Banga v.The Restoration Clean Up Co.
Filed 3/29/13 Banga v.The Restoration Clean Up Co. CA1/5
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opinion has not been certified for publication or ordered published for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
FIVE
and Appellant,
and Respondent.
A133498
(Solano County
Super. Ct. No. FCS034970)
Plaintiff
Kamlesh Banga (Banga), who has represented herself for the duration of these
proceedings, appeals from a judgment entered in favor of defendant The
Restoration Cleanup Company, Inc. (Restoration) following a bench trial. She argues that the court committed
statement of decision and in granting Restoration’s motion for a “nonsuitâ€
based on her failure to present sufficient evidence to support her causes of
action. We affirm. First, the court did sign a statement of
decision prepared by defense counsel, and procedural irregularities in the
filing of that document do not require reversal of the judgment. Second, the “nonsuit,†which we treat as the
granting of a motion for judgment
under Code of Civil Procedure section 631.8,
was proper because plaintiff failed to present evidence in her case-in-chief
sufficient to support a judgment in her favor.
BACKGROUND
After
her home was damaged by fire, Banga filed a claim with her insurance carrier,
Allstate Insurance Company (Allstate).
She signed a written contract with Restoration for emergency repairs at
the property, and authorized Restoration to bill Allstate directly. Restoration submitted invoices to Allstate
for $5033.46.
Banga
filed suit against Restoration in 2009, claiming that it had billed Allstate
for work it had not completed, and that consequently, Allstate had reduced the
amount of her insurance settlement by the amount it had paid to Restoration. Banga’s second amended complaint, the
operative pleading, contained four causes of action based on these alleged
underlying facts: (1) breach of contract and the covenant of good faith
and fair dealing; (2) unfair business practices in violation of Business and
Professions Code section 17200; (3) fraudulent business practices in violation
of Business and Professions Code section 17200; and (4) illegal
business practices in violation of Business and Professions Code
section 17200.
Following
discovery, a one-day bench trial was
held on July 15, 2011. As part of her
case-in-chief, Banga called Bernadette Felli as a witness and established the
existence of a written contract between Restoration and Banga.
following facts: Her house was damaged
by a fire on June 5, 2005; she made a property damage claim under her Allstate
homeowner’s policy; she contacted Restoration at the insurance adjustor’s
recommendation to see whether it could do structural repairs and emergency
cleanup; she agreed to have Restoration bill Allstate directly; she was told by
a representative of Restoration that it would only bill Allstate for work that
was completed; Restoration did some cleanup work but was told by Banga on
June 13, 2005 that they would not be doing any additional cleaning until
it was time to paint the house; Restoration sent invoices to Allstate billing
it for work in the living room, family room, dining room and bedrooms that was
never performed; Restoration was paid $4,385 by Allstate for work that was not
performed. The court sustained an
objection on foundational grounds to testimony by Banga that Allstate deducted
$5,366 from her insurance settlement.
After
she finished testifying, Banga rested her case.
Restoration moved for a “directed verdict and nonsuit†on the following
grounds: (1) Banga had failed to allege any facts showing that it breached
their written contract, and the parol evidence rule made inadmissible evidence
of Restoration’s alleged oral promise to only bill Allstate for completed work;
(2) Banga had not presented any admissible evidence of damages, i.e., evidence
showing that her insurance settlement with Allstate was reduced as a result of
payments to Restoration for work it did not perform; and (3) the evidence did
not show that Restoration had engaged in fraudulent or deceptive business
practices under Business and Professions Code section 17200. The court granted a nonsuit.
On
July 29, 2011, at the court’s request, counsel for Restoration submitted a
proposed statement of decision and judgment and served Banga with copies of the
same. On August 4, 2011, the court
signed the proposed statement of decision without change, and it was filed on August
5, 2011. The judgment was signed and
entered on August 16, 2011. On August
17, 2011, Banga filed an “opposition†to the proposed statement of decision. On October 14, 2011, she filed a notice of
appeal from the judgment.
DISCUSSION
I.
a
Motion for
Judgment Under § 631.8
Though the
trial court purported to grant Restoration’s motion for “nonsuit,†nonsuit is
not available in a bench trial after evidence has been presented. (§ 581c; Lingenfelter
v. County of Fresno (2007) 154 Cal.App.4th 198, 206.) We deem the court to have granted a motion
for judgment under section 631.8, which allows a party in a court trial to move
for judgment after the opposing side has completed its presentation of
evidence. (See Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 314, fn. 23.) “ ‘ “The purpose of Code of Civil Procedure
section 631.8 is to enable a trial court which, after weighing the evidence at
the close of the plaintiff's case, is persuaded that the plaintiff has failed
to sustain [her] burden of proof, to dispense with the need for the defendant
to produce evidence. [Citations.]†[Citation.]
Thus, section 631.8 serves the same purpose as does section 581c, which
permits the court to grant a nonsuit in a jury trial. [Citation.]’ †(Roth
v. Parker (1997) 57 Cal.App.4th 542, 549 (Roth).)
II.
and its Premature
Banga
argues that the judgment must be reversed because the court failed to file an
operative statement of decision. We
disagree.
When a
court grants a motion for judgment during a bench trial, it must issue a
statement of decision as provided in section 632. (§ 631.8, subd. (a).) “The statement of decision shall be in
writing . . . however, when the trial is concluded within one calendar day . .
. the statement of decision may be made orally on the record in the presence of
the parties.†(§ 632.) Although a written statement of decision was
not required in this case due to the short duration of the trial, the court
directed Restoration to prepare one as authorized by rule 3.1590(c)(3) of the
California Rules of Court. It then
adopted that statement of decision by signing it and filing it on August 5,
2011. Though titled “Proposed Statement
of Decision,†the document was in final form and was obviously intended to be
the court’s statement of decision in the matter.
After
Restoration timely filed and served the proposed statement of decision on July
29, 2011, Banga had 15 days to serve and file objections to the same. (Cal. Rules of Court, rule 3.1590(g).) Restoration acknowledges that the trial
court, by filing the statement of decision and judgment before this period
expired, did not give Banga the benefit of the 15-day period. But, the premature signing of a proposed
statement of decision or judgment “does not constitute reversible error unless actual prejudice is shown.†(Heaps
v. Heaps (2004) 124 Cal.App.4th 286, 292 (Heaps); see also In re
Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519, 524.)
No
prejudice appears on this record. “The
main purpose of an objection to a proposed statement of decision is not to
reargue the merits, but to bring to the court’s attention inconsistencies
between the court’s ruling and the document that is supposed to embody and
explain that ruling.†(
Banga did file an “opposition†to the statement of decision on August
17, 2011, but it was little more than an attempt to reargue her case and draw
the court’s attention to evidence that was not admitted at trial. She was not prejudiced because there is no
indication the written statement of decision does not accurately reflect the court’s
ruling, even if Banga disagreed with its substance.
III. The
Trial Court Properly Granted Judgment in Favor of Restoration
Banga
argues that the trial court erred in granting a nonsuit/motion for judgment
because the evidence supported her claims against Restoration. In assessing this claim, we apply a
substantial evidence standard, meaning that we are bound by the trial court’s
factual determinations below, and may not reweigh the evidence or reassess
issues of credibility. (
Orange (1988) 205 Cal.App.3d 1289, 1293-1294; Roth, supra, 57
Cal.App.4th at p. 549.)
As to the
cause of action for breach of contract, Banga was required to prove four
essential elements: (1) the existence of a contract; (2) her own performance of
the contract or excuse for nonperformance; (3) a breach of the contract by
Restoration; and (4) resulting damages.
(Hamilton v. Greenwich Investors
XXVI, LLC (2011) 195 Cal.App.4th 1602, 1614; First Commercial Mortgage Co. v. Reece (2001) 89 Cal.App.4th 731,
745.) Her theory was that Restoration
had breached their agreement by billing Allstate for work before it had been
completed. Yet, Banga acknowledged that
her written contract with Restoration, which contained an integration clause,
made no mention of such a billing requirement.
Banga attempted to testify that a representative of Restoration had
promised not to bill Allstate until their work was finished, but the court
properly excluded this testimony under the parol evidence rule, which bars the
use of extrinsic evidence to vary, alter, or add to the terms of an integrated
written instrument. (See
Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 1174 (
(1992) 5 Cal.App.4th 1412, 1433; see Civ. Code, § 1625, Code Civ. Proc.
§ 1856, subd. (a).) There was no
substantial evidence that Restoration breached any provision of the written
contract.
Moreover,
Banga failed to introduce evidence that showed she was damaged as a result of
Restoration’s alleged billing for work it did not perform. Though she testified that Allstate withheld
from her insurance settlement money paid to Restoration, the trial court
sustained an objection based on a lack of foundation. This was not an abuse of discretion, because
Banga did not establish that she had personal knowledge about Allstate’s claims
practices such that she could testify that money paid to Restoration would
otherwise have been paid to her directly.
(See Bozzi v. Nordstrom, Inc.
(2010) 186 Cal.App.4th 755, 762.)
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We next
turn to the three causes of action based on violations of Business and
Professions Code section 17200. A
private plaintiff seeking relief under this section “must make a twofold
showing: he or she must demonstrate injury in fact and a loss of money or property caused by
v. Sharp Healthcare (2010) 183 Cal.App.4th 1373, 1381; see Bus. & Prof.
Code, § 17204.) As already
discussed, Banga did not establish by competent evidence that she was actually
injured as a result of the bills Restoration submitted to Allstate.
In light of
our resolution of these issues on the merits, we do not reach Restoration’s
argument that the appeal should be dismissed due to irregularities in the
service of the Appellant’s Appendix and the submission of an amended
designation of the appellate record. We
also deny Restoration’s separate motion for sanctions, filed November 14, 2012. Banga’s appeal, though lacking in merit, was
not wholly frivolous.
DISPOSITION
The
judgment is affirmed. Respondent
Restoration is entitled to recover its ordinary costs on appeal.
NEEDHAM,
J.
We concur.
SIMONS, Acting P. J.
BRUINIERS, J.
Procedure except where otherwise indicated.
Felli’s relationship to Restoration, it can be inferred from the record that
Felli worked for the company in some capacity.
