Opinion
F079660
02-08-2023
AMARJIT KANDOLA, Plaintiff and Respondent, v. BHUPINDER KAUR SAHOTA, Defendant and Appellant.
Law Office of P. Fateh K. Sahota and P. Fateh K. Sahota, for Defendant and Appellant. Morse, Morse &Morse, Brian D. Morse; McCormick, Barstow, Sheppard, Wayte &Carruth, Scott M. Reddie, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County No. CVM017462. Donald E. Shaver, Commissioner.
Law Office of P. Fateh K. Sahota and P. Fateh K. Sahota, for Defendant and Appellant.
Morse, Morse &Morse, Brian D. Morse; McCormick, Barstow, Sheppard, Wayte &Carruth, Scott M. Reddie, for Plaintiff and Respondent.
OPINION
SMITH, J.
Amarjit Kandola filed a complaint against Sohan Singh Sahota for breach of contract and the latter filed a cross-complaint against Amarjit Kandola. Amarjit Kandola prevailed on the claims in both his complaint and those in the cross-complaint. Bhupinder Sahota, widow of and successor in interest to Sohan Singh Sahota (deceased) with respect to this matter, appealed. We affirm.
PROCEDURAL HISTORY
On August 18, 2014, Amarjit Kandola (Kandola) filed the operative complaint for breach of contract against Sohan Singh Sahota (Sahota). The complaint alleged that Kandola had rented land (to be used for growing sweet potatoes) from Sahota based on a written two-year lease that Sahota improperly breached after one year. Kandola sought damages for the alleged breach.
On December 2, 2014, Sohan Singh Sahota cross-complained against Amarjit Kandola and Kandola Brothers Farming, alleging: (1) breach of contract and negligence in connection with Kandola's farming of a 30-acre peach orchard in Livingston that Kandola had leased from Sahota; and (2) breach of contract and negligence in connection with Kandola's planting and farming of peaches on a 50-acre parcel in Winton that Kandola had leased from Sahota.
Sahota passed away prior to trial. His widow, Bhupinder Sahota, substituted in as defendant and cross-complainant, in her capacity as Sahota's successor in interest in the matter.
The matter proceeded to bench trial, which took place from November 27, 2018, to December 6, 2018. The trial court ruled in favor of Kandola on the operative complaint, finding that Sahota was responsible for breach of contract. The court awarded damages to Kandola in the amount of $692,365. As for Sahota's cross-complaint, the court found in favor of Kandola on all four causes of action alleged in the crosscomplaint.
Judgment was entered on March 26, 2019. More specifically, the court entered judgment on the complaint in favor of Kandola and against Bhupinder Sahota, as successor in interest to Sohan Singh Sahota. On the cross-complaint, the court entered judgment in favor of Kandola and Kandola Brothers Farming, and against Bhupinder Sahota, as successor in interest to Sohan Singh Sahota.
Bhupinder Sahota appealed. Her claims on appeal are primarily directed to the complaint. She challenges the court's award of damages but not its liability finding on the complaint. She also challenges the trial court's rulings regarding the order of expert witness testimony at trial.
FACTS
A. The Parties and Their Relationship
Amarjit Kandola has farmed sweet potatoes, peaches, and almonds for approximately 30 years, as part of a partnership, Kandola Brothers. Kandola and his brother were the initial partners of Kandola Brothers. After Kandola's brother passed away in 2015, Kandola became partners with his deceased brother's son, Pawinder Singh Kandola. In addition, Kandola's son, Amarpreet "Pete" Kandola, has always helped with the Kandola Brothers business. In fact, since Pete Kandola graduated from CSU Stanislaus in 2011, he has worked with his father in farming on a fulltime basis.
From its inception, the primary business of Kandola Brothers has been farming sweet potatoes. Kandola Brothers is continually on the look out for new land for growing sweet potatoes. Over the years, Kandola Brothers has steadily increased its sweet potato acreage. Having started with 33 acres, they were growing sweet potatoes on approximately 350-450 acres in 2011, and, as of 2018, they were farming approximately 1,000 acres of sweet potatoes.
Sohan Singh Sahota had leased farmland to Kandola since approximately 2004. Over the years, he leased numerous agricultural parcels to Kandola for Kandola to use for growing sweet potatoes and peaches.
B. The Sweet Potato Farming Process
The Kandolas lease most of the land they plant with sweet potatoes. They have had varied success with respect to finding land that is suitable for growing sweet potatoes, and, since 2011, it has become harder to find good land for this purpose. The fact that a field can support growing sweet potatoes for only three to four years poses an additional challenge.
The sweet potato planting season begins in January or February and the harvest is complete by November. The first step is to fumigate the land and prepare "hot beds" on it. Hot beds are comprised of rows of "seeds" (i.e., smaller sweet potatoes from the prior year that have been stored at the Kandola Brothers' warehouse at 55-65 degrees), with each hot bed measuring about eight feet wide and 600 feet long. Once the "seeds" are planted, the hotbeds are covered with dirt and tarped "over the top to make a little greenhouse." One hot bed provides sprouts for approximately eight to 10 acres. The Kandolas always plant extra hot beds in case some go bad or do not produce the desired yield; they also plant hot beds, as needed, even after the growing season has commenced.
Once the seeds sprout, the sprouts are removed from the hot beds and transplanted to the fields, where they grow into sweet potatoes. Transplantation of the sprouts to the fields usually commences around early April and ends in late May or early June. Harvesting of the actual sweet potatoes usually starts in mid to late July for early plantings and continues through the first week of November.
Upon harvesting, the sweet potatoes are placed in large plastic or wooden bins, each holding around 850-950 pounds of sweet potatoes. The sweet potatoes are separated by variety, with each bin holding a particular variety. The most valuable variety is the Murasaki (purple), followed by the Bonita/Sweet (white), Dianne (red), and Beauregard (orange) varieties.
After the sweet potatoes are harvested and sorted into bins, the bins are delivered to a packing firm, A.V. Thomas Produce, in Livingston. A.V. Thomas takes possession of the bins and gives Kandola Brothers a delivery tag for each bin. A.V. Thomas sets the price per bin and pays Kandola Brothers based on the number of bins delivered.
Kandola Brothers did not have a formal contractual relationship with A.V. Thomas. However, A.V. Thomas had always accepted all the sweet potatoes that Kandola Brothers was able to deliver. Occasionally, A.V. Thomas ran out of capacity to store the sweet potatoes; in those instances, Kandola Brothers either stored the sweet potatoes at its own warehouse or at a warehouse owned by Dole.
C. Kandola Signed a Two-Year Lease on a 112-Acre Property Owned by Sahota
On November 23, 2012, Kandola and Sahota entered into a two-year lease as to a 112-acre property located on Peach Avenue in Livingston (112-acre property), owned by Sahota. The lease provided that Kandola Brothers would use the 112-acre property to grow sweet potatoes from April 2013 to the end of October 2013 and from April 2014 to October 2014. The lease specified that Kandola Brothers would pay $850 per acre, and the amount for each year was to be paid in full, in advance. The lease further provided as follows: "If this land is sold then this [is] not for rent."
Kandola timely paid Sahota the rent for the 112-acre property, for the 2013 growing season; Kandola paid $100,000 in two checks; $100,000 amounted to an overpayment. Kandola Brothers farmed the 112-acre property and began harvesting the sweet potato crop in October 2013; the harvesting process took about three weeks or so to complete.
The 112-acre property was the last sweet potato field that Kandola Brothers harvested in 2013. The sweet potato bins were delivered to A.V. Thomas, with some of the later harvested sweet potatoes stored in a warehouse. A.V. Thomas eventually picked up the stored sweet potato bins from the warehouse. A.V. Thomas gave Kandola Brothers delivery tags for all the sweet potato bins it received. Since the 112-acre property was the last field harvested in 2013, the delivery tags pertaining to produce from that property could be identified based on their dates.
The 112-acre property was one of the highest producing fields Kandola Brothers farmed that year. Pete Kandola testified the 112-acre property yielded a total of 4,117 bins, resulting in a per acre yield of 36.75 bins. The average per acre yield for all of Kandola Brothers' sweet potato fields that year was 26.32 bins.
In November 2013, Sahota sent a letter to Kandola noting the rent for the 112-acre property, for the 2014 crop year, was due "in November or early December." Sahota's letter further stated: "Read you[r] contract. Do not be . late or no deal will be alive." Kandola made the 2014 lease payment to Sahota on November 26, 2013, in the amount of $90,400. The 2014 lease payment was less than the 2013 payment because it factored in a credit for the 2013 overpayment. Sahota never notified Kandola, at any time prior to Kandola's 2014 payment, that Sahota was potentially negotiating a sale of the 112-acre property.
D. Sahota Canceled the Lease for the 112-Acre Property After Accepting the 2014 Lease Payment, and Told Kandola He Had Sold the Property
Sahota sent Kandola a letter dated December 3, 2013, one week after Kandola had made the lease payment for the property, for the 2014 crop year. The latter stated: "I sold this property subject to certain terms (conditions) up to Dec. 31-2013. If Buyer remove conditions, then on Jan-1-2014, your money will be refunded as paid. Then you cannot plant 2014 crop [of] sweet potatoes." When Kandola received the letter, he asked Sahota whether he could go ahead and plant the property in 2014 as he was short on land; Sahota refused. Sahota also refused to tell Kandola the identity of the putative purchaser of the 112-acre property.
After Sahota told Kandola the lease was canceled, Kandola and his son, Pete Kandola, drove around the area trying to find additional rental land for planting sweet potatoes, but they were unsuccessful.
Kandola and Sahota both banked at WestAmerica Bank. A bank employee testified that Sahota came into the bank on January 7, 2014, and deposited directly into Kandola's account, a lease refund check in the amount of the 2014 lease payment that Kandola had previously made. Kandola did not provide his account number to Sahota or authorize the deposit; rather, he found out about it after the fact.
E. Kandola Found Out Sahota Had Not Sold the 112-Acre Property; Rather, Sahota Had Re-Leased the Land to Another Farmer at a Higher Rate
In early January 2014, Kandola saw a man disking the 112-acre property and stopped to ask him the identity of the new owner of the property. Kandola learned that Sahota remained the owner of the 112-acre property but, on January 2, 2014, had entered into a new lease for the property with Don Avila, for the latter to grow watermelons on the property. The lease was for $1,150 per acre, that is, $300 more per acre than the prior lease with Kandola. Kandola inferred that Sahota had lied about the sale of the property (the required precondition for breaking the lease); rather, Sahota had broken the lease with Kandola in order to lease the land at a higher rate to another farmer.
Kandola immediately retained counsel in view of the fact the time to plant the hot beds was quickly approaching. On January 9, 2014, Kandola's counsel wrote a letter to Sahota demanding the anticipated access to the 112-acre property so Kandola could proceed with planting sweet potatoes as planned. Sahota's counsel responded, in a letter dated January 14, 2014, that is, after the 112-acre property had been re-leased, as follows: "[T]he lease in connection with [the 112-acre property] has been canceled as a result of the sale of the subject property. Further, Mr. Kandola verbally agreed [to] the cancelation of the subject lease upon refund of his full deposit." Kandola's counsel advised counsel for Sahota, by letter dated January 17, 2014, that Kandola had not authorized or consented to cancelation of the lease. Counsel for Sahota responded, in a letter dated January 20, 2014, that the lease was canceled and that "[t]his correspondence will conclude further discussion of this matter."
F. Kandola Filed Suit for Breach of Contract and Began Determining the Profits He Would Lose as a Result of the Lease Cancelation
Kandola filed the complaint initiating this matter on February 3, 2014. In the operative complaint, Kandola alleged Sahota had breached the lease and Kandola would suffer damages as a result of being unable to plant sweet potatoes on the 112-acre property as planned. Sahota filed a cross-complaint on December 2, 2014, alleging that Kandola had negligently farmed peach orchards on two unrelated properties leased from Sahota.
The substance of the claims alleged in the cross-complaint is not at issue in this appeal.
Kandola and Pete Kandola testified they would undoubtedly have grown sweet potatoes on the 112-acre property in 2014, had Sahota not canceled the lease; they noted they lost money as a direct result of Sahota breaking the lease. In an effort to establish the profits lost, Kandola compiled documentation to determine the number of bins of sweet potatoes he produced from the 112-acre property in 2013 and the profits generated from that production. Kandola did not historically prepare records that broke down his profits on a parcel-by-parcel basis; hence, determining the lost profits attributable to cancelation of the lease on the 112-acre property was a difficult and time-consuming task. Kandola explained he had been engaged in a family business of growing sweet potatoes for 30 years and the business would sell all the sweet potatoes it produced. Prior to the dispute with Sahota regarding the 112-acre property, Kandola never had reason to parse his profits with respect to each parcel on which the sweet potatoes were grown.
Once the dispute with Sahota materialized, Kandola began taking steps to quantify the 2013 sweet potato production from the 112-acre property in order to determine the damages in this matter. Kandola and his wife went through all the delivery tags received from A.V. Thomas in 2013 to identify and list the bins delivered to A.V. Thomas containing sweet potatoes from the 112-acre property that year. They created the list in February 2014, shortly after the 2013 harvest was completed. Kandola testified he kept all delivery tags from A. V. Thomas, and therefore using the delivery tags to identify the number of bins generated from the 112-acre property was an accurate method of quantifying the 2013 production from that property.
When Kandola and his wife prepared the initial list of bins produced from the 112-acre property, they did not realize that some bins from the 2013 harvest had not yet been delivered to A.V. Thomas, but rather were still stored in either the Kandola Brothers' warehouse or the Dole warehouse. Thus, the initial bin list underrepresented the yield of the 112-acre property.
Kandola retained Dr. John Bahme to calculate the damages sustained from his inability to grow sweet potatoes on the 112-acre property in 2014. Dr. Bahme had done consulting work on agricultural damage claims for decades and had served as an expert witness in court more than 40 times. Dr. Bahme reviewed Kandola's records and, using two alternative methods, calculated his lost profits from being unable to farm the 112-acre property in 2014. He concluded that, based on the same sweet potato production Kandola achieved on the 112-acre property in 2013, Kandola's lost profits from not farming the property in 2014 were $692,365. However, if the increased production that Kandola achieved collectively on all the fields farmed in 2014 was factored in, then Kandola's lost profits from not farming the 112-acre property in 2014 would amount to $1,031,434. Bhupinder Sahota did not present an expert to rebut Dr. Bahme's damage calculations.
G. The Trial Court Entered Judgment in Favor of Kandola in the Amount of $692,365
After a bench trial, the court found that Sahota had not sold the 112-acre property but, rather, had lied about having sold it. The court noted: "Sahota knew that there was no buyer for the property.... The invention of a secret buyer was in bad faith and without any reasonable justification." The court found Sahota "deliberately deceived Kandola in order to be able to re-rent the property at a higher price." The court also found Kandola had not agreed to cancelation of the contract or lease. The court concluded that therefore there was no legal basis for Sahota to cancel the lease and Sahota had "breached the contract" or lease.
With respect to damages, the court noted:
"To recover damages for lost profits, Kandola must prove that it is reasonably certain he would have earned profits, but for Sahota's conduct. To decide the amount of damages for lost profits, the Court must determine the gross amount Kandola would have received but for Sahota's conduct, and then subtract from that amount the value of the expenses Kandola would have had if Sahota's conduct had not occurred. The amount of the lost profits need not be calculated with mathematical precision, but there must be a reasonable basis for computing the loss.
"Kandola presented Dr. John Bahme as his expert on damages. The Court found Dr. Bahme to be well qualified and very knowledgeable, and his opinions to be well reasoned and compelling. Dr. Bahme testified to two different approaches to determining the gross amount Kandola would have received from farming the Sultana property. The first approach was to use the actual yield for the field from 2013, and the second involved the expected increase in yield over 2013 due to the use of 'better quality seed' in 2014. While both approaches have their merits, the Court believes the actual yield is the better estimate, and less speculative than the second approach involving expected yield increase.
"Determining the actual 2013 yield was a matter of some contention at the trial. Admittedly, Kandola's record keeping in this regard was not ideal. However, after determining the yield based on Kandola's records, Dr. Bahme compared it to commonly accepted figures from public sources for expected yields for similar fields in similar locations, and found them to be consistent. The expenses for harvesting the 112 acres, primarily the labor, was also contested at trial, but the Court found the Defense argument impeaching the figures provided by Kandola unconvincing, and Dr. Bahme accepted them as reasonable, based on regional indicators. Accordingly, the Court accepts Dr. Bahme's estimate of $692,365 as the lost profit resulting from Sahota's breach, and sets damages in this amount."
The court also found that Bhupinder Sahota did not meet her burden of proving that Kandola failed to mitigate his damages.
As to Bhupinder Sahota's cross-complaint, the court concluded she failed to meet her burden of proof as to her claims she suffered damages from Kandola's alleged breach of lease conditions with respect to her peach orchards and from Kandola's allegedly negligent farming of her peach orchards.
DISCUSSION
I. The Trial Court's Damages Award Was Proper
A. The Trial Court's Damages Award is Supported by Substantial Evidence
Bhupinder Sahota challenges the trial court's damages award (the trial court awarded damages to Kandola in the amount of $692,365 on his complaint). Bhupinder Sahota contends: "There is no evidence supporting the Trial Court's finding that [Kandola] suffered damages by his inability to plant sweet potatoes on [the 112-acre property] in 2014."
As to the standard of review applicable to her evidentiary challenge to the trial court's damages award, Bhupinder Sahota argues, "[t]he 'substantial' evidence test does not apply in this matter." We disagree. Courts of Appeal are bound by the substantial evidence standard of review in reviewing the trial court's resolution of disputed questions of fact, including whether a plaintiff has suffered any damages and the amount thereof. (See, e.g., SFPP v. Burlington Northern &Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 462; In re Isabella F. (2014) 226 Cal.App.4th 128, 136; Orozco v. WPVSan Jose, LLC (2019) 36 Cal.App.5th 375, 400.) Under the substantial evidence standard of review, "[w]e consider the evidence in the light most favorable to the prevailing party, giving that party the benefit of every reasonable inference, and resolve evidentiary conflicts in support of the judgment." (Powerhouse Motorsports Group, Inc. v. Yamaha Motor Corp., U.S.A. (2013) 221 Cal.App.4th 867, 885 (Powerhouse); Munoz v. Olin (1979) 24 Cal.3d 629, 635 ["In reviewing for substantial evidence, we look at the evidence in support of the successful party, disregarding the contrary showing."].)
Bhupinder Sahota has not tailored her argument according to the applicable standard of review. (Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, 1388 ["Arguments should be tailored according to the applicable standard of appellate review."]; Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465 ["Failure to acknowledge the proper scope of review is a concession of a lack of merit."].) In any event, the trial court's conclusions regarding Kandola's damages are supported by substantial evidence.
The trial court found that Sohan Sahota "breached the contract" under which he leased the 112-acre property to Kandola for the 2014 crop year (Bhupindar Sahota does not challenge the trial court's finding). As for damages, the trial court found that Kandola's damages expert, Dr. John Bahme, was "well qualified and very knowledgeable" and his opinions were "well reasoned and compelling." The court accepted Dr. Bahme's testimony that Kandola's lost profits arising from his inability to grow sweet potatoes on the 112-acre property in 2014 amounted to $692,365. The court awarded Kandola $692,365 in damages from Sohan Sahota's contractual breach that had precluded Kandola from farming the 112-acre property in 2014. The court's determination that Kandola's damages amounted to $692,365 is supported by substantial evidence.
Dr. Bahme testified he had calculated damages based on two alternative methodologies or approaches. One approach was based on Kandola's 2013 production from the 112-acre property and yielded a damages figure of $692,365. The second approach factored in an overall increase in yield enjoyed by Kandola in his farming operations in 2014 as compared to 2013, and resulted in a damages figure of $1,031,434. The court accepted and adopted the lower damages figure based on 2013 production.
In calculating Kandola's damages arising from his inability to farm the 112-acre property in 2014, Dr. Bahme reviewed A.V. Thomas delivery tags and additional records received from Kandola regarding the sweet potato production generated by the 112-acre property in 2013. Dr. Bahme confirmed at trial the reliability of the 2013 figures on which he relied for calculating Kandola's damages.
Dr. Bahme calculated the total number of bins of sweet potatoes generated by the 112-acre property in 2013. This figure was 3,917 bins, broken down as follows: (1) 2,677 bins of the Diane variety; (2) 540 bins of the Bonita variety; and (3) 700 bins of the Murasaki variety. Dr. Bahme calculated the average revenue per bin, for each variety, that Kandola could have expected in 2014, based on average prices actually paid for each variety in 2014. Dr. Bahme calculated that Kandola could have expected average revenue per bin, as follows: (1) $262.58 per bin of the Diane variety; (2) $282.07 per bin of the Bonita variety; and (3) $410.13 per bin of the Murasaki variety.
Based on his review of the records, Dr. Bahme calculated the total bin count was 3,917. Pete Kandola identified a higher figure for the total bin count generated by the 112-acre property in 2013-200 bins more-in his trial testimony. Dr. Bahme relied on the lower number for purposes of calculating Kandola's damages.
The gross revenue that Kandola lost was then calculated by multiplying the expected bin production of each variety with the expected average revenue per bin as to each variety. The lost gross revenue amounted to $1,142,335, consisting of: (1) $702,927 for the Diane variety (2,677 bins multiplied by $262.58 revenue per bin); (2) $152,318 for the Bonita variety (540 bins multiplied by $282.07 revenue per bin); and (3) $287,091 for the Murasaki variety (700 bins multiplied by $410.13 revenue per bin).
Dr. Bahme further calculated the production cost per acre that Kandola could have expected to expend on the 112-acre property in 2014, based on Kandola's actual production cost per acre for the total sweet potato acreage he farmed in 2014. The expected production cost per acre for the 112-acre property in 2014 was determined to be $4,178 per acre. Dr. Bahme testified that Kandola's 2014 costs were consistent with industry standards. In addition, Dr. Bahme determined that the total acreage planted on the 112-acre property in 2013 was 107.7 acres. Dr. Bahme calculated the expected cost of farming the 112-acre property in 2014 by multiplying the production cost per acre by the number of farmable acres ($4,178 cost per acre multiplied by 107.7 acres), yielding a total expected production cost of $449,970.60 for the 112-acre property for 2014.
Once Dr. Bahme had calculated the lost gross revenue ($1,142,335) and the total production cost ($449,970.60) for the 112-acre property for 2014, he was able to identify the net profits Kandola forwent by not being able to farm the 112-acre property in 2014, by subtracting $449,970.60 from $1,142,335. That calculation yielded a lost net revenue figure of $692,365 for 2014. Bhupinder Sahota did not call an expert to challenge Dr. Bahme's methodology or conclusions.
We conclude the record discloses substantial evidence to uphold the trial court's damages award based on the figures presented by Dr. Bahme. (See Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 779 ["If lost profits can be estimated with reasonable certainty, a court may not deny recovery merely because one cannot determine precisely what they would have been."].)
We are not persuaded otherwise by Bhupinder Sahota's contention that Kandola did not suffer any damages because he farmed more acres in 2014 than he did in 2013. Bhupinder Sahota argues the record contains discrepancies as to the number of acres Kandola farmed in 2013 and 2014 and, to the extent he farmed more acres in 2014 than in 2013, his potential damages were mitigated by this fact. The trial court rejected this argument, observing the issue was whether, regardless of farming more acreage in 2014, Kandola could also have farmed on the 112-acre property that year. The record contains substantial evidence to support a conclusion that Kandola was in a position to farm the 112-acre property in 2014. Kandola testified he would have been able to farm the 112-acre property in 2014. Pete Kandola testified to the same effect, adding they had enough hot beds for the acreage actually planted in 2014 plus an additional 200 acres. Pete Kandola further testified that Kandola Brothers increased the acreage planted in 2015 relative to that planted in 2014, by 200 acres, and were able to plant the additional acreage without any problem. The evidence shows Kandola Brothers was well equipped to plant whatever acreage was available to the business. In light of this evidence, Bhupinder Sahota's focus on potential discrepancies as to the number of acres the Kandolas actually farmed in 2014 is misplaced.
Similarly, to the extent Bhupinder Sahota argues the Kandolas' higher absolute profits in 2014, based on a greater acreage farmed that year, means the lease cancelation did not result in any damages, the argument is unavailing. The Kandolas were entitled to expand their operations and, in turn, their profits, from year to year.
Finally, Bhupinder Sahota complains that Dr. Bahme did not address the issue of causation, that is, whether breach of the lease led to the damages, in the first place. However, Dr. Bahme was not retained to opine on causation but rather to calculate damages resulting from the Kandolas' inability to farm sweet potatoes on the 112-acre property in 2014.
B. The Trial Court's Determination that Kandola Acted Reasonably with Regard to Damages Mitigation is Supported by Substantial Evidence
With respect to the issue whether Kandola reasonably mitigated his damages resulting from Sohan Sahota's breach of the lease for the 112-acre property, the trial court ruled:
"The 112 acres which Kandola rented from Sahota was one of a number of fields that Kandola rented from various parties. Kandola was consistently expanding the acreage that he was farming each year.. Upon learning that Sahota would not be renting to them in 2014, Kandola testified that he attempted to find additional acreage beyond what he was already planning on renting. He looked at an additional 18 acres ('Vargas' property) but felt it was too expensive, and declined a 20 acre parcel ('Bloss Avenue' property), as well as some other parcels for various reasons, including being too dry, too distant, or undesirable for other reasons. The Court is satisfied that these decisions were all reasonably based on sound judgment, and that he made reasonable efforts to attempt to mitigate his damages, but was unable to do so."
Bhupinder Sahota argues: "[The] trial court's finding that [Kandola] was reasonable in declining an 18 acre parcel lease for being too expensive is not supported by the evidence." (Unnecessary capitalization omitted.) More specifically, Bhupinder Sahota argues the trial court's finding that Kandola's "refusal to rent the 18 acres based upon cost per acre fails as a matter of law given ... that he had the financial resources." We reject these contentions.
"It is well established in California that a party injured by a breach of contract is required to do everything reasonably possible to minimize his own loss and thus reduce the damages for which the other party has become liable." (Sackett v. Spindler (1967) 248 Cal.App.2d 220, 238.) "The question of whether the injured party has acted reasonably in mitigating damages is one of fact." (Id. at p. 239.) "The burden of proving a plaintiff failed to mitigate damages . . . . is on the defendant." (Powerhouse, supra, 221 Cal.App.4th at p. 884.)
"[W]here . . . . the trial court has made findings of fact to the effect that the injured party has acted reasonably in minimizing his damages, this finding must be upheld on appeal if the record contains any substantial evidence in support of such finding." (Sackett v. Spindler, supra, 248 Cal.App.2d at p. 239; Nielsen v. Farrington (1990) 223 Cal.App.3d 1582, 1589-1590 ["Whether a party has exercised diligence in attempting to mitigate damages is a question for the trial court which will be upheld if there is substantial evidence."].)
Bhupinder Sahota contends that Kandola did not reasonably mitigate his damages because he could have leased the 18-acre Vargas property but did not do so; she contends leasing the Vargas property would have partially cured the acreage shortfall Kandola experienced as a result of Sohan Sahota's breach of the lease for the 112-acre property. The trial court observed the evidence established that Kandola expanded, from year to year, the acreage on which he farmed sweet potatoes. Bhupinder Sahota does not challenge the evidence to this effect. In light of this evidence, the potential addition of the 18-acre property is not particularly relevant for purposes of mitigation of damages arising from Kandola's inability to farm the 112-acre property.
More importantly, Kandola had been farming the Vargas property for approximately 6-8 years. Prior to the 2014 farming season, Kandola and Vargas had a dispute regarding an unrelated issue and, consequently, Vargas hiked up the rent he would charge Kandola for leasing the property in 2014. Kandola decided not to re-lease the Vargas property in 2014 in light of his dispute with Vargas and the increased rent demanded by Vargas. The record reveals substantial evidence supporting the court's conclusion that Kandola's decision to forgo the 18-acre Vargas property in 2014 was "based on sound judgment."
We further note that Bhupinder Sahota bore the burden at trial of proving Kandola did not mitigate damages. However, she did not present evidence at trial regarding the net profit that Kandola could have expected to make had he leased the Vargas property in 2014, such that those potential profits could have been factored into the damages claimed by Kandola. Therefore, her claim that Kandola failed to mitigate his damages was not adequately developed and substantiated.
II. Trial Court Did Not Abuse its Discretion in Admitting Dr. John Bahme's Updated Damages Calculations at Trial
Bhupinder Sahota argues she "was prejudicially blindsided when the Court allowed Dr. Bahme to materially change his deposition opinions in the middle of trial." We reject Bhupinder Sahota's argument that the trial court committed prejudicial error with regard to the admission of Dr. Bahme's updated trial testimony.
We review the trial court's admission of expert testimony under an abuse of discretion standard. (Pina v. County of Los Angeles (2019) 38 Cal.App.5th 531, 545.) "Error in the admission of evidence is reversible only if there is a reasonable probability-meaning a possibility that is more than abstract-that the appellant would have obtained a more favorable result had the evidence been excluded." (Ibid.) "A' "reasonable"' probability under this test is one sufficient to undermine the reviewing court's confidence in the outcome." (Ibid.)
The Kandolas' damages expert, Dr. Bahme, testified that his original damages calculations had to be adjusted after he learned the Kandolas had farmed a greater acreage and produced more bins of sweet potatoes in 2014 than indicated by the records he was provided. Dr. Bahme testified: "I originally wasn't dealing with the whole set of 2014 production, not only did the acres [farmed in 2014] change, sort of, you know, [a] separate determination, [but] the number of bins [produced] [also] changed - the price per bin changed slightly as well." He explained his final damages calculations as presented at trial were based on the complete data set compiled "later in the sequence" from information beyond "the records that [he] was originally provided."
Dr. Bahme became aware that the Kandolas had farmed more acreage in 2014 than he had factored into his original calculations (the acreage farmed affects the costs-per-acre number). Dr. Bahme also obtained relevant data from "an A.V. Thomas inventory record . dated March 22, 2015 . for the 2014 crop." The inventory record included information, with regard to the Kandolas' 2014 sweet potato crop, about the number of bins of various varieties, the total number of bins, the average price per bin for particular varieties, and the total revenue for each variety. This information was relevant to calculating yields and revenues. Dr. Bahme's final calculations for 2014 reflected on the revenue side, a higher total number of bins harvested but also a lower average price.
As noted above, Dr. Bahme had used two alternative approaches to calculate the Kandolas' damages from not being able to farm the 112-acre property in 2014. One of his approaches involved "factoring] in the general increase in yield - significant increase in yield the Kandolas experienced in 2014 compared to 2013." The trial court did not ultimately adopt the damages calculation that was based on the increase in yield enjoyed by the Kandolas in 2014.
Dr. Bahme clarified the new information he obtained pertained to 2014 data and, consequently, he updated his 2014 calculations. The 2013 figures and calculations did not need revision as the 2013 information was essentially accurate. Dr. Bahme adjusted his damages numbers based on the updated 2014 data. Dr. Bahme confirmed that his current opinions, as provided at trial, were based on accurate data. Regarding his updated calculations, Dr. Bahme observed that in his experience, unlike the established agricultural conglomerates, small farmers were usually "hustling so much" they were not "the best record keepers."
Bhupinder Sahota's counsel made an oral motion to exclude Dr. Bahme's trial testimony encompassing the adjusted damages numbers on grounds it went "beyond what was elicited during his deposition" and was therefore "highly prejudicial." Kandola's counsel responded: "Your Honor, I don't think that's a basis for inadmissibility. It's a basis for cross-examination that he didn't have complete information and that he subsequently updated his calculations." The trial court stated: "As long as [Dr. Bahme is] revising his opinion based on information that was sent out in discovery later or some other time. I mean, if he was going into an entirely new area or using information that has been never shared before, that might be different. If that's the case, we can review that. But at this point it doesn't sound like that's the offer of proof [from Bhupinder Sahota]." Kandola's counsel agreed with the court's characterization as to Bhupinder Sahota's offer of proof and further pointed out that "the new damage calculations [were] lower." !(RT 357)! The court ruled: "So that wouldn't seem to be too prejudicial. So the objection is overruled at this point."
The record reveals the Sahotas had previously received the updated 2014 information on which Dr. Bahme's trial testimony regarding damages was based. The record also reflects that Dr. Bahme's updated damages estimates were lower than his initial damages numbers, and, more importantly, Dr. Bahme's methodology did not change. We conclude Bhupinder Sahota has not shown the trial court's ruling admitting Dr. Bahme's updated damages estimates constituted prejudicial error.
III. The Way the Trial Court Structured the Presentation of Expert Testimony at Trial Was Not an Abuse of Discretion
Bhupinder Sahota argues the trial court prejudicially abused its discretion by (1) limiting her cross-examination of Dr. Bahme as to Kandola's damages; (2) not allowing her expert witness on her cross-claims (Mark Webber) to testify in the order she wanted (that is, during Kandola's case on his complaint); (3) permitting Dr. Bahme to testify out of order, that is prior to Mark Webber, with regard to her cross claims; and (4) precluding her from cross-examining Dr. Bahme as to his testimony regarding her cross claims. We affirm.
"A trial court has the inherent authority and responsibility to fairly and efficiently administer the judicial proceedings before it." (California Crane School, Inc. v. National Com. for Certification of Crane Operators (2014) 226 Cal.App.4th 12, 22 (Crane School).) "Evidence Code section 320 states that the court has the discretion to regulate the order of proof: 'Except as otherwise provided by law, the court in its discretion shall regulate the order of proof.'" (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1413.) "Accordingly, we generally review a trial court's ruling as to the order of proof at trial for abuse of discretion." (Ibid.) "Specifically, the court exercises discretion in ruling on a request to call a witness out of order, and its ruling will not be disturbed absent a clear showing of abuse of discretion." (Ibid.)
" 'An abuse of discretion occurs if, in light of the applicable law and considering all of the relevant circumstances, the court's decision exceeds the bounds of reason and results in a miscarriage ofjustice.'" (Rayii v. Gatica, supra, 218 Cal.App.4th at p. 1413.) "A miscarriage ofjustice occurs only when the reviewing court is convinced it is reasonably probable a result more favorable to the appellant would have been reached absent the error." (Crane School, supra, 226 Cal.App.4th at p. 24.)
As noted, Kandola's complaint was based on Sohan Sahota's breach of the lease for the 112-acre property on which Kandola planned to grow sweet potatoes, while the Sahotas' cross-complaint raised claims related to Kandola's farming of peach orchards leased from Sohan Sahota. Kandola's expert, Dr. Bahme, was retained to testify as to the issues implicated in both the complaint and the cross-complaint. Bhupinder Sahota did not present an expert in connection with the claims in Kandola's complaint but retained an expert, Mark Webber, to testify regarding the claims in her cross-complaint.
Trial commenced on Tuesday, November 27, 2018. At the beginning of trial, counsel for Bhupinder Sahota stated that Mark Webber, her expert witness for purposes of the claims in the cross-complaint, was arriving that afternoon from Ohio. Bhupinder Sahota's counsel continued: "I would like to request, if needed, could we take him out of order?" Counsel noted her expert wanted to get back to Ohio on Friday, but she did not explain whether or why he had to leave on Friday; nor did counsel explain why the expert could not testify the following week. Kandola's counsel responded he was not given any prior notice that Mark Webber would testify regarding the cross-complaint on the second day of trial (that is, Wednesday) and consequently was not prepared to cross examine him on such short notice. Kandola's counsel added: "Now if some arrangements had been made, if I had been provided notice then I certainly would be in a different position. But at this juncture, given my obligation to move forward with my case and present my case, that's what I've been focusing on. And so I have no objection to him testifying tomorrow even though no previous arrangements were made, but I'm not going to be prepared to cross examine him and he's going to have to return on another day for cross-examination under these circumstances." (Italics added.)
Bhupinder Sahota's counsel rejected that proposal. Bhupinder Sahota's counsel added: "Also, I had e-mailed opposing counsel's office on Wednesday [that is, some days before trial] letting him know I had a potential witness issue and asking them to get back to me and they never responded as well." Bhupinder Sahota's counsel did not produce the email for the record, nor did Kandola's counsel acknowledge receipt of any such email. There was no evidence Bhupinder Sahota's counsel followed-up with Kandola's counsel upon not receiving a response to her email. The court commented: "It's kind of up to you to work [this] out th[r]ough one way or the other."
Kandola's counsel then stated his case "may conclude as soon as Thursday," and in that scenario he would be ready to cross-examine Mark Webber on Friday, November 30, 2018. Given the uncertainty, the court advised Bhupinder Sahota's counsel "to try to get hold of" Webber, but counsel said Webber was already en route from Ohio to California. The court observed: "Let's go on Friday then, I think that's the best way giv[en] the whole situation."
On the morning of Friday, November 30, 2018, Dr. Bahme, Kandola's expert- who had taken the stand at some point well into the prior afternoon-had almost completed his testimony regarding the sweet potato and 112-acre property issues but had not yet started his testimony related to the peach orchards/cross-complaint issues (Kandola's counsel estimated Dr. Bahme's testimony on the peach orchards/cross-complaint issues would take approximately 30 minutes). Dr. Bahme was not available the following Monday, December 3, 2018. Bhupinder Sahota's counsel argued Dr. Bahme should not be allowed to present his testimony on the peach orchard issues because those issues related to the cross-complaint. Rather, she wanted to first cross- examine Dr. Bahme simply as to the sweet potato/complaint issues, noting she had "limited questions for [the] cross" as to these issues.
Although Kandola's case was still in progress, Bhupinder Sahota's counsel wanted Mark Webber, her own expert on the peach orchard/cross-complaint issues, to be allowed to testify as to the latter issues and to do so before Dr. Bahme addressed the same (notwithstanding that Dr. Bahme was already on the stand). Specifically, Bhupinder Sahota's counsel requested she be allowed to cross-examine Dr. Bahme regarding his opinions on only the sweet potato/complaint issues, and thereafter Mark Webber be permitted to testify as to the peach orchard/cross-complaint issues, out of order and in the middle of Kandola's case.
The trial court explained to Bhupinder Sahota's counsel: "I think it's much easier and fairly customary to have [Dr. Bahme] testify on direct about all the issues in the case." Nonetheless, the court observed: "Let's wait and see how the timing goes. If we can complete with this witness [that is, Dr. Bahme] totally doing it your way today I'm okay with that. What I don't want to get into is [Dr. Bahme] just testifies on the complaint and then is cross-examined on the complaint and just redirect on the complaint, then we hear from your witness[,] and we run out of time today, Friday, and we won't finish with [Dr. Bahme] today. So I want to finish with this expert today on all issues." The Court added: "Now if it works out that we can separate it out the way you say[,] we'll do that if - we should know by noon I suspect. If that doesn't look like it's going to happen[,] then we need to do what's in the best judicial economy." The court ruled: "Let's see where we are. For the time being we'll stick with the complaint."
Thereafter, Kandola's counsel wrapped up, within minutes, his direct examination of Dr. Bahme as to the sweet potato/complaint issues, and counsel for Bhupinder Sahota conducted her cross-examination of Dr. Bahme as to those issues. At the lunch break, Bhupinder Sahota's counsel was still cross-examining Dr. Bahme. The court told her: "Let's go ahead and take our lunch break at this time. [¶ ] Before we do that, though, you had made a request earlier and I said I would defer that until lunch to decide. So let me just ask a couple of questions on scheduling.... [¶ ] How long do you think your direct examination of your expert is going to take?"
Bhupinder Sahota's counsel said direct examination of Mark Webber as to the peach orchard/cross-complaint issues would take 30 to 45 minutes. The court responded: "Okay. And if we assume a similar period of time for cross-examination, 45 minutes, and there probably will be a limited amount of redirect and recross, I suspect we're probably talking about two hours. This afternoon we got 1:30 to 2:30 and 3:00 to 4:00, so we got two hours (the court had to attend to an administrative matter in between the two periods).. [¶ ] So what we're going to do when we come back from lunch, as soon as you're done with cross-examination, [Kandola's counsel] goes back on to redirect, at that time I'll allow [Kandola's counsel] to let [Dr. Bahme] express any opinions . on the cross-complaint . [so] if you want to get all your information on cross-complaints today I'll let you do that on redirect."
When proceedings resumed after lunch, given that only two hours were available that afternoon, the court gave each side one hour to use for their own purposes. The court was of the view that Kandola's counsel could use his hour to question Dr. Bahme regarding the peach orchards/cross-complaint issues and Bhupinder Sahota's counsel could use her hour to cross-examine Dr. Bahme on all issues. Bhupinder Sahota's counsel asked about calling her own expert on the peach orchards/cross-complaint issues. The court noted her expert could certainly testify if time permitted, and that she could limit her cross-examination of Dr. Bahme should she want that hour of time to be used for examination of her expert by the parties. The court cautioned, however, that they would be "finished with Dr. Bahme by today either way." Bhupinder Sahota's counsel answered: "Okay."
With that, Dr. Bahme retook the stand and Kandola's counsel proceeded to question him, on redirect, about both the sweet potato/complaint issues and the peach orchards/cross-complaint issues. The court cut off the questioning by Kandola's counsel after one hour, so Bhupinder Sahota's counsel could proceed as she wished.
Bhupinder Sahota's counsel then stated: "Your Honor, I'd like to reserve the right to cross-examine this witness [that is, Dr. Bahme], so that my witness can testify at this point." The court observed: "[Y]ou can bring [Dr. Bahme] back if you can work out an arrangement." The court also suggested that since Kandola's counsel had used his hour to question Dr. Bahme, Bhupinder Sahota's counsel was free to use her hour to crossexamine Dr. Bahme then and there. Bhupinder Sahota's counsel responded she wanted her own expert witness to testify instead. The court repeated that in that case she was welcome to work things out with Dr. Bahme, to have him return later; Bhupinder Sahota's counsel responded, "that's fine, Your Honor." Bhupinder Sahota's counsel agreed, at that point, to excuse Dr. Bahme from the proceedings. Thereafter, in light of the election of Bhupinder Sahota's counsel to call her own expert to testify (rather than continuing with her cross-examination of Dr. Bahme), the court gave both sides an equal amount of time to examine Mark Webber.
The record is silent as to whether Bhupinder Sahota's counsel subsequently attempted to have Dr. Bahme return for additional cross-examination. However, at oral argument Bhupinder Sahota's counsel clarified she did not subsequently attempt to bring Dr. Bahme back to testify further.
Before Mark Webber took the stand, Bhupinder Sahota's counsel complained he was "not allowed to testify" before Dr. Bahme on the peach orchards/cross-complaint issues. The court pointed out: "Your witness has always been allowed to testify, just not at the beginning of [Kandola's] case."
Mark Webber then began his direct testimony on the peach orchards. When it came time for Kandola's counsel to cross-examine him, counsel for Bhupinder Sahota said she was not yet done with her direct. The court observed: "You can bring him back whenever you want, Monday, Tuesday, Wednesday. I'll work with your schedule." The court added: "Whatever you want to do, I'll do what we can to work with you." The court also stated, "[y]ou can't have just direct. You can't deprive the other side [of] the right [to] cross-examination." Kandola's counsel interjected: "I'll let her continue until a quarter till [four] [¶ ] and then I'll do the best I can in 15 minutes." Bhupinder Sahota's counsel continued with direct examination of Webber; that was followed by a short cross-examination of Webber by Kandola's counsel. Webber was then excused.
Finally, it bears mention that the trial continued for several days after the Friday proceedings described above. At the end of the evidentiary phase of the trial, Bhupinder Sahota's counsel rested without protest or making a request to call or recall additional witnesses.
Here, the trial court was placed in a difficult situation in trying to manage the order of proceedings in a manner that was both fair and efficient. The court indicated it was unreasonable for Bhupinder Sahota's counsel to have flown her cross-complaint expert to California on the first day of trial without first consulting with Kandola's counsel. The court balanced various interests as best as it could under the circumstances. The court also repeatedly told Bhupinder Sahota's counsel it would work with her to facilitate bringing both Dr. Bahme and Mark Webber back as necessary, for further testimony. As noted above, the record is silent as to any efforts made by Bhupinder Sahota's counsel in this regard, but counsel acknowledged at oral argument that she did not attempt to have Dr. Bahme return for further cross-examination. We conclude the court acted within its discretion in structuring the order of expert witness testimony as it did.
Furthermore, even assuming the court abused its discretion, Bhupinder Sahota has not shown that the way the trial court structured expert testimony with regard to both the complaint and the cross-complaint was prejudicial, in that she would have obtained more favorable outcomes absent the errors. In this context, it is notable that Bhupinder Sahota did not have her own expert to counter Dr. Bahme's testimony as to damages on the sweet potato claims in Kandola's complaint. As for Bhupinder Sahota's expert on the peach-orchard claims in her cross-complaint, Bhupinder Sahota's briefs do not address the facts relevant to her peach-orchard claims, even as such facts are critical to any showing of prejudice.
DISPOSITION
The judgment is affirmed. Kandola to recover his costs on appeal.
Kandola argues in his brief that "the arguments made by [Bhupinder Sahota] should be considered waived and/or forfeited" because "there is not a single citation to the record in the entire Argument section of the AOB." In light of our disposition, we find it unnecessary to address this contention.
WE CONCUR: POOCHIGIAN, Acting P. J. SNAUFFER, J.