Opinion
A152466
05-15-2018
JUSTIN FONG, M.D., et al., Plaintiffs and Appellants, v. PHILIP SHERIDAN, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. CIV 1003444) MEMORANDUM OPINION
We resolve this case by a memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1(1), (3).
This is the second appeal we have considered in this matter. In the first appeal, Fong v. Sheridan (Apr. 21, 2016, A144286) [nonpub. opn.] (Fong I), we reversed in part the trial court's statement of decision regarding the damages award and prevailing party determination. We explained the statement of decision, by providing only a gross sum, failed to "meaningfully explain how that figure was determined" and constituted error. We vacated the damage award and instructed the trial court to "explain the factual basis for the damage award."
We take judicial notice of our prior decision. (Evid. Code, § 452, subd. (d).)
Following the issuance of the remittitur in Fong I, the trial court entered a revised statement of decision. That statement set forth eight specific items of damages it was awarding "for discovery and remediation of the tanks," as well as its calculation regarding recoverable rental costs. The court concluded all other damages "were not supported by the evidence." Plaintiffs Justin Fong, M.D., and Suzanna Fong now appeal, arguing (1) the trial court failed to make findings as to each separate item of damages, (2) their requested damages are supported by substantial evidence, (3) the error resulted in an erroneous prevailing party determination, and (4) the case should be reassigned on remand.
The Fongs also assert the trial court failed "to 'address all proper objections previously filed by [Appellants].' " Beyond the issue of damages, however, the Fongs do not identify what objections they contend were not addressed or provide any citations to the record or relevant authority. It is not our responsibility to comb the appellate record for facts, or to conduct legal research in search of authority, to support the contentions on appeal. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.) If the appellant fails to cite to the record or relevant authority, we may treat the issue as waived. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546; accord, Cal. Rules of Court, rule 8.204(a)(1).)
We will not recount the general standards governing statements of decision—suffice it to say those are well settled. (See Central Valley General Hospital v. Smith (2008) 162 Cal.App.4th 501, 513; Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1124-1125.) For our purposes, it is sufficient to note the trial court "was not required to address how it resolved intermediate evidentiary conflicts, or respond point by point to the various issues posed in appellant's request for a statement of decision." (Muzquiz v. City of Emeryville, at p. 1126.) However, special findings have been required in cases "involving a determination of separate 'items' of damage, separately pleaded, each dependent upon a determination of separate issues of fact." (South Bay Irr. Dist. v. California-American Water Co. (1976) 61 Cal.App.3d 944, 994.)
In our prior opinion, we instructed the trial court to "explain the factual basis for the damage award." (Fong I, supra, A144286.) The trial court did so, and the revised statement of decision identifies which items of damages are included and excluded from its award. However, upon further review we conclude additional findings are needed based on the specific facts at issue. " '[F]indings are required on all material issues raised by the pleadings and evidence . . . .' " (Culbertson v. Cizek (1964) 225 Cal.App.2d 451, 464.) These findings of fact " 'must be definite and certain so that the defeated party may show how or in what manner the findings made are unsupported by the evidence.' " (Morris v. Thogmartin (1973) 29 Cal.App.3d 922, 929, italics added; accord, Benson Elec. Co. v. Hale Bros. Assoc. Inc. (1966) 246 Cal.App.2d 686, 695 [itemization is "required if various items of damage are alleged and denied, thus each becoming a material fact"].)
Here, however, the revised statement of decision does not explain " 'how or in what manner' " the rejected damages were " 'unsupported by the evidence.' " (See Morris v. Thogmartin, supra, 29 Cal.App.3d at p. 929.) And in this case, such a lack of evidentiary support could relate to issues of causation, failure of proof, or some other grounds. Accordingly, we vacate the damage award and remand so the trial court may set forth specific factual findings regarding why damages were or were not awarded for each of the 22 categories set forth in the Fongs' objections to the revised statement of decision. In so holding, we are not asking the trial court to discuss and rule on all evidentiary issues giving rise to its holding. Rather, we are requesting that the court clarify its ultimate reasons for concluding what damages were or were not supported by the evidence.
The Fongs' objections to the original statement of decision did not set forth these 22 items of damages, but discussed eight broader categories amounting to $1,938,067 in alleged damages. In light of this court's holding that the trial court applied the correct measure of damages (see Fong I, supra, A144286), the Fongs appear to now only contest a subset of those original damages as itemized in its objections to the revised statement of decision.
In light of our decision to vacate the damage award and remand, we need not address the sufficiency of the evidence at this time. However, we remind the parties that once the court articulates the findings underpinning its judgment, appellate courts cannot reweigh evidence, especially if based on a credibility determination. (See Barthels v. Santa Barbara Title Co. (1994) 28 Cal.App.4th 674, 680 ["We have no power on appeal to consider the credibility of a witness or to weigh the evidence."].)
We also vacate the trial court's prevailing party determination and attorney fee and costs award for the same reasons set forth in our prior opinion. (See Fong I, supra, A144286 ["As we are vacating the trial court's damage award due to ambiguities in its statement of decision, and since there is a possibility the Fongs may recover greater or lesser damages on remand, we cannot determine which party most accomplished its litigation objectives."].)
Finally, we deny the Fongs' request to reassign the case on remand to another judge. Despite our current determination to remand for further findings, we believe the trial court technically complied with our prior remand instructions, and we see no basis for questioning the trial judge's impartiality.
DISPOSITION
The judgment is reversed in part. We vacate the damage award and remand for the trial court to clarify its findings. The statement of decision should include specific factual findings regarding why damages were or were not awarded for each of the 22 categories set forth in the Fongs' objections to the revised statement of decision. We also vacate the trial court' s prevailing party determination, as well as the attorney fee and costs award, and remand for a decision consistent with this opinion. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3).)
/s/_________
Margulies, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.