Opinion
NOT TO BE PUBLISHED
Appeal from a judgment and postjudgment order of the Superior Court of Orange County No. 06CC03115, Jamoa A. Moberly, Judge.
Jeffrey S. Benice and Robert Petrokofsky for Plaintiffs, Cross-defendants, and Appellants.
Davert & Loe, Benjamin N. Flint, David C. Loe and Douglass S. Davert for Defendants, Cross-complainants, and Respondents.
OPINION
O’LEARY, J.
Dennis Woods and his corporation, Public Special Commodities Division, Inc. (Public Special), appeal from a judgment against them and a postjudgment order granting them a partial new trial, in this action arising out of a long standing truck freight shipping business relationship between Woods, Mike Robison, and Robison’s corporation, Public Logistics, Inc. (PLI). After a bifurcated court trial on the sole issue of whether Woods and Robison were partners in the business (the court found they were not), the parties stipulated to a reference for an accounting. After the accountant filed his report, the court entered a judgment for Robison. The court subsequently granted in part Woods’s motion for new trial, agreeing there were issues that had not been part of the reference that remained to be tried. On appeal, Woods raises numerous issues concerning the partial new trial order, contending due process requires he be afforded a full new trial on all claims. He also raises several issues pertaining to the original judgment itself. We conclude that because the granting of a new trial vacated the judgment, and there is no final judgment in this case, issues raised by Woods pertaining to the judgment are not cognizable in this appeal. We further conclude Woods has failed to demonstrate the trial court abused its discretion by ordering a partial new trial. Accordingly, we dismiss the purported appeal from the judgment and affirm the order granting partial new trial.
For convenience, we will generally refer to Woods and Public Special collectively and in the singular as Woods, and to Robison and PLI collectively and in the singular as Robison, unless the context requires otherwise.
FACTS AND PROCEDURE
Complaint
Woods’s complaint was filed February 14, 2006, shortly after his business relationship with Robison abruptly ended. Woods’s first amended complaint against Robison, PLI, and other defendants (who have since been dismissed and are not parties to this appeal) was the operative complaint at the first phase of the trial in this matter (hereafter the complaint). It alleged Woods, who was involved in the transportation business for over 25 years, befriended Robison who also had “transportation client relationships, ” and in 1995 the two entered into an oral partnership agreement to run a new transportation company called “Public Logistics.” Woods contributed his financial backing, licensing, and insurance. Robison contributed clients and managed daily operations. Profits were to be equally divided between Woods and Robison. The business operated from facilities owned and leased to it by Woods. Woods alleged he advanced operating funds to the partnership on a monthly basis through his own corporations (Public Special as relevant here), and would be reimbursed from the customer receipts. Woods also occasionally advanced money to Robison for Robison’s personal expenses. Woods alleged the partnership business was successfully operated for over 10 years, and he and Robison each reaped millions of dollars in profit.
The complaint alleged that in late 2005, Robison hatched a plan to deprive Woods of his share of the partnership profits. On February 1, 2006, Robison surreptitiously moved the partnership’s place of business out of Woods’s offices to those of a different freight transportation company. Robison contacted the partnership’s clients directing them to send outstanding payments to the new place of business.
The complaint contained causes of action for breach of fiduciary duty (alleging Robison owed a fiduciary duty to Woods by virtue of their partnership), constructive fraud, violation of the Uniform Trade Secrets Act (Civ. Code, § 3426 et seq.), unfair business practices (Bus. & Prof. Code, § 17200 et seq.), constructive trust, accounting, interference with contractual relationships, interference with prospective economic advantage, conversion, dissolution of partnership, and appointment of a receiver.
Cross-Complaint
On March 17, 2006, PLI filed a cross-complaint against Woods and Public Special. The cross-complaint alleged Robison and Woods were never partners. In 1996, Robison approached Woods about starting a “third party logistics” business. Woods offered that if Robison wanted to start such a business, Woods would provide him “a place to work, rent free, for the first three months.” It was always agreed Robison alone would own the business, but Woods would handle the billings and provide office space in exchange for half the profits. Robison reserved the name “Public Logistics” in 1996 as a sole proprietorship and incorporated PLI in 1998. Robison was at all times sole shareholder of PLI. PLI would invoice its customers, who would in turn remit payment to either PLI or Public Special. Receipts were deposited by Woods into Public Special’s bank account and then used to pay PLI’s overhead.
At the first phase trial it was explained the business was to coordinate with third party carriers shipping for PLI customers who had only partial truckloads of freight to deliver. The profit would be the difference between the cost PLI paid the carriers for the shipping and the price customers paid PLI.
In February 2006, Robison decided to terminate Woods’s billing services and move PLI’s place of business to a new location. After the move, much of PLI’s mail was still going to Public Special’s address. Rather than forwarding it, Woods was opening PLI’s mail and depositing checks for PLI’s shipping services into Public Special’s bank account. Woods contacted PLI customers and told them to continue sending payments on outstanding PLI invoices to Public Special. PLI alleged that as of March 2006, Woods and Public Special had wrongfully deposited and retained $89,642.92 in payments from PLI customers.
PLI’s cross-complaint contained causes of action for conversion, money had and received, accounting, constructive trust, and unfair business practices. It also contained a declaratory relief cause of action seeking a judicial determination that Woods and Robison were not partners.
Phase One Trial
Following a defense motion to sever the cross-complaint’s declaratory relief cause of action and try it first, a bifurcated court trial was held in June 2007 on the following limited issues: (1) “[W]hether a partnership existed between... Woods and... Robison[;]” and (2) “[W]hether a partnership between... Woods and... Robison in a business known as Public Logistics is separate and apart from Public Logistics, Inc.” Following a three-day trial, on June 29, 2007, the court ruled as to the first question there was no partnership between Woods and Robison, and thus the second question was not relevant. In ruling, the court observed the business was solely owned by Robison, either as the Public Logistics sole proprietorship or as the corporation, PLI. Although the two men agreed to equally divide the profits, “The court sees this as more of a consulting relationship between [them].”
Phase Two: Procedure and Reference Proceeding
Trial on the remaining causes of action in the complaint and cross-complaint was set for August 4, 2008, but continued several times. Robison filed a motion for judgment on the pleadings as to Woods’s complaint on the theory it was premised upon allegations Woods was Robison’s partner, and the court’s ruling there was no partnership resolved all causes of action in the complaint. The trial court denied the motion.
In a trial brief, Woods stated the second phase of the trial would determine liability and damages. Woods asserted that regardless of the no-partnership finding, he was entitled to recover: (1) unreimbursed advances he made on behalf of PLI prior to February 1, 2006; (2) half of PLI’s profits for the month of January 2006; (3) one month’s rent for PLI’s use of his warehouse; (4) repayment of a $20,000 personal loan he made to Robison; and (5) “a set-off of at least $315,915.58 (based upon an extrapolation from his historical share of the profits), against PLI’s claims.” The latter figure representing Woods’s share of PLI’s profits after January 31, 2006, to which he believed he was entitled as a result of their long standing business relationship (i.e., “post-termination” or “future” profits). At a hearing on July 28, 2008, counsel made reference to the possibility the parties would agree to a reference on “accounting” issues.
On November 10, 2008, Robison filed a motion for judgment against Woods under Code of Civil Procedure section 631.8, on the same grounds as the failed motion for judgment on the pleadings: the no partnership finding made the other causes of action in the complaint unprovable. At a subsequent hearing, the court granted the motion, but it also granted Woods’s request for leave to amend the complaint to conform to proof. Woods’s counsel explained his theory: even if Woods and Robison were not partners, they had a long-standing business relationship by which Woods was entitled to share in PLI’s profits and Woods’s damages for wrongful termination of that business relationship would be the future profits of which he had been deprived.
On November 12, 2008, Woods filed a motion for appointment of a referee under Code of Civil Procedure sections 639 and 640 to determine “accounting claims....” In a November 18, 2008, minute order the court stated the parties had stipulated to accept certified public accountant Gary L. Howard as a referee and he was so appointed. The minute order did not specify the scope of the reference. There was some discussion at the November 18 hearing about the parties needing future guidance from either the court or the referee as to what issues the referee would address.
At a hearing on December 15, 2008, there was further discussion about the reference. Both parties’ counsel agreed the referee should conduct an accounting for all money that had been taken in and paid out as of January 31, 2006, but they disagreed as to whether the referee should consider the post-termination profits. The trial court’s minute order from that hearing stated the referee was “to determine accounting of what was overpaid and what was not, additional one year lost profits, future sales post one year termination which includes some of the billings for work already done. [¶] The [r]eferee does not need to determine future profits.” The trial court later specifically adopted Robison’s notice of ruling, which stated “the referee shall determine only the issues of settling up [PLI] transactions where 1) Woods or Public Special paid the carrier payment and the receivables/revenues were collected by either Woods and/or [Public Special], 2) Woods or [PCS] paid the carrier payment, and the receivables/revenues were collected by [PLI] and 3) [PLI] paid the carrier payment and the receivables/revenues were collected by either Woods and/or Public Special.”
Amendment to the Complaint
On December 19, 2008, Woods filed an amendment to his complaint. The amendment alleged the same basic facts (i.e., an oral agreement to start the business, Woods’s advancing funds to cover overhead and expenses, Woods being reimbursed for the advances from customer billing receipts deposited into a bank account controlled by Woods, and profits being split between Robison and Woods). The amendment alleged that on February 1, 2006, Robison informed Woods his employment was terminated. Thereafter, Robison did not pay Woods his share of the profits for January 2006. Robison caused the seizure of $89,642 in Public Special’s bank account, which had been deposited by Woods for services predating termination of the business relationship, thereby preventing Woods from obtaining reimbursement for advances he made prior to termination. Woods alleged Robison also owed Woods almost $300,000 for “over-advances” Woods made to PLI made from 2004 until January 31, 2006, and he failed to pay Woods his share of future profits. The amendment alleged Robison had failed to pay Woods $1,498.28 in rent, and failed to repay a $20,000 personal loan.
The amendment contained numerous new causes of action including for breach of oral contract (the profit sharing agreement between Woods and Robison and the rental agreement), breach of fiduciary duty and constructive fraud (arising from the long standing business and personal relationship between Woods and Robison), constructive fraud, unjust enrichment, accounting, quantum meruit, common counts for goods and services and money had and received, unpaid wages, wrongful termination, and unfair competition. Robison’s demurrer was sustained without leave to amend as to the causes of action for breach of fiduciary duty, constructive fraud, and wrongful termination, and overruled as to the others.
At a hearing on January 20, 2009, counsel explained the parties had met with the referee who was conducting the accounting analysis and they were waiting for the referee’s report. Counsel understood the process would be that the referee would meet with each side, prepare a tentative report, allow each side to respond to the tentative report and then issue a final report.
At a March 3, 2009, hearing, counsel explained they were anticipating the referee’s report by the end of the month. When the trial court expressed confusion about the scope of the reference, Woods’s counsel explained the referee was doing an “independent analysis... going back and doing a complete analysis of the operation....” There was discussion that the referee was looking at profits and expenses during 2004 and 2005 because Robison’s expert opined that profits had been underpaid to Robison during 2004 and 2005 (e.g., Woods had been overstating expenses). Woods’s counsel agreed the referee was doing the accounting—“a hard number analysis”—and if the referee found the profits for 2004 and 2005 were equally split, then Robison’s expert’s opinion was “moot, essentially” and accordingly, the court should wait and see the referee report. The court again asked counsel to clarify the nature of the agreed upon reference; “the point of the referee was to do the accounting, it was my understanding that that would potentially resolve the case.” Counsel for Woods replied, “I think that is true.”
On April 21, 2009, counsel explained the referee had submitted his tentative report to counsel and counsel were preparing to each meet with the referee prior to issuance of a final report. When counsel for Robison stated he believed the referee’s report would end the case (“not much left to do, if anything, other than for the court to adopt the referee’s report”), Woods’s counsel replied, “I think we left provisions to raise issues with the court.” The court set another status conference for May 18.
The referee’s final report was filed with the court on June 4, 2009. The report was comprised of a cover letter stating the referee concluded Woods and Public Special owed PLI $274,850, not including interest; a one page financial statement showing amounts the referee found had been collected or paid by either Woods or PLI and amounts due to or from PLI; and one and a quarter pages of notes to the financial document explaining what each of the numbers represented. The notes indicated the figure was based upon the accounts receivable and accounts payable as of January 31, 2006; carrier costs paid in January 2006, and after “separation;” monies billed and collected in January 2006; January 2006 overhead costs paid by PLI; amounts advanced by Woods to PLI in January 2006; and billings by PLI after January 31, 2006, for shipments taking place before then. The notes further stated the referee reviewed the period from June 2005 through December 2005 and no losses were sustained during that period. The referee’s back up materials included several hundred pages of spreadsheets and detailed transaction reports from an accounting program.
Woods filed objections to the referee’s report, which included that the referee report did not address Woods’s claims for $324,295.89 in “over-advances (i.e., over the amount of actual expenses)” he made to PLI from January 2004through January 2006 and failed to determine the profits and losses of the business. Woods apparently did not designate an accounting expert in the litigation, but he had submitted documentation to the referee concerning that period. The documentation included all the checks written by Public Special in 2004 and 2005 (exhibit 120), checks written by Public Special in 2006 (exhibit 124), and “disbursement journals” Woods prepared for each of those years (exhibits 121, 122, and 123).
Robison’s opposition included a declaration from their accounting expert, Christian L. Aldinger, whose report had been submitted to the referee. Aldinger explained Woods’s claim he had “over-advanced” money to PLI in 2004, 2005, and January 2006, was considered in the reference. Woods’s disbursement journals had identified four categories of disbursements: carrier payments, claims, advances to PLI, and “‘etc.’” a category for which there was no explanation. But Woods’s claim he “over advanced” $324,295.89 to PLI in 2004, 2005, and 2006, was based upon an accounting summary he prepared and submitted to the referee in which he collapsed the categories into just two—carrier costs and advances—thus recharacterizing the “etc.” disbursements as advances to PLI. Aldigner explained that in meetings he had with the referee, the referee identified the items erroneously recharacterized by Woods as advances resulting in “the $324,295.89 [shrinking] to $-0-.”
Robison also submitted declarations detailing his claimed damages for conversion and his statutory costs. On July 28, 2009, the court signed and entered a judgment stating it was deciding the entire case (i.e., the amendment to the complaint and the cross-complaint) based on the referee’s report and the briefing on Woods’s objections to the referee’s report. The judgment ordered that Woods would take nothing on his complaint and the amendment thereto. The court awarded PLI the $274,850 specified in the referee’s report as “principal damages, ” giving Woods and Public Special an offset of $21,498 (Robison conceded he owed Woods $20,000 for an unpaid personal loan and $1,498 in unpaid rent for January 2006). The judgment awarded PLI $87,181 in prejudgment interest, $25,409.50 in costs, and $81,661 in conversion damages.
New Trial Order
Woods filed a motion for new trial asserting among other reasons, he had been prevented from having a fair hearing. He also filed motions to vacate the judgment and for relief pursuant to Code of Civil Procedure section 473.
On October 20, 2009, the trial court granted the motion for new trial in part because “[t]he scope of the reference was not intended to and did not resolve all remaining issues in the action.” The court referred to both its December 15, 2008, minute order and Robison’s subsequent notice of ruling as establishing the scope of the reference: the referee was tasked only with an accounting of “what was overpaid and what was not, additional one-year lost profits, future sales post one year termination” but not “future profits.” Furthermore, PLI’s conversion cause of action was not part of the reference and the court agreed the conversion cause of action had never been tried. The court also agreed costs were improperly included in the judgment because there had been no finding Woods was liable for conversion and costs must be claimed by way of a memorandum of costs, not by declaration. Accordingly, the court ordered a partial new trial be granted on “(1) future profits; (2) the first cause of action for conversion in the cross-complaint; (3) the amount of statutory costs awarded.”
The court also rejected Woods’s “attack [on] the sufficiency of the referee’s findings. The court has adopted the referee’s findings and there is no basis to grant a new trial on these other grounds asserted by plaintiff. However, a new trial is warranted on the three areas set forth above, as they were not within the scope of the reference and should have been tried.” The court found Woods’s motions to set aside and vacate the judgment moot because a partial new trial had been granted. Woods filed a notice of appeal stating he was appealing from the July 28, 2009, judgment, and from the October 20, 2009, minute order granting a partial new trial and denying the motions to vacate and set aside the judgment.
DISCUSSION
A. Reviewability
Woods purports to appeal from the July 28, 2009, judgment and the October 20, 2009, minute order granting the motion for new trial in part and denying the motions to vacate and set aside the July 28 judgment. His opening brief’s statement of appealability devotes a single sentence to the judgment stating it is appealable because it is a final judgment. (Code Civ. Proc., § 904.1, subd. (a)(1).) Moreover, he states an order granting a partial new trial is also an appealable order (Liodas v. Sahadi (1977) 19 Cal.3d 278, 285), as are postjudgment orders denying relief under Code of Civil Procedure sections 663 and 473. (Howard v. Lufkin (1988) 206 Cal.App.3d 297, 301 [denial of statutory motion to vacate judgment is appealable order]; Cochran v. Linn (1984) 159 Cal.App.3d 245, 249 [order denying Code of Civil Procedure section 473 motion to set aside judgment appealable order].)
We cannot review the July 28 judgment or consider issues that must be raised on appeal from a final judgment for the simple reason there is no final judgment in this case. Code of Civil Procedure section 904.1, subdivision (a)(1), is a codification of the one final judgment rule—“i.e., an appeal lies only from a final judgment that terminates the trial court proceedings by completely disposing of the matter in controversy. [Citations.]” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2010) ¶ 2:21; See Griset v. Fair Political Practices Comm’n (2001) 25 Cal.4th 688, 697.)
“When a motion for a new trial is granted the judgment is vacated. Since there is no longer a judgment, any appeal must be from the order granting a new trial. [Citation.]” (Marshall v. Brown (1983) 141 Cal.App.3d 408, 414; citing Neff v. Ernst (1957) 48 Cal.2d 628, 634 [“if the motion for new trial be granted the judgment is vacated and the appeal therefrom becomes ineffective”].) This is so even if the trial court granted only a partial new trial. “[T]he rule is settled that the portions of the judgment which are not subject to the new trial order are nevertheless not appealable. The courts have reasoned that the new trial order has the effect of vacating the entire judgment and holding in abeyance the portions which are not subject to a new trial until one final judgment can be entered. [Citations.] As [one] court explained... in the context of a new trial on the single issue of damages, the ‘superior court judgment was set aside in its entirety when the court granted a new trial as to damages....’ [Citation.] ‘As there can be only a single judgment in an action, if the order granting the limited new trial of damages is to stand, there will be no final judgment until the trial of that issue ends and the determination of the appeal, if any, from the then judgment. [¶] If the order does not stand, the judgment set aside by the order for new trial would be restored and then become final unless reversed.’ [Citation.] Were the rule otherwise, two appealable judgments would be entered in violation of the one judgment rule.” (Beavers v. Allstate Ins. Co. (1990) 225 Cal.App.3d 310, 329; see also Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2010) ¶¶ 2:141-2.141.2.)
In this case, the trial court granted Woods and Public Special’s motion for new trial. Although it granted new trial only in part, that ruling had the effect of vacating the July 28 judgment. Accordingly, only the appeal of the order granting a partial new trial is properly before us and we consider issues Woods and Public Special raise attacking the July 28 judgment only insofar as they pertain to the propriety of the partial new trial order.
B. The New Trial Order
1. General Principles
Woods contends the trial court abused its discretion by granting only a partial new trial on the limited issues of “future profits, ” PLI’s conversion cause of action, and costs. He largely contends a complete new trial was required because he was denied due process in the reference proceeding and in the trial court’s post-reference proceedings.
A new trial may be granted for an “[i]rregularity in the proceedings... by which either party was prevented from having a fair trial.” (Code Civ. Proc., § 657, subd. (1).) “A trial court has broad discretion in ruling on a new trial motion, and the court’s exercise of discretion is accorded great deference on appeal. [Citation.]” (Fassberg Construction Co. v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 752.) It is a fundamental rule of appellate review that an appealed judgment or order is presumed to be correct. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) As the appellant, Woods has the burden of overcoming the presumption of correctness, and he has failed in that burden.
2. Claimed Errors in the Reference Proceeding
Woods first contends he was denied due process in the reference proceeding for a number of reasons. Prior to addressing the specific contentions, we must identify the nature of the reference proceeding, what claims and issues were submitted to the reference, and what claims and issues remained to be decided following the reference.
a. The claims and issues
Woods’s complaint was premised on allegations he and Robison were partners in the business conducted by PLI. It included numerous tort causes of action, and contained a cause of action for an accounting of the partnership. PLI’s cross-complaint against Woods and Public Special was premised on allegations Woods and Robison were not partners, rather Woods was simply providing “billing services” for PLI. It contained causes of action for, among other things, conversion, sought a declaration that Woods and Robison were not partners, and sought an accounting. In the bifurcated trial on the declaratory relief cause of action, the parties were largely in agreement as to Woods’s general financial role in the business: through his company, Public Special, Woods directly paid carrier costs and advanced operating capital to PLI, for which he was to be reimbursed from customer receipts, and in return he was to receive one-half of PLI’s profits. The trial court concluded the business relationship was not a partnership but was more like a consulting arrangement.
When the court moved on to the second phase of the trial, Woods asserted the following damage claims required resolution: (1) unreimbursed advances he made to PLI prior to February 1, 2006; (2) his share of PLI’s profits for the month of January 2006; (3) one month’s rent for PLI’s use of his warehouse in January 2006; (4) repayment of a $20,000 personal loan he made to Robison; and (5) “a set-off of at least $315,915.58 (based upon an extrapolation from his historical share of the profits), against PLI’s claims[, ]” the latter figure representing Woods’s share of PLI’s profits after January 31, 2006, to which he believed he was entitled as a result of their long standing business relationship (i.e., “post termination” or “future” profits). After the trial court granted the motion for judgment on the pleadings as to the complaint, Woods filed an amendment reasserting his claims for advances Woods made to PLI prior to termination of his “employment, ” including for “over-advances” to PLI made from 2004 until January 31, 2006, future profits, and rent on Woods’s facilities.
Parsing the claims in Woods’s pleadings, it is clear the following damage claims were being asserted by him on a variety of legal and equitable theories: (1) his entitlement to profits for January 2006; (2) his claim he made approximately $300,000 in “over-advances” to PLI from 2004 until January 31, 2006; (3) his entitlement to a set off from future profits of PLI; (4) one month’s rent; and (5) repayment of a $20,000 personal loan to Robison. It is in view of these claims we address the accounting reference.
b. Accounting reference
An accounting is “‘not an independent cause of action but merely a type of remedy’ [citation], and an equitable remedy at that. [Citations.]” (Batt v. City and County of San Francisco (2007) 155 Cal.App.4th 65, 82.) An accounting, “usually” analyzing “debits and credits [and] showing a balance due, if any” (Peoples Finance etc. Co. v. Bowman (1943) 58 Cal.App.2d 729, 734), is for the purpose of obtaining an equitable judicial settlement of the accounts of the parties and rendering complete justice. (Verdier v. Superior Court (1948) 88 Cal.App.2d 527, 530.) Such an equitable proceeding is appropriate where “‘the accounts are so complicated that an ordinary legal action demanding a fixed sum is impracticable.’” (Civic Western Corp. v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1, 14.) Furthermore, it is generally proper to conduct such an equitable proceeding first as it may well obviate the necessity for a subsequent trial of legal issues. (Raedeke v. Gibraltar Sav. & Loan Assn. (1974) 10 Cal.3d 665, 671; Richard v. Degen & Brody, Inc. (1960) 181 Cal.App.2d 289, 295, disapproved on another ground in Kendall v. Ernest Pestana, Inc. (1985) 40 Cal.3d 488, 498; see also American Motorists Ins. Co. v. Superior Court (1998) 68 Cal.App.4th 864, 871.)
Woods contends the reference was a “special reference” only and nonbinding on the trial court; Robison contends the reference was a general reference. We agree with the latter. “The Code of Civil Procedure provides for two types of reference. A ‘general’ reference is conducted pursuant to section 638, subdivision (1), which authorizes the trial court to refer any or all issues to a referee for trial and determination, provided that the parties have agreed thereto in an agreement filed with the clerk or judge or entered in the minutes or docket. [Citations.] Such agreement of the parties is required in order to comport with the constitutional prohibition against delegation of judicial power. [Citation.] The finding and determination of the referee upon the whole issue must stand as the finding of the court and judgment may be entered thereon in the same manner as though the matter had been tried by the court. [Citations.]” (Jovine v. FHP, Inc. (1998) 64 Cal.App.4th 1506, 1522, fns. omitted (Jovine).)
“A ‘special’ reference is one conducted pursuant to [Code of Civil Procedure] section 639. The findings of the referee are advisory only, and do not become binding unless adopted by the court; the court must independently consider the referee’s findings before acting. [Citation.] The consent of the parties is not required....” (Jovine, supra, 64 Cal.App.4th at p. 1522.)
“This statutory scheme carefully preserves the distinction which must be maintained between general and special references in order to comply with the constitutional mandate regarding the delegation of judicial power. ‘[A] general reference has binding effect, but must be consensual, whereas a special reference may be ordered without consent but is merely advisory, not binding on the... court. [Citations.]’ [Citation.]” (Jovine, supra, 64 Cal.App.4th at pp. 1522-1523.)
Here, Woods initially filed a motion asking the court to order a special reference under Code of Civil Procedure section 639. But that motion was never ruled on because thereafter the parties stipulated to the reference for an accounting. The court’s minute order reflected the parties’ agreement the reference would “determine accounting of what was overpaid and what was not, additional one year lost profits, future sales post one year termination which includes some of the billings for work already done. [¶] The [r]eferee does not need to determine future profits.” In short, the reference was a general reference agreed upon by the parties to determine the specified accounting issues (Code Civ. Proc., § 638, subd. (a) [general reference one agreed upon by the parties to determine “any or all of the issues in an action”]), encompassing two of Woods’s three major claims: profits for January 2006, and “over-advances” to PLI from 2004 until January 31, 2006. The accounting was not to address future profits. Although the reference order was silent on Woods’s claim for one month unpaid rent and repayment of the $20,000 loan, both those claims are conceded by Robison and merit little further discussion.
Because the reference was a general reference, we need not address Woods’s contention the trial court erred by failing to independently consider the referee’s findings. In any event, even were the reference more properly characterized to be a special reference, the trial court did not simply rubber stamp the report, as claimed by Woods. Prior to ruling on the equitable accounting claim, the trial court considered extensive arguments and objections concerning the referee’s report, accompanied by the documentary evidence that was submitted to the referee, and the court adopted the referee’s findings.
We turn then to Woods’s specific claims he was denied due process in the reference proceeding requiring a new trial on the claims submitted to the referee.
c. Lack of certification
Woods’s first contention is easily dismissed. Woods contends he was denied due process because the referee (to whom he and Robison stipulated) failed to file a certification with the trial court consenting to serve and agreeing to comply with Code of Judicial Ethics and California Rules of Court. (Cal. Rules of Court, rule 3.904(a).) Woods cites no authority for the proposition that the failure to file such a certification renders the reference proceeding void or requires the referee’s report be disregarded. He concedes violations of the California Rules of Court “do not necessarily constitute a violation of due process.” Woods participated in the reference proceedings and did not raise this objection until after the judgment was entered. There is no contention the referee violated the Code of Judicial Ethics or the California Rules of Court. Accordingly, we reject his contention.
d. Failure to determine “over-advances” claim
Woods contends he was denied due process because the referee did not consider or rule upon his claim he over-advanced over $300,000 to PLI from 2004 through January 2006. Again, we disagree.
The referee determined Woods owed PLI $274,850. Notes to the report indicate that figure was based upon the accounts receivable and accounts payable as of January 31, 2006; carrier costs paid in January 2006, and after “separation;” monies billed and collected in January 2006; January 2006 overhead costs paid by PLI; amounts advanced by Woods to PLI in January 2006; and billings by PLI after January 31, 2006, for shipments taking place before then. Although the report does not make specific reference to Woods’s claim he “over-advanced” money from 2004 through 2006, there is no reason to believe the referee did not consider that specific claim in arriving at his final figure. Indeed, Robison and PLI’s accounting expert, Aldinger, explained Woods’s claim he had “over-advanced” money to PLI in 2004, 2005, and January 2006, was considered in the reference. Woods provided the referee with the checks written by Public Special from 2004 through 2006, and “disbursement journals” he personally prepared for each of those years (exhibits 121, 122, and 123) to show his overpayments of PLI expenses. But Aldinger explained Woods claim was premised upon his having erroneously characterized as “advances” Public Special expenditures for which he had no explanation (the “etc.” category in Woods’s disbursement journals), and in meetings before the referee, those items were removed from the “advances” column resulting in “the $324,295.89 [shrinking] to $-0-.” In hearings before the trial court, Woods made specific reference to the fact the referee was conducting a complete review (“hard number analysis”) of the accounts for 2004 and 2005 to assess the claim profits were not properly distributed for those years. Any such analysis would necessarily include examination of the expenses and advances for those years. In short, Woods has failed to demonstrate the accounting referee failed to consider the “over advances” claim.
e. Lack of final meeting & ambiguity in referee’s report
Woods contends he was denied due process in the reference proceeding because he was not given a final meeting with the referee after the referee’s tentative report was issued. He complains there were calculations in the referee’s final report that had not been included in the tentative report, and he was not given an opportunity to ensure the final report was accurate. He also complains these same inaccuracies in the final report render the report ambiguous, inconsistent, and inaccurate, again having deprived him of due process.
Preliminarily, we note Woods did not raise these arguments in his objections to the referee’s report. Furthermore, Woods has not shown a due process violation. The hallmark of due process is notice and opportunity to be heard. (County of Ventura v. Tillett (1982) 133 Cal.App.3d 105, 112, disapproved on another point in County of Los Angeles v. Soto (1984) 35 Cal.3d 483, 492, fn.4 [due process requires parties be notified of facts and issues in dispute and afforded a fair opportunity to be heard].) Woods stipulated to the reference to determine accounting issues. There is no indication he was denied the opportunity to present his evidence or arguments to the referee, or that he was denied the opportunity to address evidence and arguments presented by Robison. Rather, Woods complains the lack of a final meeting with the referee precluded him from pointing out what he believes are errors in the final calculations. He complains the referee did not properly account for certain customer billings and payments. He also complains the referee did not adequately account for PLI’s profit and losses. But Woods has not demonstrated how these claimed errors amount to a violation of due process as opposed to mere disagreement with the result.
3. Claimed Errors in the Trial Court’s Post-Reference Proceedings
Woods next raises complaints about the trial court proceedings that followed issuance of the referee’s report and preceded the court’s entry of the July 28, 2009, judgment, by which he claims his due process rights were violated requiring a complete new trial be ordered. As we have already noted, because the judgment was vacated by virtue of the order granting new trial, and there is no final appealable judgment, most of the issues are not cognizable on this appeal. Accordingly, we address the issues only to the extent they pertain to whether the trial court properly ordered a partial new trial.
For example, Woods complains the court erred by failing to issue a tentative ruling before entering the final judgment and to rule on his Code of Civil Procedure section 473 motion to vacate the judgment. Even if the points were relevant to this appeal, both are waived due to the complete lack of any reasoned legal analysis or citation to supporting authority. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 (Badie); Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 (Kim) [appellate court not required to consider points not supported by citation to authorities or record].)
“A trial court ruling on a new trial motion may order a new trial on a limited issue if a trial on that issue alone would not prejudice any party. [Citations.] Similarly, an appellate court may order a new trial on a limited issue if a trial on that issue alone would not cause such uncertainty or confusion as to deny a fair trial. [Citations.] The primary reasons to order a new trial limited to an issue, or issues, that can be determined separately without prejudice to any party are to relieve the trial court and the parties of the unnecessary burden of relitigating issues that have been decided, and to respect and preserve the results of a trial on issues as to which the appellant has not shown error. [Citations.] Whether an issue can be tried separately without prejudice to any party depends on the particular circumstances of each case. [Citation.] Any doubts as to whether a new trial limited to damages is appropriate should be resolved in favor of a complete new trial.” (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 696-697.)
Woods primarily contends the order granting him a partial new trial is improper because he has not yet been afforded trial on all of his claims. But as already noted, Woods’s pleadings asserted five areas of damages on a variety of legal and equitable theories, which he identified for the trial court as follows: (1) profits for January 2006; (2) his claim he made approximately $300,000 in “over-advances” to PLI from 2004 until January 31, 2006; (3) his entitlement to future profits of PLI; (4) one month’s rent; and (5) repayment of a $20,000 personal loan to Robison. PLI’s cross-complaint sought, among other things, an accounting of the business and asserted a conversion cause of action.
There was no dispute over Woods’s financial role in PLI—he advanced monies, took reimbursements, and was to be compensated with one-half the profits. The parties stipulated to a reference for an accounting that was to determine whether Woods owed PLI money or PLI owed Woods money. As already noted, an accounting is not a separate cause of action, but is an equitable remedy to render complete justice by equitably settling the parties’ accounts—i.e., to determine who owes what to whom. (Batt v. City and County of San Francisco, supra, 155 Cal.App.4th at p. 82; Peoples Finance etc. Co. v. Bowman, supra, 58 Cal.App.2d at p. 734; Civic Western Corp. v. Zila Industries, Inc., supra, 66 Cal.App.3d at p. 14.) In stipulating to the accounting, the parties essentially proceeded to the remedy part of the equation. The reference resolved the primary accounting issues concerning what was left owing between the parties relating to the time period they were still in a business relationship (i.e., through January 2006.) What was not resolved by the accounting are the very claims the trial court granted new trial upon—namely Woods’s claim he is entitled to a share of future profits of PLI (the damages he sought in his wrongful termination causes of action) and PLI’s conversion claim.
C. Remaining Issues
The remaining arguments raised by Woods generally need not be addressed because there is no final judgment. Those include his attacks on the sufficiency of the evidence to support the referee’s accounting numbers (Woods complains the referee did not give him proper credit for certain carrier payments he made, improperly charged him with carrier payments made by PLI, and did not adequately account for various refunds of carrier payments), and his contention prejudgment interest is not warranted. We nonetheless comment on a few of his remaining complaints.
1. Offsets
Woods complains the trial court improperly offset from the amount the referee determined Woods owed PLI, $20,000 for a personal loan he made to Robison and $1,498.28 in rent PLI owed Woods. Woods asserts because those amounts are undisputed, he was entitled to an affirmative judgment for those amounts, not simply an offset. He cites no legal authority to support his contention, and it is waived. (Badie, supra, 67 Cal.App.4th at pp. 784-785; Kim, supra, 17 Cal.App.4th at p. 979 [waiver].)
2. Judgment on the Pleadings: Accounting Cause of Action
Woods contends the trial court erred by granting Robison’s motion for judgment on the pleadings as to his complaint’s accounting cause of action. The argument is frivolous. The trial court granted Woods leave to amend, which he did. Robison’s demurrer to the amendment to the complaint was overruled as to the accounting cause of action, and Woods stipulated to the reference for the accounting.
3. Demurrer: Breach of Fiduciary Duty, Constructive Trust, Wrongful Termination Causes of Action
Woods contends the trial court erred by sustaining Robison’s demurrer to the breach of fiduciary duty and constructive fraud causes of action in the amendment to the complaint. He agrees both causes of action are dependent on the existence of a confidential relationship. Woods’s complaint was premised upon allegations he and Robison were partners, but the first phase trial resulted in a finding they were not partners (a finding Woods does not dispute in this appeal). His amendment couched the dispute in breach of contract terms, alleging Robison and PLI had breached the profit sharing agreement and the rental agreement. Woods alleged Robison breached a fiduciary duty owed as a result of their close personal relationship that gave Woods great trust and confidence in Robison to accurately manage and account for the funds of the business.
Woods did not allege a special or confidential relationship giving rise to a fiduciary duty. Friendship and trust are not sufficient to create a fiduciary duty. (Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 13 [“the mere placing of a trust in another person does not create a fiduciary relationship”].) Woods’s amendment to his complaint alleged a contractual duty and “‘the contractual right to contingent compensation in the control of another has never, by itself, been sufficient to create a fiduciary relationship where one would not otherwise exist.’ [Citations.]” (Gilman v. Dalby (2009) 176 Cal.App.4th 606, 614; see also Wolf v. Superior Court (2003) 107 Cal.App.4th 25, 30-31.)
Woods also contends he adequately alleged a cause of action for wrongful termination. His argument discusses none of the elements of the cause of action, and he engages in no reasoned legal analysis as to why the cause of action was adequately alleged. (Badie, supra, 67 Cal.App.4th at pp. 784-785; Kim, supra, 17 Cal.App.4th at p. 979 [waiver].) In any event, the gravamen of the wrongful termination cause of action was Woods’s claim he is entitled to share in PLI’s future profits the very issue that remains to be tried.
DISPOSITION
Appellants’ purported appeal from the July 28, 2009, judgment is dismissed. The order granting a partial new trial is affirmed. Respondents are awarded their costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., BEDSWORTH, J.