Hills Triangle v. Ayn Pharmacy
Filed 6/25/12 Beverly Hills Triangle v. Ayn Pharmacy CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
BEVERLY
HILLS TRIANGLE, LLC, et al.,
Plaintiffs and Respondents,
v.
AYN PHARMACY CORPORATION et
al.,
Defendants and Appellants.
B230188
(Los Angeles
County
Super. Ct.
No. BC399678)
APPEAL from
a judgment of the Superior Court
of
County. Malcolm H.
Mackey, Judge. Affirmed.
Ecoff Blut,
Lawrence C. Ecoff and Philip H.R.
Nevinny, for Defendants and Appellants.
Steckbauer
Weinhart Jaffe, William W. Steckbauer and Sean A. Topp, for Plaintiffs and
Respondents.
________________________________
This case
involves a dispute between a commercial tenant and landlord. At the end of two years of litigation and
trial, a jury rendered a special verdict in favor of the landlord. The tenant claimed the landlord breached the
parties’ amended lease.
The landlord claimed the lease amendment was forged. The tenant now appeals from the judgment,
challenging the trial court’s pretrial discovery rulings, orders sustaining a
demurrer and motion for summary adjudication, a motion in limine ruling and
related evidentiary rulings, and the court’s order awarding attorney fees. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Pleadings, and Demurrer
AYN Pharmacy Corporation (the
pharmacy) was a tenant in a commercial medical building in Beverly
Hills owned by Beverly Hills Triangle, LLC (BHT). In October 2008, BHT and Ezatollah Delijani
(collectively respondents) filed a complaint seeking declaratory relief and
asserting a claim of elder abuse against the pharmacy and Afshin Nassir
(collectively appellants). The complaint
alleged respondents leased space to appellants pursuant to a written lease
executed on August 9, 2007
(August 9 lease). According to the
complaint, the parties executed a written modification of one term of the lease
on August 13, 2007 (August
13 amendment).
The August 9 lease provided BHT
would lease certain space to the pharmacy for a four-year term. The August 9 lease did not give the lessee
any right to extend or renew the lease.
It allowed the lessee three unreserved parking spaces at a rental rate
to be determined by the lessor or the parking operator. The August 9 lease further provided that the
lessee was taking the premises in an “as is†condition. Work on the premises was to be done at the
lessee’s sole cost and expense. Nassir
executed a guaranty of the lease. The
August 13 amendment provided in relevant part that the “[l]essee shall have
conditional rent credit against base rent in terms of the aforementioned
Lease. Lessee shall not pay base rent
for the month of September, 2007.
[¶] All other terms and
conditions of the Lease shall remain the same.â€
Delijani and Nassir signed both the August 9 lease and August 13
amendment. Delijani signed for BHT and
Nassir for the pharmacy.
Respondents’ complaint alleged that
in September 2008, Nassir presented a “fraudulent and forged letter dated August 15, 2007†(August 15 letter),
purporting to set forth several lease terms that contradicted the August 9
lease. According to the complaint,
Nassir made demands of Delijani and BHT based on the August 15 letter,
including that BHT honor additional five-year options to renew the lease and
that BHT reimburse the pharmacy for rent paid between August 9, 2007 and September 3, 2008.
The complaint asserted neither Delijani nor anyone with authority to
sign on his behalf had signed or consented to the August 15 letter, and that
Delijani’s signature on the document was forged.
The August 15 letter purported to
give the lessee a “conditional rent credit against base rent†as follows:
“After September 2007 any rent collected by Lessor from Lessee, until all
permits on premises leased are completed and until all Tenant Improvements on
premises leased are completed shall be added to the security deposit owed to
lessee by lessor of $10,277.88 at an annual interest rate of 8% until all
monies owed to lessee by Lessor is paid in full at Lessee’s own
discretion. All Tenant Improvements and
permits except for Pharmacy cabinets are to be paid by lessor.†The August 15 letter also provided that the
lessor would provide parking for all of the lessee’s employees at “fair market
value not to exceed $100.00 monthly for the entire term of the lease and
options.†The lessor was also to provide
parking validations for the lessee’s customers at a specified rate.
The August 15 letter granted the
lessee four five-year options to extend the lease. The option rent would be: “based on fair rent
market value for Pharmacies in Beverly Hills. If such cannot be obtained options will be
based on median rent market value for Pharmacies in the United
States.
Options may be exercised by lessee from lessor at any time during and
after the lease.†The August 15 letter
gave the lessee the right to display signs “in elevators, in parking lots, in
front of the Pharmacy, in the lobby and hallways, and
etc . . . as it deems necessary. The signs are to be placed by lessor at
lessors [sic] own cost as [
“obligations of the lessor under this lease shall be guaranteed by Mr.
Ezatollah Delijani and/or its successors.â€
Respondents’ complaint sought a
judicial declaration that the August 9 lease was the operative lease governing
the parties’ agreement, and that the August 15 letter was a forgery and not a
valid amendment to the August 9 lease.
Appellants filed a
cross-complaint. After a series of
demurrers and amendments, appellants filed a third amended cross-complaint
alleging claims for breach of lease, fraud, unjust enrichment, money had and
received, and declaratory relief. In
support of the fraud claim, appellants alleged respondents intentionally
misrepresented that they intended to perform the terms of the August 15 letter,
when they never intended to perform.
Respondents demurred to the third
amended cross-complaint. The trial court
sustained respondents’ demurrer to the fraud cause of action, without leave to
amend.
Discovery
There were numerous contested
discovery issues in the course of the litigation. We describe only those relevant to the issues
on appeal. In October 2008, appellants
served respondents with requests for production of documents, including
documents relating to respondents’ finances, and all leases, and documents
pertaining to leases, between respondents and other tenants in the building
over a five-year period. Respondents
asserted numerous objections, including objections based on undue burden,
relevance, confidentiality, and privilege.
In February 2009, appellants moved to compel responses. The trial court denied appellants’ motion to
compel.
In February 2010, appellants filed
additional motions to compel. Appellants moved to compel responses to
interrogatories seeking identification of Delijani’s membership or shareholder
interests in other business entities, information regarding Delijani’s dispute
with another party involving “fair market value,†identification of tenants to
whom respondents had provided certain lease terms, and information relating to
the creation of respondents’ letterhead.
Respondents objected to the interrogatories. Appellants also moved to compel deposition
testimony. During the deposition of Tom
Walas, the building manager, Walas testified he was aware of one instance in
which respondents had granted a tenant two five-year options to extend a
lease. However, respondents’ counsel
instructed Walas not to answer when appellants’ counsel asked for the name of
the tenant. Appellants moved to compel a
response to the question. Appellants
additionally moved to compel production of respondents’ “tenant file†for the
pharmacy, and documents pertaining to the file, as well as operating agreements
for BHT and related entities. The trial
court largely denied the motions to compel.
Motion for Summary Adjudication
In June 2010, respondents filed a
motion for summary judgment or, alternatively, summary adjudication. Respondents argued the trial court should
dismiss all claims against Delijani because appellants could not prove he
signed any of the lease documents in his individual capacity. Respondents asserted even the August 15 letter
purported to show Delijani signed the document on behalf of BHT. Respondents further argued appellants’ alter
ego allegations against Delijani failed as a matter of law because appellants
could not establish Delijani disregarded corporate formalities, there was a
unity of existence between BHT and Delijani, or that piercing the corporate
veil was necessary to avoid an injustice.
Respondents also contended an express exculpatory provision in the
August 9 lease shielded Delijani from any personal liability. The trial court granted
against Delijani. The court denied the
motion as to claims against the other cross-defendants.
Motion in Limine Regarding a Criminal Investigation
Prior to trial, appellants moved to
exclude any references to a criminal investigation into possible forgery of the
August 15 letter, and to exclude the testimony of expert witnesses from the
Sheriff’s department. Delijani had
testified in a deposition that he mentioned the dispute with appellants to the
Los Angeles County Sheriff when he happened to speak to him at an event. Delijani testified the sheriff told him he
must report the “crime,†and a few days later a detective came to his office
and asked questions. In their motion in
limine, appellants argued references to the criminal investigation should be
excluded under Evidence Code section 352 as unduly prejudicial, and
inadmissible under Evidence Code section 787, because the investigation did not
result in a conviction.
name="_ftnref1" title="">[1] Appellants contended Torres’s testimony would
confuse and mislead the jury, and if apprised of an investigation, the jurors
would assume appellants had engaged in wrongdoing.
In a supplemental declaration
supporting the motion, appellants further sought to exclude the Torres
testimony because their own expert from the Sheriff’s Department Questioned
Documents section had recused himself.
The expert informed appellants’ counsel that the sheriff’s department
required he recuse himself because of “the pending criminal
investigation.†Appellants’ counsel
declared, based on conversations with a deputy district attorney, that although
the investigation was closed due to insufficient evidence, it was later
re-opened at the sheriff’s request.
Counsel declared she believed that Torres, as a sheriff’s department
employee, also had an agreement precluding her from testifying in a case in
which there was a pending criminal
investigation.
In opposition to the motion in
limine, respondents asserted their experts would not discuss the criminal
investigation, and counsel would not ask them any questions about the
investigation. Respondents further
argued Torres was a qualified expert and her testimony would not be prejudicial
within the meaning of Evidence code section 352. Respondents challenged appellants’ assertions
about Torres being precluded from testifying due to Sheriff’s department policy
as impermissible hearsay, and also simply incorrect.
The trial court denied the motion
in limine, with a cautionary statement.
The court explained: “Well, I’m going to do the weighing under 352. I find the probative outweighs the
prejudicial. That would be allowed, but
watch it. . . . Let’s not get into the criminal because the cross-complaint is
going to say, well, you know, nothing ever happened . . . .â€
Trial and Jury Verdict
At trial, Nassir testified about
his negotiations with Delijani that purportedly formed the basis of the August
15 letter. He denied preparing the
August 15 letter, signing Delijani’s name, or directing anyone to prepare the
document or sign Delijani’s name.
Respondents’ witnesses contradicted Nassir’s version of events. Delijani denied agreeing to the terms of the
August 15 letter or signing the document.
He indicated several of the terms in the letter were provisions he
rarely, if ever, agreed to in a lease.
The employee who prepared the August 9 lease and August 13 amendment
denied preparing the August 15 letter.
Walas, the building manager, testified that he did not prepare the
August 15 letter. He testified that he
had worked for the Delijanis since 2002 and had never known them to give four
options of any length to a tenant in the building. An expert in commercial leasing in Beverly
Hills testified that many of the terms in the August 15 letter were
commercially unreasonable, poorly worded, and even “wacky and absurd,â€
particularly in view of the busy commercial real estate market that existed in
Beverly Hills at the time.
Both sides offered testimony from
forensic document examiners.
Respondents’ expert, Barbara Torres, compared the signature on the
August 15 letter with other Delijani signature exemplars, and conducted
additional tests. Torres opined “that
the person who produced the exemplar documents may not be the same person who
produced the questioned signature.â€
name="_ftnref2" title="">[2] Appellants’ opposing expert, Frank Hicks,
testified that he thought Torres had done an “excellent job†on the scientific
portion of her analysis, but he disagreed with her conclusion. Hicks opined that the “Delijani signature on
the questioned document . . . was probably prepared by the writer of the known
signatures that were submitted . . . as genuine signatures of Mr.
Delijani.â€
The parties submitted a special
verdict to the jury. The first question
asked the jury to decide whether the signature on the August 15 letter was
authentic. If the jury concluded it was
not, they were directed to answer no further questions. The jury concluded the signature was not
authentic.
Attorney Fees
Respondents filed a motion seeking
$671,892.50 in fees as the prevailing party under the August 9 lease’s attorney
fees provision. Appellants opposed the
motion. Appellants argued respondents’
fee request improperly included amounts appellants had been awarded in
discovery sanctions against respondents, respondents should not receive fees
for time billed on discovery motions respondents ultimately lost, respondents
should not recover more fees for work on discovery motions than what they
previously requested as discovery sanctions on those motions, respondents
should not recover fees relating to tort claims at issue in the case,
respondents should not recover fees for time spent communicating with
individuals not related to the causes of action at issue in the case, and the
requested fees were unreasonable and excessive.
The trial court awarded respondents $671,852 in fees.
DISCUSSION
I. There was No Prejudicial Error in
Connection with the Trial Court’s
Pre-Trial Rulings
A.
Discovery Rulings
Appellants contend the trial
court abused its discretion when it denied appellants’ motions to compel: (1)
production of BHT financial documents;
(2) production of BHT’s leases with other tenants; (3) production of the pharmacy’s
tenant file; (4) production of the BHT operating agreement and similar
agreements for related entities; (5) an interrogatory response identifying
Delijani’s membership in business entities; (6) an interrogatory response
identifying instances in which respondents agreed to certain lease terms; and
(7) deposition testimony from Walas providing the identity of the tenant to
whom respondents had provided two five year options. We find no reversible error.
On appeal we “must keep liberal
policies of discovery statutes in mind when reviewing decisions denying or
granting discovery†and “liberal policies of discovery rules will generally . .
. militate in favor of overturning a decision to deny discovery.†(
977, 987.) However, “ ‘ “[m]anagement of
discovery generally lies within the sound discretion of the trial court.†[Citation.]
“Where there is a basis for the trial court’s ruling and it is supported
by the evidence, a reviewing court will not substitute its opinion for that of
the trial court. [Citation.] The trial court’s determination will be set
aside only when it has been demonstrated that there was ‘no legal
justification’ for the order granting or denying the discovery in question.â€
’ [Citation.] [¶] The foregoing standard is highly deferential
to the trial court; however, [appellants] face an additional burden as
well. Because [appellants] did not seek
writ review of the trial court’s denial of their motion to compel, and instead
sought review only on appeal from the judgment [entered on the jury verdict]. .
. they must show not only that the trial court erred, but also that the error
was prejudicial . . . .†(
Cal.App.4th 712, 740.) In other words,
appellants “must show that it is reasonably probable†they would have secured a
more favorable result at trial had the court granted their motions to
compel. (Ibid, citing Cassim v. Allstate Ins. Co. (2004)
33 Cal.4th 780, 800–802 (Cassim)
[discussing prejudicial error in civil cases].)
1. BHT
Financial Documents
Appellants
sought production of a wide range of respondents’ financial documents,
including: “All WRITINGS, that pertain to, reflect, refer to or constitute a
rent roll for the Project and each Tenant within the Projectâ€
“All WRITINGS, that pertain to, reflect, refer to or constitute financial
statements pertaining to the Project for the last five yearsâ€;“All WRITINGS,
that pertain to, reflect, refer to or constitute a loan made by any person,
firm or company, as lender, to Plaintiff, as maker, secured by the
Projectâ€;“All WRITINGS that pertain to, reflect, refer to or constitute a
profit and loss statement with respect to the Project for the last five years
pastâ€; and “All WRITINGS, that pertain to, reflect, refer to or constitute a
cash receipts and disbursement journal with respect to the operation of the
Project for the last five years past.â€
Respondents
asserted a number of objections to these requests, including that they were
overbroad and unduly burdensome, infringed on the privacy of BHT and third
parties, and called for documents not relevant to the subject matter of the
action or reasonably calculated to lead to the discovery of admissible
evidence. On appeal, appellants contend
the trial court should have compelled production of the requested financial
documents because they were “relevant to whether Respondents promised
Appellants that they would reimburse Appellants for tenant improvements at the
Subject Property, and whether such an agreement was fiscally necessary.†Appellants further argue respondents’ privacy
objections were unfounded. Appellants
assert they sought BHT’s financial documents to demonstrate that the
“requirement that Respondents reimburse Appellants for Tenant Improvements and
rent paid during construction†was plausible and reasonable.
The trial
court could reasonably conclude appellants’ document requests were overly broad
and unduly burdensome in relation to the information appellants were actually
seeking. Appellants sought financial
data for the building for several years before the events giving rise to the
action. Some of the requests sought
documents for an indefinite time period.
The requests had a notably broad scope as they called for both certain
types of documents, and writings pertaining to these documents. Some also directly called for disclosure of
third-party financial information, such as the rent roll and documents related
to the rent roll. Appellants’ rationale
for seeking the documents was vague at best; the purported connection between
the commercial plausibility of the August 15 letter’s tenant improvement
provision and respondents’ financial health was unclear.
offered to narrow the scope of these requests during the parties’ efforts to
meet and confer. The trial court did not
abuse its discretion in denying the motion to compel production of the
requested financial documents. The court
could reasonably conclude the potential value of the documents sought did not
warrant the burdens of production and the significant intrusion on the privacy
of respondents and third parties. (
Bagley LLP v. Superior Court (2006) 137 Cal.App.4th 579, 595 [assuming
without deciding artificial entity entitled to some privacy rights; balancing
that right and right to discovery]; Calcor
Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223 (
2. Leases with
other tenants, related documents, and interrogatory on BHT’s agreement to
certain lease terms
Appellants also challenge the trial court
order denying their motion to compel production of respondents’ leases with
other tenants in the building. We note
appellants’ request sought documents beyond the other tenants’ leases. The request demanded “[a]ll WRITINGS, that
pertain to, reflect, refer to or constitute a lease by and between†respondents
and “tenants†within the building “for the last five years past.†Appellants also moved to compel a further
response to interrogatories seeking identification of “each tenant to whom YOU
have granted an option to renew a commercial lease, from 1999 to present†;
“each tenant on whose behalf YOU have paid for the tenant improvements
completed on such tenant’s leased premisesâ€; and “each tenant with whom you
have entered into an agreement whereby YOU would reimburse the tenant all or a
portion of the money the tenant paid for tenant improvements completed on such
tenant’s leased premises.†Respondents
asserted objections, including that the document request and interrogatories
were unduly burdensome, not reasonably calculated to lead to the discovery of
admissible evidence, and that they sought privileged information and
confidential information of respondents and third parties.
In response
to appellants’ motion to compel, respondents pointed out that when appellants’
definitions were considered, appellants were seeking information relating to
the leasing practices of Delijani, any business entity in which he had ever
held a membership interest, and any business entity of which he had been a
shareholder. Respondents also asserted
that the demand for all documents relating to all leases with all of the
tenants at the building was unjustifiably overbroad. We conclude the trial court could reasonably
find the document request and interrogatories were extremely overbroad and
unduly burdensome. Some subset of the
requested information may have been relevant to the action, or may have led to the
discovery of admissible evidence. However,
appellants’ requests were not limited to such information. Instead, appellants demanded information
regarding leasing practices of entities of which Delijani had ever been a
member or shareholder, with no date limitation, or geographic limitation, and
for a nine-year period preceding the events in this case. The document request sought not only the
leases of other tenants in the multi-tenant commercial building, but all
documents referring to or pertaining to such leases, and not just leases containing
certain provisions at issue in the case.
(See Calcor, supra, 53
Cal.App.4th at p. 223.) There is no
indication appellants ever narrowed these requests to render them less broad or
burdensome. While the trial court could
have exercised its discretion to compel a subset of the documents or suggest
modifications to the original demands, it was not an abuse of discretion for
the court to decline to re-write appellants’ discovery requests. (Deaile
v. General Telephone Co. of California (1974) 40 Cal.App.3d 841, 851.)
3.
Appellants’ tenant file and related documents
Appellants moved to compel
production of respondents’ “tenant file†for the pharmacy. The request at issue sought “[a]ll WRITINGS,
that pertain to, reflect, refer to or constitute YOUR tenant file for Ayn
Pharmacy Corporation, d/b/a The Prescription Center, as referenced in YOUR
deposition on August 17, 2009.†The
request was propounded to “Delijani,†defined as Delijani and “any business
entity in which Ezatollah Delijani holds a membership interest and/or has been
a shareholder.†Respondents represented
they had produced “the non-privileged, non-confidential portions of Defendants’
tenant file†in 2008.
name="_ftnref6" title="">[6] At the hearing on the motion to compel,
respondents’ counsel argued the request to compel a further response was
improper because it requested documents from Delijani that he did not own. Counsel also argued the request called for
privileged documents, and not just the file, but any documents pertaining to
the file. Counsel further argued the
documents were produced in response to the earlier requests to BHT. Appellants’ counsel argued respondents should
have produced certain other documents with the file, but she did not
specifically identify such documents.
Under the circumstances, the trial court’s conclusion that respondents
had sufficiently responded to the request by producing non-privileged documents
was not an abuse of discretion.
4.
Walas deposition testimony
Appellants moved to compel Walas to
answer a deposition question seeking the name of the tenant to whom BHT had
provided two options to extend a lease.
Respondents asserted privacy objections, which the court accepted in
denying the motion to compel. Courts
have recognized that artificial entities have at least a limited right to
privacy when confidential documents are sought in discovery, including
financial documents. (
594-595.) Some courts have thus employed
a balancing test to determine whether financial information of third parties
should be protected from discovery. (
Here the trial court did not abuse
its discretion in balancing appellants’ right to and need for discovery and the
privacy rights of third parties whose information was sought. In some cases, disclosure of names and
identifying information of potential witnesses may not be considered a
significant invasion of privacy. (
Ct. (2007) 40 Cal.4th 360, 367, 373.)
But in this case, Walas had already testified about a term in the
tenant’s lease. Disclosing the tenant’s
name would thus reveal the tenant’s business information, rather than identity
alone. In addition, Walas had already
provided the most relevant information (respondents had previously granted
multiple options to extend a lease), and there is no indication that he was
instructed not to answer other questions about the details of that lease, or
that appellants were prevented from seeking additional information by other
means, such as third-party discovery. Under these particular circumstances, we find
no abuse of discretion.
5. Discovery regarding Delijani’s membership
interests in other entities and BHT/ related-entity operating agreements
Appellants cannot show the trial
court’s refusal to compel production of documents relating to Delijani’s
membership interests, or the corporate documents of BHT and related entities,
was prejudicial. The jury determined
Delijani’s signature on the August 15 letter was not authentic. As a result, neither BHT nor its related
entities could be held liable for breach of that purported agreement. Evidence about the organizational structure
of BHT or other related entities was not probative of the issue of the
authenticity of the August 15 letter.
Even if the trial court erred in denying appellants’ motion to compel
these documents, appellants have not met their burden to demonstrate prejudice
from that ruling.
Demurrer and Summary Adjudication
Appellants
also challenge the trial court’s orders granting in part respondents’ demurrer
and motion for summary adjudication. But
even if the trial court improperly granted these motions, we could not find the
error reversible under the circumstances of this case. “When the trial court commits error in ruling
on matters relating to pleadings, procedures, or other preliminary matters,
reversal can generally be predicated thereon only if the appellant can show
resulting prejudice, and the probability of a more favorable outcome,
v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833.)
The trial court sustained the
demurrer to appellants’ fraud claim, without leave to amend. The claim was based on the allegation that
respondents unlawfully led appellants to believe they would perform under the
August 15 letter when they had no intention of doing so. But the jury concluded the signature on the
August 15 letter was not authentic. That
determination was fatal to all claims based on respondents’ alleged
nonperformance of the terms of the August 15 letter. Had appellants still had a fraud claim at
trial, it too would have failed with the jury’s determination that the August
15 document was invalid. We do not
reverse the jury’s verdict in this appeal based on appellants’ other arguments.
court erred in sustaining respondents’ demurrer to the fraud claim because
appellants cannot demonstrate prejudice, even if the ruling was in error. (See Grell
v. Laci Le Beau Corp. (1999) 73 Cal.App.4th 1300, 1307 [order sustaining
improperly filed demurrer harmless where case was later resolved against
plaintiff on summary judgment based on statute of limitation];
(1956) 140 Cal.App.2d 461, 464-465 [two counts of complaint based on same
allegations; order sustaining demurrer on first count was not prejudicial where
second count was later resolved against plaintiff].)
The same is
true of appellants’ challenge to the trial court’s order granting summary
adjudication of the claims against Delijani in his individual capacity. The jury’s verdict eliminated respondents’
potential liability because it was based on the August 15 letter, which the
jury found invalid. Whether Delijani
could have been personally liable became inconsequential. Given the ultimate outcome of the case,
appellants cannot show they were prejudiced by the trial court’s order granting
summary adjudication of their claims against Delijani in his individual
capacity, which were otherwise identical to the claims against BHT. (Cf. Safeco
Ins. Co. of America v. Parks (2009) 170 Cal.App.4th 992, 1002-1003
[erroneous denial of summary adjudication cannot result in reversal of final
judgment unless the error resulted in prejudice to defendant; not prejudicial
where jury later resolves fact issues adversely to moving party]; Cal. Const.,
art. VI, § 13.)
The
threshold issue in this case was whether the August 15 letter was valid and
could serve as the basis for appellants’ claims, including the fraud claim and
the claims against Delijani in his individual capacity. Despite the order sustaining a demurrer to
the fraud claim and the summary adjudication of the claims against Delijani,
the jury was still required to resolve this threshold question, which it did,
adversely to appellants. Appellants
therefore cannot show they were prejudiced by any error in the trial court’s
orders sustaining the demurrer or granting summary adjudication.
II. The
Trial Court Did Not Abuse its Discretion in Denying Appellants’
Motion in Limine to Exclude the Torres Testimony
Appellants argue the trial court
erroneously denied their motion to exclude the Torres testimony. They contend that the testimony, combined
with the trial court’s admission of references to a
error. We disagree.
Torres Testimony
In general, a trial court’s ruling
on a motion in limine is reviewed for abuse of discretion. This standard applies here, where appellants
argued the court should exclude the Torres testimony as unduly prejudicial
under Evidence Code section 352. (
Farming Co. (2000) 77 Cal.App.4th 619, 639-640.) We find no error.
Torres was
a qualified expert prepared to offer an expert opinion on the authenticity of
the Delijani signature on the August 15 letter.
This testimony was highly relevant to the proceedings. Appellants’ only arguments in seeking to
exclude the testimony were that their own expert had to recuse himself, thus
Torres should not be permitted to testify, and that the Torres testimony would
impermissibly inform the jury of a criminal forgery investigation. The trial court could reasonably reject the
first argument. Appellants offered no
evidence that Torres was subject to a policy or directive that prevented her
from testifying. There was no legal
basis for appellants’ contention that because their designated expert was
subject to such a policy, it was impermissible for Torres to testify.
As to the second argument,
respondents asserted they would not raise the criminal investigation as part of
the Torres testimony, and the court cautioned the parties not to refer to the
investigation. Although the jury would
likely discern from Torres’s testimony that the Sheriff’s department conducted
some form of investigation, the trial court could reasonably determine the
probative value of Torres’s testimony far outweighed any potential prejudice,
particularly since the testimony would not include any explicit discussion of a
criminal investigation. (Evid. Code, §
352.) The trial court’s order denying
the motion to exclude the Torres testimony was not an abuse of discretion.
References to an Investigation
Appellants also contend
respondents’ counsel made prejudicial references to the criminal
investigation. However, appellants
largely forfeited this argument by failing to object in the trial court. To the extent the argument was preserved for
appeal, we find any error harmless.
1.
Background
Our review of the record reveals
only one instance in which respondents’ counsel mentioned the Sheriff’s
department investigation. In
respondents’ counsel’s opening statement, counsel told the jury it would hear
from Torres, then stated: “She works for the L.A. County Sheriff’s Department
in their forensic laboratory. She was
given this assignment to look at this document and the signature. And she’s made a number of –we’ll go through
that. . . . Sheriff’s
crime lab. Yes, Mr. Delijani reported
this to the Sheriff’s department and yes, they have an investigation.†Appellants’ counsel asked to approach the
bench. The trial court refused and
indicated the parties could raise any concerns at the end of the day. At the end of the day’s proceedings,
appellants’ counsel objected that respondents were “going right to that line
talking about the Sheriff’s investigation.â€
The following colloquy ensued:
“Court:
There was no criminal filing, right?
[Appellants’
counsel]: That’s right.
Court:
There was an investigation. There was a
criminal filing. And the D.A. rejected
it. Sheriff rejected it. I don’t know.
But you can stipulate to that.
They did investigate it. They’re
going to testify, but they’re not testifying there was no criminal –we can
stipulate to that.
[Respondents’
counsel]: Your honor, it’s not. She’s
going to come in, Barbara Torres. She’s
with the Sheriff’s Department. She did
the investigation. There’s going to be
some examination on that. That’s
it. I don’t have any unless they go
astray because we’ve already had a motion in limine on this. If there’s something that comes in, we had a
motion in limine on the issue. I don’t
intend to put that on.
Court:
I’m sure you want to show there was no criminal investigation.
[Appellants’
counsel]: Of course. It’s my motion. [Respondents’ counsel] was exceedingly close
if not crossing the line in his opening statement. That’s the only point I’m making.
Court: Opening statements are not evidence. Okay.
Yes.
[Respondents’
counsel]: Motion was denied.
[¶] . . . [¶]
Court: We’ve just covered it.
[Appellants’
counsel]: We’ve covered it. I think
you’re right.
Court: If there is an objection, make it, I’ll rule
on it.â€
For the remainder of the trial,
there were no explicit references to a criminal investigation. Appellants now charge that respondents’
counsel made “repeated references†to a criminal investigation, but their
citations to the record show otherwise.
Appellants cite to two portions of the Torres examination. In the first, respondents’ counsel asked
Torres how she learned of the questioned document. Torres responded: “It had been brought
into the office by an investigator, and we knew that they – the document had
come under scrutiny. There was some
question regarding the legitimacy of the signature and perhaps the document
entirety [sic], and we were to
examine the document to determine if there was anything that seemed unusual
about it.†Appellants did not object to
the question or the answer. In the
second portion, respondents’ counsel marked a document that explained the
opinion standards used in the Sheriff’s Department. In the cited portion of the transcript,
respondents’ counsel stated: “This is entitled Los Angeles Sheriff Department
Scientific Bureau Questioned Document Section Handwriting Opinion Terminology.†Appellants did not object. Appellants also did not request a curative
instruction or admonishment with respect to any references to an investigation,
or the Sheriff’s department.
2. Reference to Sheriff’s investigation in
opening statement
Even if respondents’ counsel’s
mention of a Sheriff’s department investigation should have been excluded, or
the jury instructed to disregard the comment, we would find any error
harmless. The jury was instructed that
statements of counsel were not evidence.
This was the only explicit reference to a Sheriff’s department
investigation. We cannot conclude that
counsel’s statement caused a miscarriage of justice. (Cassim, supra,
33 Cal.4th at pp. 801, 803-805.)
3. Other “investigation†references
As to the challenged portions of
the Torres examination, appellants’ failure to object to the challenged
statements forfeits any argument of error on appeal. (Avalos
v. Perez (2011) 196 Cal.App.4th 773, 776-777; Evid. Code, § 353, subd.
(a).) The trial court told appellants’
counsel it would entertain objections on this issue. Appellants did not make any. Even had appellants preserved an objection
for appellate review, we would find the trial court did not abuse its
discretion. The trial court could
reasonably determine that explanatory references to the Sheriff’s department in
connection with Torres’s testimony were relevant and not unduly
prejudicial. The Sheriff’s department
was mentioned because it employed Torres.
But Torres’ testimony was appropriately presented as that of an expert
witness in a civil case, rather than as a law enforcement witness offering an
explanation of her role in a criminal investigation.
Appellants
assert respondents’ counsel made other prejudicial statements, such as that the
August 15 letter was “fraudulent,†that forgery is a criminal term, or that
Nassir had a “mind that’s criminal.â€
Appellants did not object to any of these statements. As explained above, the statements were
not evidence, and the jury was so instructed.
The statements were a minor part of counsel’s opening and closing
statements. Even if appellant did not
forfeit this argument, and the trial court improperly allowed the statements,
any error was harmless.
name="_ftnref8" title="">[8]
III. The
Trial Court’s Award of Attorney Fees was Proper
Appellants contend the trial
court erred in awarding attorney fees because respondents did not present
“evidence of a lodestar analysis.†We
note that appellants did not assert this objection in opposition to respondents’
attorney fees motion in the trial court.
But assuming appellants did not forfeit their argument by failing to
raise it below (Children’s Hospital &
Medical Center v. Bontá (2002) 97 Cal.App.4th 740, 776), we find their
assertion incorrect. In support of the
motion, respondents provided all of their billing records, which identified the
time billed by each attorney each day, listed by task, time spent on the task
or group of tasks, and the resulting amount billed for work completed. This was sufficient for the court to conduct
the lodestar analysis.
Appellants’ argument seems to be
that respondents did not provide a summary of these billing records. In other words, respondents did not organize
the billing records or summarize them to show the total number of hours each attorney
separately billed for the length of the case.
In the motion for attorney fees, respondents provided the billing rate
of each attorney and paralegal who worked on the case, a description of the
experience of each attorney and paralegal, the total number of hours worked by
all attorneys and paralegals, and a total number of fees. Respondents informed the court they spent a
total of 2,168.3 hours on the case, which, when multiplied by the applicable
billing rates, totaled $671,892.50 in fees.
Respondents did not provide a summary indicating, for example, that
Attorney X, whose billing rate was A, billed a total of B hours, for a total of
C fees, where C was a portion of the total fees requested. Yet, the billing records provided this
information, just without a separate subtotal of each attorney’s hours.
contrary, we will not presume the court failed to conduct the lodestar analysis
with the detailed information respondents provided. (Cahill v.
San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) In addition, the trial court was familiar
with the quality of the services performed and the amount of time respondents’
counsel devoted to the case. (
22 Cal.4th 1084, 1095-1096.) We
find no abuse of discretion in the trial court’s order awarding attorney fees.
DISPOSITION
The trial court judgment is
affirmed. Respondents shall recover
their costs on appeal.
BIGELOW, P. J.
We concur:
RUBIN,
J.
GRIMES,
J.
the motion, appellants asserted: “Eight months after this lawsuit had been
pending, the Delijani family contacted Sheriff Lee Baca, who made a special
request for an investigation of Cross-Defendants’ claim that the Pharmacy
and/or Afshin Nassir had committed forgery.
Detective David Lingscheit spearheaded the investigation and retained
the services of the Sheriff’s Questioned Documents Section, and expert Barbara
Torres.â€
addition to conducting a forensic analysis of the signature on the August 15
letter, Torres also noted other aspects of the letter that “stood out.†One such factor was inconsistent
capitalization of words such as “lessor,†and grammatical errors.
