Holdren v. Raber

 

 

 

 

 

 

 

 

 

Filed 7/1/13  Holdren v. Raber CA4/2

 

 

 

 

 

 

 

 

NOT TO BE
PUBLISHED IN OFFICIAL REPORTS

 

 

California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b).  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.

 

 

 

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA>

 

FOURTH
APPELLATE DISTRICT

 

DIVISION TWO

 

 

 
>

CHARLES HOLDREN et al.,               Plaintiffs and Respondents,   v.   CHARLES RABER et al.,               Defendants and Appellants.

E054805               (Super.Ct.No. RIC494565)               OPINION

 

            APPEAL from the Superior
Court
of
Riverside
County.  Sylvia L.
Husing, Judge.  (Retired judge of the San
Bernardino Super. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.)  Affirmed.

            Charles W. Raber and Dianne L.
Raber, in pro. per., for Defendants and Appellants.

            Law Offices of Raul B. Garcia and
Raul B. Garcia for Plaintiffs and Respondents.

            On March 3, 2008,
plaintiffs and respondents Charles Holdren and Raymarie Holdren filed a civil
complaint against defendants and appellants Charles Raber, Dianne L. Raber, and
others..  The case was tried by the trial
court on June 3, 2011.  Trial was held on three causes of
action:  (1) breach of contract; (2)
fraud; and (3) constructive trust.  The
trial court found for plaintiffs on all causes of action and awarded them
damages of $25,000.  A new trial motion
was denied on September
16, 2011, and judgment was entered against
defendants on October
18, 2011. 
Defendants appeal.

I

THE APPELLATE RECORD

            Defendants have elected to appeal
without a reporter’s transcript.  The
appellate form (APP-3) notified them that “without a record of the oral
proceedings in the superior court, the Court of Appeal will not be able to
consider what was said during those proceedings in determining whether an error
was made in the superior court proceedings.”

            The same form instructed defendants
that certain required documents would be included in the clerk’s
transcript.  In designating additional
documents to be included in the clerk’s transcript, defendants designated (1)
the trial court’s ruling; (2) a motion in limine; and (3) the ruling granting
the motion in limine.  They did not designate their complaint or any
other documents.href="#_ftn1"
name="_ftnref1" title="">[1]

II

THE TRIAL COURT’S RULING

            Since the record is limited, we
obtain the facts of the case from the trial court’s ruling.  According to the trial court, the issues
were:  (1) “Was there a href="http://www.fearnotlaw.com/">verbal agreement to rescind the escrow if
the Plaintiffs could not obtain the construction financing?”  (2) â€œDid the defendants commit fraud by
agreeing to take back the property if the construction loan was not obtained
and then refusing to honor that agreement?” 
(3) â€œDid the Defendants hold the funds as constructive trustees of
the Plaintiffs?”

            As noted above, the trial court
found for plaintiffs on all issues and awarded plaintiffs general damages of
$25,000.

III

ISSUES ON APPEAL

            The primary issue on appeal arises
from the fact that, at the beginning of trial, the trial court >granted defendants’ motion in limine to >exclude evidence of an oral
agreement.  The motion in limine
requested “an order excluding any and all evidence, references to evidence,
testimony or argument relating to any purported oral agreement between the
Plaintiffs and [defendants].”  Despite
the granting of the motion in limine, the trial court, on the same day, did
admit evidence of an oral agreement.  In
fact, the primary issue at trial was whether there was an oral agreement or
not.  After hearing evidence of an oral
agreement, the trial court found there was such an agreement and decided the
case accordingly.

            Defendants contend the admission of
evidence of an oral agreement was prejudicial to them, because they relied on
the court’s ruling and assumed that evidence of an oral agreement would not be
admitted.  As noted above, they filed a
motion for new trial on this basis.  The
motion argues that the trial court’s actions constituted an irregularity in the
proceedings within the meaning of Code of Civil Procedure section 657.  That section states, in relevant part:  “The verdict may be vacated and any other
decision may be modified or vacated in whole or in part, and a new or further
trial granted on all or part of the issues, on the application of the party
aggrieved, for any of the following causes, materially affecting the
substantial rights of such party: 
[¶]  1.  Irregularity in
the proceedings of the court, jury or adverse party, or any order of the court
or abuse of discretion by which either party was prevented from having a fair
trial.” 

            Defendants renew the contention on
appeal.

IV

DISCUSSION

            A motion in limine is a nonstatutory
motion that requests the trial court to limit or exclude certain evidence or
testimony.  In this case, defendants’
motion, made pursuant to Evidence Code section 352, was an objection to the
admission of parol evidence at trial on the grounds that the written agreements
between the parties constituted a fully integrated agreement.  (Code Civ. Proc., § 1856, subd. (a); Civil
Code, § 1625.)  Following this
well-established principle, the trial court granted the motion at the beginning
of the trial.

            However, “the trial court’s >in limine ruling is necessarily
tentative because the court retains discretion to make a different ruling as
the evidence unfolds.”  (>People v. Rodrigues (1994) 8 Cal.4th
1060, 1174; Rufo v. Simpson (2001) 86
Cal.App.4th 573, 608-609.)  “‘>In limine rulings are not binding []’
[citation] and are ‘subject to reconsideration upon full information at
trial.’  [Citations.]”  (Cristler
v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 90, fn. 6.)

            At some time during the trial, the
trial court decided the main issue in the case was whether there was a verbal
agreement to rescind the escrow if plaintiffs could not obtain the construction
loan financing.  It therefore decided
that, for some reason, parol evidence was admissible despite the written
contracts.

            Although in limine> motions can serve a variety of
functions, such as demurrers, motions for judgment on the pleadings, or
nonsuit, we review evidentiary rulings de novo. 
(City of >Livermore> v. Baca
(2012) 205 Cal.App.4th 1460, 1465.) 
Since there is no transcript of oral proceedings, we cannot do so in
this case.

            Even assuming the trial court’s
decision to admit parol evidence was legally wrong, there is no trial record to
demonstrate that defendants objected to such evidence at trial, or that the
admission of such evidence led to a miscarriage of justice.

            For example, the in limine motion
was made under Evidence Code section 352. 
That section provides:  “The court
in its discretion may exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.”  Obviously, the question of whether the trial
court abused its discretion in weighing these factors cannot be weighed on
appeal without a trial record:  “[A]
reviewing court should not disturb the exercise of a trial court’s discretion
unless it appears that there has been a miscarriage of justice.”  (Denham
v. Superior Court (1970) 2 Cal.3d 557, 566.)  “An abuse of discretion is never presumed but
must be affirmatively established by the party complaining of the provisions of
the order.  [Citations.]  The burden is on the party complaining of the
order to establish an abuse of discretion, and unless a clear case of abuse is
shown and unless there has been a miscarriage
of justice an appellate court will not substitute its opinion and thereby
divest the trial court of its discretionary power.  [Citations.]” 
(Berry v. Chaplin (1946) 74
Cal.App.2d 669, 672-673.)

            Plaintiffs argue that the parol
evidence was admissible on the fraud cause of action.href="#_ftn2" name="_ftnref2" title="">[2]  They argue theories of estoppel, part
performance, and promissory fraud.  We
cannot evaluate the validity of these arguments without a record of the trial
court proceedings.  More importantly, we
cannot evaluate defendants’ argument that the fraud exception to the parol
evidence rule is inapplicable.

            The trial court’s decision on the
constructive trust cause of action is clear, even in the absence of the trial
testimony.  The trial court found
defendants had a fiduciary relationship with plaintiffs with regard to the
$25,000 deposit, and that defendants were constructive trustees of the $25,000.

            Plaintiffs rely on Civil Code
sections 2223 and 2224.  Civil Code
section 2223 states:  “One who wrongfully
detains a thing is an involuntary trustee thereof, for the benefit of the
owner.”  Civil Code section 2224
provides:  “One who gains a thing by
fraud, accident, mistake, undue influence, the violation of a trust, or other
wrongful act, is, unless he or she has some other and better right thereto, an
involuntary trustee of the thing gained, for the benefit of the person who
would otherwise have had it.”

            Acting under these sections, the
trial court may impose a constructive trust as an equitable remedy to prevent
unjust enrichment and to enforce restitution. 
(Haskel Engineering & Supply
Co. v. Hartford> Acc. & Indem. >Co.
(1978) 78 Cal.App.3d 371, 375.)  Fraud
need not be proven:  “All that must be
shown is that the acquisition of the property was wrongful and that the keeping
of the property by the defendant would constitute unjust enrichment.  [Citations.]” 
(Calistoga Civic Club v. City of
Calistoga (1983) 143 Cal.App.3d 111, 116.)

            After hearing the evidence the court
found for plaintiffs and imposed a constructive trust as an equitable
remedy.  Defendants have not met their
burden of demonstrating that the trial court abused its discretion in so doing.  Accordingly, they have not shown that the
trial court erred.

V

DISPOSITION

            The judgment is affirmed.  Respondents are awarded their costs on
appeal.

            NOT TO BE PUBLISHED IN OFFICIAL
REPORTS

 

RICHLI                                  

                                                Acting
P. J.

 

We concur:

 

 

MILLER                                

                                             J.

 

 

CODRINGTON                    

                                             J.