Opinion
G061981
04-29-2024
MICHAEL BARNES et al., Plaintiffs and Respondents, v. ANA MARTINEZ, Defendant and Appellant.
Wasson & Associates and David B. Wasson for Defendant and Appellant. Songstad Randall Coffee & Humphrey, Janet E. Humphrey, Joseph K. Jeffrey and William D. Coffee for Plaintiffs and Respondents.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County, No. 30-2017-00945345 Deborah C. Servino, Judge. Affirmed. Motion to augment. Denied.
Wasson & Associates and David B. Wasson for Defendant and Appellant.
Songstad Randall Coffee & Humphrey, Janet E. Humphrey, Joseph K. Jeffrey and William D. Coffee for Plaintiffs and Respondents.
OPINION
DELANEY, J.
In 2017, Raul Aguilera stole over $1 million of jewelry and other items from a residence where he worked. The owners of the residence, Michael Barnes and his wife, sued Aguilera, his wife, and his employer for conversion and other claims. Although the homeowners prevailed at trial against Aguilera and his employer, the jury rendered a defense verdict for Aguilera's wife, Ana Martinez. After judgment, Martinez unsuccessfully moved for cost-of-proof sanctions under Code of Civil Procedure section 2033.420 against Barnes for failing to admit he had no facts, documents, or witnesses to support his claims against her. On appeal, Martinez contends the trial court abused its discretion in denying the motion. Finding no error, we affirm the postjudgment order.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
FACTS
Barnes and his wife, Lisa Underwood, own a house in Laguna Beach. In late 2016, they hired JTC Estates, Inc. (JTC) to provide property management and maintenance services. Aguilera, a JTC employee, was assigned to Barnes's residence.
Although Underwood is listed as a respondent in appellant's opening brief, the parties agree Underwood is not a party to this appeal because the subject motion was not filed against her. While some facts apply equally to Barnes and Underwood, we recite those facts only with respect to Barnes.
In August 2017, Aguilera stole jewelry and personal items valued at over $1 million from Barnes's house. Aguilera has a history of criminal activity and drug use, dating back to 2000. Notably, in 2000, he was convicted of two felonies for the sale and possession of a controlled substance. In 2016, Aguilera checked himself into rehab for three weeks. Martinez, who married Aguilera in 2002, knew of his criminal and drug history. Before the theft, Aguilera was using heroin and Xanax three times a day. He stole the items to support his drug habit.
The police secured a search warrant for the home of Aguilera and Martinez. From the search, the police recovered parts of a necklace belonging to Barnes's wife, which was found in the pocket of Aguilera's pants located in the primary bedroom, and other items belonging to Barnes in Aguilera's work van. Aguilera was searched and found with $1,400 cash and a ticket from a pawnshop.
Aguilera was arrested, later pleaded guilty to grand theft, and was sentenced to two years in state prison. He was released in August 2018.
I. The Pleadings
In September 2017, Barnes and his wife filed a complaint against Aguilera and JTC for conversion and other claims.
In March 2018, a first amended complaint was filed, adding Martinez as a defendant.
Martinez filed, alongside the opening brief, a motion to augment the record with the first amended complaint, papers filed concerning Martinez's motion for summary judgment, papers filed concerning her motion for nonsuit, and a trial court minute order dated May 5, 2022. The motion is denied. These documents either were not cited in the opening brief or are not material to our analysis.
On May 18, 2018, the second amended complaint (the SAC), the operative pleading, was filed. As to Martinez, Barnes alleged claims of conversion and constructive trust. A few weeks later, on June 4, Martinez filed an answer - a general denial to the SAC.
II. The Requests for Admission
On the same day Martinez filed her answer, she served Barnes with 21 requests for admission. The requests asked Barnes to make the same three admissions for seven allegations in the SAC. The first three requests focused on the allegation, or contention, in the SAC that Martinez "pawned some of your stolen items at one or more pawn shops." Request no. 1 asked Barnes to admit he had no facts to support that contention. Request no. 2 asked him to admit he had no documents to support that contention. And request no. 3 asked him to admit he was not aware of any person "who witnessed the events which transpired, which support" that contention.
This pattern repeated for six more allegations in the SAC. Barnes was asked to admit he had no facts, documents, or witnesses to support the contentions: "that a majority of the stolen items remain in the possession, custody or control of" Martinez (request nos. 4-6); that she "continued to have possession, custody or control of the majority of stolen items" (request nos. 7-9); that she "wrongfully converted the stolen items for her own use and possession without plaintiff's knowledge or consent" (request nos. 10-12); that she "acted willfully, fraudulently, maliciously, oppressively, despicably and with a conscious disregard of plaintiff's rights" (request nos. 13-15); that she "is in possession of all or some of the stolen items" (request nos. 16-18); and that she "is in possession of proceeds obtained from the sale of disposition of all the stolen items" (request nos. 19-21).
Barnes denied all 21 requests for admission, subject to objections, which included "vague, ambiguous and unintelligible." Barnes also responded to form interrogatories served with the requests for admission. Specifically, interrogatory no. 17.1 provided that for each response to a request for admission that was not an unqualified admission, Barnes was to state all facts, witnesses, and documents supporting his response.
Barnes's response to interrogatory no. 17.1 was the same for all requests for admission. As to supporting facts, Barnes stated Aguilera pawned several of the stolen items and pleaded guilty to the theft; police found stolen items in Martinez's home; and Martinez is married to Aguilera and financially benefits from the theft. Based on those facts, Barnes stated he "is informed and believes" Martinez knew about and "was complicit in the theft, the pawning of the jewelry and the continued concealment of the stolen items that have not been recovered." Barnes identified himself, Aguilera, and Martinez as persons with knowledge of these facts. And Barnes identified the police investigation report, a report by Justice Solutions Group, and Aguilera's criminal case summary as supporting documents.
III. Motion for Summary Judgment, Trial, and Motion for Nonsuit
In May 2019, the trial court (Judge Layne Melzer) denied Martinez's motion for summary judgment on the SAC. The court explained it was exercising its discretion to deny the motion because Martinez's declaration constituted the sole evidence refuting the SAC's allegations. Counsel for Martinez disagreed, pointing to Aguilera as a potential second witness. The court noted the marital privilege had been claimed and was not waived until Martinez disclaimed it in her reply brief.
From April 18 to May 6, 2022, the case was tried before a jury in two phases. On May 2, immediately after plaintiffs rested their case, the trial court denied Martinez's motion for nonsuit. The jury rendered a verdict for the first phase of trial. It found for plaintiffs and against Aguilera and JTC in the total amount of $1,628,365.50.In rendering a defense verdict to Martinez, the jury answered "no" to the question: "Did Ana Martinez substantially interfere with Plaintiffs' property by knowingly or intentionally taking possession of the personal property, preventing Plaintiffs from having access to the personal property, destroying the personal property, or refusing to return Plaintiffs' personal property after Plaintiffs demanded its return?"
The second trial phase concerned punitive damages; the jury awarded $5,000 to plaintiffs and against Aguilera.
IV. Cost-of-Proof Motion
After trial, Martinez moved for an award of $67,177.38 in fees and costs against Barnes, under section 2033.420, based on his denial of the requests for admission. The motion was fully briefed and argued. The trial court denied the motion.
The court found Martinez "only proved the truth of some of the requests that were denied." The court explained, "Specifically, at trial, Martinez proved that Barnes did not have any documents or witnesses to support the allegations made in the complaint."
As noted by the court, the jury's finding in favor of Martinez did not mean Barnes had no evidence, only that the jury was unpersuaded by the evidence presented. The court reasoned "[t]he requests appear to have been drafted to support a motion for summary judgment under Code of Civil Procedure section 437c, subdivision (p)(2), as Barnes was asked to admit he had 'no facts' to support these contentions." The court, however, stated "[t]he 'relevant question' under section 2033.420 is 'whether the litigant had a reasonable, good faith belief he or she would prevail on the issue at trial.'"
The court continued: "Although Martinez arguably proved that Barnes did not have a reasonable basis for denying that he had no documents or witnesses to support his allegations, these issues concerned how Barnes would prove his claim, i.e., what forms of evidence, but did not go to issues of substantial importance. Likewise, whether Barnes had facts, documents, or witnesses to seek an award of punitive damages was only secondary to, and completely dependent on, Barnes proving the primary issue of whether Martinez was liable for conversion." Finally, the court found Martinez had not shown she incurred the entire $67,177.38 in proving the truth of the requests.
DISCUSSION
The sole issue on appeal is whether the trial court properly denied Martinez's motion for costs of proof. She contends the court abused its discretion in finding (1) she had not proved at trial the truth of all matters denied by Barnes; (2) the denials were excused under a statutory exception; (3) and she did not show she incurred the entire amount requested in proving the truth of the denied matters. As to the first and second arguments, we find no error. In light of our finding, we do not reach the third argument.
I. General Principles
In civil cases, a party can ask another to admit facts prior to trial. (§ 2033.010.) Matters admitted through requests for admission "are conclusively established in the litigation and are not subject to being contested through contradictory evidence." (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 775; § 2033.410, subd. (a).)
If the responding party fails to admit to a requested fact and the requesting party proves that fact at trial, the requesting party can move for an order requiring the responding party "to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees." (§ 2033.420, subd. (a).) This cost-of-proof award is mandatory, unless one of four exceptions applies: "(1) An objection to the request was sustained or a response to it was waived"; "(2) [t]he admission sought was of no substantial importance"; "(3) [t]he party failing to make the admission had reasonable ground to believe that the party would prevail on the matter"; or "(4) [t]here was other good reason for the failure to admit." (§ 2033.420, subd. (b)(1)-(4).)
Although the statute is found within the Civil Discovery Act, requests for admission are "'not a discovery device.'" (Fredericks v. Kontos Industries, Inc. (1987) 189 Cal.App.3d 272, 276 (Fredericks).) They "differ fundamentally from other forms of discovery. Rather than seeking to uncover information, they seek to eliminate the need for proof." (Stull v. Sparrow (2001) 92 Cal.App.4th 860, 864.) Their main purpose is "'to set at rest triable issues so that they will not have to be tried; they are aimed at expediting trial.'" (Orange County Water Dist. v. The Arnold Engineering Co. (2018) 31 Cal.App.5th 96, 115.) "'The basis for imposing sanctions under [the statute] is directly related to that purpose.'" (Ibid.) A cost-of-proof award "'is not a penalty. Instead, it is designed to reimburse reasonable expenses incurred by a party in proving the truth of a requested admission where the admission sought was "of substantial importance" [citations] such that trial would have been expedited or shortened if the request had been admitted.'" (Ibid.)
II. Standard of Review
We review the denial of a cost-of-proof motion, including the determination of whether an exception applies and the amount of any costs awarded, for abuse of discretion. (Bloxham v. Saldinger (2014) 228 Cal.App.4th 729, 753; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1275-1276 (Laabs); Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 508 (Brooks).) Although it is a "deferential standard of review" (Bloxham, at p. 753), "'[t]he abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court's ruling under review. The trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious'" (Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 28 (Kramer)).
Moreover, "section 2033.420 does not require the court to make any explicit findings on the record." (Laabs, supra, 163 Cal.App.4th at p. 1276, fn. 20.) The order is presumed correct and the appellant bears the "burden of providing a record that establishes error, and where the record is silent, we must indulge all intendments and presumptions to support the challenged ruling." (Id. at p. 1271.) Thus, under the doctrine of implied findings, we must infer "the trial court made all factual findings necessary to support the order or judgment." (Ibid.)
III. Requests to Admit No Supporting Facts
The trial court found Martinez proved the truth of only "some of the requests that were denied," and noted she had proved Barnes had no documents or witnesses to support his allegations. Taken together, these findings imply the court found Martinez had not proved that Barnes had no facts to support his allegations. (Laabs, supra, 163 Cal.App.4th at p. 1271.) The question therefore is whether this implied finding is supported by substantial evidence. (Kramer, supra, 56 Cal.App.5th at p. 28; Samsky v. State Farm Mutual Automobile Ins. Co. (2019) 37 Cal.App.5th 517, 521.)
To demonstrate error, "[a]n appellant challenging the sufficiency of the evidence to support the [order] must cite the evidence in the record supporting the [order] and explain why such evidence is insufficient as a matter of law." (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1408 (Rayii).) "'[A] record is inadequate, and appellant defaults, if the appellant . . . ignores or does not present to the appellate court portions of the proceedings below which may provide grounds upon which the decision of the trial court could be affirmed.'" (Osgood v. Landon (2005) 127 Cal.App.4th 425, 435.) And if the appellant fails to cite and discuss the evidence supporting the order, or cites and discusses evidence only in her favor, she "cannot demonstrate that such evidence is insufficient." (Rayii, at p. 1408.)
Here, the opening brief fails to cite any trial evidence on the matters at issue in the requests for admission. The brief's facts section summarizes the trial in two sentences: "The case was presented to the jury. The jury returned a verdict that was not only against the Respondents but was also in favor of the Appellant." The brief's argument section does not discuss any trial evidence, favorable or not. Instead, Martinez argued that the trial court failed to address each request for admission separately and that the verdict meant "there was no evidence that the Appellant had any participation, whatsoever, in the theft." In failing to cite or discuss the pertinent trial evidence, Martinez has failed to show the trial court's findings were not supported by substantial evidence. (Rayii, supra, 218 Cal.App.4th at p. 1408.)
In her reply brief, however, Martinez acknowledges the trial court "was under no obligation to recite the details of its decision or analysis."
Although Martinez discusses some evidence in her reply brief, that belated argument does not cure the deficiencies in her opening brief. (See Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, 984 ["'appellate court is not required to examine undeveloped claims'"]; Aviel v. Ng (2008) 161 Cal.App.4th 809, 821 [disregarding belated attempt to develop arguments in reply brief].)
In any event, the record includes substantial evidence to support the finding Martinez did not prove the truth of the requests. This category asked Barnes to admit he had "no facts" to support his claims. To prove Barnes had no supporting facts, Martinez had to show zero facts or evidence supported the claim for conversion against her.
A plaintiff may prove a claim using "circumstantial evidence and the reasonable inferences flowing therefrom." (County of Kern v. Jadwin (2011) 197 Cal.App.4th 65, 73.) At trial, evidence was admitted that Aguilera stole over $1 million of Barnes's personal property and a piece of a necklace was found in Aguilera's pants pocket, which was in the primary bedroom he and Martinez shared. This evidence places stolen property where Martinez regularly spent time. It is one link in a chain connecting Martinez to Barnes's claim of conversion. It is of no consequence whether Barnes submitted enough evidence at trial to complete the chain: The requests targeted whether he had any facts or evidence - not sufficient evidence - to support his claim.
Although Martinez balks at such a literal reading of the requests, she ignores the indisputable fact that she chose the wording. She did not ask Barnes to admit, for example, that she didn't possess any stolen property or that she didn't pawn any of his items. Contrary to Martinez's assertion, the trial court did not misinterpret the meaning of those requests. (See Fredericks, supra, 189 Cal.App.3d at p. 277 [when admission susceptible to different meanings, court exercises discretion to determine its "scope and effect"].)
IV. Requests to Admit No Supporting Witnesses or Documents
With respect to the requests concerning supporting witnesses and documents, the trial court found them to be of no substantial importance because they merely concerned how Barnes would prove his claim. We agree.
To be "'of substantial importance,'" generally "a request for admission should have at least some direct relationship to one of the central issues in the case, i.e., an issue which, if not proven, would have altered the results in the case." (Brooks, supra, 179 Cal.App.3d at p. 509, fn. omitted.) These requests, as worded, would not have expedited trial had Barnes admitted the matters. The requests asked him to admit he had no supporting documents or evidence, but they were served when Martinez first appeared in the action and before Barnes could propound discovery on her.
Stated another way, an admission that Barnes didn't have evidence at the beginning of his case against Martinez would not have expedited the trial. (See Universal Home Improvement, Inc. v. Robertson (2020) 51 Cal.App.5th 116, 130-131 [criticizing as "a form of strict liability" a party's tactic of serving early requests for plaintiff to admit he had no case, to later recover costs of proof]; Pappas v. Chang (2022) 75 Cal.App.5th 975, 994 [trial court did not abuse discretion in denying requests served at case inception].) For these reasons, we conclude the court did not abuse its discretion in finding the no-substantial-importance exception applied to these requests.
V. Remaining Arguments
Given our conclusion, we need not decide whether the trial court properly determined another statutory exception applied or the parties' arguments concerning the amount or reasonableness of the requested fees and costs.
DISPOSITION
The postjudgment order is affirmed. Appellant's motion to augment is denied. Respondent to recover costs on appeal.
WE CONCUR: SANCHEZ, ACTING P. J., MOTOIKE, J.