Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Los Angeles County Super. Ct. No. KC 044925, Peter J. Meeka, Judge. Affirmed.
Law Offices of George L. Young and Steven L. Sugars for Plaintiff and Appellant.
Liner Yankelevitz Sunshine & Regenstreif, Teri T. Pham and Michael B. McCollum for Defendants and Respondents.
FLIER, J.
This action arises from the breakup of a business relationship between appellant Allen Huang, D.C., and respondents LTM Total Care, Inc., (LTM) and Flora Low. Appellant contends the trial court erred in granting LTM and Low a summary judgment on appellant’s complaint and in granting LTM summary adjudication on its cross-claim for trespass. Appellant also contends the jury’s award of $81,360 on LTM’s cross-claim for breach of contract cannot stand, because the trial court erroneously instructed the jury on a theory of breach of an implied in fact contract when such a claim was not pleaded in the cross-complaint, and that the court further erred in denying him a new trial. Finding no error, we affirm the judgment.
FACTS
Respondent LTM operates a small day spa and salon facility, the Flora Day Spa, in West Covina, California. Respondent Low is the president and principal shareholder of LTM. Appellant is a licensed chiropractor who operated out of the Flora Day Spa from 2000 to 2004. Respondents claimed LTM had an oral agreement with appellant whereby LTM would allow appellant to maintain a private chiropractic office at the Flora Day Spa and use its facilities and, in exchange, appellant agreed to pay LTM 50 percent of all payments from insurance carriers and 40 percent of payments from patients. From 2000 through 2004, appellant paid LTM a percentage of his gross revenue.
Over time, the parties’ relationship soured, and, on March 8, 2004, Low and LTM terminated the business arrangement with appellant. LTM requested that appellant pay 50 percent of the amounts appellant collected from insurance carriers after early March 2004 for his services rendered prior to that date, a total of more than $80,000. Appellant refused to pay LTM the sums demanded.
Respondents claimed that, beginning around January 2003, appellant became increasingly violent and abusive toward Low and the spa’s employees and customers. Low testified appellant physically shoved her on one occasion and ultimately threatened to dismantle the spa’s computer system, precipitating her changing the locks at the spa locking him out.
According to a report prepared by appellant’s assistant, appellant should have collected approximately $162,716.84 from insurance companies for services rendered before early March 2004.
On March 12, 2004, appellant returned to the spa to remove some of his personal belongings and his patient records and files. He handwrote and signed a document acknowledging he removed those items on that date. However, appellant left behind a number of items including computers, desks, books and other office equipment. Between March 12 and May 2004, LTM repeatedly made oral and written requests to appellant’s attorneys for appellant to collect his remaining belongings. Appellant continually refused, and LTM had appellant’s belongings removed to a nearby storage facility, requested that appellant retrieve his belongings there and executed an “Abandonment of Property” form abandoning the property to appellant.
PROCEDURAL HISTORY
Appellant filed this action against LTM and Low in September 2004. In a first amended complaint, appellant claimed he was an employee of LTM and all of the monies he paid LTM were merely “loans” to LTM. Appellant alleged LTM and Low breached an oral loan agreement by failing to repay those loans. Appellant asked for the return of his medical records and damages for intentional interference with contract and intentional and negligent interference with prospective economic advantage.
Appellant asserted causes of action for (1) return of medical records; (2) breach of oral contract; (3) common counts; (4) intentional interference with contract; (5) intentional interference with prospective economic advantage; and (6) negligent interference with business relationships.
LTM cross-complained against appellant alleging breach of appellant’s oral agreement to pay LTM 50 percent of insurance company payments and 40 percent of client payments for appellant’s use of spa facilities. LTM sought an amount not less than $80,000 allegedly owed under the agreement. LTM also asserted a trespass claim for appellant’s failure to remove his personal belongings from spa premises after the termination of the parties’ relationship.
In December 2005, the trial court granted LTM and Low’s motion for summary judgment on all causes of action in appellant’s complaint. The court also granted LTM’s motion for summary adjudication on its cross-claim for trespass.
The case proceeded to trial in January 2006 on LTM’s remaining claim for breach of contract and on the issue of damages for the trespass. The jury found in a special verdict that appellant and LTM had a contract, appellant promised to pay LTM for services to be provided by LTM, LTM performed on its part and satisfied all the conditions the contract required, appellant failed to perform under the contract and LTM was damaged by appellant’s failure to perform in the amount of $81,360. The jury also found in a separate general verdict that LTM was damaged by appellant’s trespass in the sum of $455.
The court entered a judgment in favor of respondents and denied appellant’s motion for new trial. Appellant timely appealed.
DISCUSSION
1. Motion for Summary Judgment and Summary Adjudication
Appellant contends the trial court erred in granting respondents’ motion for summary judgment on his complaint and LTM’s motion for summary adjudication on its claim for trespass.
A. Appellant’s Evidentiary Objections
Initially, appellant asserts the trial court indicated at the summary judgment hearing it would rule on all evidentiary objections by minute order but then never actually ruled on his objections. He claims the trial court’s failure to rule on his objections alone requires reversal under Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 235 (Sambrano). We disagree.
Although appellant claims to have raised objections to respondents’ evidence, the record shows his purported objections were not properly before the trial court because they were defective in form and substance.
Specifically, Code of Civil Procedure section 437c, subdivision (c) provides that “[i]n determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court . . . .” (Italics added.) Subdivision (d) of section 437c further states: “Supporting and opposing affidavits or declarations shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations. Any objections based on the failure to comply with the requirements of this subdivision shall be made at the hearing or shall be deemed waived.” (Italics added.) Subdivision (b)(5) of that section similarly provides that “[e]videntiary objections not made at the hearing shall be deemed waived.”
At the time of the motions, former California Rules of Court, rule 343 required a party desiring to object to evidence in the papers on a motion for summary judgment either to submit objections in writing under former rule 345 or arrange for a court reporter to be present at the hearing. In the latter case, it is logical that oral evidentiary objections must be voiced at, and recorded in the transcript of, the hearing. Former rule 345 required a written objection to evidence to be made “with the same specificity as a motion to strike evidence made at trial.”
In this case, appellant failed to properly interject or preserve any evidentiary objections. A court reporter was present at the hearing, but appellant voiced no oral evidentiary objections on the record. Appellant improperly attempted to include written objections to respondents’ motion papers in his separate statement of disputed and undisputed material facts instead of in a separate document. Those objections in any case were directed to respondents’ proposed undisputed facts rather than to any specific evidence. The trial court was not obliged to sift through appellant’s separate statement to glean whether appellant deemed respondents’ evidence to be objectionable, guess which evidence appellant found objectionable or leaf through voluminous documents to locate supposedly objectionable material.
A typical example is appellant’s objection to respondents’ proposed undisputed fact No. 3. That proposed undisputed fact states: “In or about early 2000, [appellant] left his previous practice with another chiropractic group and [respondent] Low offered to allow him to use the Flora Day Spa’s facilities to set up his own private practice.” Appellant’s separate statement responds: “Objection. The statement is compound and therefore improper in form. The statement is also vague and ambiguous as to ‘use the Flora Day Spa’s facilities’. Without waiving said objections, [appellant] responds as follows. . . .” (Italics added.) Appellant fails to identify the supposedly objectionable evidence or to articulate the grounds for objection “with the same specificity as a motion to strike evidence made at trial.” His remaining objections are in the same vein and thus are equally deficient.
In any event, appellant incorrectly relies on Sambrano in contending a trial court’s mere failure to rule on evidentiary objections requires reversal of a summary judgment. In Sambrano, the appellate court affirmed a summary judgment, notwithstanding that the trial court failed to rule on evidentiary objections. (Sambrano, supra, 94 Cal.App.4th at pp. 243-244.) Moreover, the prevailing authorities hold that an objecting party’s evidentiary objections ordinarily are deemed waived if not ruled upon, and the evidence objected to may be considered on appeal. (Id. at pp. 234-239; see also Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1; Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1186, fn. 1, disapproved on other grounds in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854; Demps v. San Francisco Housing Authority (2007) 149 Cal.App.4th 564, 578.)
Appellant’s contention that the trial court failed to rule on his “evidentiary” objections is therefore without merit.
B. Respondents’ Evidentiary Objections
Appellant asserts that the trial court improperly sustained respondents’ objections to the declarations of his patients -- Jimenez, Edo and Andrade. We review a trial court’s rulings on the admissibility of evidence for abuse of discretion (People v. Waidla (2000) 22 Cal.4th 690, 717) and apply the same standard of review to a trial court’s rulings on evidentiary objections in summary judgment proceedings (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694).
The trial court properly sustained objections to those portions of Ms. Jimenez’s declaration regarding appellant’s termination and claimed absence of her medical records on the grounds of hearsay and lack of foundation since Ms. Jimenez’s knowledge of such matters was based solely on what respondents’ staff and appellant told her. The court also properly sustained similar hearsay and foundation objections to portions of Mr. Edo’s declaration because he testified his knowledge of appellant’s termination was based on what respondents’ staff told him and he provided no foundation for his “belie[f]” that respondents “took” his private information in sending him mailers advertising the spa. The trial court also properly declined to consider portions of Ms. Andrade’s declaration because her testimony that she never observed appellant to be rude or impolite was not probative to the motion for summary judgment or summary adjudication.
Appellant cites not a single legal authority establishing the trial court abused its discretion in making such rulings. Nor has appellant demonstrated it was reasonably probable a result more favorable to him would have been reached had the court not excluded the evidence. (People v. Watson (1956) 46 Cal.2d 818, 835 (Watson).)
C. Wrongful Withholding of Medical Records
Appellant claims summary judgment was improper as to his first cause of action seeking return of his medical records because there was a triable issue of fact whether his medical records were returned by respondents. Based on appellant’s own deposition testimony and discovery responses, the trial court determined it was undisputed that appellant had retrieved all of his medical files and records and that respondents did not withhold them from appellant. We find no error in the court’s determination.
The evidence before the court established that appellant returned to the Flora Day Spa on March 12, 2004, and removed a large part of his personal belongings, including all of his medical records and files, following the termination of the parties’ business arrangement. Appellant personally handwrote and signed a document acknowledging receipt and his retrieval of his “Medical Records/Files” on March 12, 2004, and admitted the genuineness of that document in response to a request for admission. He also admitted to removing his medical files and records from the Flora Day Spa on March 12 in response to another request for admission. Both in response to a request for admissions and at deposition, appellant admitted that respondents had repeatedly requested that he return to the spa to remove the remainder of his personal items but he refused to do so.
Reviewing the evidence presented, disregarding the inadmissible and immaterial evidence presented by appellant, and viewing the uncontroverted facts and evidence, the trial court essentially determined that no reasonable finder of fact could conclude that respondents retained or wrongfully withheld appellant’s medical files and records. The court concluded that “no triable issues exist as to the fact that [appellant] already retrieved or intentionally failed to retrieve his digital, medical records.” The court determined that appellant “was denied access to records only on account of his own decision to not retrieve his belongings via his then counsel.”
The trial court determined, and the uncontroverted evidence showed, that in March 2004, defense counsel informed appellant’s counsel only that appellant was not to contact the spa staff and that defense counsel was under the impression appellant had retrieved all of his records. The letter did not forbid appellant from arranging for the retrieval of any records he did not take with him, and it created a means for appellant to leave contact information with the spa for his clients. Other undisputed letters from defense counsel to appellant’s counsel mailed in April, June and July 2004 show that appellant through his counsel was repeatedly asked to make arrangements for the removal of his personal belongings from the spa’s premises. Defense counsel’s correspondence also informed appellant’s counsel that the items were removed from the spa into storage and appellant’s computer files were stored on a disk ready for his retrieval. The correspondence further indicated that appellant’s inability to obtain access to his belongings in storage at one point was solely due to his failure to make prior arrangements for access through counsel. Appellant admitted he had knowledge of this correspondence.
Independently viewing the record, we agree the uncontroverted facts support this determination. As respondents note, an opposing party may not avoid summary judgment based on mere speculation or conjecture but instead must produce admissible evidence raising triable issues of fact. (Compton v. City of Santee (1993) 12 Cal.App.4th 591, 595-596.)
Appellant asserts he was “not permitted” to retrieve the computer files for his patients’ medical records from the spa, pointing to his deposition testimony. In the portion of the testimony appellant relies upon, counsel asked, “Is your testimony still the same, that you weren’t allowed to review the files or retrieve your computer files from the spa?” Appellant replied, “Yes, based upon my knowledge and according to my attorney’s instruction.” (Italics added.) This self-serving testimony and unsupported assertions were insufficient to controvert the documentary evidence and appellant’s own discovery admissions.
D. Statute of Frauds
Appellant’s claims for breach of an oral loan agreement and for common counts also fail as a matter of law because the undisputed facts established the oral agreement alleged in his complaint was barred by the statute of frauds.
California law provides that an agreement that by its terms is not to be performed within a year from its making is invalid unless the agreement, or some note or memorandum of the agreement, is in writing and subscribed by the party to be charged or an agent. (Civ. Code, § 1624, subd. (a)(1).) The undisputed facts in this case show the alleged oral loan between appellant and respondents was not intended to be repaid for four years.
At deposition, appellant stated that all of his claimed agreements with respondents were oral. He testified that, “after four years,” he and Low “were going to have another medical day spa,” and his 50 percent payment “was going to be as a loan basis in return for [appellant’s] favor in helping Ms. Low and to set up for the second . . . medical day spa.” According to appellant, the arrangement was in effect “since 2000” and the loans were to be repaid in “[f]our years in preparation for the second medical day spa.”
Although appellant claimed he understood the loan was to be repaid whenever the company “started making money,” he acknowledged that event was “going to happen” in July 2003, i.e., within three years. Thus, even in his own gratuitous testimony, the loan repayment was not to occur for at least three years.
It is also clear from appellant’s written discovery responses that any alleged loan was not to be repaid within one year. Responding to a contention interrogatory asking for all of the facts supporting the allegation that he entered into an oral agreement with respondents, appellant answered that “50% of [appellant’s] monies collected as a result of treating patients would be given to LTM as a loan without interest to be returned in four years to build a second medical day spa” and that “[f]our years later the second medical day spa would be opened.” (Italics added.) Appellant therefore stated in his sworn interrogatory responses that the oral agreement was not to be performed for four years. Appellant may not contradict his discovery admissions by asserting contrary facts in opposition to a motion for summary judgment or summary adjudication. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22; Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 961; see Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 47-48.)
Appellant contends the agreement fell outside the statute of frauds because respondents were making a profit within the first year of his loan and it should have been repaid in 2001. The trial court ruled that appellant’s evidence on this issue was “without foundation and incompetent to establish that his alleged loan could have been repaid in one year.” On appeal, appellant directs us to no competent or admissible evidence in the record that supports his assertion.
E. Interference with Contract
In his opening brief, appellant stated in a heading that there are triable issues of fact as to his fourth cause of action for intentional interference with contract, fifth cause of action for intentional interference with prospective economic advantage and sixth cause of action for negligent interference with business relationships. The opening brief, however, contained no argument or authorities regarding the fifth or sixth causes of action. We treat those issues as abandoned and do not address them on the merits. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)
Appellant belatedly addressed the fifth cause of action in his reply brief, but he offered no explanation for his failure to address the issue earlier. Points raised for the first time in a reply brief will not be considered absent good reason shown for failure to present them in the opening brief. (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894, fn. 10.)
We therefore address only appellant’s fourth cause of action in the complaint for intentional interference with contract.
For an intentional interference with contractual relations, a plaintiff must show: (1) a valid contract between the plaintiff and a third party; (2) the defendant’s knowledge of the contract; (3) intentional acts by the defendant designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of that relationship; and (5) resulting damage. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 55.) For an intentional interference with contract, it is not necessary for the defendant’s conduct to be wrongful apart from the interference with the contract itself. (Ibid.) The actor need not act primarily with the purpose or desire of interfering with the contract so long as he or she knows the interference is certain or substantially certain to occur as a result of his or her action. (Id. at p. 56.)
On appeal, appellant argues respondents interfered with his patient relationships by not allowing him back into the spa after the parties’ relationship ended. The record, however, indicates otherwise.
Appellant admitted at deposition that respondents did provide his forwarding contact information to his patients. In fact, he was unable to cite any actual disruption of a contract during his deposition. He asserted his interference claim was based on the purported conduct of respondents in: (1) sending people to take pictures of appellant outside his house; (2) “lying” to him about LTM not making money; (3) “using” him to set up telephone lines and to obtain the services of other people to set up the day spa model for the company; (4) “oppressing” him by making decisions for the corporation; (5) “deceiving” him to come work for the company; and (6) “cheating” him by taking advantage of his “kindness and generosity.” He could only testify to a distraction of his focus and the “sapping” of his energies on account of respondents’ perceived “lies,” “cheating,” exploitation, photographing outside his home and other such conduct. In responding to special interrogatories appellant failed to identify a single patient relationship that was disrupted by respondents not allowing him back into the spa. The record does not therefore support his claim that respondents interfered with existing contracts with third parties.
Appellant argues there was “undisputed” evidence his client Edo went to LTM and demanded a refund for treatments paid for but not received. Edo’s declaration indicates no more than that he received a refund of his money from the spa. The evidence does not establish Edo ceased treating with appellant.
There was no error in granting summary judgment on appellant’s claim for interference with contract.
F. Trespass
Appellant further claims there were triable issues as to whether he committed trespass and the trial court erred in granting LTM’s motion for summary adjudication. He argues there was no trespass because there was no evidence he entered the premises without consent and because his efforts to retrieve his property after the lockout were “thwarted.” We reject both contentions.
First, LTM was not required to show that appellant entered the premises without consent. The failure to retrieve belongings from LTM’s premises after demand was sufficient to show a trespass notwithstanding there was no entry without consent. The trial court correctly ruled that a “trespass can include [a] failure to leave.” (See 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 693, p. 1019 [“There may be trespass by personal intrusion of the wrongdoer or by his or her failure to leave; by throwing or placing something on the land”]; Civic Western Corp. v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1, 17 [“a trespass may occur if the party, entering pursuant to a limited consent, i.e., limited as to purpose or place, proceeds to exceed those limits by divergent conduct on the land of another”].)
Second, as discussed above, the uncontroverted facts established that, rather than being “thwarted” from removing his remaining belongings from the spa, appellant intentionally failed to remove them after repeated requests that he do so.
Appellant therefore failed to raise a triable issue of fact concerning his failure to remove his belongings from LTM’s property. The trial court properly granted the motion for summary adjudication regarding LTM’s claim for trespass in the cross-complaint.
2. Instruction on Implied in Fact Contract
We also find no error in the jury’s verdict on trial of LTM’s claim for breach of contract in the cross-complaint.
The instructions the trial court gave the jury included an instruction on implied in fact contract pursuant to CACI No. 305. Appellant contends the trial court reversibly erred in instructing the jury on “quasi contract” because that issue was not framed by the pleadings. We disagree.
CACI No. 305 states: “In deciding whether a contract was created, you should consider the conduct and relationship of the parties as well as all the circumstances of the case. [¶] Contracts can be created by the conduct of the parties, without spoken or written words. Contracts created by conduct are just as valid as contracts formed with words. [¶] Conduct will create a contract if the conduct of both parties is intentional and each knows, or has reason to know, that the other party will interpret the conduct as an agreement to enter into a contract.”
Appellant’s contention stems from an erroneous assumption that an instruction on implied in fact contract is the same as an instruction on “quasi-contract.” The Sources and Authority comment following CACI No. 305 makes clear that an implied in fact contract is different and distinct from the theory of quasi-contract. As the Advisory Committee on Civil Jury Instructions explained: “ ‘Unlike the ‘quasi-contractual’ quantum meruit theory which operates without an actual agreement of the parties, an implied-in-fact contract entails an actual contract, but one manifested in conduct rather than expressed words.’ ” (CACI No. 305 (Spring 2007 ed.) Sources and Authority, p. 85, quoting Maglica v. Maglica (1998) 66 Cal.App.4th 442, 455.) Contracts implied in fact are distinguishable from contracts implied in law, or quasi-contracts. “ ‘Quasi-contracts have often been called implied contracts or contracts implied in law; but, unlike true contracts, quasi-contracts are not based on the apparent intention of the parties to undertake the performances in question, nor are they promises. They are obligations created by law for reasons of justice.’ ” (1 Witkin, Summary of Cal. Law, supra, Contracts, § 103, p. 146, quoting Rest. 2d, Contracts, § 4, Comment b.) The jury, therefore, was not instructed on a quasi-contract theory when the court read CACI No. 305.
Moreover, CACI No. 305 was justified by the evidence. At trial, respondents provided evidence not only of an expressed oral contract between the parties but evidence of the parties’ course of dealing over the four-year period of their relationship. During closing argument, respondents pointed to evidence of the “hundreds and hundreds of checks” appellant had written containing reference to the “50-50 split” of collections he received from insurance carriers and of the checks the spa had written appellant reflecting payment of his 60 percent share of proceeds from spa clients pursuant to their agreement. An express contract differs from an implied in fact contract only in the means by which the parties reach an agreement. An express contract is stated in words (see Civ. Code, § 1620), while an implied contract is one manifested by conduct (see Civ. Code, § 1621). Express contracts are not different in kind from implied in fact contracts but are only different in terms of the evidence by which the agreement between the parties is shown. Express agreements are shown by the direct words of the parties, while implied in fact agreements are shown by the acts and conduct of the parties, interpreted in the light of the subject matter and of the surrounding circumstances. (Marvin v. Marvin (1976) 18 Cal.3d 660, 678, fn. 16.)
The trial court determined an instruction on implied in fact contract was “appropriate” under the facts presented at trial and that appellant had sufficient notice of the claim prior to trial. There accordingly was no error in the court’s instructing on implied in fact contract.
DISPOSITION
The judgment is affirmed. Respondents are to recover their costs on appeal.
We concur: COOPER, P. J.