Filed 12/17/12 Heritage Bank of Commerce v. Garner CA6
NOT TO
BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
HERITAGE
BANK OF COMMERCE,
Plaintiff and Respondent,
v.
ERIN
GARNER, TRUSTEE, et al.,
Defendants and Appellants.
H037220
(Santa Clara County
Super. Ct. No. 1-11-CV202652)
This
case involves business loans made by respondent Heritage Bank of Commerce
("Bank") to defendant borrowers, four named limited liability
companies, for the purpose of property development. The Bank brought an action for judicial
foreclosure (first cause of action against borrowers), specific performance and
appointment of a receiver (second cause of action against borrowers), and
breach of guaranty (third cause of action against guarantors). The Bank obtained a right to attach order and
an order for issuance of a prejudgment
of attachment against the property of Erin Garner and Susan
Garner as trustees of the Erin Garner Living Trust Dated 1997
("Trust") and other guarantors who were trustees of various trusts.
Erin
Garner, Sue Garner, and the Trust appeal from that right to attach order.
§ 904.1, subd. (a)(5).)
name="_ftnref2" title="">[2]
Appellants state that the "sole issue" on appeal is whether
respondent Bank laid "a proper, specific evidentiary foundation" for
a prejudgment writ of attachment. They
argue that this court must reverse the trial court's orders because they were
"totally unsupported by admissible, competent evidence." Their arguments are essentially a challenge
to the admissibility of the evidence.
They do not argue that the evidence, if admissible, was insufficient.
We
affirm.
I
Procedural
History
On June 9, 2011, the Bank filed its complaint, which was
verified on information and belief by Dustin Warford, a Vice-President,
Construction Loan Officer of the Bank.
The complaint alleged the following.
The Bank was in the business of making commercial loans and, on or about
June
13, 2008, the Bank
made a secured loan in the principal amount of $1,800,000 to four named
defendants, who the Bank was informed and believed were California limited liability companies. The secured loan, labeled the "Land
Loan," was made pursuant to a "Business Loan Agreement" and
evidenced by a promissory note, both dated June 13, 2008. The
complaint stated that true copies of both the agreement and note were attached
thereto as exhibits.
In
the promissory note attached to the complaint, the borrowers promised to pay
the principal amount of $1,800,000 at an initial and minimum variable rate of
5.5 percent. The interest rate varied
based on the Prime Rate index and was set at "a rate of 0.500 percentage
points over the Index." The note
provided for the borrowers to make a "regular monthly payment of all
accrued unpaid interest due as of each payment date, beginning July 12,
2008 . . .
." It also required borrowers to
"pay this loan in one payment of all outstanding principal plus all
accrued unpaid interest on June 13, 2009."
It provided that, upon default, the interest rate on the note
immediately increased "by adding a 5.000 percent point margin ('Default
Rate Margin')."
The
complaint averred that the borrowers' loan obligations under the note were
secured by a deed of trust, also dated June 13, 2008, on specified property in Los Gatos, California. It further indicated that,
at the time the secured loan was made, the Bank concurrently made an unsecured
loan of $765,000, which was evidenced by an unsecured promissory note. The complaint stated that a true copy of this
promissory note was attached as Exhibit D and incorporated by reference.
According
to the complaint, a number of written guaranties, most dated March 11,
2008, had been
executed. It stated that true copies of
all loan guaranties were attached as exhibits and incorporated by reference.
Separate
written guaranties from Erin Garner and Sue Garner as individuals were among
the March 11, 2008
guaranties attached as exhibits to the complaint. The complaint alleged that "[p]ursuant
to two other written guaranties, each of which is dated June 13, 2008, Olofsen,
as trustee, and E. Garner and S. Garner, as trustees, guaranteed all of the
obligations of Borrowers to [the Bank], including without limitation, the Land
Loan and the Unsecured Loan obligations."
A written "Commercial Guaranty" from the Trust, apparently
signed by Erin Garner and Susan Garner as trustees, was attached as an exhibit
to the complaint. In this guaranty, the
Trust agreed to "pay upon demand all Lender's costs and expenses,
including Lender's attorneys' fees and Lender's legal expenses incurred in
connection with the enforcement of this Guaranty."
According
to the complaint, the borrowers, the Bank, and the guarantors entered into a
number of forbearance agreements with respect to the loans. They entered into a further forbearance
agreement, denominated "Third Amended and Restated Forbearance
Agreement" with an effective date of July 13, 2010. This
forbearance agreement consolidated the secured and unsecured loans into one
loan and provided that the secured promissory note would be amended to reflect
a principal of $1,938,558.92 and the amended note would continue to be secured
by the deed of trust and the unsecured note would be deemed satisfied. The complaint stated that a true copy of this
forbearance agreement was attached as an exhibit and incorporated by reference.
The
complaint specified that written modifications of the deed of trust, dated
September 13, 2009 and July 13, 2010 respectively, were recorded. It stated that true copies of the deed of
trust and subsequent modifications were attached as Exhibit C and incorporated
by reference. The July 13, 2010
modification stated that the principal amount of the note had been increased to
$1,938,558.92.
The
complaint alleged that on or about January 13, 2011, the borrowers, the Bank,
and the guarantors entered into a "First Amendment to Third Amended and
Restated Forbearance Agreement" (hereinafter "Final Forbearance
Agreement"). It further stated that
a true copy of this agreement was attached as an exhibit and incorporated by
reference.
The
Final Forbearance Agreement extended the termination date of forbearance
conditioned upon, among other requirements, subsequent progress with respect to
the funded project by certain dates.
Specifically, borrowers were required to have "(i) completed the
lawful subdivision of the Project into multiple lots (the 'Lots'), obtained all
California Department of Real Estate approvals required for the sale of the
Lots to third parties, and entered into contracts or agreements of sale with
respect to no less than three (3) of the Lots by not later than April 13, 2011;
and (ii) closed escrow pursuant to at least one of the contracts or agreements
of sale described in (i) above by no later than May 13, 2011." It also required borrowers to pay a
supplemental loan fee of $4,734.96 on or before April 13, 2011. It terminated by its own terms by, among
other occurrences, the failure of the obligors to "fulfill each and
every condition necessary to cause a forbearance period to be in effect"
or by July 11, 2011, at the latest.
The
complaint averred that the borrowers had failed to comply with their
obligations to the Bank by not paying monthly interest payments due in April
2011 and May 2011 and by (1) not completing "by April 13, 2011 the lawful
subdivision of the Project into multiple lots," (2) not obtaining "by
April 13, 2011 all California Department of Real Estate approvals required for
the sale of the lots in the Project to third parties," (3) not entering
"into sale contracts, by April 13, 2011, for no less than three lots in
the Project" and closing "at least one sale by May 13, 2011,"
and (4) not paying "a $4,734.96 loan fee on or before April 16,
2011."
The
complaint alleged that on or about May 26, 2011, the Bank, through its counsel
sent a written notice of default under the Final Forbearance Agreement and
other loan documents. It stated that a
true copy of the notice of default was attached as an exhibit and incorporated
by reference.
The
complaint averred that as of May 26, 2011, the borrowers owed $1,903,617.32,
which consisted of a principal balance outstanding of $1,875,696.96, interest
of $23,185.40, and a loan fee of $4,734.96.
It further stated that interest was thereafter accruing "at an
annual rate equal to the greater of (i) [5.5 percent] or (ii) one and one-half
[sic] percent (0.50%) in excess of
the prime rate, plus a default margin of five percent (5%)." It alleged that due to the borrowers'
default, each of the guarantors were obligated to the Bank in the amount of at
least $1,903,617.32 plus accruing interest after May 26, 2011, and costs and
fees.
On June 15, 2011, the Bank filed a
notice of application and hearing for a right to attach order and an order for
issuance of a writ of attachment. The
hearing was noticed for July 19, 2011.
The application, which was signed under penalty of perjury by Dustin
Warford, sought to include estimated costs of $5,000 and estimated allowable
attorney fees of $45,000 in the amount to be secured by attachment. The Bank also filed the supporting declarations
of Dustin Warford, a bank employee, and Stephen J. Kottmeier, an attorney
representing the Bank. Warford's
declaration indicated that, as of June 13, 2011, a total of $1,909,244.41 was
owed under the loan, which included principal of $1,875,696.96, interest of
$28,812.49, and a loan fee of $4,734.96.
He stated that interest was accruing at a rate of "$312.6161"
[sic] per day.
On
July 12, 2011, Erin Garner and Sue Garner, as trustees and as individuals, and
the Trust filed a notice of opposition to the Bank's application for a writ of
attachment and a legal memorandum. They
filed no supporting affidavits or declarations and they did not specifically
oppose the amount sought to be secured by attachment.
On July 15, 2011, the Bank filed and
served a reply memorandum and Warford's and attorney Kottmeier's supplemental
declarations. Warford's supplemental
declaration indicated that, as of July 14, 2011, a total of $1,951,020.85 was
owed under the loan, including $1,875,696.96 in principal, $70,589.92 in
interest at the default rate, and a loan fee of $4,734.96; and plaintiff had
incurred attorney's fees and costs in excess of $25,000.
The
court issued a tentative ruling on the application for a writ of
attachment. It stated in part that
"the objections to evidence are not sufficiently specific and not well
taken, and are overruled."
On
July 19, 2011, the court held the hearing on the Bank's application. The court made clear that it had considered
the opposition papers even though it had indicated in its tentative ruling that
it believed the opposition had been untimely filed.
By
order filed July 26, 2011, the court determined that the Bank had a right to
attach the property of certain guarantors, including Erin Garner and Susan
Garner as trustees of the Trust, in the amount of $1,943,617.32, plus per diem
interest at $312.62 from June 14, 2011 through the date of the hearing.
ordered the clerk to issue a writ of attachment. Its order did not apply to the property of
Erin Garner or Susan Garner as individuals.
II
Discussion
A. Legal
Background
"Upon the filing of the
complaint or at any time thereafter, the plaintiff may apply pursuant to this
article for a right to attach order
and a writ of attachment by filing an application for the order and writ with
the court in which the action is brought."
(§ 484.010.)
"Attachment is, of course, a prejudgment remedy; after final
judgment, the plaintiff may, if necessary, proceed by way of
execution." (Cal. Law Revision Com.
com., 15A West's Ann. Code Civ. Proc. (2011 ed.) foll. § 484.010, p.102.)
The
application must be executed under oath and must include the statutorily
mandated elements. (§ 484.020.)
application for a right to attach order and a writ of attachment must be
"supported by an affidavit showing that the plaintiff on the facts
presented would be entitled to a judgment on the claim upon which the
attachment is based."
(§ 484.030.) But "the
application itself may contain the necessary supporting evidence and, since it
is executed under oath, it may constitute a sufficient affidavit for the
purposes of this section." (Cal.
Law Revision Com. com., 15A West's Ann. Code Civ. Proc. (2011 ed.) foll.
§ 484.030, p. 111.)
Section 482.040 states: "The facts stated in each affidavit
filed pursuant to this title ['Attachment'] shall be set forth with
particularity. Except where matters are
specifically permitted by this title to be shown by information and belief,
each affidavit shall show affirmatively that the affiant, if sworn as a
witness, can testify competently to the facts stated therein. As to matters shown by information and
belief, the affidavit shall state the facts on which the affiant's belief is
based, showing the nature of his information and the reliability of his
informant. The affiant may be any
person, whether or not a party to the action, who has knowledge of the
facts. A verified complaint that satisfies
the requirements of this section may be used in lieu of or in addition to an
affidavit." (See § 2015.5 [use
of declaration under penalty of perjury in lieu of affidavit].)
If
a defendant desires to oppose the issuance of the right to attach order or
objects to the amount sought to be secured by the attachment, the defendant must
file and serve upon the plaintiff a notice of opposition, supporting affidavits
regarding any disputed factual issues and points and authorities regarding any
legal issues no later than five court days prior to the date set for the
hearing on the application.
(§ 484.060, subd. (a).)
"If the defendant fails to file a
of opposition within the time prescribed, the defendant
shall not be permitted to oppose the issuance of the order." (Ibid.)
The
plaintiff is allowed to file and serve a reply to opposition two court days
prior to the date set for the hearing pursuant to section 484.060, subdivision
(c). That section does not expressly
provide for or preclude the filing of additional affidavits or declarations. (Cf. § 484.070, subd. (f) [If the
plaintiff desires to oppose a defendant's claim of exemption, the plaintiff
must timely file and serve "a notice of opposition to the claim of
exemption, accompanied by an affidavit supporting any factual issues raised and
points and authorities supporting any legal issues raised"].)
"At
the hearing, the court shall consider the showing made by the parties appearing
and shall issue a right to attach order, which shall state the amount to be
secured by the attachment . . . if it finds all of the following: [¶]
(1) The claim upon which the attachment is based is one upon which an
attachment may be issued. [¶] (2) The plaintiff has established the
probable validity of the claim upon which the attachment is based. [¶]
(3) The attachment is not sought for a purpose other than the recovery
on the claim upon which the attachment is based. [¶]
(4) The amount to be secured by the attachment is greater than
zero." (§ 484.090, subd.
(a).) "A claim has 'probable validity'
where it is more likely than not that the plaintiff will obtain a judgment
against the defendant on that claim."
(§ 481.190.) This definition
"requires that, at the hearing on the application for a writ, the
plaintiff must at least establish a prima facie case." (Cal. Law Revision Com. com., 15A West's Ann.
Code Civ. Proc. (2011 ed.) foll. § 481.190, p. 20.)
If
the court additionally "finds that the defendant has failed to prove that
all the property sought to be attached is exempt from attachment, it shall
order a writ of attachment to be issued upon the filing of an undertaking as
provided . . . ." (§ 484.090,
subd. (b).)
B. Verified Complaint
Citing section 482.040, section 446, and
(1985) 175 Cal.App.3d 532 ("Lorber
Industries"), appellants assert that the Bank could not rely on its
verified complaint or the exhibits attached to the complaint in support of its
application for a right to attach order and a writ of attachment. As previously indicated, section 482.040
permits a verified complaint that satisfies that section's requirements to
"be used in lieu of or in addition to an affidavit" supporting such
application. Section 482.040 also
applies to any affidavit filed in attachment proceedings so a defendant
opposing an application for a right to attach order may rely on a
cross-complaint if it meets the section's standards. (See Sen. Com. com., 15A West's Ann. Code
Civ. Proc. (2011 ed.) foll. § 482.040, p. 31.)
In Lorber Industries, the defendant had relied on its cross-complaint,
which was verified by its vice president, and attached documentary evidence in
opposing an application for a right to attach order and a writ of
attachment. (Lorber Industries, supra,
175 Cal.App.3d at p. 536.) The appellate
court reconciled section 482.040 with former section 446, which then
"specifie[d] that 'when the verification is made on behalf of a
corporation or public agency by any officer thereof, . . . the
pleadings shall not otherwise be considered as an affidavit or declaration
establishing the facts therein alleged.' " (Lorber
Industries, supra, 175 Cal.App.3d
at p. 536.) The court concluded that the
defendant had not made a valid evidentiary showing in opposition to an
application for a right to attach order because "a verified
cross-complaint cannot support an opposition to an application for a right to
attach order where the verification is made by a corporate officer on behalf of
a corporation. [Citation.]" (Ibid.)
Section
446 presently provides that "[w]hen a corporation is a party, the
verification may be made by any officer thereof." It further states in pertinent part:
"[W]hen the verification is made on behalf of a corporation . . . by any
officer thereof, the . . . officer's affidavit shall state that he or she has
read the pleading and that he or she is informed and believes the matters
therein to be true and on that ground alleges that the matters stated therein
are true. However, in those cases the pleadings shall not otherwise be considered
as an affidavit or declaration establishing the facts therein alleged." (Italics added.)
In
this case, the complaint was verified by declaration under penalty of perjury
by Warford, "a Vice-President, Construction Loan Officer" of the
Bank. His declaration stated that he had
read the complaint and was "informed and believe[d] and on that ground
allege[d] that the matters stated in the document described above are
true." The verified complaint did
not satisfy section 482.040's requirement that it "show affirmatively that
the affiant, if sworn as a witness, can testify competently to the facts stated
therein" and therefore the verified complaint could not be used
independently "in lieu of or in addition to an affidavit"
(§ 482.040). But we see nothing in
this statute to preclude an applicant for a right to attach order and a writ of
attachment from relying on the doctrine of incorporation by reference in its
supporting affidavits or declarations under penalty of perjury.
C. Warford's
Original Declaration
Appellants
maintain that Warford's original declaration was the only document that the
trial court could properly consider and it was insufficient.
1. Specific
Objections Preserved
Respondent Bank argues that
appellants' failure to secure a final ruling on their evidentiary objections
resulted in the forfeiture of those objections.
As a general rule, "a party objecting to the admission of evidence
must press for an actual ruling or the point is not preserved for appeal. [Citations.]" (People
v. Hayes (1990) 52 Cal.3d 577, 619; but see Reid v. Google, Inc. (2010) 50 Cal.4th 512, 517, 532 [where written
evidentiary objections are properly filed before summary judgment hearing, they
are not waived by trial court's failure to rule].) Evidentiary objections may be preserved for
appellate review, however, where further objection would clearly have been a
fruitless or idle act. (See
Merchants Bank of Long Beach (2000) 81 Cal.App.4th 780, 784-785,
disapproved to the extent it holds "that litigants must raise written
objections orally at the [summary judgment] hearing to preserve them on
appeal" in Reid v. Google, Inc.,
supra, 50 Cal.4th 512, 532, fn. 7;
see also People v. Sandoval (2007) 41
Cal.4th 825, 837, fn. 4 [an objection in the trial court is not required to
preserve a claim for appeal if the objection would have been futile].)
We
reach the merits of appellants' specific evidentiary claims. First, the court expressly adopted the
tentative ruling, which impliedly includes its evidentiary ruling. Second, under the circumstances, their
counsel could have reasonably believed that renewing the objections to obtain
an express evidentiary ruling at the hearing would have been fruitless. (Cf. People
v. Hovarter (2008) 44 Cal.4th 983, 1007.)
2. Personal
Knowledge
Appellants
now argue that Warford's original declaration did not establish his personal
knowledge "to separately establish the authenticity and foundation for any
of the exhibits attached to the complaint." In their written opposition below, they
asserted that Warford lacked personal knowledge as to certain facts but they
did not object that Warford lacked personal knowledge of the documents that
were attached as exhibits to the verified complaint.
Evidence
Code section 702, subdivision (a), states the general rule that "the
testimony of a witness concerning a particular matter is inadmissible unless he
has personal knowledge of the matter."
"A witness' personal knowledge of a matter may be shown by any
otherwise admissible evidence, including his own testimony." (Evid. Code, § 702, subd. (b).) Evidence sufficient to support a reasonable
finding that a witness has personal knowledge meets the evidentiary threshold
with respect to the foundational or preliminary fact of "personal
knowledge." (See Evid. Code,
§ 403; Assem. Com. on Judiciary com., 29B Pt. 1B West's Ann. Evid. Code
(2011 ed.) foll. § 403, p. 19.)
Evidence
Code section 702, subdivision (a), also provides that "[a]gainst the
objection of a party, such personal knowledge must be shown before the witness
may testify concerning the matter."
A "defendant's failure to object timely on the basis of Evidence
Code section 702, subdivision (a), constitutes a waiver of this claim on
appeal. (See People v. Cudjo (1993) 6 Cal.4th 585, 622 . . . [party
must object to witness's lack of testimonial competence to preserve this claim
on appeal].)" (People v. Lewis (2001) 26 Cal.4th 334, 357; see Evid. Code,
§ 353, subd. (a); Assem. Com. on Judiciary com., 29B Pt. 1A West's Ann.
Evid. Code (2011 ed.) foll. § 353, p. 599 ["Subdivision (a) of
Section 353 codifies the well-settled California rule that a failure to make a
timely objection to, or motion to exclude or to strike, inadmissible evidence
waives the right to complain of the erroneous admission of evidence . . . [and]
the related rule that the objection or motion must specify the ground for
objection, a general objection being insufficient. [Citation.]"].)
Appellants
did not, by a timely and specific objection in the trial court, preserve for
appellate review the foundational claim
that Warford lacked personal knowledge of the exhibits. In any event, such contention has no merit.
Warford
stated in his declaration: "I am employed by" the Bank "in the
capacity of Vice-President, Construction Loan Officer" and "[m]y
knowledge of the facts set forth in this declaration arises from the fact that
I am one of the lead employees of the bank charged with responsibility for the
administration and collection of the loan made to" borrowers. He further stated: "Except for any matter stated on
information and belief, I have personal knowledge of each and every fact set
forth in this declaration based upon either or both my personal inspection of
[the Bank's] business records and the information provided to us by the
Borrowers and their representatives, with whom I have been dealing directly
since October 2007."
Warford
declared that the complaint "set forth in detail the nature of the
transaction at issue," the Bank's "rights, privileges, and
entitlement to enforce the terms and conditions of the transaction at
issue," "the defendants' defaults," and "the defendants'
failure to pay their obligations under the loan agreements and
guarantees." He stated that the
Bank was in the business of making commercial loans. He reiterated that, in June 2008, the Bank
had made two loans to the borrowers that were eventually consolidated into one
secured loan. He described the funded
development project as involving "the acquisition of two parcels of land
and subdivision of those parcels into seven fairly large residential lots with
entitlements to enable them to be sold to persons intending to build residences
upon them."
In
his declaration, Warford further explained that "[e]ach of the guarantees
alleged in the Complaint and attached to it as Exhibits E through Q, inclusive,
was taken in contemplation of the loans to be made to fund" the
development project. His declaration
indicated that, as set forth in the complaint, the Bank had entered into a
series of forbearance agreements with the borrowers and guarantors but the
borrowers had failed to meet certain terms and conditions of the Final
Forbearance Agreement. It set forth with
particularity the borrowers' breaches and default. It stated that "the forbearance
(Exhibits R and S to the Complaint) terminated according to its
terms." Warford declared under
penalty of perjury that his statements were true and correct.
The
superior court understood from the declaration that Warford was adopting the
complaint's factual allegations.
"[I]t has long been established in this state that an affidavit may
incorporate by reference other papers on file in the same action. [Citations.]" (Newport
v. City of Los Angeles (1960) 184 Cal.App.2d 229, 235.) "An affidavit need not be complete in
itself. It may be read together with
papers it refers to on file in the same action, under the principle of
incorporation by reference. Furthermore,
defects or omissions that would be fatal standing alone do not invalidate an
affidavit that is sufficient when read together with the pleadings, motions, or
papers to which it refers." (2B
Cal. Jur. 3d, Affidavits, § 26, pp. 130-131, fns. omitted.)
While
perhaps not an ideal model of incorporation by reference, Warford's original
declaration implicitly incorporated the complaint's factual allegations and the
attached exhibits, all of which the complaint identified as true copies. It may be reasonably inferred from Warford's
statements, including those regarding his position at the Bank and
responsibilities with regard to administration and collection of the loan, that
he had the requisite personal knowledge of the material facts set forth in his
declaration and the complaint and of the exhibits attached to the complaint.
3. Authentication
Appellants
argue that Warford merely referred to the exhibits attached to the verified
complaint but failed to authenticate those exhibits. In the trial court, appellants contended that
Warford's declaration "discusses a number of documents relating [to] the
loan agreement, but it does not authenticate or provide foundation for any of
the documents mentioned therein."
As
to any document attached to the complaint as an exhibit but not specifically
discussed in Warford's original declaration, appellants' authentication claim
on appeal was forfeited by their failure to raise any authentication objection
directed at such document in the court below.
(People v. Farnam (2002) 28
Cal.4th 107, 159; Evid. Code, § 353.)
In any case, appellant's authentication claim lacks merit.
"Authentication
of a writing means (a) the introduction of evidence sufficient to sustain a
finding that it is the writing that the
proponent of the evidence claims it is or (b) the establishment of such
facts by any other means provided by law."
(Evid. Code, § 1400, italics added; see Evid. Code, § 250
["writing" broadly defined].)
"Authentication of a writing is required before it may be received
in evidence" or "before secondary evidence of its content may be
received in evidence." (Evid. Code,
§ 1401.) "The 'writing'
referred to in subdivision (a) [of Evidence Code section 1401] is any writing
offered in evidence; although it may be either an original or a copy, it must
be authenticated before it may be received in evidence." (Assem. Com. on Judiciary com., 29B Pt. 4
West's Ann. Evid. Code (1995 ed.) foll. § 1401, p. 444.)
"[A]
writing may be authenticated by the presentation of evidence sufficient to
sustain a finding of its authenticity.
See Verzan v. McGregor, 23
Cal. 339, 342-343 (1863)." (Cal.
Law Revision Com. com., 29B Pt. 4 West's Ann. Evid. Code (1995 ed.) foll.
§ 1400, p. 440.) The statutory
means for authenticating a writing are not exclusive. (Evid. Code, § 1410 ["Nothing in
this article shall be construed to limit the means by which a writing may be
authenticated or proved"].)
Authentication of a writing may be established by circumstantial
evidence and its contents. (
1187-1188; People v. Valdez (2011)
201 Cal.App.4th 1429, 1435; see Evid. Code, § 600 [inference
defined].) "Section 1410 is
included in this article [Evid. Code, §§ 1410-1421 ('Means of
Authenticating and Proving Writings')] in recognition of the fact that it would
be impossible to specify all of the varieties of circumstantial evidence that
may be sufficient in particular cases to sustain a finding of the authenticity
of a writing." (Cal. Law Revision
Com. com, 29B. Pt. 4 West's Ann. Evid. Code (1995 ed.) foll. § 1410, p.
452.)
"When
the requisite preliminary showing has been made, the judge admits the writing
into evidence for consideration by the trier of fact. However, the fact that the judge permits the
writing to be admitted in evidence does not necessarily establish the
authenticity of the writing; all that the judge has determined is that there
has been a sufficient showing of the authenticity of the writing to permit the
trier of fact to find that it is authentic.
The trier of fact independently determines the question of authenticity,
and, if the trier of fact does not believe the evidence of authenticity, it may
find that the writing is not authentic despite the fact that the judge has
determined that it was 'authenticated.'
See 7 Wigmore, Evidence §§ 2129-2135 (3d ed. 1940)." (Cal. Law Revision Com. com., 29B Pt. 4
West's Ann. Evid. Code (1995 ed.) foll. § 1400, p. 440.)
Warford's
original declaration shows he was one of the bank employees charged with
administration and collection of the loan and he had been dealing directly with
the borrowers and their representatives since October 2007, a time prior to all
the documents attached as exhibits to the complaint. The original documents were impliedly in the
Bank's possession as the lender and forbearing party; Warford indicated that he
had personally inspected the Bank's business records. We previously concluded that Warford's
declaration incorporated the complaint's factual allegations and its attached
exhibits, including the guaranties at issue here, and sufficiently established
his personal knowledge of those exhibits.
It may be reasonably inferred from his declaration and the incorporated
complaint that the exhibits to the complaint are true copies. Warford appears as a signatory to a number of
the exhibits attached to the complaint, including the Business Loan Agreement,
the Deed of Trust modifications, the Third Amended and Restated Forbearance
Agreement, and the Final Forbearance Agreement.
The Bank met its burden and the exhibits to the complaint now at issue
were sufficiently authenticated for purposes of admissibility.
4. Hearsay
Appellants charge that Warford
"simply reviewed the otherwise hearsay records attached to the verified
complaint" and assert that "[t]his was an improper tender of hearsay." They maintain that Warford's original
declaration "wholly failed to establish that [Warford] was a custodian of
records, or otherwise possessed sufficient personal knowledge to lay a
foundation under the business records exception [to] the hearsay rule." They suggest that Warford was required to lay
a foundation for a hearsay exception based on upon his personal knowledge.
No hearsay objections concerning the
exhibits were raised below.
Consequently, appellants did not preserve the issue for review on
appeal. (Evid. Code, § 353.) Moreover, where a document is
the matters stated therein, but rather is being offered to show its existence
and contents, there is no hearsay problem.
(See Evid. Code, § 1200; see also Sen. Com. on Judiciary com., 29B
Pt. 4 West's Ann. Evid.Code (1995 ed.) foll. 1200, p. 4 [A "statement that
is offered for some purpose other than to prove the fact stated therein is not
hearsay"]; Pfister v. Dascey
(1886) 68 Cal. 572, 574 ["There is a class of cases in which the very fact
in controversy is whether certain things were said or done, and not whether
they were true or false; in which cases the words or acts are admissible, not
as hearsay, but as original, evidence"]; cf. Remington Investments, Inc. v. Hamedani (1997) 55 Cal.App.4th 1033,
1042 ["The Promissory Note document itself is not a business record as
that term is used in the law of hearsay, but rather is an operative contractual
document admissible merely upon adequate evidence of authenticity"].)
5. Particularity
Appellants
now assert that Warford's original declaration was not sufficiently particular
to meet the Bank's evidentiary burden under attachment law. In the court below, appellants argued that
Warford's "declaration does not set forth with particularity the terms of
the subject loan agreements."
As
indicated above, section 482.040, requires that "[t]he facts stated
. . . be set forth with particularity." We understand that to mean that the
declaration must state evidentiary facts, rather than ultimate facts or
conclusions of law, sufficient to establish entitlement to a right to attach
order and writ of attachment. (See
80.)
By
impliedly incorporating by reference the exhibits to the complaint, Warford's
declaration "set forth with particularity" the terms of those written
documents, including the Final Forbearance Agreement and the Trust's
guaranty. His declaration specifically
stated the particular ways in which the Borrowers failed to meet the terms and
conditions of the Final Forbearance Agreement.
Appellants
have not demonstrated that respondent Bank failed to set forth sufficient
evidentiary facts to show that it was more likely than not that the Bank will
obtain a judgment against appellants on a claim subject to attachment or
otherwise meet its evidentiary burden.
Appellants have not specifically argued or demonstrated that Warford's
statements that appear based on information or belief were essential to
obtaining a right to attach order or an order for issuance of a writ of
attachment.
title="">[5]
6. General
Objection of Lack of Foundation
Appellants assert that Warford's
original declaration did not lay a sufficient foundation. In the court below, appellants made
essentially the same argument.
As stated, an evidentiary objection
must be specific, not general. (Evid.
Code, § 353, subd. (a); see Assem. Com. on Judiciary com., 29B Pt. 1A
West's Ann. Evid. Code (2011 ed.) foll. § 353, p. 599.) "Specificity
is required both to enable the court to make an informed ruling on the motion
or objection and to enable the party proffering the evidence to cure the defect
in the evidence. [Citations.]" (People
v. Mattson (1990) 50 Cal.3d 826, 854.)
"An objection to evidence must generally be preserved by specific
objection at the time the evidence is introduced; the opponent cannot make a
'placeholder' objection stating general or incorrect grounds
. . . ." (
1, 22.)
Accordingly, appellants' general "lack of
foundation" objection did not preserve any evidentiary claims other than
those more specifically raised below because it did not specify what
foundational or "preliminary fact" required for admission of evidence
was missing. (See
424, 434, fn. 8 [as a general rule, "where the objection is lack of proper
foundation, counsel must point out specifically in what respect the foundation
is deficient"]; People v. Modell (1956) 143 Cal.App.2d 724, 728-729 [objection on the
ground that "proper foundation has not been laid in this" did not
preserve appellate claim]; but see People
v. Cowan (2010) 50 Cal.4th 401, 502, fn. 36 [hearsay claim was preserved
for review where trial court had apparently understood objections to testimony,
which included lack of foundation, "as encompassing a hearsay
objection"].)
D.
The
appellate record does not disclose that appellants filed any written objections
to the supplemental declaration. At the
hearing in the court below, appellants' counsel indicated that he had "a
problem" with Warford's supplemental declaration because it was given to
him a day before the hearing and it did not address the guaranty. Appellants' counsel did not cite any
authority or present any evidence in support of his implied claim that the
declaration was untimely.
Warford's
supplemental declaration stated that he had personal knowledge of the facts
stated therein except as to matters stated on information and belief and he
could competently testify as a witness.
He indicated that the forbearance period under the Final Forbearance
Agreement had terminated on July 11, 2011, at which time the full amount of the
loan had become due. An exhibit attached
to his supplemental declaration was identified as a true and correct copy of
the Final Forbearance Agreement, which, as previously stated, provided for the
agreement's termination on July 11, 2011, at the latest. There were no other exhibits to the
declaration.
On
appeal, appellants are not arguing that the reply was untimely. (See § 484.060, subd. (c) ["The
plaintiff may file and serve upon the opposing party a reply two court days
prior to the date set for the hearing"].)
Rather, insofar as we can discern, they now seem to be arguing that the
trial court could not consider Warford's supplemental declaration because all
supporting declarations must be filed within the time frame established by
section 484.040 and, therefore, the supplemental declaration was untimely
filed. They quote a practice guide that
cites section 484.040 and warns plaintiffs applying for a right to attach order
and writ of attachment that most courts refuse to consider
"supplemental" declarations and they should not count on being able
to remedy evidentiary gaps in supporting declarations. (See Weil & Brown, Cal. Practice Guide:
Civil Procedure Before Trial (The Rutter Group 2012) [¶] 9:12, p. 9(II)-85.)
Section 484.040 provides in
pertinent part: "At the times
prescribed by subdivision (b) of Section 1005, the defendant shall be served
with all of the following: [¶] (a) A copy of the summons and complaint. [¶]
(b) A notice of application and hearing.
[¶] (c) A copy of the application
and of any affidavit in support of the
application." (Italics added.) Section 1005 requires service and filing of
moving and supporting papers at least 16 court days before the hearing.
trial court, appellants never objected to the supplemental declaration on the
ground that it was not timely filed pursuant to section 484.040. Neither did they argue that section 484.060,
subdivision (c), does not permit a plaintiff to file and serve any supplemental
declarations with a reply or that Warford's supplemental declaration was not
properly served and filed within the time statutorily allowed for a reply. Consequently, such claims were not preserved
for appeal.
"The
forfeiture rule generally applies in all civil and criminal proceedings. [Citations.]" (Keener
v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264.) "Ordinarily, an appellate court will not
consider a claim of error if an objection could have been, but was not, made in
the lower court. (People v. Saunders (1993) 5 Cal.4th 580, 589–590
. . . .)" (
46.) "The reason for this rule is
that '[i]t is both unfair and inefficient to permit a claim of error on appeal
that, if timely brought to the attention of the trial court, could have been
easily corrected or avoided.' (
276 . . . ; Saunders,
. . . .) '[T]he
forfeiture rule ensures that the opposing party is given an opportunity to
address the objection, and it prevents a party from engaging in gamesmanship by
choosing not to object, awaiting the outcome, and then claiming error.' (People
v. Kennedy (2005) 36 Cal.4th 595, 612 . . . .)" (Ibid.)
Appellants
also argue that Warford's supplemental declaration failed to remedy his
original declaration's foundational deficiencies concerning admission of the
guaranties. Since his original
declaration was not deficient with respect to any foundational fact
specifically and timely raised by appellants, this argument is unavailing.
DISPOSITION
The
July 26, 2011 right to attach order and order for issuance of a writ of
attachment is affirmed.
_____________________________
ELIA,
Acting P. J.
WE CONCUR:
____________________________
MIHARA, J.
____________________________
MÃRQUEZ, J.
Bank argues that Erin Garner and Sue Garner lack standing in this appeal as
individuals. The challenged orders
applied to them as trustees of the Trust and no argument has been made that
they do not have standing in their capacity as trustees.
further statutory references are to the Code of Civil Procedure unless
otherwise stated.
