Opinion
H044041
11-05-2019
THANH-TAM T. PHAM, Plaintiff and Respondent, v. HIEU M. NGUYEN et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 113-CV-256810)
This is a business dispute between plaintiff and respondent Thanh-Tam T. Pham and defendants and appellants Hieu M. Nguyen and Be Saigon Plaza, LLC (BSP LLC). (Hereafter Nguyen and BSP LLC are sometimes collectively referred to as appellants.) As best we are able to glean from the incomplete record before us, the dispute concerns commercial property in Sacramento sometimes referred to as Little Saigon Plaza (Plaza). In April 2014, Pham filed a complaint against appellants alleging claims that included a claim for breach of contract. The case proceeded to a six-day court trial that was concluded on November 23, 2015. After submission of post-trial briefs, the court on August 18, 2016, entered judgment in favor of Pham, awarding her $300,000 on a first cause of action for breach of contract, and $155,000 on a second cause of action for breach of a separate contract.
Appellants assert that the trial court erred. As best this court can determine, appellants' challenges consist of (1) a claim that there was no substantial evidence supporting the court's findings that Pham was entitled to judgment; and (2) a claim that the court abused its discretion by limiting the cross-examination of Pham by appellants' counsel. We reject appellants' claims of error and will therefore affirm the judgment.
No respondent's brief was filed on behalf of Pham, and accordingly, Nguyen did not file a reply brief. (See Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1203 [failure of respondent to file brief is not treated "as a 'default' (i.e., an admission of error) but [appellate court] independently examine[s] the record and reverse[s] only if prejudicial error is found"].)
I. APPELLANTS' NONCOMPLIANT BRIEF
Our consideration of the merits of this appeal is significantly impaired by appellants' material noncompliance with rules of appellate procedure. As discussed below, this noncompliance may be generally categorized as involving appellants' failure to (1) procure an adequate appellate record, (2) provide a summary of the procedural history and summary of facts of this case in their opening brief, and (3) include proper citations to the record in their opening brief.
A. No Adequate Record
Appellants filed a timely notice of designating the record on appeal, including a request for a clerk's transcript. They, however, failed to designate documents essential for our review of the judgment, including Pham's original complaint, Pham's first amended complaint, and appellants' answer to first amended complaint. The latter two documents were specifically referred to in appellants' opening brief. Because the complaint sets forth the cause or causes of action upon which a plaintiff may recover against the defendant at trial (Howard v. Schaniel (1980) 113 Cal.App.3d 256, 265-266), the absence of Pham's first amended complaint here presents a substantial impediment to our review of this case.
Additionally, it is most significant that the trial court's tentative decision, apparently filed April 21, 2016—and which was recited in the judgment as being the court's statement of decision—was not included in the record. The documents that appellants designated for inclusion in the clerk's transcript consisted of, inter alia, the tentative decision, separate written objections to the tentative decision filed on behalf of appellants and Pham, and an order of the court of May 18, 2016, directing Pham to prepare a proposed judgment. The clerk of the superior court thereafter certified that none of these four documents could be located in the court's files.
The significance of the tentative decision's absence here—which the judgment reflects ultimately became the court's statement of decision—cannot be understated. "The statement of decision provides the trial court's reasoning on disputed issues and is [the appellate court's] touchstone to determine whether or not the trial court's decision is supported by the facts and the law." (Slavin v. Borinstein (1994) 25 Cal.App.4th 713, 718; see also Miramar Hotel Corp. v. Frank B. Hall & Co. (1985) 163 Cal.App.3d 1126, 1129 [statement of decision "may be vitally important to the litigants in framing the issues, if any, that need to be considered or reviewed on appeal . . . [and] may render obvious the futility of an appeal"].)
The record does not disclose that, after the clerk of the superior court certified the unavailability of the tentative decision and other documents, appellants took any responsive action. For example, appellants did not—as one would think it appropriate to do in order to present to the appellate court essential documents from the trial court—file a motion to augment the record under rule 8.155(a) of the California Rules of Court. It is manifest that a timely motion to augment here seeking inclusion of critical documents in the appellate record, including the tentative decision, would have been meritorious.
"(a) Augmentation [¶] (1) At any time, on motion of a party or its own motion, the reviewing court may order the record augmented to include: [¶] (A) Any document filed or lodged in the case in superior court; or [¶] (B) . . . [¶] (2) A party must attach to its motion a copy, if available, of any document or transcript that it wants added to the record. . . . If the reviewing court grants the motion it may augment the record with the copy." (Cal. Rules of Court, rule 8.155.) All further rule references are to the California Rules of Court.
The party challenging the trial court's ruling has the burden of showing reversible error by an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) When there is an inadequate record, we must presume any matters that could have been presented to support the trial court's order were in fact presented, and we may affirm the trial court's determination on that basis. (Bennett v. McCall (1993) 19 Cal.App.4th 122, 127 (Bennett).) An appellant's failure to present an adequate record will result in the issue being resolved against appellant. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296); see also Bains v. Moores (2009) 172 Cal.App.4th 445, 478 [rejecting claim that demurrer improperly sustained where appellant failed to present adequate record by including operative complaint and demurrers].)
Here, appellants have failed to present the relevant, essential documents from the court below that are necessary to adequately address their challenge to the judgment in this appeal. Included among those documents are ones they did not designate for inclusion in the clerk's transcript (complaint, first amended complaint, and answer to first amended complaint), and documents appellants did designate but were not produced by the clerk of the superior court and which appellants could have sought to be included in the appellate record by augmentation motion (tentative decision, parties' respective objections to tentative decision, and May 18, 2016 order). We will presume that any matters that could have been presented by Pham in support of the trial court's judgment were in fact presented. (Bennett, supra, 19 Cal.App.4th at p. 127.) And because appellants have failed to provide the statement of decision that apparently was prepared by the trial court, we will proceed as though there was none, and will look only to the judgment to determine error. (In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 648.)
B. No Statement of Procedural History or Summary of Facts
The opening brief of appellants is not in compliance with the California Rules of Court. The brief does not include a requisite summary of the relevant procedural history of the case, including a plain statement of "the nature of the action, the relief sought in the trial court, and the judgment or order appealed from," all as required by rule 8.204(a)(2)(A). Although the opening brief has a section entitled "facts and procedures" (capitalization and emphasis omitted), there is no discussion of the procedural history of the case in this six-page section of the brief. This noncompliance with the California Rules of Court by providing an adequate procedural background of the case impairs this court's ability to consider this appeal. (See William Jefferson & Co., Inc. v. Orange County Assessment Appeals Bd. No. 2 (2014) 228 Cal.App.4th 1, 6, fn. 2 [finding "opening brief is 'seriously defective' because it fails to provide either a statement of facts or a summary of the relevant procedural history"].)
In addition, an appellant is required in its opening brief to "[p]rovide a summary of the significant facts limited to matters in the record." (Rule 8.204(a)(2)(C).) Although the "facts and procedures" (capitalization and emphasis omitted) section of appellants' brief includes an argumentative discussion of claimed facts with limited citations to the record, this does not satisfy the California Rules of Court of providing this court with "a summary of the significant facts limited to matters in the record." (Ibid., italics added; see Evans v. Centerstone Development Co. (2005) 134 Cal.App.4th 151, 166 [summary of facts in opening brief noncompliant because "recitation was not in summary style, was overly lengthy, and included irrelevant information and argument"].)
C. Failure to Include Proper Record Citations
Appellants' opening brief is replete with statements of specific factual matters upon which they base their claim of error. Although appellants, in some instances, follow statements in their brief with references to the reporter's transcript or trial exhibits, there are numerous instances in which alleged facts from the record are asserted without citations to the record. For example, much of the narrative describing Pham's alleged actions in investing money to purchase the subject property and later efforts to recoup a lost investment by soliciting "potential unsuspecting purchasers" was not accompanied by citations to the record showing where the evidence supporting appellants' narrative was presented at trial. Other statements in the opening brief that are unsupported by citations to the record include (1) Pham's claim that she invested in and was a member of the Mutual Investment Purchase Agreement (MIPA), (2) Nguyen's alleged reliance upon Pham to take care of business matters while he was involved in other business and travelling between the United States and Vietnam, (3) BSP LLC's financial decline after 2009, and (4) appellant's allegation that Pham "absconded with an amount of $180,000.00 of Defendant's funds."
In appellants' 26-page opening brief, there are in excess of 30 factual assertions for which citations to the record were required under rule 8.204(a)(1)(C) but were not provided.
Appellants' failure to include citations to the record in their appellate brief constitutes a violation of rule 8.204(a)(1)(C), which requires that every brief "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." "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. [Citations.] We can simply deem the contention to lack foundation and, thus, to be forfeited. [Citations.]" (In re S.C. (2006) 138 Cal.App.4th 396, 406-407; see also Yeboah v. Progeny Ventures, Inc. (2005) 128 Cal.App.4th 443, 451 (Yeboah) [factual statements in briefs "not supported by references to the record may be disregarded" by the reviewing court].)
Additionally, appellants, where they have provided citations to the reporter's transcript, have done so in a manner that does not comply with rule 8.204(a)(1)(C). A number of the record citations are to a block of pages, spanning as many as 10 pages for a single citation. A party's "citation to a reporter's transcript with block page references, for example, 'RT Vol 6, 2480-2501,' frustrates this court's ability to evaluate which facts a party believes support [that party's] position, particularly when a large portion of that citation referred to points that appeared to be irrelevant." (Nazari v. Ayrapetyan (2009) 171 Cal.App.4th 690, 694, fn. 1; see also Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205 ["exact page citations" to the appellate record are required].)
We note further that several of the citations to the reporter's transcripts purporting to reference support for facts alleged in appellants' opening brief are to a discussion between counsel and the court about exhibits, not to testimony presented at the trial.
An additional, more technical, deficiency with respect to all of appellants' citations to the record is the failure to include the volume number where the page or pages cited may be found. (See rule 8.204(a)(1)(C) [requiring "citation to the volume and page number of the record where the matter appears"].) In larger-record cases (such as this case), where the reporter's and clerk's transcripts consist of multiple volumes, the obvious purpose of the rule is to reduce the time required for the appellate court to locate the citation.
The difficulty presented by appellants' failure to include record citations in support of their factual assertions is heightened in this case where the record—from a six-day trial consisting of a reporter's transcript of approximately 800 pages involving extensive testimony by multiple witnesses and the introduction of many exhibits—is extensive. " 'We are a busy court which "cannot be expected to search through a voluminous record to discover evidence on a point raised by [a party] when his brief makes no reference to the pages where the evidence on the point can be found in the record." ' [Citations.]" (Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 745.) We will therefore disregard appellants' factual contentions purporting to represent the evidence adduced at trial below for which they have failed to provide citations to the record. (Yeboah, supra, 128 Cal.App.4th at p. 451.)
A further difficulty with appellants' failure to include citations to the record in support of facts raised in the opening brief is that without citations to the record, we are at a loss to know whether those purported facts were actually part of the record below, or are extraneous matters that were not considered, by the trial court. Factual matters outside of the appellate record will not be considered by the appellate court and such matters should not be referred to in the briefs. (Banning v. Newdow (2004) 119 Cal.App.4th 438, 453, fn. 6.)
II. GENERAL STATEMENT OF THE CASE
Because appellants failed to present a factual summary, we have drawn from the trial briefs submitted by the parties to construct a general outline of the case. The two briefs present very divergent views of what transpired between the parties. We briefly summarize those views here to provide some context for this case.
Of course, these trial briefs are not evidence, and we do not consider them for purposes of addressing the merits of appellants' claims of error.
A. Pham's Trial Brief
According to her trial brief, Pham entered into a purchase agreement in June 2009 to buy a partially completed business condominium complex in Sacramento, the Plaza, by obtaining the lender's agreement to a "short sale" in the amount of $11,000,000. The purchase agreement provided that she was making "a $300,000 'non-refundable deposit.' " After Pham's investors withdrew from the transaction, she obtained a commitment from Nguyen to buy the Plaza with her, with him telling her he thought he could resell it for $17,000,000 to "Mr. Be" who lived in Saigon. Nguyen required that the property name be changed to Be Saigon Plaza, and Nguyen prepared operating instructions for Pham to sign on September 3, 2009; the document provided that in exchange for Pham's $300,000 investment, she would receive a 30 percent ownership interest in BSP LLC. Records show that the Plaza was purchased by BSP LLC on September 18, 2009, with Pham making a payment of $300,000, Nguyen making a down payment of approximately $4.5 million, and Bridge Bank funding the balance with two loans.
Sometime after the close, Nguyen told Pham that he wanted to obtain her 30 percent ownership. On December 1, 2009, Nguyen's attorneys prepared a MIPA that the parties executed. It provided that if Pham relinquished her ownership interest, Nguyen would pay her $300,000 within 30 days. Nguyen did not make the payment, "mak[ing] numerous excuses . . . [and] saying he would do so upon sale of the Plaza, which she naively believed."
Nguyen also requested that Pham manage the Plaza, as confirmed in a December 7, 2009 e-mail that was entitled "Leasing, Management and Construction—Agent Authorization." Pham undertook this task for approximately 36 months. At one time, Pham told Nguyen that her services were worth at least $5,000 per month; Nguyen said they were worth more than that, and he would pay her when the Plaza sold.
In April 2013, outside of a courtroom, in response to Pham again asking when she would be paid, Nguyen responded that "he owed her nothing." The lawsuit ensued one year later. Shortly after its filing, Nguyen transferred the Plaza to a third party "[non-armslength]" to the living trust of a neighbor for approximately $2 million and that party thereafter transferred it to Nguyen's "solely owned LSP-Sacramento LLC."
B. Nguyen's Trial Brief
Pham and her family invested money in 2005 and 2008 to develop the Plaza. In June 2009, Pham entered into an agreement to purchase the Plaza for $12 million, including a cash deposit of $300,000. The agreement "included financing and an agreement that the deposit provided by Tammy Pham would become nonrefundable when [she] waived the contingencies. Unfortunately, the inability of Tammy Pham to obtain necessary financing resulted in the loss of her cash deposit." When Pham became aware that her deposit would be lost, she drafted a handwritten purchase agreement in August 2013 under which Nguyen would make an all-cash purchase of the Plaza for $17 million. This handwritten agreement "was actually invalid and unenforceable . . . [because] Pham had no ownership interest in Little Saigon Plaza and so had no right to sell [it]."
It is unclear from appellants' trial brief whether this handwritten purchase agreement (1) was drafted in 2013, as stated in their trial brief, or whether this was a typographical error and the date was much earlier, and (2) was signed by Nguyen.
In September 2009, Nguyen entered into his own agreement to purchase the Plaza from the owner, Little Saigon Plaza, LLC., through its agent, for $11 million. Pham indicated to Nguyen that she could serve as a liason with the seller and offered to assist in closing Nguyen's transaction to buy the Plaza. She did not disclose to Nguyen that she was secretly motivated to recoup the lost deposit and her family's investments in the Plaza and "continued to take advantage of Mr. Nguyen" in doing so. He relied on Pham to assist with the loan for the purchase of the Plaza and the formation documents for BSP LLC. Appellants stated in their trial brief that documents obtained from discovery had disclosed that Pham "was never a valid member of BSP [LLC] and therefore, could never have participated in a valid [MIPA] related to BSP [LLC]," as claimed by Pham.
Appellants asserted in their trial brief that Pham's claims to a financial stake in BSP LLC were "illogical," based upon her claim that from her $300,000 investment, she had acquired a 30 percent interest in BSP LLC (that owned the Plaza valued at $11 million), while Nguyen invested $4.05 million for a 70 percent interest in BSP LLC. They also asserted in their trial brief that after BSP LLC began experiencing financial difficulties, Pham never "participate[d] in any financial efforts to rescue the [Plaza] from foreclosure," while Nguyen expended substantial sums on receivership and foreclosure costs. And appellants argued that Pham had failed to produce documentary evidence showing that she was a member of BSP LLC.
III. PROCEDURAL BACKGROUND
Our understanding of the procedural history of this case is limited, due to appellants' failure to procure an adequate record and their noncompliant opening brief as discussed above. Based upon what is available before us, the relevant procedural history follows.
On April 28, 2014 (according to Pham's trial brief), Pham filed the instant lawsuit against appellants. Based upon the recitation in the court's judgment, and statements contained in appellants' opening brief—the latter of which we will treat here as representations to this court—Pham at some later date filed a first amended complaint (complaint) that alleged six causes of action: (1) breach of contract, the MIPA; (2) breach of contract, the Agent Authorization Agreement (AAA); (3) negligent misrepresentation; (4) intentional misrepresentation; (5) fraud; and (6) rescission of contract, the MIPA.
The case proceeded to a six-day court trial in 2015, commencing on October 26 and concluding on November 23, 2015. The court, after submission of post-trial briefs, filed its tentative decision on April 21, 2016. Because neither party served proposals or objections, the tentative decision became the statement of decision by the court. The court issued an order on May 18, 2016, directing that Pham prepare, serve, and submit a proposed judgment consistent with the court's statement of decision. Pham complied by submitting thereafter a proposed judgment, but the trial court rejected it because Pham had failed to indicate whether she was electing the remedy of rescission of the MIPA (sixth cause of action) in lieu of the recovery of damages. The court in an order of July 21, 2016, advised that Pham should file "an election to either recover damages for breach of the MIPA and the [AAA] or to rescind those agreements." Pham filed an election to recover monetary damages on August 15, 2016 (which election is not part of this record).
Because significant documents such as the tentative decision, respective objections by appellants and Pham to the tentative decision, the May 18, 2016 order, and Pham's proposed judgment are not part of the record, our recitation of the procedural history after the trial was completed is based upon recitals contained in the court's July 21, 2016 order regarding election of remedies and its August 18, 2016 judgment.
On August 18, 2016, the court filed the judgment in favor of Pham. The judgment provided specifically that (1) Pham was entitled to recover $300,000 on the first cause of action for breach of contract (the MIPA); (2) Pham was entitled to recover $155,000 on the second cause of action for breach of contract (the AAA); (3) Pham would take nothing on the third, fourth, and fifth causes of action; (4) Pham had elected to forgo rescission under the sixth cause of action; and (5) Pham was entitled as the prevailing party to attorney fees and costs and could seek an award of interest under Civil Code section 3287, subdivisions (a) and (b).
Appellants filed a timely notice of appeal from the judgment.
IV. DISCUSSION
A. Standards of Review
" 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' [Citations.]" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, original italics (Denham).) "All issues of credibility are for the trier of fact, and all conflicts in the evidence must be resolved in support of the judgment. [Citation.]" (In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 670.) An appellant is charged with the burden of overcoming the presumption of the correctness of the judgment. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 822.)
Because the judgment is presumed to be correct, where there is no statement of decision—as is the case here, because no statement of decision is part of the record before us—an appellate court "must infer the trial court . . . made every factual finding necessary to support its decision." (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 61 (Fladeboe).) And if there is no statement of decision, a reviewing court looks only to the judgment to determine error. (In re Marriage of Ditto, supra, 206 Cal.App.3d at p. 648.)
" 'When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.' [Citations.]" (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 (Foreman & Clark).) "In a substantial evidence challenge to a judgment, the appellate court will 'consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the [findings]. [Citations.]' [Citation.] We may not reweigh the evidence and are bound by the trial court's credibility determinations. [Citations.] Moreover, findings of fact are liberally construed to support the judgment. [Citation.]" (Estate of Young (2008) 160 Cal.App.4th 62, 76.) We give deference to the trial court's factual findings "because those courts generally are in a better position to evaluate and weigh the evidence. [Citation.]" (Haworth v. Superior Court (2010) 50 Cal.4th 372, 385.)
An appellant asserting a substantial evidence challenge to a judgment has the obligation of presenting a fair description of the underlying evidence. (Foreman & Clark, supra, 3 Cal.3d at p. 881 [appellants " 'set forth in their brief all the material evidence on the point and not merely their own evidence' "].) " 'A party who challenges the sufficiency of the evidence to support a particular finding must summarize the evidence on that point, favorable and unfavorable, and show how and why it is insufficient. [Citation.]' [Citation.] Where a party presents only facts and inferences favorable to his or her position, 'the contention that the findings are not supported by substantial evidence may be deemed waived.' [Citation.]" (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738, original italics (Schmidlin).) And—as a point relevant here because the case involves a trial presented in a six-volume reporter's transcript—the burden to provide a fair summary of the evidence "grows with the complexity of the record. [Citation.]" (Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 290.)
A trial court's decision to admit or exclude evidence is reviewed on appeal for abuse of discretion. (Christ v. Schwartz (2016) 2 Cal.App.5th 440, 446.) A ruling on an evidentiary matter " 'will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' [Citation.]" (Id. at pp. 446-447.) Likewise, a trial court has broad discretion to limit the examination of witnesses. (People v. Murphy (1963) 59 Cal.2d 818, 830; see also Evid. Code, § 765, subd. (a) ["The court shall exercise reasonable control over the mode of interrogation of a witness so as to make interrogation as rapid, as distinct, and as effective for the ascertainment of the truth, as may be, and to protect the witness from undue harassment or embarrassment"].)
B. No Error in the Judgment
1. Sufficiency-of-the-Evidence Challenge
Although appellants' opening brief is difficult to follow, we infer from it that appellants are raising a sufficiency-of-the-evidence challenge to the judgment. At the outset of the brief, appellants argue that "the evidence presented failed to support the trial court's finding of a valid [MIPA] in favor of [Pham]." Appellants argue that Pham was thus never a member of BSP LLC. These conclusory arguments were repeated in various forms later in the brief. Appellants also contend in their brief that Pham failed to present evidence that she "had sufficient funds to invest into the MIPA." Related to this argument, appellants assert that the trial court "failed to correctly interpret the submitted evidence as showing that the funds Tammy Pham claimed to contribute to the MIPA as consideration were actually the funds contributed by Hieu Nguyen." And appellants repeatedly argue that the trial court "failed to recognize that [the purchase and sale agreement signed by BSP LLC] was a separate purchase agreement for the Plaza and had [no] connection [with] the Pham [purchase and sale agreement]."
Plainly, these are sufficiency-of-the-evidence challenges. Those challenges fail for two fundamental reasons.
First, we presume on appeal that the judgment is correct. (Denham, supra, 2 Cal.3d at p. 564.) Because of this presumption, where (as here) there is no statement of decision, we "must infer the trial court . . . made every factual finding necessary to support its decision." (Fladeboe, supra, 150 Cal.App.4th at p. 61.) And if there is no statement of decision, a reviewing court looks only to the judgment to determine error. (In re Marriage of Ditto, supra, 206 Cal.App.3d at p. 648.) As explained by one court, where there is no statement of decision, " 'the judgment is effectively insulated from review by the substantial evidence rule,' as [the appellate court] would have no means of ascertaining the trial court's reasoning or determining whether its findings on disputed factual issues support the judgment as a matter of law. [Citation.]" (Thompson v. Asimos (2016) 6 Cal.App.5th 970, 982.) Here there are no factual findings contained in the judgment. But there is a conclusion by the trial court that Pham "is entitled to recovery of $300,000 for Breach of the MIPA contract." We infer that the court made the factual findings required to support the judgment. (Fladeboe, supra, at p. 61.) This effectively disposes of appellants' sufficiency-of-the-evidence challenges to the judgment.
Second, even were we to disregard the principle of the presumed correctness of the judgment, appellants, in asserting a sufficiency-of-the-evidence challenge, had the obligation of presenting a fair description of the underlying evidence. (Foreman & Clark, supra, 3 Cal.3d at p. 881.) In order for this court to consider such challenge, appellants were required to " 'summarize the evidence on [the] point, favorable and unfavorable, and show how and why it is insufficient. [Citation.]' [Citation.] Where a party presents only facts and inferences favorable to his or her position, 'the contention that the findings are not supported by substantial evidence may be deemed waived.' [Citation.]" (Schmidlin, supra, 157 Cal.App.4th at p. 738, original italics.)
Appellants have not satisfied this requirement in any respect. As noted above, they have failed to present a summary of material facts in their opening brief. The section of their brief entitled "facts and procedures" (capitalization and bold omitted) is an argumentative discussion of the claimed facts with inadequate (and, in many instances, no) citations to the record. Appellants' brief thus "constitute[s] merely a challenge to . . . this court to find the evidence supporting . . . the trial court's judgment." (Oliver v. Board of Trustees (1986) 181 Cal.App.3d 824, 832.) "We are not required to comb the record to locate evidence substantiating [appellants'] recitation" of the purported facts. (Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1305.) Because appellants have failed to present a summary of all material evidence, both favorable and unfavorable, they have forfeited any sufficiency-of-the-evidence challenge. (Foreman & Clark, supra, 3 Cal.3d at p. 881; Schmidlin, supra, 157 Cal.App.4th at p. 738.)
Appellate courts in numerous cases involving circumstances analogous to those here have applied the forfeiture rule to summarily reject sufficiency-of-the-evidence claims where appellants have failed to present a summary of all material facts, both favorable and unfavorable to their position. (See, e.g., Shenouda v. Veterinary Medical Bd. (2018) 27 Cal.App.5th 500, 515; Orange County Water Dist. v. Alcoa Global Fasteners, Inc. (2017) 12 Cal.App.5th 252, 313, fn. 29; Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333, 370.)
2. Evidentiary Ruling Challenge
Appellants assert that the trial court abused its discretion by making a ruling that they contend curtailed the cross-examination of Pham. They argue that when their counsel attempted to examine Pham about "the discrepancy of [her] claiming that she could use her lost nonrefundable deposit for investment into the BSP [LLC purchase and sale agreement,] the trial court prevented counsel from pursuing the topic to its final determination by calling a 'sidebar' and telling counsel to move on to another topic." Appellants repeat this contention in summary fashion in a number of locations in their opening brief.
Under Evidence Code section 354, a judgment will not be reversed "by reason of the erroneous exclusion of evidence unless [the appellate court] is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that: [¶] (a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means; [¶] (b) The rulings of the court made compliance with subdivision (a) futile; or [¶] (c) The evidence was sought by questions asked during cross-examination or recross-examination." Thus, " '[t]o preserve an alleged error for appeal an offer of proof must inform the trial court of the "purpose, and relevance of the excluded evidence . . . ." [Citation.] This is in accord with "the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal." [Citation.]' [Citations.]" (People v. Valdez (2004) 32 Cal.4th 73, 108 (Valdez).) Accordingly, the failure to make an offer of proof at the trial level concerning the evidence sought to be admitted will ordinarily result in a forfeiture of any appellate claim based upon the exclusion of evidence. (Heiner v. Kmart Corp. (2000) 84 Cal.App.4th 335, 344 (Heiner).) Moreover, even if such a showing is made, prejudice resulting from the erroneous exclusion of evidence must be shown. (Evid. Code, § 354.) "The trial court's error in excluding evidence is grounds for reversing a judgment only if the party appealing demonstrates a 'miscarriage of justice'—that is, that a different result would have been probable if the error had not occurred." (Zhou v. Unisource Worldwide (2007) 157 Cal.App.4th 1471, 1480 (Zhou).)
In this instance, appellants' claim of error concerning alleged wrongful exclusion of evidence fails for multiple reasons. First, while appellants represent to this court that the trial court "prevented [defense] counsel from pursuing the topic [during cross-examination of Pham] by calling a 'sidebar' and telling counsel to move on to another topic," the record—based upon the citations to the reporter's transcript provided by appellants—does not bear this statement out. Rather, the record shows that during the cross-examination of Pham, and following an objection by Pham's counsel which the court sustained, the trial court requested that counsel approach the bench for a sidebar conference, which was unreported. After that conference, the court stated, "Okay. Please proceed consistent with our discussion at sidebar." There was therefore, from the record, no exclusion of evidence or curtailing of cross-examination as claimed by appellants. Second, assuming the existence of an adverse evidentiary ruling as claimed by appellants, the record does not show a specific and timely objection made by appellants' counsel as required to preserve any claim of error. (Valdez, supra, 32 Cal.4th at p. 108.) Third, even if there were such an evidentiary ruling, the record does not show that appellants' counsel made an offer of proof concerning the necessity of any excluded evidence; therefore, any claim of error is forfeited. (Heiner, supra, 84 Cal.App.4th at p. 344.) Fourth, aside from a wholly conclusory statement in their opening brief which we deem abandoned (see Nisei Farmers League v. Labor & Workforce Development Agency (2019) 30 Cal.App.5th 997, 1018), appellants present no argument demonstrating that such claimed evidentiary ruling constituted a " 'miscarriage of justice.' " (Zhou, supra, 157 Cal.App.4th at p. 1480.)
Appellants argued in their opening brief: "If counsel for Defendants were given the opportunity to pursue further testimony along the line of the lost $300,000 deposit[,] the confusion over funds may have [been] clear [sic] for the trial court. This evidentiary error must be corrected in the interest of justice."
Appellants' contention that the trial court abused its discretion by allegedly limiting the cross-examination of Pham is unfounded.
V. DISPOSITION
The judgment of August 18, 2016, is affirmed.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
PREMO, ACTING P.J. /s/_________
MIHARA, J.