Filed 5/29/13 Reyenga v. Goyal CA4/1
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opinion has not been certified for publication or ordered published for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.
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
ALIDA REYENGA et al.,
Plaintiffs and Appellants,
v.
JITENDRA GOYAL et al.,
Defendants and Respondents.
D059433
(Super. Ct.
No. ECU03860)
APPEAL from
a judgment of the Superior Court
of
County, Juan Ulloa, Judge.
Affirmed.
Janis L.
Turner for Plaintiffs and Appellants.
Horton,
Knox, Carter & Foote, Orlando
B. Foote, Melissa Blackburn and Margarita Haugaard for Defendants and
Respondents.
A court
entered a judgment on defendants' cross-complaint awarding
plaintiffs Alida Reyenga and David Vernon (Plaintiffs) in favor of defendants
Jitendra and Hemendra Goyal (Defendants).
Plaintiffs appeal.
FACTUAL
AND PROCEDURAL BACKGROUND
name="_ftnref1" title="">[1]
Defendants acquired land in Holtville,
California, from a railroad, and
immediately began efforts to develop the property, including seeking and
obtaining zoning approvals from the City of Holtville. Plaintiffs, who owned a parcel adjoining
Defendants' land, tried to block the development by opposing the zoning
changes. When Plaintiffs were
unsuccessful, they began a campaign of harassment
that included an assertion that Defendants' property was encumbered by a
prescriptive easement benefitting Plaintiffs' property.
Defendants
pursued informal efforts to resolve the dispute but were unsuccessful. Instead, Plaintiffs commenced the present
action by filing a complaint alleging claims for nuisance, to quiet title based
on the alleged prescriptive easement, and for damages. Defendants answered and, by a first amended
cross-complaint, sought declaratory relief and quiet title, and also sought
damages under various theories.
The court
granted Defendants' motion for summary judgment on the claims raised in
Plaintiffs' complaint, and the matter proceeded to trial on the issues raised
in Defendants' cross-complaint. The
court found in Defendants' favor, and awarded damages of $40,000. In posttrial motions, the court also awarded
them costs and attorney fees pursuant to Code of Civil Procedure
section 2033.420. Plaintiffs timely
appealed.
ANALYSIS
A. The Propriety of the First Amended Cross-complaint
Plaintiffs
first assert Defendants' first amended cross-complaint, on which the judgment
was partially based, must be deemed "nonexistent" because it was
filed without leave of court in alleged violation of section 428.50. However, Plaintiffs cite nothing to suggest
this argument was raised below, either by a motion to strike (see, e.g.,
160 Cal.App.3d 719, 724; § 436, subd. (b)) or otherwise, and
under well settled law it therefore may not be interposed for the first time on
appeal.
the case on the assumption that a cause of action is stated, that certain
issues are raised by the pleadings, that a particular issue is controlling, or
that other steps affecting the course of the
can change
for purposes of review on appeal."
(9 Witkin,
Cal. Procedure (5th ed. 2008) Appeal, § 407, p. 466.) This doctrine is a well established rule of
appellate practice, based on the notion that a change of position on appeal
from the "theory
of trial"
is unfair to the trial
court and unjust to the opposing party.
(Id. at §§ 407-408, pp.
466-468.)
Plaintiffs may not assert on appeal that the causes of action included
in Defendants' first amended cross-complaint were not properly at issue in the
trial court.
B. The Damages Award
Plaintiffs
assert the damages award to Defendants was erroneous. However, the precise nature of Plaintiffs'
appellate claim is opaque, because it is unclear whether they argue damages
the amount awarded in this case was
excessive considering the evidence at trial.
To the
extent Plaintiffs argue damages cannot be awarded for claims of trespass or
nuisance, they are mistaken: damages are recoverable in actions for trespass
(Civ. Code, § 3334; Natural Soda
Products Co. v. City of Los Angeles (1943) 23 Cal.2d 193, 199 [lost
profits]) and nuisance (Ingram v. City of Gridley (1950) 100 Cal.App.2d 815,
820). To the extent Plaintiffs argue the amount awarded in this case was
excessive considering the evidence at trial, we are not persuaded by their
claim for two independent reasons.
First, the record contains no suggestion Plaintiffs moved for a new
trial asserting the damage award was excessive, and not timely moving for a new
trial "precludes a party from complaining on appeal that the damages
awarded were either excessive or inadequate, whether the case was tried by a
jury or by the court." (
v. Jamison (2008) 164
Cal.App.4th 714, 719 [damage
for inadequacy or excessiveness for the first time on appeal].) Second, even had Plaintiffs preserved the
issue by moving for a new trial below, their claim as to the insufficiency of
the evidence to support the damage award would be deemed forfeited on appeal
because they have not on appeal set forth the evidence supporting the damages
award.
When an
appellant challenges a finding for insufficiency of the evidence to support it,
he or she is required to set forth in the appellant's opening brief all the
material evidence on that issue or finding and not merely evidence favorable to
his or her position. (
(1971) 3 Cal.3d 875, 881.) "In
furtherance of its burden, the appellant has the duty to fairly summarize all
of the facts in the light most favorable to the judgment. [Citation.]
Further, the burden to provide a fair summary of the evidence 'grows
with the complexity of the record.
[Citation.]' " (
Cal.App.4th 1640, 1658.) An appellant
must state fully, with transcript citations, the evidence claimed to be
insufficient to support the trial court's findings. (In re
Marriage of Fink (1979) 25 Cal.3d 877, 887.) Unless this is done, the asserted error is
deemed waived. (Foreman & Clark,
at p. 881.) "An appellate court
will consider the sufficiency of the evidence to support a given finding only
after a party tenders such an issue together with a fair summary of the
evidence bearing on the challenged finding, particularly including evidence
that arguably supports it."
(Huong Que, Inc. v. Luu (2007)
150 Cal.App.4th 400, 409-410.)
Furthermore, "[a] party who challenges the sufficiency of the evidence to support a
finding must set forth, discuss, and
analyze all the evidence on that point, both favorable and unfavorable"
(Doe v. Roman Catholic Archbishop of
Cashel & Emly (2009) 177 Cal.App.4th 209, 218), and not doing so
permits a reviewing court to deem waived any substantial evidence contention. (Ibid.)
record on appeal, Plaintiffs have not set forth a sufficient statement of
of the material evidence, both favorable and unfavorable, on the
damages award, and therefore this issue is deemed forfeited.
C. The Attorney Fees Award
Plaintiffs
contend there was no legal basis on which to predicate an award of attorney
fees to Defendants. Plaintiffs appear
also to suggest the attorney fees were awarded without a motion or notice to
them. However, both Defendants' motion seeking
attorney fees pursuant to section 2033.420 and Plaintiffs' opposition are
contained in the record on appeal, and therefore this claim is not well
taken. Plaintiffs do not challenge the
amount of the attorney fee award.
Factual Background
After their efforts to block
Defendants' development through the zoning process were unsuccessful,
Plaintiffs began a campaign of harassment that included hiring an attorney who
asserted Plaintiffs had acquired a prescriptive easement over Defendants'
property by adverse possession and who threatened legal action to enjoin
Defendants from interfering with Plaintiffs' alleged prescriptive
easement. Defendants' attorney replied
to Plaintiffs' attorney outlining the factual and legal reasons why Plaintiffs'
claims regarding adverse possession were meritless and also outlining why their
claims for a prescriptive easement were meritless. Plaintiffs, after apparently changing to a
new attorney, thereafter again threatened to file an action to quiet title
based on adverse possession, and to file a lis pendens that would cloud
Defendants' title. Defendants' attorney
again replied to Plaintiffs' new attorney, reiterating the factual and legal
reasons why their claims regarding adverse possession and for a prescriptive
easement were meritless.
Plaintiffs
nevertheless filed this action, and a principal thrust of their claims was that
they had obtained a protectable interest in Defendants' property "by
virtue of adverse possession." Less
than three months after Plaintiffs' action was filed, Defendants propounded
requests for admissions requesting that Plaintiffs admit, among other things,
that they made verbal statements claiming an interest in the property that
disparaged Defendants' title by claiming a right to use and occupy the
property, and Plaintiffs' statements were false when made. Plaintiffs' response to those requests simply
stated "denied." Defendants
then conducted additional discovery, and were ultimately required to proceed,
by way of a summary judgment motion directed at the claims asserted by
Plaintiffs in their complaint, to defeat Plaintiffs' claims.
Defendants
thereafter attempted to obtain a negotiated settlement on the remaining claims
raised by their cross-complaint but, when that avenue was exhausted without
success, were required to proceed to trial.
At trial, Plaintiff Alida Reyenga admitted that "[s]ometime prior
to actually filing the lawsuit" she "knew that we didn't have a right
to adverse possession."
Analysis
Although Plaintiffs correctly note
that none of the substantive claims on which Defendants prevailed provide for
the recovery of attorney fees, the record is clear that Defendants' motion for
attorney fees was premised on section 2033.420, which provides:
"(a) If a party fails to admit . . . the
truth of any matter when requested to do so under this chapter, and if the
party requesting that admission thereafter proves . . . the truth of
that matter, the party requesting the admission may move the court for an order
requiring the party to whom the request was directed to pay the reasonable
expenses incurred in making that proof, including reasonable attorney's
fees."
"(b) The court shall make this order unless it finds
any of the following:
"(1) An objection to the request was sustained
or a response to it was waived under Section 2033.290.
"(2) The admission sought was of no substantial
importance.
"(3) The party failing to make the admission
had reasonable ground to believe that that party would prevail on the matter.
"(4) There was other good reason for the failure to
admit."
"Under
. . . section 2033.420, a party that denies a request for admission
may be ordered to pay the costs and fees incurred by the requesting party in
proving that matter." (
Cal.App.4th 1242, 1276.) Allowing
recovery of expenses "is directly related" to the purpose underlying
requests for admissions--to expedite trial.
(Brooks v. American Broadcasting
Co. (1986) 179 Cal.App.3d 500, 509.)
"Unlike other discovery sanctions, an award of expenses pursuant to
section [2033.420] is not a penalty.
Instead, it is designed to reimburse reasonable expenses incurred by a
party in proving the truth of a requested admission . . . [citations]
such that trial would have been expedited or shortened if the request had been
admitted." (Ibid.
[discussing predecessor provision].)
A trial
court could conclude Defendants incurred substantial attorney fees proving
Plaintiffs' claims to the property disparaged Defendants' title by claiming a
right to use and occupy the property, and thereby injured Defendants, and
Plaintiffs knew the statements were false when they made them. Under the facts here, the order awarding
attorney fees was authorized under section 2033.420.
DISPOSITION
The judgment
is affirmed. Defendants are entitled to
McDONALD,
Acting P. J.
WE CONCUR:
McINTYRE,
J.
AARON, J.
name="_ftn1" title="">[1] Our factual background is truncated and we mention only
those facts that may be relevant to the issues properly before us.
name="_ftn2" title="">[2] All statutory references are to the Code of Civil Procedure
unless otherwise specified.
