Goradia v. Vega
Filed 11/30/07 Goradia v. Vega CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
YOGESH GORADIA et al., Plaintiffs and Appellants, v. LIRIO VEGA, Defendant and Respondent. | B198453 (Los Angeles County Super. Ct. No. YC049568) |
APPEAL from a judgment of the Superior Court of Los Angeles County.
Cary N. Nishimoto, Judge. Reversed and remanded.
Stanley D. Bowman for Plaintiffs and Appellants.
Haberbush & Associates, Lawrence R. Fieselman for Defendant and Respondent.
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Plaintiffs Yogesh and Ranjan Goradia unsuccessfully sued defendant Lirio Vega in an effort to foreclose on a deed of trust on residential property in Rancho Palos Verdes. The Goradias appeal and contend the trial court erred during this nonjury trial because it should have allowed them to recall as a witness Vega, who had been declared an adverse witness (Evid. Code, 776) and had testified during a prior court session.
We find the trial court erred in precluding recall of Vega, the party from whom the Goradias sought to establish delinquency in payments and thus the requisite element for a judicial foreclosure. The court should have permitted recall of the witness because, in the nonjury trial of a civil suit, the party against whom judgment is sought after presentation of its case shall have had an opportunity to present additional evidence to rebut evidence deemed adverse to that party. (Code Civ. Proc., 631.8, subd. (a), italics added.) The trial courts discretion was thus constrained by statute, and its ruling prejudicially precluded testimony establishing a requisite element of judicial foreclosure, because the Goradias presented no evidence that Vega missed any payments due on the deed of trust.[1]
FACTUAL AND PROCEDURAL SUMMARY
In November of 2004, the Goradias sued Vega (as well as other parties not involved in this appeal), alleging default on one of several home loan obligations and seeking a judicial foreclosure and injunctive relief.
On September 11, 2006, a nonjury trial commenced. The Goradias, represented by counsel, called Vega as an adverse party witness. Vega acknowledged that in September of 2002, she purchased from the Goradias a single-family residence on Sea Breeze Avenue in Rancho Palos Verdes. Vega executed an All Inclusive Trust Deed (AITD) in the amount of $882,000, which was comprised of a $732,000 note in favor of Washington Mutual Bank secured by a deed of trust in first position, and a $150,000 note in favor of ITEK Financial secured by a deed of trust in second position. Vega also executed a separate promissory note in favor of the Goradias in the amount of $228,000.
The escrow instructions for the sale of the home provided that if Vega refinanced the home and paid off the first and second trust deeds, the $228,000 note in favor of the Goradias would be reduced to $110,000 and would be subordinated to the new first deed of trust. Vega paid off in full the obligation to ITEK, leaving within the AITD only the Washington Mutual Bank loan upon which she was making monthly payments. In response to a counsels inquiry as to whether Vega had signed a note for $228,000 secured by a fourth deed of trust in favor of the Goradias, Vega acknowledged, Yeah, I owe them 228,000. Thats right, sir.
Vega also acknowledged that she purchased from the Bank of America a number of cashiers checks, each prepared in the amount of $7,409, payable to the Goradias. As to seven of those checks, Vega changed her mind and never actually paid them to the Goradias. She ultimately changed the payee and put the money back into her own bank account. Vega asserted that she did not know why those $7,409 checks, which originally had the Goradias as payee, had been written, and that she changed her mind about the Goradias as payee for no reason. However, a number of other cashiers checks for the same $7,409 amount were, in fact, paid to the Goradias.
Vega further testified that she owned several other properties and asserted that she had the ability to have paid off the Goradias in full. In fact, Vega twice attempted to refinance the property to pay the Goradias in full, but on both occasions they failed to return a beneficiarys demand statement to the escrow company handling the refinance, thus thwarting Vegas efforts to complete the transactions.
At the conclusion of the cross, direct, and recross-examination of Vega, counsel for the Goradias stated he had nothing further to ask the witness. The court thanked the witness, set a continued date for the remainder of the trial, and suggested to counsel that maybe you can settle this case. The Gordias were apparently dissatisfied with their trial attorney and on October 18, 2006, filed a substitution of counsel; Mr. Goradia then proceeded in propria persona.
On January 8, 2007, the trial continued. Mr. Goradia, representing himself, attempted to recall Vega to the witness stand. Counsel for Vega objected, noting that Vega had been allowed to step down and had been excused. Vega had not been dismissed from the witness stand subject to any recall. The court reviewed a transcript of the conclusion of Vegas testimony and found that her testimony was completed.
The only other witness on the Goradias witness list was an escrow agent, Jennie McCarthy. Mr. Goradia estimated that her testimony would take at the most only two hours.
McCarthy testified that Vega was obliged to continue making mortgage payments even though there was an escrow open for financing. McCarthy indicated that Vega was approved for a loan in the amount of $952,000, which left a shortfall of $206,000. Vega offered the Goradias $10,000 in cash and sought to subordinate $218,000 to a new first deed of trust, which was unacceptable to the Goradias and contrary to their agreement. Escrow did not close. Three months later, there was another attempt to finance the property, this time in compliance with all the conditions of the agreement (with a loan of $110,000 to be carried by the Goradias), and with Vega required to deposit into escrow approximately $45,000. However, that escrow did not close either.
At the conclusion of McCarthys testimony, Mr. Goradia again complained about not being able to further question Vega. He wanted to question her to establish that she has been in default in hundreds of cases, so many missed payments, late payments . . . . The court explained that Vega had already testified and that it could not permit do-overs, or a second round of testimony, because nothing would ever get done.
After the Goradias rested their case, Vega moved for judgment in her favor. Vega argued that there had been no testimony as to any failure of payment sufficient to establish breach of the payment obligation necessary to support a cause of action for judicial foreclosure. There was also no documentary evidence establishing the breach of the payment obligation, because Mr. Goradia never requested that plaintiffs various exhibits marked for identification (such as the beneficiary demand letter) be admitted into evidence. Nor were any items admitted into evidence that were on Vegas pretrial list of defense exhibits, which counsel for the Goradias had previously asserted included documents showing when payments were made by Vega.
Mr. Goradia argued to the court that the note for $228,000 and the AITD in the amount of $792,000 were both due and payable by May 13, 2004, and that as of the date of trial (January 8, 2007) neither the note nor the AITD had been paid off. The court granted the motion for judgment in favor of the defense and stated: I will have to grant the defendants motion. There is no evidence here--although there is plenty of argument and contention, there is no evidence of the breach and the amount of it.
DISCUSSION
We find that the trial court improperly granted Vegas motion for judgment in her favor because the court should have permitted the Goradias to present additional evidence to establish Vegas breach of the AITD.
Vega aptly notes the well established general rule that the recall of a witness for further cross-examination is a matter within the sound discretion of the trial court. (People v.Burton (1961) 55 Cal.2d 328, 344; Rea v. Wood (1894) 105 Cal. 314, 319.) Similarly, as set forth in the Evidence Code, the reexamination of a witness is by leave of the court (Evid. Code, 774), and the recall of a witness who has been excused from further testimony is by leave of the court and in the exercise of its discretion. (Evid. Code, 778.)
Moreover, the fact that the Goradias decided to opt for self-representation does not warrant any lenient treatment or special consideration. Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)
However, in the context of a motion for judgment after presentation of the plaintiffs evidence in the bench trial of a civil suit, as in the present case, the Legislature has specifically constrained the trial courts otherwise broad discretion to refuse to hear additional evidence. Code of Civil Procedure section 631.8, subdivision (a) provides as follows: 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 . . . 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. (Italics added.)
Here, before the attorney for the Goradias was substituted out as counsel, he presented testimony from Vega, who had been declared an adverse witness. (See Evid. Code, 776.) To paraphrase the language in the above quoted motion for judgment statute, before deciding the motion for judgment against the Goradias, the court should have given the Goradias an opportunity to present additional evidence to rebut evidence received during Vegas testimony, which was deemed by the presenting party (i.e., the Goradias) to have been adverse to them. (Code Civ. Proc., 631.8, subd. (a).)
Vegas testimony as a party witness was by definition adverse (Evid. Code, 776), and it was also somewhat evasive. Further cross-examination or more forthright answers from Vega might have revealed that Vega actually was in default in her financial obligations to the Goradias. Thus, after the hiatus in the trial proceedings when Mr. Goradia sought to reexamine Vega to establish the default in payments--that critical missing element of the cause of action--the trial court should have permitted Mr. Goradia to attempt to do so.
The factual context here is perhaps not typical for application of Code of Civil Procedure section 631.8, subdivision (a), because it was the testimony of the Goradias own witness which was adverse. However, not only does the language of the statute fit the situation of a plaintiffs adverse party witness, but the purpose of the statute is honored as well. The purpose of the statutory motion for judgment in favor of the defendant is to enable the court, after weighing the evidence at the close of the plaintiffs case, to find the plaintiff has failed to sustain the burden of proof, without the need for the defendant to produce evidence. (Ford v. Miller Meat Co. (1994) 28 Cal.App.4th 1196, 1200.) This presupposes, of course, that the evidence weighed by the court has been fully and fairly presented to it, which is arguably why the statute mandates that the party against whom judgment is sought shall have had an opportunity to present additional evidence. (Code Civ. Proc., 631.8, subd. (a), italics added.)
Accordingly, the judgment in favor of Vega must be reversed.
DISPOSITION
The judgment is reversed and the matter remanded for a new trial or other appropriate disposition. The Goradias are entitled to costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS.
BOREN, P.J.
We concur:
DOI TODD, J.
ASHMANN-GERST, J.
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[1] The Goradias also contend that the court erred in granting judgment in favor of Vega after the Goradias presented their case (Code Civ. Proc., 631.8) because they had purportedly established that Vega was in default. However, we find no testimonial or documentary evidence in the record on appeal establishing Vegas default.
