Opinion
NOT TO BE PUBLISHED
Superior Court Ventura County No. SC041980, Frederick H. Bysshe, Judge
Moshe Perry, in pro. per., for Plaintiff and Appellant.
Saundra J. Byrnes, in pro. per., for Defendant and Respondent.
COFFEE, J.
Moshe Perry appeals from a judgment entered against him pursuant to Code of Civil Procedure section 631.8 on his action for defamation against Saundra J. Byrnes. Substantial evidence in the record supports the trial court's finding that appellant did not present sufficient evidence in his case-in-chief to support judgment in his favor. We affirm.
All statutory references are to the Code of Civil Procedure unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant and Byrnes were once in a romantic relationship. They have a son who suffers from autism and epilepsy. In October 2004, the child's therapist at the Child Development Institute (CDI) reported appellant to the Los Angeles Department of Children and Family Services (DCFS). DCFS investigated allegations that appellant had abused Byrnes and the child. Appellant and Byrnes separated later that year. In a separate action, Byrnes obtained sole custody of the child, with monitored visitation for appellant, and a restraining order protecting her from appellant.
In February 2005, appellant filed this action in which he alleges that Byrnes falsely accused him of domestic violence and emotional instability in statements to CDI, to DCFS, to the family court, and to appellant's cousins and friends. Appellant initially asserted a cause of action for defamation and six other causes of action.
In October 2006, the court sustained a demurrer to the first six causes of action of appellant's third amended complaint, without leave to amend, leaving only the defamation causes of action for trial. After trial, appellant appealed from the order sustaining the demurrer. In November 2008, we dismissed his appeal because he did not timely file an opening brief after he was granted several opportunities to do so. (Moshe Perry v. Saundra J. Byrnes, B203427.)
The case was initially set for trial July 23, 2007. In the first week of July, appellant moved for leave to amend his complaint and to vacate the order sustaining the demurrer to the first six causes of action, based on newly discovered evidence. He argued that recently discovered photographs that Byrnes took of her own injuries in 2003 proved that she had been plotting in advance to accuse him of abuse. The motion was not accompanied by a declaration under oath or a proposed pleading. The court heard the motion on shortened time and denied it.
Two days after the date initially set for trial, while the case was trailing, appellant renewed his motion for leave to amend and to reconsider the order sustaining the demurrer on the same grounds. The renewed motion was not supported by a declaration under penalty of perjury. The court denied the motion.
In the alternative, he moved to amend his third amended complaint "to adjudicate the remaining causes of action 1st through 6th."
Trial
The case was tried without a jury because appellant did not deposit jury fees. In his case-in-chief, appellant presented only the testimony of Byrnes and himself.
Byrnes testified that appellant abused her mentally, emotionally, physically and sexually during their relationship, and that he physically abused her in the presence of their son. She testified that she and appellant were sleeping in separate rooms in October of 2004. She awoke one night and saw appellant watching her from the bedroom doorway. When she opened her eyes he ran back to his room. The next day she found a large utility knife under her bed with the blade fully extended. She had never seen the knife before.
She "broke down emotionally" in front of her son's CDI therapist, who made a report to DCFS. She told the DCFS worker about the knife under the bed and answered the worker's questions. She knew that CDI was required to report any abuse of minor clients to DCFS. Byrnes said she left appellant in October 2004 because DCFS told her that they would take away her child if she did not separate from him within 28 days.
Byrnes acknowledged complaining to the police department in 2004 that appellant had violated a restraining order. She said the complaint was forwarded to the city attorney's office. Byrnes also agreed, in deposition testimony admitted at trial, that she may have told appellant's cousin Rickie Assaraf that she was concerned about appellant's parenting and that she was concerned he might hurt the child because he was unwilling to follow the advice of medical professionals concerning the boy's care.
By stipulation, the court received an October 2004 letter in which a CDI employee described an incident in which appellant disrupted the child's therapy session while the worker was demonstrating to Byrnes how to manage a tantrum. The worker reports that appellant said that therapy does not work and the boy responds better with more force.
The court also admitted a photograph of injuries to Byrnes's arm taken in August 2004. She testified that appellant inflicted the injury; appellant testified that she inflicted it upon herself. The court admitted photographs of an injury to Byrnes's back. Byrnes testified that appellant caused the injury to her during forceful sex; appellant testified it was a carpet burn that Byrnes got every time they had sex on the carpet. The court also admitted a photograph of an injury to appellant's shin. Byrnes testified that appellant was trying to kick her and injured his own shin when he missed and struck the door. Appellant testified Byrnes kicked him in the shin.
The court permitted appellant to testify in a narrative fashion. Appellant said that Byrnes hired an attorney in August 2004 and took photos in preparation for defaming him. He testified that she "defamed him" in October 2004 in front of his son's therapists at CDI, a DCFS caseworker, and appellant's cousins. He did not specify the defamatory statements and was apparently not present when they were made. He denied ever injuring, kicking, punching or blocking Byrnes. He testified that Byrnes had said he came from an abusive family, which he denied, and he presented photographs of his siblings to demonstrate he did not come from an abusive family. He also said that she discouraged him from participating in his son's therapy and then used his nonparticipation as evidence of disinterest to promote her position in the custody battle. He testified that Byrnes had conspired with his ex-wife for many years to falsely accuse him of abuse in order to take his children from him. He said that what he really wanted from the court was to have his children given back to him, and that if he could get that from the family court there would not be a lawsuit.
The court sustained hearsay and foundation objections to unauthenticated correspondence from DCFS that appellant offered to prove that it concluded Byrnes's allegations were unfounded. The court also excluded tape recordings of a telephone message appellant took from Byrnes's office voicemail without consent and a recording of a telephone conversation with a DCFS worker that he made without the worker's consent.
On the fourth day of trial, appellant moved to compel the attendance of several witnesses, including a CDI therapist and a DCFS worker, on the grounds that they had failed to appear in response to his trial subpoenas. The court denied his motion because the subpoenas were not issued by a clerk, judge or attorney.
During trial, appellant filed another motion to reconsider the order sustaining the demurrer to the first through sixth causes of action, on the same grounds previously presented. The trial judge denied the motion.
Judgment
At the conclusion of appellant's presentation of evidence, the court granted Byrnes's motion for judgment pursuant to section 631.8, subdivision (a), finding that appellant "did not introduce sufficient evidence in support of [his] cause of action" for defamation.
The court initially signed a proposed statement of decision in which it found appellant did not introduce "any" evidence. It later revised the statement of decision, finding that appellant did not introduce "sufficient" evidence. It made the revision after conducting a hearing on appellant's objections to the initial statement of decision. We glean these facts from a minute order. Appellant did not include in the record his objections to the initial statement of decision or a transcript of the hearing on his objections.
At oral argument, we granted appellant leave to file two documents which he described as orders, one of which referred to "any" evidence and one of which referred to "sufficient" evidence. After argument, appellant submitted eight documents and a twelve-page "Statement-In-Declaration." The two orders which refer to "any" and "sufficient" evidence are included; they are the initial and revised statements of decision that were already a part of the record on appeal. Having been previously considered, no change in this opinion is effected by the resubmission of these documents. The remaining six documents, and the "Statement-In-Declaration, " were filed without leave and have not been considered.
DISCUSSION
Motion to Reconsider Order Sustaining Demurrer to the First Six Causes of Action
Appellant contends that the court erred when it denied his motion to reconsider the order sustaining the demurrer, or for leave to amend to reinstate his first through sixth causes of action, based upon the "newly discovered" photographs of appellant's injuries. Appellant's initial motion to reconsider or for leave to amend, and his renewed motions, were properly denied. Aside from lacking merit, none of the motions were supported by a declaration executed under oath or accompanied by a proposed amended pleading. (§ 2015.5; Cal. Rules of Court, rule 3.1324.)
Jury Waiver
Appellant contends that he was entitled to a jury trial because he demanded one when he filed his complaint and he could not be required to deposit fees on shortened notice. Appellant did demand a jury when he filed his complaint, but he was not entitled to a jury trial because he did not timely deposit jury fees. The right to jury is waived in a civil case if the party requesting jury does not deposit jury fees 25 days before the date initially set for trial. (§ 631, subds. (b) & (d)(6).) The case was initially set for trial on July 23, 2007, and did not actually go to trial until October 18, 2007, but appellant never deposited jury fees. A party is generally entitled to 15 days notice of trial, but appellant waived notice in open court on July 10, 2007, when the court announced the initial July 23, 2007, trial date. Moreover, the court subsequently granted his request for trial continuance, and trial commenced more than 15 days after July 20.
Appellant's contention that he could not reasonably have been expected to deposit jury fees on October 18 when he was given oral notice that the case had been assigned to a courtroom for trial is without merit. The deadline ran from the initial trial date and had already passed. (§ 631, subds. (b) & (d).) Appellant argues that the county could have paid the jury's fees pursuant to section 631.1, but section 631.1 provides that "Nothing in this section shall be construed to change the requirements for the deposit of jury fees in any civil case by the appropriate party to the litigation at the time and in the manner otherwise provided by law."
The trial court had discretion to relieve appellant of his waiver but it did not abuse its discretion when it refused to do so because relief would have resulted in delay. (§ 631, subd. (e).) The court asked appellant directly whether he was prepared to immediately post fees if the court granted relief. Appellant equivocated, "I could give a deposit, your Honor... I can give $50 right now, " "Would your Honor give me some time, " and "I'm going to have to talk to somebody...." The court did not err when it denied the motion for jury trial.
Motion to Compel Appearance of Witnesses
The trial court properly denied appellant's motion to compel attendance of trial witnesses because the subpoenas were not properly issued. (§ 1985, subd. (c).) A trial subpoena may be issued by the court clerk, a judge, or an attorney at law. (Ibid.) Appellant issued the subpoenas himself and is not an attorney. We reject his argument that section 1985 is unfair to him because, as an in propria persona litigant, he is held to the same standards as an attorney. Appellant could have obtained proper trial subpoenas from the court clerk.
Exclusion of Recorded Message
We reject appellant's contention that the court erroneously excluded a tape recording in which a third party left a voice message for Byrnes. The recording was inadmissible. Evidence obtained as the result of recording a confidential conversation without the consent of all parties is inadmissible, except for the purpose of prosecution. (Pen. Code, § 632, subd. (d).) Appellant testified that he recorded the proffered message without Byrnes's consent, using her password to access her work voicemail.
Entry of Judgment
The trial court did not err when it entered judgment against appellant because substantial evidence supports a conclusion that Byrnes made no false unprivileged statements about him.
In a nonjury trial, a party may move for judgment at the conclusion of the other party's presentation of evidence. (§ 631.8.) The motion serves the same purpose as a motion for nonsuit, enabling the court to dispense with the need for a defendant to produce evidence if, after the court weighs the plaintiff's evidence, it is persuaded that the plaintiff has failed to sustain its burden of proof. (Roth v. Parker (1997) 57 Cal.App.4th 542, 549-550.) Section 631.8 authorizes the trial court to weigh the evidence, to make findings of fact, and to render judgment in favor of the moving party, or to decline to render judgment until the close of all evidence. If the court renders judgment, a statement of decision is required. (§ 631.8, subd. (a).)
We review a judgment entered pursuant to section 631.8 under the substantial evidence standard. (Jordan v. City of Santa Barbara (1996) 46 Cal.App.4th 1245, 1255.) It is the same standard that we use to review a judgment entered after a trial in which both sides have presented evidence. (San Diego Metropolitan Transit Development Board v. Handlery Hotel, Inc. (1999) 73 Cal.App.4th 517, 528.) "We resolve all evidentiary conflicts in favor of the prevailing parties, and indulge all reasonable inferences possible to uphold the trial court's findings. [Citation.]" (Jordan, supra, at pp. 1254-1255.) "[T]he power of the reviewing court begins and ends with the determination as to whether, on the whole record, there is substantial evidence, contradicted or uncontradicted, that will support the trial court's determination. [Citation.]" (San Diego Metropolitan Transit Development Board, supra, at p. 528.)
Appellant presented evidence from which a trier of fact could conclude that Byrnes harbored ill will toward him, but this is no substitute for evidence that she made false unprivileged statements about him. In order to prevail on his cause of action for defamation, appellant was required to prove that Byrnes made a false and unprivileged statement about him. (Civ. Code, § 46.) The trial court frequently reminded appellant of the elements to be proven during the presentation of his evidence. At trial, and on appeal, appellant focused instead solely upon Byrnes's motives.
In his complaint, appellant alleged that Byrnes falsely accused him of domestic violence. He attributed 12 specific statements to her. At trial, appellant did not ask about most of these statements. Byrnes denied making those about which he did ask. The court credited her denials. Appellant was not personally present for any of the statements and presented no other witness to contradict her testimony.
Byrnes did acknowledge saying some negative things about appellant, but her testimony supplied substantial evidence that her statements were true. She acknowledged that she had an emotional breakdown in front of a CDI therapist after appellant abused her, that she answered a DCFS worker's questions, that she told the worker that appellant did things to their son that doctors and behaviorists had told him not to do, that she found a knife under her bed, that she sought a restraining order against appellant, and that she reported appellant to 911 when her parents saw him leaving a Chuck E. Cheese restaurant with the child without a car seat.
There was substantial evidence of truth. Byrnes testified that, during the relationship, appellant abused her by grabbing her hair and shoving her head into a car door frame, that he "locked" her in the bathroom by holding the handle from the outside with force, that he caused skin burns to her back by engaging in aggressive sex when he was angry after she told him to stop, that he pushed her across a room into furniture, kicked her, hit her in the side of the head causing ear pain, and forced her to have intercourse against her will. She testified that appellant abused her in the presence of her son, that he spanked their son once after a doctor advised against spanking because of the child's seizure disorder, and that appellant perforated their son's eardrum using a curette that she saw him steal from a doctor's drawer after the doctor told him not to use it on his son's ears.
The court could reasonably conclude that the 911 report was not a false and unprivileged statement because false reports of criminal conduct to police officers are absolutely privileged even if made maliciously. (Civ. Code, § 47; Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 364; Bisno v. Douglas Emmett Realty Fund 1988 (2009) 174 Cal.App.4th 1534, 1550.) Also, Byrnes testified it was true that her parents had called her to report that appellant was taking her son, that she and appellant had agreed that he would only take the child to Chuck E. Cheese, and she was afraid that appellant would kidnap the child because he had previously told her that he would take his kids to Israel and that "we'll battle it out there." The testimony of one witness, even a party, may be sufficient to support the judgment. (Jordan v. City of Santa Barbara, supra, 46 Cal.App.4th at p. 1255.) Falsity of the report was not established by Byrnes's acknowledgement that the restraining order did not require appellant to stay away from the child, that it allowed "unmonitored visitation, " and that responding officers released appellant after he was questioned.
Appellant has other children by a dissolved marriage.
Appellant contends that Byrnes's testimony was not credible. He argues that her statement that DCFS told her to leave him was contradicted by a DCFS report that found the accusations unfounded, that she responded, "I do not recall, " to many questions, and that she made inconsistent statements about whether she had a boyfriend named Juan Navarro. The DCFS correspondence was not in evidence. The court properly sustained hearsay and foundation objections to it. Moreover, the trial court was authorized to weigh the evidence and, in doing so, to credit Byrnes and to refuse to believe appellant. (Jordan v. City of Santa Barbara, supra, 46 Cal.App.4th at p. 1255.) We will not disturb its credibility findings on appeal.
Before ruling on the motion for judgment, the court gave appellant an opportunity to present additional evidence pursuant to section 631.8, subdivision (a). In response, appellant spoke about Byrnes's ill will toward him, but did not offer any convincing evidence that she had made of any false unprivileged statements about him. The court did not err when it entered judgment.
Because appellant did not prove that Byrnes made any false defamatory statement, we do not reach his contention that a party who repeats a slanderous charge made by another is equally liable for slander. There was no evidence that Byrnes repeated any false statement. Similarly, the presumption that damages arise from a false accusation of criminal conduct does not arise here where there was no proof of any false and unprivileged accusation of criminal conduct. (Civ. Code, § 46.)
Statement of Decision
Appellant contends that the statement of decision was insufficient because it did not explain the factual and legal basis for the decision as to each of the principal controverted issue. Appellant's failure to provide an adequate record on the issue requires that the issue be resolved against him. (Defend Bayview Hunters Point Com. v. City and County of San Francisco (2008) 167 Cal.App.4th 846, 858-860.) Appellant did not include in the record his objections to the statement of decision or the transcript of the hearing on his objections.
Accusations of Witness Intimidation
The record does not support appellant's contention that Byrnes and her attorney intimidated potential witnesses and the record contradicts appellant's assertion that the trial court found that counsel committed misconduct. The court conducted an inquiry about witness contact, but made no findings of misconduct and decided not to report the matter to the State Bar or take any other action.
Claims Not Considered
We do not consider appellant's contentions, raised for the first time in his reply brief, that Byrnes's proposed statement of decision was untimely, that the court should have granted him a new trial in order to reconsider its credibility determinations, or that that a cause of action remains pending because the court never ruled on a "General Negligence" and "Exemplary Damages" attachment to his complaint. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 766.)
DISPOSITION
The judgment is affirmed. Respondent is awarded her costs on appeal.
We concur: YEGAN, Acting P.J., PERREN, J.