Opinion
G053428
11-20-2017
EISUKE "ACE" KUTSUNA, Plaintiff and Appellant, v. RUSS S. FULLER et al., Defendants and Respondents.
Eisuke "Ace" Kutsuna, in pro. per., for Plaintiff and Appellant. Douglas A. Frymer for Defendants and Respondents.
ORDER MODIFYING OPINION; NO CHANGE IN JUDGMENT
It is ordered that the opinion filed herein on November 20, 2017, be modified as follows:
On page 6, the case citation after the fifth sentence in the last full paragraph read "(Kutsuna v. Fuller (Nov. ___ 2017, G054437) [nonpub. opn.] (Kutsuna II).)" but is now changed to read (Kutsuna v. Fuller (Nov. 20, 2017, G054437) [nonpub. opn.] (Kutsuna II).)"
These modifications do not change the judgment.
O'LEARY, P. J. WE CONCUR: MOORE, J. ARONSON, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2015-00813425) OPINION Appeal from a judgment of the Superior Court of Orange County, Robert J. Moss, Judge. Affirmed. Eisuke "Ace" Kutsuna, in pro. per., for Plaintiff and Appellant. Douglas A. Frymer for Defendants and Respondents.
The trial court dismissed Eisuke "Ace" Kutsuna's unlawful detainer action based on unpaid rent on a commercial lease. The court determined the lessees, Revolution Supply, Inc., and its owner, Russ S. Fuller (collectively referred to in the singular as Fuller unless the context requires otherwise), had a valid affirmative defense to the action. Specifically, Fuller paid his rent to the Franchise Tax Board (FTB) pursuant to a FTB order stating the property owner owed taxes. Kutsuna appeals from the court's judgment, arguing he personally did not owe the FTB taxes, and under the lease agreement's plain terms, Fuller still owed him rent. None of his contentions have merit and we affirm the judgment.
FACTS
Kutsuna, as a self-represented litigant, filed an unlawful detainer action against Fuller. He alleged Fuller admitted to not paying rent due to a FTB order, but he failed to provide proof of payment to the FTB or show why Kutsuna owed the FTB money. The complaint sought $29,777 in overdue rent (due for the months of May through August 2015) plus attorney fees and costs.
Kutsuna attached a copy of the lease agreement to his complaint. The first page shows the agreement was between himself and Fuller, individually, and his company Revolution Supply. The last page reflects Kutsuna executed the agreement in his capacity of "managing partner." It did not mention the name of the partnership. Fuller executed the agreement in his individual capacity and as president of his company.
Kutsuna also supplied a copy of the three-day notice to pay rent or quit (the Notice) he sent to Fuller on September 25, 2015. The Notice warned Fuller he owed $29,777 for four months of rent (May through August 2015).
Fuller filed an answer raising several affirmative defenses, including that he complied with the FTB order to make rent payments to the FTB. Fuller requested attorney fees. He attached three letters to the answer. The first letter was written by William G. Wells (Wells) "for Eisuke Kutsuna-Lessor." The letterhead listed the company name, "William G. Wells & Associates Investments."
The letter, written in all capital letters, stated rent was payable to "Katsuna, not dba Katsuna." Wells wrote, "You had no business paying the FTB based on a notice for payments to Lanvesco." (Capitalization omitted.) Wells told Fuller to pay the rent or Kutsuna would be forced to initiate an unlawful detainer action.
The second letter, also written in all capital letters, was signed by Wells as Kutsuna's "attorney in fac[t]." The letter was addressed to Fuller's attorney, Douglas Frymer. Wells threatened to bring a small claims action if Fuller did not make his rent payment to Kutsuna.
Wells's third note was typed in the top right corner of one of Frymer's letters. The purpose of Frymer's letter was to obtain a signed waiver. Wells provided the following response in all capital letters: "Reply: I refuse to keep giving you the courtesy of a reply so consider this my last. What do you think 'when recorded return to' means but to cloud title with somebody in Utah. Read the reverse of this FTB order. This is my business and I know the hazards. Read the reverse of the withhold order that states individual FTB order payments are 75 [percent] exempt. So far [Fuller] has produced no evidence of any payment to the FTB so we have no alternative but [to] retake possession and obtain a judgment against [Fuller]. We cannot indefinitely ignore this situation. Hasta la Vista." (Capitalization omitted.)
On October 26, 2015, Kutsuna (appearing in pro. per.) told the court he was unavailable due to a scheduled kidney stone surgery on "Oct[ober] 28, 30" and a trip scheduled during November to visit his sick elderly mother in Japan. On October 30, 2015, the court issued a notice, scheduling trial for November 16, 2015. On that day, Wells filed an "Assignment" (dated November 4, 2015), stating, "I, [Kutsuna], Plaintiff in this case, in consideration of the sum of $1 dollar, hereby assign, transfer and set over to [Wells] all of my right[s], title, and interest as Plaintiff and all claims, interest[,] and causes of action in this litigation."
The minute order of the hearing states Wells told the court Kutsuna was in Tokyo visiting his mother. The court asked Fuller's counsel to review Wells's assignment and determine if there was legal authority to support his position. The court declared a recess, and when the parties returned, Wells filed a Code of Civil Procedure section 170.6 motion to disqualify the trial judge. The court transferred the case to Judge Michael Brenner and continued the matter to December 7, 2015.
At the December hearing, Wells appeared, but Katsuna did not. The minute order shows Frymer advised the court that Wells was a disbarred attorney. Wells requested additional time to file motions, and asked for copies of all the checks paid to the FTB. Wells also told the court he was entitled to preference because he was 84 years old. The court informed Wells he needed to make a motion requesting preference. On its own motion, the court continued the trial to December 15, 2015, and ordered the parties to exchange copies of all the documents they intended to use at trial.
The day before trial, Wells filed a declaration to support a three-week continuance. Neither he nor Kutsuna appeared for trial. The court continued the matter to February 22, 2016.
The trial took place on February 22, 2016, before Judge Robert J. Moss. After considering argument on whether Wells was properly assigned the case, the court determined judicial economy would be served by first reaching the merits of Fuller's affirmative defense before ruling on the validity of the assignment. The parties agreed.
The court considered Fuller's testimony. He confirmed entering into the lease with Kutsuna in August 2014. He received the FTB order in November 2014, stating he must pay his rent to the FTB instead of the property owner "Lanvesco." Fuller stated he initially continued paying rent to Kutsuna because he was unsure Lanvesco was his landlord. He contacted the FTB and it supplied a second order (dated May 7, 2015) "making it clear" his rent was subject to the levy. The second clarifying order listed the "account name" as being Lanvesco but also added two "DBA names" as follows: "Kutsuna or W.G. Wells aka William G. Wells—officers." (Capitalization omitted.)
Fuller stated he contacted the FTB a second time and was advised he must pay to the FTB rent "that [was] intended for any of those names" listed on the order. Fuller said he contacted Wells and told him about the second FTB order. Wells replied he would not recognize payments made to the FTB.
At this point, Fuller hired an attorney to assist him and began making his rent payments to the FTB. He provided copies of all the checks paid to FTB from July 2015 to January 2016, and one check paid to Kutsuna covering May and June 2015 rent. The orders and checks were submitted as exhibits.
Wells cross-examined Fuller asking him additional questions about the exhibits. Fuller repeated much of his prior testimony. Fuller also admitted he relied on the opinion of his attorney and the FTB that Lanvesco was "doing business as" Kutsuna and Wells. He did not conduct any other independent research. When Wells attempted to ask several questions requiring a legal opinion the court stopped him.
The court admonished Wells to stop arguing the case while questioning the witness. It added, "[Y]our questions so far have been beating around the bush, they are all answered by looking at the documents that have been submitted[. Y]ou are taking a long time between questions. I am trying to be patient, but we need to conclude this."
After a few more questions, Wells admitted more exhibits into evidence. He made an offer of proof that he would "testify that at no time, no place and no way is . . . Kutsuna and . . . Wells a DBA of Lanvesco. It is an absolute falsehood. And it can be verified by an examination of the records at the county recorder." Wells asked to be sworn and permitted to testify to these facts. The court stated, "I will accept your offer of proof." Wells also made an offer of proof that the FTB order has printing on the reverse side that was omitted from Fuller's exhibits. Wells explained the order said that with respect to "individuals" owing taxes, only a 25 percent deduction applies. The court stated it would not accept that offer of proof.
The court ruled as follows: "The court finds that [Fuller] has sustained his burden of proof on the affirmative defense, and that he was ordered by the [FTB] to pay rent [to it] instead of to the landlord . . . for debt owed to the [FTB] . . . ." It entered judgment for Fuller. The court stated Fuller could file a motion for attorney fees and costs.
The court filed the final judgment in Fuller's favor on March 25, 2016. The judgment stated Fuller was to recover attorney fees and costs in an amount to be determined after consideration of a motion. The court's docket reflects that on April 1, Fuller filed a motion for attorney fees and memorandum of costs (copies of which are not included in our record).
On April 11, 2016, Wells filed a notice stating he intended to move for a new trial. The docket shows that on April 12, Kutsuna also filed a motion for new trial (our record does not have a copy of this motion). On April 18, Kutsuna, as a self-represented litigant, filed a notice of appeal from the March 25 judgment.
On May 27, 2016, the court held a hearing to consider the new trial motions. In his respondent's brief, Fuller explained the court denied the motions after Kutsuna and Wells failed to file briefing or appear at the hearing. However, we do not have copies of the order in our record to confirm this assertion. Fuller also asserts Kutsuna and Wells served two more notices for unpaid rents (January through March 2016) and filed another unlawful detainer action. After losing this second lawsuit, Kutsuna filed an appeal, which we have affirmed in our concurrently filed opinion. (Kutsuna v. Fuller (Nov. ___ 2017, G054437) [nonpub. opn.] (Kutsuna II).)
DISCUSSION
Kutsuna argues the court's ruling was contrary to the evidence, which affirmatively proves the FTB order was to withhold corporate tax owed by Lanvesco, an unrelated third party. Kutsuna asserts he is not a corporation and does not owe any corporate taxes to the FTB. He asserts the court misunderstood the lease did not concern Lanvesco, only Kutsuna in his individual capacity. He notes the FTB order pertains to corporation tax, not taxes owed in his individual capacity. And he finds relevant that the court accepted Wells's offer of proof showing Kutsuna and Wells were not doing business as Lanvesco. He concludes this evidence proves Fuller owed him rent regardless of the FTB order.
Kutsuna fails to appreciate we do not retry cases on appeal or take a de novo look at the evidence. "Where there is conflicting evidence, or evidence susceptible of conflicting inferences, the general rule is not to disturb the judgment. All presumptions are in favor of the judgment. Trial judges and juries are the exclusive judges of credibility and may disbelieve any witness. Trial courts are designed and responsible for determining facts. Appellate courts are designed to review errors of law. Economy, efficiency, and practicality require recognition of those specialized roles. Appellate courts can't retry all cases and shouldn't try. There is reason to question whether the results would be better if reviewing courts redecided all cases. [Citation.]" (Rivard v. Board of Pension Commissioners (1985) 164 Cal.App.3d 405, 412 (Rivard).)
"Dozens, if not hundreds, of cases recite that an appellate court does not weigh the evidence." (Rivard, supra, 164 Cal.App.3d at p. 413.) For this reason, "An appellant asserting lack of substantial evidence must fairly state all the evidence, not just the evidence favorable to the appellant. [Citation.] '[A]n appellant who challenges a factual determination in the trial court—a jury verdict, or a finding by the judge in a nonjury trial—must marshal all of the record evidence relevant to the point in question and affirmatively demonstrate its insufficiency to sustain the challenged finding.' [Citations.]" (Chicago Title Ins. Co. v. AMZ Ins. Services, Inc. (2010) 188 Cal.App.4th 401, 415 (Chicago Title); see McCauley v. Howard Jarvis Taxpayers Assn. (1998) 68 Cal.App.4th 1255, 1266 ["If one is going to make a 'the-facts-compel-that-I-win-as-a-matter-of-law' argument, one's brief must fairly state all the evidence"].)
"If the appellant fails to fairly state all material evidence, we may deem waived any challenge based on insufficiency of the evidence. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 . . .; Hauselt v. County of Butte (2009) 172 Cal.App.4th 550, 563 ['plaintiff has forfeited [the substantial evidence] argument because he has cited only the evidence favorable to him'].)" (Chicago Title, supra, 188 Cal.App.4th at pp. 415-416.)
We could determine the claim was waived due to Kutsuna's failure to discuss all the material evidence. He provided a limited clerk's transcript and attached to his brief only one exhibit, i.e., the FTB's first order listing only Lanvesco as the landlord. Noticeably missing is any mention of Fuller's testimony regarding his telephone conversations with the FTB, the second FTB order listing Kutsuna as an officer of Lanvesco, or the many exhibits showing Fuller paid his rent in full to FTB as required by the order.
Even if we were to overlook Kutsuna's grossly unfair summary of the evidence, the appeal fails due to the total lack of any legal authority or analysis supporting Kutsuna's theories for reversal. It is incumbent upon an appellant to present relevant legal authority and reasoned argument on each point made, otherwise, the argument may be deemed waived. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785; see also Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546 (Mansell) [not proper function of appellate court to search the record on behalf of appellants or serve as "backup appellate counsel"]; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 [appellate court not required to consider points not supported by citation to authorities or record].)
For example, Kutsuna asserts he is not a corporation and does not owe any corporate taxes to the FTB. This argument ignores the FTB's order, stating he is one of the corporate officers. He failed to provide any legal authority holding a corporate officer can never be subject to a FTB order regarding delinquent corporate taxes.
Kutsuna also failed to acknowledge the FTB is authorized to issue a levy order under Revenue and Taxation Code section 18662 for the purpose of administratively collecting delinquent taxes and Fuller had no legal right to object or institute legal action to contest the FTB's levy. (Rev. & Tax. Code, § 18674, subd. (a).) And failure to withhold funds upon receipt of a FTB order would make Fuller "liable for those amounts." (Rev. & Tax Code, § 18672.) Due to these restrictions, the tax code provides, "Any employer or person paying to the [FTB] any amount required by it to be withheld is not liable therefor to the person from whom withheld unless the amount withheld is refunded to the withholding agent." (Rev. & Tax. Code, § 18674, subd. (a), italics added.) The taxpayer subject to the levy must seek redress from the FTB, not the employer or person complying with the FTB order. Noticeably missing from the briefing is even an acknowledgement there are tax code provisions relevant to this dispute.
Kutsuna also suggests FTB's order should not apply to rent payments made pursuant to a contract that did not concern Lanvesco. First, Kutsuna does not explain why allegations should be made against Fuller, rather than the entity generating the order (the FTB). Second, the allegations were refuted by the lease agreement. Kutsuna executed the lease as a "managing partner," suggesting he was not a sole proprietor landowner but rather an agent to an entity owning the property.
Kutsuna criticizes the court for failing to acknowledge Wells's offer of proof Kutsuna was not doing business as Lanvesco. He does not provide supporting legal authority regarding the evidentiary value of "offers of proof." As a general rule, an offer of proof, absent a stipulation, is not a substitute for evidence. (Espinoza v. Calva (2008) 169 Cal.App.4th 1393, 1398 [offer of proof generally made when there is an objection to introduction of evidence so there is a record of specific evidence sought to be excluded].)
The rest of Kutsuna's legal challenges suffer from similar defects. This court is not inclined to act as appellate counsel for Kutsuna and furnish legal authority or speculate as to what arguments could be raised to challenge the trial court's judgment. (Mansell, supra, 30 Cal.App.4th at pp. 545-546.) We conclude the contentions on appeal are waived due both to an inadequate statement of all material facts and the lack of legal argument to support the points raised.
We note the law does not provide such special treatment for self-represented litigants. "[S]elf-representation is not a ground for exceptionally lenient treatment. Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation. [Citation.] . . . A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation." (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) --------
We conclude with a few comments about attorney fees. In his reply brief, Kutsuna states his appeal includes a challenge to the judgment's award of attorney fees to Fuller in an amount subject to later proceedings. Although he cites a case confirming he was not required to file a separate notice of appeal to dispute the award, he fails to present any legal argument as to why it should be reversed. "One cannot simply say the court erred, and leave it up to the appellate court to figure out why. [Citation.]" (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368.) Moreover, we generally "will not consider points raised on appeal for the first time in the reply brief." (Las Lomas Land Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837, 855.) It would be unfair to deprive the opposing party of an opportunity to respond.
Fuller requested this court award attorney fees in his respondent's brief on appeal and Kutsuna does not dispute appellate fees are recoverable in his reply brief. "Pursuant to California Civil Code section 1717, where a written contract expressly provides for the award of attorney fees, the prevailing party in an action under or relating to the contract is entitled to recover its fees, whether incurred at trial or on appeal. [Citations.]" (Starpoint Properties, LLC v. Namvar (2011) 201 Cal.App.4th 1101, 1111.) However, the lease agreement provided in our record is blurred and portions are unreadable. Fuller failed to specify the location of the relevant attorney fee clause and he does not mention what it says. He also provided no legal analysis on the issue. The trial court's judgment does not shed light on the basis for an attorney fee award.
Based on this inadequate record and lack of relevant information, we conclude it would be unwise to award appellate attorney fees. However, our award of appellate costs does not preclude Fuller from seeking appellate attorney fees before the trial court. (Cal. Rules of Court, rule 8.278 ["an award of costs neither includes attorney's fees on appeal nor precludes a party from seeking them under rule 3.1702"]; Butler-Rupp v. Lourdeaux (2007) 154 Cal.App.4th 918, 925-928 [remittitur stating parties bear own costs does not preclude trial court from awarding appellate attorney fees].)
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
O'LEARY, P. J. WE CONCUR: MOORE, J. ARONSON, J.