Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Ct. No. RIC452053 Douglas E. Weathers, Judge, and Paulette Durand-Barkley, Temporary Judge (pursuant to Cal. Const., art. VI, § 21).
Judge Weathers made the ruling, challenged in this appeal, denying defendant’s motion to compel. (See part III.G, post.) Judge Durand-Barkley presided over the trial and made all of the other challenged rulings. (See parts III.B-III.F and III.H, post.)
Peter H. Dawson, in pro. per., for Defendant and Appellant.
Goe & Forsythe, Robert P. Goe and Elizabeth A. LaRocque for Plaintiff and Respondent.
OPINION
RICHLI J.
Plaintiff Jeffery Thurber sued defendant Peter H. Dawson, alleging, among other things, an unpaid loan and unpaid rent. After a bench trial, the trial court awarded Thurber $16,800.
Dawson appeals. He contends:
1. He was unfairly surprised because Thurber’s claims and evidence at trial were different from what Thurber’s complaint and discovery responses had indicated.
2. There was insufficient evidence to support particular claims that Thurber was making.
3. Any contract claim was barred by the statute of limitations.
Dawson failed to preserve his claim of unfair surprise by not raising it below. With respect to the statute of limitations, the trial court did not necessarily base its damages award on Thurber’s contract claims, as opposed to his noncontract claims, and Dawson has not argued that any noncontract claims were barred. Moreover, the trial court could properly find that the statute of limitations had not run on Thurber’s contract claims. Finally, Dawson’s challenges to the sufficiency of the evidence are not well taken.
Dawson’s briefs also allude, in somewhat scattered fashion, to a number of other potential contentions. Even though, as we will hold, these have not been properly asserted, we will alternatively reject them on the merits. Thus, we will affirm.
I
FACTUAL BACKGROUND
A. Plaintiff Thurber’s Case.
Thurber and Dawson knew each other from their mutual involvement in various community projects in Lake Elsinore. Dawson owned a boat-related business on property adjacent to the lake. During “hard economic times in the boat business,” he asked Thurber for financial help. In response, “over a period of time” in 2002 or 2003, Thurber lent Dawson a total of $30,000. Thurber testified, “I made a couple of mortgage payments... for him. Made some payments... for some advertising. [¶] And then cash....”
Thurber had no documentary evidence of these payments. Some of it was lost when an office of his closed; some of it was lost when “a computer... died”; and some of it was “lost in a fire where the storage container was held.”
The original agreement was that Dawson would repay the loan in the summer, when his boat business normally picked up. After two years went by, however, and this had not happened, they agreed instead that Dawson would repay the loan by giving Thurber “half of his building.” However, he never did so.
Meanwhile, Dawson’s business needed more space for boats. Around the end of 2002 or the beginning of 2003, Thurber and Dawson agreed that Thurber would buy the lot next door and lease it to Dawson. Accordingly, Thurber bought the lot. He then “drop[ped] off” a written lease agreement for Dawson to sign.
Two or three months later, Thurber discovered that, even though Dawson had not signed or returned the lease, he had moved boats onto the lot. He had also put “junk” on the lot. Thurber kept asking him either to pay rent or to remove the boats and junk. At first, Dawson kept promising to pay; later, he kept promising to remove the items.
At some point, Thurber put his lot up for sale for $695,000. One potential buyer gave him a written offer to purchase it for $675,000. However, Thurber testified, “People would come out and see the junk on there and that would be the last that I would hear about it....” In 2004 or 2005, after Thurber notified Dawson that “some real buyers” were coming to look at the lot, Dawson moved a freezer that smelled of rotting fish onto it.
Around the end of 2005, the parties had a falling out over a separate transaction (involving a paddle wheel boat). After that, Dawson finally removed all of his boats. However, he left the junk. Thurber called code enforcement officials, who cited Dawson and removed the freezer.
In March 2006, Dawson finally removed the junk from Thurber’s lot.
B. Defendant Dawson’s Case.
Dawson denied borrowing any money from Thurber. He admitted that, in 1999, Thurber paid his mortgage company approximately $8,000 on his behalf. He testified, however, that this was money that Thurber owed him for rent.
Dawson also admitted that, in 1999, he and Thurber agreed that he could put boats on Thurber’s lot. He testified, however, that he did not agree to pay rent; instead, he agreed to give Thurber a reciprocal right to use his property.
He admitted that Thurber asked him to remove his boats but testified that he did so within “a matter of weeks.”
He also admitted that “items” belonging to him, including the freezer, were placed on Thurber’s lot, but he denied that he placed them or had them placed there.
In May 2003, one Donald Mayo took over Dawson’s business and leased his property. Between 2003 and 2006, Dawson lived primarily in Florida; he also traveled extensively. However, he admittedly continued to maintain a residence on the business property.
II
PROCEDURAL BACKGROUND
Thurber filed this action against Dawson in June 2006. He alleged that he and Dawson had entered into an oral agreement pursuant to which he had lent Dawson $30,000 to buy his business property in Lake Elsinore, in exchange for half of the proceeds of any sale of the business and the property. Thurber had since learned that Dawson was attempting to sell his business without paying Thurber his half-share. They had also entered into an agreement pursuant to which Thurber bought a lot adjacent to Dawson’s business. Dawson agreed to rent the lot for $1,000 a month; before a written lease could be signed, Dawson moved his chattels onto the lot. Dawson never signed a lease or paid rent.
Thurber asserted causes of action for breach of contract, breach of the covenant of good faith and fair dealing, fraud, negligent misrepresentation, constructive fraud, and constructive trust, along with common counts. Thurber was represented by counsel. Dawson was in propria persona.
The complaint also originally named as defendants Lakeland Marine and Professional Marine Services. Lakeland Marine was voluntarily dismissed without prejudice. Professional Marine Services was a “dba” name that Dawson used.
In 2008, Dawson filed a motion to compel further responses to his request for production of documents. The trial court denied the motion. Dawson appealed from the denial. (Case No. E046184.) We dismissed the appeal because it was taken from a nonappealable order.
In 2009, the trial court held a bench trial. At the end of the trial, it took the matter under submission. Neither side requested a statement of decision. The trial court then entered judgment awarding Thurber $16,800 plus costs against Dawson.
III
DISCUSSION
A. Issues.
We begin by identifying the issues that Dawson is raising on appeal.
A brief must “[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority....” (Cal. Rules of Court, rule 8.204(a)(1)(B).)
“The requirement[] that issues be... presented under a separate argument heading, showing the nature of the question to be presented and the point to be made, are part of the ‘“[o]bvious considerations of fairness”’ to allow the respondent its opportunity to answer these arguments [citation] and also to ‘“to lighten the labors of the appellate [courts] by requiring the litigants to present their cause systematically and so arranged that those upon whom the duty devolves of ascertaining the rule of law to apply may be advised, as they read, of the exact question under consideration, instead of being compelled to extricate it from the mass”’ [citation]. [Citation.]” (People v. Roscoe (2008) 169 Cal.App.4th 829, 840.) Thus, an argument not presented under a separate heading is forfeited. (In re Marriage of Carlsson (2008) 163 Cal.App.4th 281, 294.)
The vast bulk of Dawson’s headings are not contentions at all. For example, such headings as “Dawson examin[e]s Thurber,” “Property transfer,” and “Oral contract denied” do not suggest that the trial court erred, much less that it erred in any particular way. As we will discuss below, even under the most liberal construction, there are only three contentions that can be gleaned from Dawson’s headings. We deem all other contentions forfeited.
Dawson’s brief is written in block caps. Accordingly, we have altered the capitalization of all quotations from it.
B. Surprise.
Dawson contends that he was unfairly surprised because Thurber’s claims and evidence at trial were supposedly different from what Thurber’s complaint and discovery responses had indicated. For example, the complaint alleged a single $30,000 loan, which Dawson used to purchase real property; by contrast, Thurber testified that he made a series of loans totaling $30,000, which went to pay Dawson’s mortgage, to buy advertising, etc.
This issue is stated in the headings, including “Complaint allegations not pled,” “Different allegations as to oral contract,” “Different allegations as to monies,” “No way to defend,” “Un-prepared to defend,” and “Defendant had no way of knowing.”
Dawson, however, never raised this issue at trial. He did complain - once and only once - “This is a case that I was unprepared for because it’s not what I expected.... So I’m quite confused.” However, he never asked the trial court to do anything about it.
As he now concedes, one appropriate thing to do would have been to ask for a continuance. He did not do so.
He could also have objected to any material variance between Thurber’s complaint and the evidence at trial. (Schweitzer v. Westminster Investments, Inc. (2007) 157 Cal.App.4th 1195, 1214.) Again, he did not do so.
If Thurber attempted to contradict his interrogatory responses, Dawson could have moved to exclude the contrary evidence at trial. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2010) ¶ 8:1253, p. 8F 99.) He did not.
Finally, Dawson could have moved for a new trial based on surprise. (Code Civ. Proc., § 657, subd. 3.) Indeed, he cites case law dealing with a motion for new trial. However, he filed no such motion.
Dawson’s problem is not that he failed to claim surprise, much less that he failed to use the word “surprise.” It is that he failed to request a remedy. “In other words, there is simply no ruling for us to review. A party on appeal cannot successfully complain because the trial court failed to do something which it was not asked to do. [Citation.]” (Farmers Bros. Co. v. Franchise Tax Bd. (2003) 108 Cal.App.4th 976, 993.)
Dawson argues that, because he was in propria persona, the trial court should have given him “guidance.” Not so. “[S]elf-represented parties are entitled to no greater consideration than other litigants and attorneys [citation].” (In re Marriage of Falcone& Fyke (2008) 164 Cal.App.4th 814, 830.)
To some extent, Dawson is claiming he was surprised because Thurber’s discovery responses were incomplete or evasive. His remedy, however, was to bring a motion to compel. Indeed, he did bring one; however, it involved solely the production of documents, not depositions or interrogatories. Moreover, the trial court properly denied it for various reasons, including that it was untimely. (See part III.G, post.)
We therefore conclude that the surprise Dawson is now claiming does not afford grounds for reversal on appeal.
C. The Sufficiency of the Evidence.
Dawson contends that there is insufficient evidence to support particular claims by Thurber.
This contention is fairly raised by such headings as “No proof of loan,” “No proof of monies expended,” and “No substantiated evidence as to storage.”
However, it has been forfeited by Dawson’s failure to provide an adequate statement of facts. “An appellant asserting lack of substantial evidence must fairly state all the evidence, not just the evidence favorable to the appellant. [Citation.]” (Chicago Title Ins. Co. v. AMZ Ins. Services, Inc. (2010) 188 Cal.App.4th 401, 415, italics added.) “If the appellant fails to fairly state all material evidence, we may deem waived any challenge based on insufficiency of the evidence. [Citations.]” (Id. at pp. 415-416, italics added)
Alternatively, we also reject this contention on the merits.
“‘“‘When a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.’ [Citation.] The substantial evidence standard of review is applicable to appeals from both jury and nonjury trials. [Citation.]”’ [Citation.]” (Perez v. Vas S.p.A. (2010) 188 Cal.App.4th 658, 683-684.)
Dawson’s main argument seems to be that Thurber had no documentary proof of the alleged loan. Documentary proof, however, was not required. Thurber testified that he made the loan. “Even the uncorroborated testimony of a single witness may constitute substantial evidence. [Citation.]” (Casella v. SouthWest Dealer Services, Inc. (2007) 157 Cal.App.4th 1127, 1144.)
Dawson also relies on his own denial that he placed any items on Thurber’s property. Once again, however, Thurber testified that Dawson placed them there. Moreover, witness Randall Ritter, Dawson’s ex-employee, testified that he placed items on Thurber’s lot at Dawson’s direction. And finally, Dawson admittedly paid to clean up Thurber’s property; this could be viewed as an admission that he was indeed responsible for cleaning it up.
We therefore conclude that Dawson has not shown that the judgment was not supported by substantial evidence.
D. Statute of Limitations.
Dawson contends that any contract claim was barred by the statute of limitations.
This argument is fairly raised by the heading, “Statute of limitations” and, to some extent, also by the heading, “Date of claims based upon eroneous [sic] date.”
The statute of limitations, however, must be pleaded in the defendant’s answer, or it is forfeited as a defense. (Minton v. Cavaney (1961) 56 Cal.2d 576, 581; Hall v. Chamberlain (1948) 31 Cal.2d 673, 679-680.) Dawson has not included his answer in the appellate record. Accordingly, he cannot show that he did plead the statute of limitations as an affirmative defense.
Even if not forfeited, this contention lacks merit.
First of all, it is not at all clear that the trial court found in favor of Thurber on a contract theory. Thurber had pleaded noncontract causes of action, including causes of action for fraud. Thurber does not argue that the statute of limitations barred any noncontract cause of action.
At oral argument, Dawson claimed that the trial court told him it was considering only the contract causes of action. He cited its remarks when it questioned the relevance of some of his evidence (see part III.H, post). It asked, “[H]ow is this going to be relevant as to the claims for a breach of oral contract, and these other causes of action... [?]” (Italics added.) {RT 53} It continued, “And I’m trying to keep us focussed in terms of the allegations that he lent you some money. There was some alleged agreement regarding when you sold your property.... And then there was an alleged agreement... that you would be paying $1,000 a month rent for the other piece of property.” {RT 53} It concluded, “That’s all I’m looking at, and I’m not going to make any rulings regarding anything else.” (Italics added.) {RT 53}
It is also unclear how the trial court arrived at the figure of $16,800 for Thurber’s damages. Neither side is arguing, however, that this figure was erroneous.
Moreover, even assuming that Thurber did recover on a contract theory, it is not clear whether he recovered on the $30,000 loan or on the oral lease agreement (which was, technically, not an oral lease, but an oral agreement to execute a lease).
Dawson argues that the statute of limitations on an oral loan agreement, payable on demand, begins to run when the loan is made (which Thurber testified was in 2002 or 2003). (See Buffington v. Ohmert (1967) 253 Cal.App.2d 254, 256.) Thurber also testified, however, that around 2004 or 2005, Dawson promised to repay the loan by giving Thurber half of his building. Thurber inferably held off from bringing suit in reliance on this promise. Thus, the trial court could reasonably find that Dawson was estopped to assert the statute of limitations. (Superior Dispatch, Inc. v. Insurance Corp. of New York (2010) 181 Cal.App.4th 175, 186.)
Dawson also argues that Thurber’s testimony that he made the loan in 2002 or 2003 was not credible, because (1) Thurber testified that he made the loan shortly after Dawson purchased his business property, and (2) public records show that Dawson purchased his business property in 1999. Dawson, however, did not introduce those public records at trial; they are not part of the record. Even if they were, “the trier of fact may believe and accept as true only part of a witness’s testimony and disregard the rest. On appeal, we must accept that part of the testimony which supports the judgment. [Citation.]” (In re Daniel G. (2004) 120 Cal.App.4th 824, 830.)
Dawson also argues that any oral lease was breached after one month, when he supposedly failed to pay rent. However, “[i]t is settled in California that periodic monthly rental payments called for by a lease agreement create severable contractual obligations where the duty to make each rental payment arises independently and the statute begins to run on such severable obligations from the time performance of each is due. [Citations.]” (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1344.) Thus, the trial court could properly award Thurber all of the lease payments that accrued within two years before the complaint was filed. This was more than the $16,800 that the trial court awarded.
E. Statute of Frauds.
Dawson contends (albeit sporadically) that Dawson’s claims were barred by the statute of frauds.
This argument has been forfeited by failure to state it in a heading.
We also reject it on the merits. The statute of frauds applies only to Thurber’s contract claims; as we already noted, the trial court may have found for Thurber on a noncontract claim.
Moreover, the statute of frauds did not even bar Thurber’s contract claims. We may assume, without deciding, that both the loan agreement and the oral lease agreement were within the statute. Even if so, however, with respect to the loan agreement, letting Dawson keep Thurber’s $30,000 would constitute unjust enrichment. Likewise, with respect to the lease agreement, letting Dawson use Thurber’s lot for free for three years would constitute unjust enrichment. “The doctrine of estoppel to plead the statute of frauds may be applied where necessary to prevent either unconscionable injury or unjust enrichment. [Citation.]” (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 27.) Thus, the trial court could reasonably find that Dawson was estopped to assert the statute of frauds.
Finally, at a minimum, even assuming Thurber could not enforce either agreement according to its terms, he was at least entitled to restoration of the benefits conferred. (Paul v. Layne & Bowler Corp. (1937) 9 Cal.2d 561, 565; Doke v. Brockhurst (1957) 150 Cal.App.2d 514, 516.)
F. Unconscionability.
Dawson briefly asserts that Thurber’s loan claim was unconscionable because $30,000 was not adequate consideration for a half-interest in Dawson’s building.
This argument is not fairly comprised within any of the headings or subheadings in the brief. Hence, it has been forfeited.
Also, it turns on the factual claim that Dawson’s building was worth millions of dollars, which has not been cited to the record. For this reason, too, it has been forfeited.
Dawson has further forfeited this argument by failing to support it with legal argument and citations to authority. (People v. Stanley (1995) 10 Cal.4th 764, 793; Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1207.)
Dawson has forfeited it still further by failing to raise it below. “‘In order to preserve an issue for appeal, a party ordinarily must raise the objection in the trial court. [Citation.] “The rule that contentions not raised in the trial court will not be considered on appeal is founded on considerations of fairness to the court and opposing party, and on the practical need for an orderly and efficient administration of the law.” [Citations.] Otherwise, opposing parties and trial courts would be deprived of opportunities to correct alleged errors, and parties and appellate courts would be required to deplete costly resources “to address purported errors which could have been rectified in the trial court had an objection been made.” [Citation.] In addition, it is inappropriate to allow any party to “trifle with the courts by standing silently by, thus permitting the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable.” [Citation.]’” (Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 799-800.)
And finally, this contention fails on the merits. Dawson cannot show that the trial court in fact awarded Thurber damages on the loan claim, rather than on some other claim. Even if it did award him damages on the loan claim, clearly it did not award him half of Dawson’s building, or even half of its value - the only remedies that were even arguably unconscionable. It may have simply awarded him partial repayment of the money lent. This was not even arguably barred. (See Civ. Code, § 1670.5.)
G. The Denial of Dawson’s Motion to Compel.
Dawson appears to contend that the trial court abused its discretion by denying his motion to compel.
Dawson is vague about exactly what kind of motion to compel he brought. At times, he implies that it was a motion to compel attendance at deposition or to compel further interrogatory responses. The motion itself, however, stated that it was a motion to compel “further responses to an inspection demand....”
This argument is not fairly comprised within any of the headings or subheadings in the brief. Hence, it has been forfeited.
In addition, Dawson’s factual assertions in connection with this argument are not cited to the record. For this reason, too, this argument has been forfeited. (Cal. Rules of Court, rule 8.204(a)(1)(C); Chicago Title Ins. Co. v. AMZ Ins. Services, Inc., supra, 188 Cal.App.4th at p. 424.)
At one point, he asserts that the record in case No. E046184 includes all of the necessary supporting documents. However, he has never asked us to take judicial notice of the record in case No. E046184. Moreover, he does not cite any particular volume or page numbers in that case. And finally, that case was dismissed before any record was filed.
Even if not forfeited, it lacks merit, for at least four reasons.
First, the motion was not accompanied by a separate statement. (Cal. Rules of Court, rule 3.1345).
Second, the motion also was not accompanied by a “meet and confer” declaration. (Code Civ. Proc., § 2031.310, subd. (b)(2).)
Third, the motion did not include a copy of Thurber’s response to the request for production of documents. Thus, there was no evidence before the trial court that Thurber had, in fact, failed to respond properly. (See Code Civ. Proc., § 2031.310, subds. (a), (b)(1).)
Fourth and finally, the motion was untimely. A motion to compel responses to a request for production must be filed within 45 days after service of the response. (See Code Civ. Proc., § 2031.310, subd. (c).) The response was served on September 26, 2007; the motion to compel was not filed until April 25, 2008.
In his reply brief, Dawson claims that the motion was timely filed, but the court clerk inadvertently attached it to Dawson’s case management statement, which was filed at the same time. He fails to cite this factual assertion to the record, and thus, again, he has forfeited this argument.
Moreover, while there is a case management statement in the record and while it does have a motion to compel attached, that case management statement was not filed until April 8, 2008 - again, more than 45 days after service of the response.
Accordingly, the trial court properly denied the motion to compel.
H. Curtailment of the Examination of a Witness.
Dawson contends that the trial court erred by curtailing his examination of witness Donald Mayo.
This argument is not fairly comprised within any of the headings or subheadings in the brief. Hence, it has been forfeited.
Even if not forfeited, it lacks merit. During the examination, the trial court sustained several objections. Dawson has not shown that this was error.
The trial court then asked Dawson how his line of questioning was relevant. He conceded that it was not. Next, it asked if he had any further questions. He complained, “Well, you are stopping me in the middle.” The court responded, “I’m not trying to do that, and I apologize.” Nevertheless, Dawson excused the witness immediately, without asking any more questions.
In sum, then, the trial court did not curtail the examination; it merely controlled it appropriately, to ensure that it was relevant. (Evid. Code, §§ 350, 765, subd. (a).)
More generally, Dawson complains that he asked for a two-day trial, but the court estimated the trial at four hours. He has not supported these factual assertions with appropriate citations to the record. In any event, he has not shown that the trial court ever prevented him from asking any witness any nonobjectionable question that he wanted to ask. Thus, it appears that he had the opportunity to fully present his case.
IV
DISPOSITION
The judgment is affirmed. Thurber is awarded costs on appeal against Dawson.
We concur: McKINSTER Acting P.J., KING J.
In these remarks, the trial court expressly recognized that there were noncontractual causes of action. It tried to keep Dawson focused on the relevant transactions - the $30,000 loan agreement and the agreement to enter into a lease. However, it did not preclude Thurber from trying to recover, with respect to these transactions, on a noncontractual theory, such as fraud.