Access Recovery Group v. Pinnick
Filed 2/5/09 Access Recovery Group v. Pinnick CA1/3
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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
ACCESS RECOVERY GROUP, INC., Plaintiff and Appellant, v. KIMBERLY PINNICK, Defendant and Respondent. | A119265 (Alameda County Super. Ct. No. HG05204883) |
In this case tried to the court, Access Recovery Group Inc. (Access) contends the trial court erred when it granted Pinnicks motion for nonsuit brought pursuant to Code of Civil Procedure section 581c.[1] Because the same judgment could have been entered on a motion brought pursuant to section 631.8, we affirm. In essence, this appeal pits form against substance. Substance wins.
BACKGROUND
Only a brief factual recitation is necessary in light of the limited issues presented.[2] Access sued Kimberly Pinnick for breach of contract, fraud and various related offenses. The case was tried to the court. Pinnick moved for nonsuit under section 581c after Access presented its case-in-chief. The court took the motion under consideration.
After Pinnick presented her defense case and Access presented its rebuttal, Pinnick renewed her motion. This time, the court granted the motion. The trial courts written order sets forth as factual findings that not one of Accesss witnesses, and none of its evidence, was credible, believable or otherwise trustworthy, and that all of Pinnicks witnesses were credible, believable and therefore trustworthy. The court determined that Access not only failed to meet its burden of proof as to any of its causes of action, but also, based on its witnesses lack of truthfulness and credibility, that all of its claims and causes of action were without merit, baseless and without any evidentiary support.
Access timely appealed from the ensuing judgment of dismissal.
DISCUSSION
Access argues, correctly, that Pinnick sought, and the court granted her, relief under the wrong provision. Section 581c provides that Only after, and not before, the plaintiff has completed his or her opening statement, or after the presentation of his or her evidence in a trial by jury, the defendant, without waiving his or her right to offer evidence in the event the motion is not granted, may move for a judgment of nonsuit. ( 581c, subd. (a).) But the procedure for nonsuit is to be distinguished from a motion for judgment pursuant to Code of Civil Procedure section 631.8. . . . [I]n ruling on a motion for nonsuit, the trial court is required to assume that all relevant evidence offered by the plaintiff is true, and all reasonable inferences or doubts [are] to be resolved in [the] plaintiffs favor. [Citation.] In ruling upon the motion, the court [is] not permitted to judge the credibility of the witnesses, or weigh the evidence. [Citation.] In a motion for judgment, on the other hand, the trial court must decide questions of credibility, must weigh the evidence, and must make findings of fact. [Citations.] Finally, pursuant to the express terms of Code of Civil Procedure section 631.8, a motion for judgment is available only in a trial by the court. (Lingenfelter v. County of Fresno (2007) 154 Cal.App.4th 198, 204.)
The trial court therefore erred when it judged the witnesses credibility and weighed the evidence on Pinnicks motion for nonsuit under section 581c. But, it is equally clear that the error was harmless. Pinnick could have moved for judgment under section 631.8, subdivision (a). It provides, After a party has completed his presentation of evidence in a trial by the court, the other party, without waiving his right to offer evidence in support of his defense or in rebuttal in the event the motion is not granted, may move for a judgment. The court as trier of the facts shall weigh the evidence and may render a judgment in favor of the moving party, in which case the court shall make a statement of decision as provided in Sections 632 and 634, or may decline to render any judgment until the close of all the evidence. The court may consider all evidence received, provided, however, that the party against whom the motion for judgment has been made shall have had an opportunity to present additional evidence to rebut evidence received during the presentation of evidence deemed by the presenting party to have been adverse to him, and to rehabilitate the testimony of a witness whose credibility has been attacked by the moving party.
Although Pinnick moved for nonsuit rather than for judgment and the trial court entertained her motion under section 581c, the requirements of section 631.8 were satisfied. Access argues they were not by claiming the court failed to render findings of fact as required by section 631.8. Access is mistaken. When the trial court grants a motion for judgment, it must provide a statement of decision that explain[s] the factual and legal basis for its decision as to each of the principal controverted issues at trial. ( 632, 631.8, subd. (a).) The trial court fulfilled that requirement when it explained as its findings of fact and conclusions of law that Access failed to offer any credible testimony, or evidence of any kind, in support of any of its claims. The purpose of findings is to answer questions raised by the pleadings and to make the case more susceptible to review by disclosing the exact grounds upon which the judgment rests. (Estate of Pack (1965) 233 Cal.App.2d 74, 78.) The trial court could hardly have been clearer about the exact basis for its decision.
Access also asserts the court should have excluded defense evidence about Alameda Countys efforts to collect an earlier judgment against David Davis[3]as irrelevant, immaterial and misleading. Even if Access were correctwhich is not shown by its cursory arguments and the limited record in this appealAccess cannot show resulting prejudice. Access failed to carry its burden of proof as to a single one of its claims against Pinnick, and, in fact, failed to offer any credible evidence, of any kind. Since there was nothing for Pinnick to disprove, error, if any, in the admission of defense evidencecould not possibly have affected the judgment. Accesss claim that Pinnick basically admitted carrying out each act alleged in the complaint is unsupported by either citation to the record or legal argument and authority.
In sum, the only error in this case was strictly one of nomenclature that had no conceivable prejudicial effect.
DISPOSITION
The judgment is affirmed.
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Siggins, J.
We concur:
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McGuiness, P.J.
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Jenkins, J.
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[1] All further statutory references are to the Code of Civil Procedure.
[2] Our prior opinions in County of Alameda v. Ace Recovery Services, Inc. (July 29, 2002) A097022 [nonpub. opn.] and County of Alameda v. Ace Recovery Services, Inc. (Mar. 30, 2006) A109966 [nonpub. opn.] contain a description of the facts and events that precipitated this lawsuit.
[3] Mr. Daviss exploits and their relevance to this case are set forth in County of Alameda v. Ace Recovery Services, Inc.,supra, A109966 [nonpub. opn.].)
