Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a postjudgment order of the Superior Court of San Diego County Ct. No. GIC807244, John S. Meyer, Judge. Affirmed.
O'ROURKE, J.
Plaintiff Marc Lair appeals from a supplemental postjudgment order in execution of a judgment for property (Code Civ. Proc., § 714.020, subds. (b), (c)) determining the value of certain personal property (a navigation/communication system or GPS) to be $9,000 and awarding that amount to defendant Ronald Vinci. Lair contends (1) the trial court violated his due process rights by admitting oral testimony from Vinci's witnesses at a hearing on that matter and (2) the navigation system, which had been installed in an aircraft awarded to Vinci in a judgment for possession, was not included within that judgment and cannot be subject to the supplemental order under section 714.020. We reject these contentions and affirm the order.
All statutory references are to the Code of Civil Procedure unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
This is the third appeal arising out of disputes between Lair and Vinci, the background of which is recited and summarized in prior decisions. (Lair v. Vinci (Dec. 5, 2005, D043433) [nonpub. opn.]; Lair v. Vinci (Oct. 7, 2008, D048964) [nonpub. opn.].) This appeal stems from Vinci's attempt to enforce a May 11, 2006 judgment awarding him possession of a Beechcraft Baron aircraft (the Baron). In our October 2008 opinion, we held the Baron was security for obligations owed by Lair to Vinci under their option agreement. (Lair v. Vinci, supra, D048964, at pp. 6, 16-20.)
In April 2003, the trial court granted Lair's application to substitute the Baron in place of a different aircraft as collateral for Lair's obligation under an option agreement.
In June 2006 Vinci took possession of the Baron and found it stripped of its Garmin GNS 530 navigation/communication system (Garmin GPS) and two third row seats. On September 11, 2006, Vinci applied ex parte for an order directing Lair to turn over to him that property as well as specified documentation required to be with the aircraft. After the trial court set the matter for a noticed hearing, Lair filed an opposition asserting, among other things, that the Garmin GPS and rear seats were not part of the substituted collateral awarded to Vinci in the May 2006 judgment. Specifically, Lair claimed that when the Baron was substituted as collateral, it was equipped with a different GPS (a King KLN 89 GPS), and he only installed the Garmin GPS temporarily while the King GPS was being serviced. He asserted he was no longer in possession of the Garmin GPS. Lair also maintained he had purchased the third row seats to use in his business after the substitution of the Baron as collateral, and those detachable rear seats never became part of the collateral.
Vinci replied with evidence that on September 14, 2006, only days after he had applied for the turnover order, Lair had sold the Garmin GPS on an Internet auction site for $8,400 and put the Baron's two rear seats up for bid. He also submitted declarations from Lawson Brown, George Johnson, and Danny Bowen pertaining to the state of the Baron at the time of its sale to Lair and at the time of its appraisal in April 2003. Brown, an aircraft broker who had inspected and valued the Baron at the parties' request, stated that the aircraft was equipped with the Garmin GPS and all six of its matching seats in April 2003. Brown stated a new Garmin GNS 530 costs approximately $24,900 with the optional Terrain Awareness Warning System (warning system), and approximately $14,900 without the warning system, but that he believed the Baron's GPS included a warning system. According to Brown, the Garmin GPS was not a removable component but a permanent fixture and integral part of the Baron, which had to be specifically configured to work with that system. Brown stated that as a matter of common knowledge and custom and practice based on his 23 years of experience in aircraft sales, when a GPS is installed in an aircraft, it is considered a permanent fixture to stay with the aircraft upon its sale or transfer to another owner. Brown averred he had brokered a sale of the Baron by Vinci to a third party that included a provision that the Baron's price would be reduced by $10,000 in the event the missing seats and Garmin GPS could not be returned. Johnson, the broker for the sale of the Baron to Lair, and Bowen, the seller, each averred that at the time of the sale to Lair, the Baron was equipped with all six of its original seats.
On October 17, 2006, Vinci applied ex parte for an order that Lair be found in contempt based on his conduct and prohibiting further transfer of any parts of the Baron pending the hearing on his request for a turnover order. The trial court set Vinci's request for hearing on December 15, 2006. The next day, Lair filed an amended declaration stating he had delivered the Baron's rear seats to Crown Air two days earlier. He repeated his assertions about the Baron's GPS, stating he did not have possession, custody or control of either the King GPS or the Garmin GPS. Lair also submitted objections to the declarations of Brown, Johnson and Bowen.
The Baron's rear seats, which were apparently returned to Vinci, are not at issue on this appeal.
The hearing on Vinci's request for a turnover order took place on October 20, 2006. Overruling Lair's objections to Vinci's evidence, the trial court declined to issue a turnover order for the Garmin GPS given Lair's sale of that item to a third party, but ruled Lair was not relieved of liability for damage caused to the Baron while it was in his possession. The court also ordered Lair to return the seats to Vinci and denied without prejudice a request by Vinci to conduct discovery pending appeal. At Vinci's request, the court reluctantly set the issue of the Garmin GPS's value for hearing on the same day as the contempt trial.
On December 5, 2006, the trial court granted Vinci's ex parte request for an order permitting depositions of Johnson and Bowen to proceed before the hearing. That day, Vinci served a notice of that ruling on Lair stating in part: "The Court ordered that the previously noticed depositions of Mr. Bowen and Mr. Johnson shall proceed at a time prior to the date of the Contempt proceeding scheduled for December 15, 2006. [¶] PLEASE TAKE FURTHER NOTICE THAT the Court confirmed that the Court will hear testimony and receive evidence on December 15, 2006, regarding the issue of the valuation of the equipment removed from the Baron Aircraft by Lair."
At the ensuing contempt/valuation hearing, the court allowed Vinci to present oral testimony from three witnesses, including Brown, over Lair's objection on grounds Vinci had not complied with notice requirements of former California Rules of Court, rule 323 (renumbered rule 3.1306 eff. Jan. 1, 2007, hereafter rule 3.1306). Brown testified that the Baron had been modified to fit the Garmin GPS at some point before Vinci took possession of the Baron, that a new Garmin GPS would cost $17,000, and that it would cost between $4,000 and $5,000 to install such a unit in the Baron. According to Brown, once such a radio is installed into an aircraft and removed, one cannot simply slide a different radio into the spot without installing new racks and rewiring the system to match; in his opinion based on custom and practice with small aircraft, when a navigation communication system such as the Garmin is installed, it is considered a permanent part of the airplane. Brown testified he had purchased a used Garmin 530 GPS for $8,995, had it installed in the aircraft, and had located a buyer who agreed to purchase the Baron for $180,000. Brown testified that the cost of the replacement Garmin GPS, which did not have the same upgrades as that removed from the Baron, came out of Vinci's proceeds from the sale. According to Brown, based on the missing equipment on the Baron (including a cabin table that Brown estimated he could purchase for $1000), the net loss to Vinci on the Baron's sale was $9,995.
Following the presentation of testimony, the court made factual findings related to the valuation issue: "What happened in this case quite clearly is that Lair had an airplane, he had a navigation system in it, he had a third row of seats, he had a table. He pledged it to Vinci for collateral. On a note. Things blew up between the parties, there was a lot of litigation, a lot of hard feelings. [¶] Over Vinci's repeated objections, Lair was allowed to fly the airplane. It ultimately came to pass that Vinci prevailed, got possession of the airplane. There was a turnover order. Unbeknownst to anybody including the court, and you can correct me, Mr. Vivoli, if I'm wrong, or anybody that wants to, Lair never told anybody that he put in a new navigation system. Never told anybody that he removed the seats and table. [¶] So when the inevitable happened and Lair was ordered to turn over the plane, he unilaterally, without notice to the court or anybody else, removed the Garmin radio, removed the third row of seats and removed the radio. [¶] . . . [¶] . . . [I]n any event, at the time the court ordered the plane to be given to Vinci, the court's understanding was that the plane would be in the condition it was in at the time. And it would seem that if Lair had upgraded the navigation system, he should have made that an issue. I mean, so what happens is, based on the testimony of [Brown], Vinci gets his plane – gets his plane, that formerly belonged to Lair, and it's, it can't be flown because it doesn't have a workable navigation system. The third row of seats is back in, it doesn't have a table, assuming that the table should have been in. So, Vinci ends up getting less than he should have gotten. [¶] And I don't know whether the navigation system is a fixture or not but under the circumstances of this case, it's not like the old navigation system can be replaced. So the loser is Vinci. So it seems that Lair should pay Vinci something."
The court heard argument on the matter and ordered Lair to pay Vinci $9,000. Several months later, it issued a supplemental order overruling Lair's objection to the presentation of oral testimony under rule 3.1306 and granting Vinci's request for the order under Code of Civil Procedure section 714.020, subdivision (b). It determined the value of the Garmin GPS to be $9,000 and awarded Vinci that sum against Lair.
DISCUSSION
I. Admission of Oral Testimony
Lair contends the trial court erred by admitting the oral testimony of Vinci's witnesses at the combined contempt/valuation hearing. He argues Vinci did not comply with the mandatory procedural requirements of rule 3.1306 because he did not file and serve any written statement identifying any of his witnesses and the nature and extent of their oral testimony. Citing Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, Lair maintains the trial court's error violated his due process rights and was reversible per se, not subject to the harmless error doctrine.
Rule 3.1306(a) provides: "Evidence received at a law and motion hearing must be by declaration or request for judicial notice without testimony or cross-examination, unless the court orders otherwise for good cause shown." (Italics added.) Subdivision (b) provides that a party seeking to introduce oral evidence "must file, no later than three court days before the hearing, a written statement stating the nature and extent of the evidence proposed to be introduced and a reasonable time estimate for the hearing." (Cal. Rules of Court, rule 3.1306(b).) If the proponent files the written statement less than five court days before the hearing, he or she must serve a copy on the other parties as to assure delivery to them no later than two days before the hearing. (Ibid.)
The trial court admitted Brown's testimony at the hearing, expressly overruling Lair's objection on rule 3.1306 grounds. We imply from the court's ruling a finding that Vinci demonstrated good cause to present that evidence and review that evidentiary ruling for abuse of discretion. (Evid. Code, § 402, subd. (c) [a ruling on admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute]; City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900; People v. Smith (2003) 30 Cal.4th 581, 627 [applying standard to admission of expert testimony].) The court's exercise of discretion will be upheld if it is based on reasoned judgment and complies with legal principles and policies appropriate to the specific matter at issue. (Velez v. Smith (2006) 142 Cal.App.4th 1154, 1160-1161; Bullis v. Security Pacific National Bank (1978) 21 Cal.3d 801, 815.)
Lair has not shown the court abused its discretion in admitting Brown's testimony. Importantly, Lair does not address whether or not the record supports the court's implied finding of good cause, he merely challenges Vinci's compliance with the requirements of rule 3.1306. But contrary to Lair's assertion, the aforementioned rule does not require the proponent of the evidence to identify his or her witnesses, it requires only a written statement of the "nature and extent of the evidence proposed to be introduced . . . ." Here, Vinci filed briefing in September 2006 in which he submitted the declaration of expert Brown as to the value of the Garmin GPS, and asked the court to set an evidentiary hearing to ascribe a value to that item. At the October hearing, Vinci's counsel advised the court (in the presence of Lair's counsel) that he would prove the value of the Garmin GPS by presenting Brown as a witness. Ten days before the hearing, Vinci filed a notice of ruling in which he notified Lair that the court had agreed to hear testimony on the valuation of the equipment removed from the Baron. Vinci argues his brief and the notice of ruling constitute written statements specifying the "nature and extent" of the proposed evidence. Lair has not convinced us that Vinci's written filings, either in form or content, did not meet the rule requirements for purposes of assessing the trial court's discretion in admitting Brown's oral testimony at the hearing.
We need not further discuss the point, because even assuming error, Lair has not demonstrated he was prejudiced by the ruling. "The erroneous admission of expert testimony only warrants reversal if 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' " (People v. Prieto (2003) 30 Cal.4th 226, 247, citing People v. Watson (1956) 46 Cal.2d 818, 836; see Elsner v. Uveges (2004) 34 Cal.4th 915, 939.) We reject Lair's contention that any error in admitting the testimony denied him a fair trial and is reversible per se; the sole authority he cites holds that denying a party the right to testify or offer evidence is per se reversible error. (Kelly v. New West Federal Savings, supra, 49 Cal.App.4th at p. 677.) In Kelly, the trial court's in limine motions precluded the plaintiffs from pursuing the only factual theory of liability supported by the evidence. (Id. at pp. 667-668; Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1432.) Lair does not argue he was prevented from fully presenting his case, nor does he argue he would have presented oral testimony or other evidence of his own had he known the court would consider Brown's testimony. Thus, Kelly is inapposite. Indeed, under the circumstances recited above, Lair cannot say he was unaware that Vinci was planning to offer Brown's testimony at the hearing. Further, Lair took the opportunity to cross-examine Brown about his opinions.
In any event, Lair does not explain how there is a reasonable probability that in the absence of Brown's testimony, the outcome of the hearing would have been more favorable to him. As Vinci points out, the trial court had before it Brown's written declaration attesting to the value of a new Garmin GPS of the same model previously installed in the Baron. That value ($24,900 with the warning system, and $14,900 without the warning system) was substantially higher than the value of the replacement Garmin GPS testified to by Brown at the hearing and adopted by the trial court. On this record, admission of Brown's oral testimony inured to Lair's benefit; that is, it is reasonably probable its inclusion resulted in an outcome more favorable to Lair than without the testimony. Because Lair has not shown prejudice, there is no basis to reverse the order.
II. Award of Value of Garmin GPS to Vinci
Lair contends the Garmin GPS was not subject to enforcement as a money judgment under section 714.020, subdivision (b) because it was not included with the Baron when it was substituted as collateral. Asserting the "[j]udgment does not award Vinci anything beyond the Beechcraft Baron as it was when substituted as collateral," Lair points to evidence that the Garmin was not installed until November of 2005 and then only temporarily while the King GPS was being serviced. Lair faults Vinci for not providing authority to substantiate his claim that Lair's temporary use of the Garmin made it part of the collateral awarded by the judgment.
Section 714.020, subdivision (b) addresses execution of a writ of possession for personal property when the property cannot be taken into custody. It provides: "If the property specified in the writ of possession cannot be taken into custody, the levying officer shall make a demand upon the judgment debtor for the property if the judgment debtor can be located. If custody of the property is not then obtained, the levying officer shall so state in the return. Thereafter the judgment for the possession of the property may be enforced in the same manner as a money judgment for the value of the property as specified in the judgment or a supplemental order."
Lair's arguments ignore key fundamental principles of appellate review, namely that this court presumes the correctness of the trial court's order unless the appellant affirmatively shows error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Further, we indulge all intendments and presumptions in favor of its correctness. (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 718.) That is, we accept as true all evidence tending to establish the correctness of the order, taking into account all inferences that might reasonably gave been thought by the trial court to lead to the same conclusion. (GHK Associates v. Mayer Group, Inc. (1990) 224 Cal.App.3d 856, 872.)
Though he maintains the question he raises presents a pure legal issue, Lair does not provide any meaningful analysis of either the judgment of possession, section 714.020 under which Vinci sought his supplemental order, or the statutory scheme for executing a writ of possession for personal property. We cannot ascertain legal error in the trial court's order solely from the language of section 714.020. Rather, the trial court here plainly resolved disputed factual issues over whether the Garmin GPS was Lair's personal property or property belonging to the Baron. It ruled that when Vinci obtained the Baron without a workable navigation system (effectively grounding the aircraft), he received less than what he should have gotten as collateral, entitling him to the value of the Garmin GPS. From this ruling, we imply a finding that the Garmin GPS became part of the collateral upon its installation; a factual finding we will uphold if supported by substantial evidence. (See People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1143-1144; Brack v. Omni Loan Co., Ltd. (2008) 164 Cal.App.4th 1312, 1320; Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 798.) It is immaterial that the court did not decide whether the Garmin GPS was a permanent fixture of the Baron; we review the trial court's result, not its rationale. (People v. Campbell (1994) 23 Cal.App.4th 1488, 1494; see also Schubert v. Reynolds (2002) 95 Cal.App.4th 100, 110; California Aviation, Inc. v. Leeds (1991) 233 Cal.App.3d 724, 731.) "[A] ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason." (Davey v. Southern Pac. Co. (1897) 116 Cal. 325, 329.)
Under this standard, Brown's oral testimony as well as his written declaration established that as a matter of custom relating to small aircraft, the Garmin GPS, due to the need for extensive wiring and configuration with the particular plane, was considered a permanent component of the Baron before its delivery to Vinci. Brown further established that Vinci spent $8,995 to install a replacement system. This constitutes substantial evidence to support the court's supplemental order awarding Vinci $9,000 under section 714.020.
DISPOSITION
The order is affirmed.
WE CONCUR: McCONNELL, P. J., HALLER, J.