in the cross-defendant’s favor on a cross-complaint when it comes to the determination of a prevailing party under section 1032. (§ 1032, subd. (a)(4).) If there is any prejudice resulting from this supposed error, it arises not from this purportedly improper dismissal but from the failure to determine that he was the prevailing party, and the errors in this regard have been addressed above. Crutcher has not established any prejudicial error or miscarriage of justice with respect to the entry of the dismissal of the cross-complaint.
The next argument is that Crutcher is entitled to reversal of the judgment because the Foundation complied with California Rules of Court, Rule 3.300(b) and local rules, and filed a notice of a related case. Crutcher does not contend that the notice was not required, nor does he argue that the cases were not related—he just argues that advising the trial court that the malicious prosecution action existed “was prejudicial to the plaintiff” because it alerted the court to a possible effect of its decision and thereby “improperly impassioned or prejudiced the fact finder.” This argument lacks any citations to authority and is waived. (In re S.C., supra, 138 Cal.App.4th at p. 407.)
Crutcher’s argument, moreover, is manifestly baseless. First, neither giving nor receiving the legally required notice of related cases constitutes error. Second, Crutcher has not asserted any actual error here. Third, he has not alleged any actual prejudice. He offers no evidence that the trial court was impacted in any way by the filing of this notice, and Crutcher’s allegation of a “manifest injustice” from the Foundation’s subsequent attempt to collect on the judgment is both outside the record and unrelated to the filing of the notice.
X. Request for Attorney Fees and Costs
Crutcher claims that he is entitled to his costs and attorney fees on appeal. Crutcher’s one-sentence attorney fees argument is based on Los Angeles Times v. Alameda Corridor Transport Authority (2001) 88 Cal.App.4th 1381, 1393, which he claims stands for the proposition that a party that wins on appeal may recover attorney fees on appeal. In that case, the prevailing party had a statutory entitlement to attorney fees under the California Public Records Act. (Id. at p. 1391.) Crutcher has not identified any statutory or contractual basis for awarding attorney fees here.
Crutcher’s costs argument is also one sentence long: “California Rules of Court, rule 27(a)(1) allows a party who wins on appeal to recover their costs.” There is no longer any rule 27(a)(1) in the California Rules of Court. California Rules of Court, rule 8.278(a) provides that the party prevailing in the Court of Appeal in a civil matter is entitled to costs on appeal except as the rule provides otherwise. Crutcher, however, is not the prevailing party on this appeal. An appellant is the prevailing party “if the court reverses the judgment in its entirety.” (Cal. Rules of Court, rule 8.278(a)(2).) We do not reverse the judgment in its entirety, only in part. We therefore are required to specify the award or denial of costs (Cal. Rules of Court, rule 8.278(a)(3)), and if the interests of justice require it, the court may award or deny costs as it deems proper. (Cal. Rules of Court, rule 8.278(a)(5).) In the interest of justice, we deem it proper that each party bear its own costs.
DISPOSITION
The judgment is vacated with respect to the determination of the prevailing party and the award of costs, and the matter is remanded for a redetermination of costs. In all other respects, the judgment is affirmed. The parties shall bear their own costs on appeal.
We concur: PERLUSS, P. J., WOODS, J.