Opinion
2d Civil No. B228002
02-14-2012
KEVIN FRAMPTON, Plaintiff and Appellant, v. MERIDITH BAER, Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 1303311)
(Santa Barbara County)
ORDER MODIFYING OPINION AND DENYING REHEARING
[No Change in Judgment]
THE COURT:
It is ordered that the opinion filed herein on January 17, 2012, be modified as follows:
On page 15, before the caption Prejudgment Interest, insert the following:
Petition for Rehearing
In his petition for rehearing, appellant contends that the matter should not be remanded for retrial on the amount of damages. Appellant argues that, because Meribear produced no evidence as to its costs and lost profits, it "did not carry [its] burden of proof" on the damages issue. "Such a failure," appellant asserts, "requires reversal, with Judgment granted to [appellant]." In support of his argument, appellant cites Avalon Pacific-Santa Ana, LP v. HD Supply Repair & Remodel, LLC (2011) 192 Cal.App.4th 1183, 1189-1190, 1210-1211 (Avalon).) Appellant contends that he raised this argument in Section VI at pages 49-50 of his opening brief. In Section VI appellant stated: "This court can independently rule as a matter of law that the trial court misapplied both the measure of damages for anticipatory breach and application of prejudgment interest. [Appellant] advised the [trial] Court of the correct measure. Inasmuch as MB [Meribear] failed to produce evidence sufficient to rule on any evidence [sic], reversal is warranted." Appellant's argument that the judgment should be reversed is different from an argument that, not only should the judgment be reversed, but judgment should be entered in his favor. Normally, where a judgment is reversed because the trial court applied an incorrect measure of damages, the matter is remanded for retrial on the issue of damages. (See Dean W. Knight & Sons, Inc. v. First Western Bank & Trust Co. (1978) 84 Cal.App.3d 560, 563 ["Because the trial court relied upon expert testimony applying an improper measure of damages, we remand the matter to the trial court for retrial of the issue of damages only"].) However, in a single sentence at page 45 of his opening brief, appellant indirectly raised the argument that judgment should be entered in his favor: "As MB [Meribear] submitted no evidence at all on proper elements of damages, the $68,000 must be reversed and any amount denied for lack of evidence." This single sentence, without supporting argument or citations to authority, is insufficient to preserve the point for appellate review. Appellant could have cited the Avalon case, since it was decided six months before he filed his opening brief.
"When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived." (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) Appellant contends that he raised the point in the first paragraph at page 19 of his reply brief, but in that brief appellant also failed to provide supporting argument or citations to authority: "Whether or not anticipatory breach is found, [Meribear] used the wrong measure of damages. . . . The Court should reverse the Judgment and enter Judgment in favor of [appellant] on [Meribear's] Cross-Complaint, for insufficient evidence." In any event, " '[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.' [Citation.]" (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.) Indeed, Meribear did not brief the issue of whether judgment should be entered in appellant's favor if the trial court applied an incorrect measure of damages. Accordingly, we deny the petition for rehearing.
[There is no change in the judgment.]
NOT FOR PUB;ICATION