Opinion
B157959.
7-25-2003
SHLOMO MAY-ZUR, Plaintiff and Respondent, v. DAVID DADON et al., Defendants and Appellants.
Michael A. Gregg for Defendants and Appellants. No appearance for Plaintiff and Respondent.
Defendants David Dadon, Giants Entertainment, Inc., and Impact Pictures, Inc. appeal from a judgment against them for $ 35,000 plus interest and costs after a court trial on plaintiffs claim for breach of a joint venture agreement for production of a film. We affirm the judgment because defendants fail to establish that the evidence is insufficient to support the judgment and that the court erred in denying their motion for new trial.
FACTUAL AND PROCEDURAL BACKGROUND
In April 1999, defendants and plaintiff Shlomo May-Zur entered into a joint venture agreement to produce a film based on a screenplay written by Jay Nuzum. As part of the agreement, Dadon asked May-Zur to give him $ 35,000 to purchase the screenplay. Dadon asked May-Zur to wire the money to the account of his wife, Lydia Dadon; in an April 24, 1999 letter to May-Zur, Dadon set out his wifes account number at Wells Fargo Bank. In April and May 1999, May-Zur caused friends in Israel to make wire transfers of $ 13,000 and $ 10,000 on his behalf to the account of Dadons wife. In May 1999, May-Zur wired $ 5,000 from his account to the account of Dadons wife and also gave Dadon $ 7,000 in cash.
Although Dadon and Nuzum entered into a one-year option agreement with respect to the screenplay in April 1999, Dadon never paid any money owing to Nuzum under the option agreement, and Nuzum broke off his connection with Dadon. In October 1999, May-Zur discovered that Nuzum never received any money from Dadon. May-Zur confronted Dadon, who told May-Zur that they were not going to make the film and Dadon would send May-Zur the money back; he never did.
Dadon admitted the existence of the joint venture agreement between him and May-Zur but denied that he received any money from May-Zur, including $ 7,000 in cash. Dadon admitted he did not know the origin of the three wire transfers into his wifes account, but in closing argument his attorney conceded that the $ 5,000 wire transfer came from May-Zurs account. Both Dadon and his wife testified that they believed the wire transfers of $ 13,000 and $ 10,000 were unrelated to the joint venture and came from Dadons brother, who had telephoned them and told them that he was going to be sending them money. Dadons brother, who was a friend of May-Zurs, died in December 1999.
Dadon, who was the president of defendant Giants Entertainment, Inc. (Giants), admitted in answers to interrogatories that in connection with the joint venture he was acting on behalf of Giants. Dadon admitted also that he was an officer of Impact Pictures. Letters sent by Dadon to May-Zur in April and May 1999 in connection with the joint venture were written on the letterhead of Impact Pictures.
In its statement of decision, the trial court expressly found the defendants evidence not to be credible. The court found that May-Zur paid $ 35,000 to the defendants and that defendants breached their agreement by failing to apply the $ 35,000 to pay for the screenplay. Based on Dadons interrogatory answer and the Impact Picturess letterhead, the court found that Dadon was acting on behalf of both Giants and Impact Pictures and awarded May-Zur judgment on his claim for breach of joint venture agreement against Dadon, Giants, and Impact Pictures. Defendants motion for a new trial was denied. Defendants filed a timely notice of appeal from the judgment.
DISCUSSION
A. Sufficiency of the Evidence
Defendants contend that there was insufficient evidence of the wire transfers of money into Lydia Dadons account at Wells Fargo Bank because there was no documentary evidence of the wire transfers. Defendants fail to cite any authority requiring documentary evidence to prove the payment of the money. "The rule is well settled that the direct evidence of a single witness who is entitled to full credit is sufficient to prove any fact except perjury or treason . . . ." (Southern California Music Co. v. Labes (1930) 106 Cal.App. 255, 258, 288 P. 1096.) "Payment, like any other relevant fact, may be proved by oral testimony." (Id. at p. 259.) The trial court found May-Zur to be credible, and his testimony was sufficient to establish his payment of the money to the defendants.
Defendants also challenge the sufficiency of the evidence with respect to the liability of Giants and Impact Pictures because both Dadon and May-Zur testified that their intent was to make an agreement between themselves. Defendants contend that the trial court should have disregarded Dadons interrogatory response that he was acting on behalf of Giants and should have credited the testimony of Dadon and May-Zur. Yet the weight to be given the evidence, and the inferences to be drawn therefrom, are matters for the trial court. Because California recognizes the objective theory of contracts, the trial court here properly could have deemed the parties testimony of their undisclosed subjective intent as irrelevant, instead relying upon the outward manifestation of their intent in answers to interrogatories and in the letterhead used in their correspondence. (See Berman v. Bromberg (1997) 56 Cal.App.4th 936, 948 [evidence of undisclosed subjective intent or understanding of parties is irrelevant to contract interpretation; rather, the outward manifestation or expression of assent is controlling].) Accordingly, the trial court properly relied upon Dadons conduct in concluding that he was acting on behalf of Giants and Impact Pictures.
B. Denial of Motion for a New Trial
Defendants challenge two rulings by the trial court, which rulings also were challenged in their motion for a new trial. We conclude that no prejudicial error or abuse of discretion is established with respect to the rulings and with respect to the denial of the new trial motion.
The first ruling was the trial courts sustaining of a relevancy objection to a question asked May-Zur on cross-examination regarding a house in Israel May-Zur had claimed to own. Defendants sought to impeach his credibility by eliciting statements he had made in discovery with respect to this collateral matter. The court sustained a relevancy objection, stating that "thats not a way to attack credibility." Defendants cite no pertinent authority to establish that the ruling constituted prejudicial error. "Although it is improper to elicit otherwise irrelevant testimony on cross-examination merely for the purpose of contradicting it [citation], the trial court has discretion to admit or exclude evidence offered for impeachment on a collateral matter [citations]." (People v. Mayfield (1997) 14 Cal.4th 668, 748, 928 P.2d 485.) Even assuming for the sake of argument that the court erred, defendants have not established that exclusion of the evidence resulted in a miscarriage of justice. (Evid. Code, § 354.)
Defendants also contend that the court erred in ordering Lydia Dadon to appear and testify at trial because May-Zur had not properly subpoenaed her under Code of Civil Procedure section 1987, subdivision (a). The subpoena had been left at her front door because she refused to open the door and accept service.
Code of Civil Procedure section 1987, subdivision (a), provides in pertinent part that "the service of a subpoena is made by delivering a copy, or a ticket containing its substance, to the witness personally, giving or offering to the witness at the same time, if demanded by him or her, the fees to which he or she is entitled for travel to and from the place designated, and one days attendance there. . . . ."
The record indicates that this matter had been addressed in chambers during proceedings which were not reported. At the beginning of trial, defense counsel raised the issue again, and the court stated, "You want to bring in the witnesses to tell me they werent served, counsel? We will be here, then, in any event. So whats the point?" After defense counsel stated that the subpoenas were defective on their face because they were not personally served, the court stated, "They dont have to be personally served, counsel, under those circumstances. If, in fact, the declaration indicates that they were [there] and they refused to answer the door and the subpoenas were left at the door, thats sufficient service. Thats the finding of the court in chambers."
It is difficult to address this issue without a record of the proceedings in chambers. We infer from this record that the trial court deemed Lydia Dadon to have made a motion to quash the subpoena, which the trial court denied in chambers because she did not provide any evidence denying that she refused to accept service.
Assuming the courts ruling constituted error, defendants fail to establish that such error was prejudicial. The trial court expressly rejected all evidence offered by the defendants, including the testimony of Lydia Dadon. Because the trial court did not rely on her testimony, defendants cannot claim that they were prejudiced by the courts ruling with respect to her subpoena.
Because no prejudicial error is shown, defendants also fail to establish that the trial court abused its discretion in denying their motion for a new trial. (Cal. Const., art. VI, § 13; Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1161 [trial court is bound by constitutional provision requiring prejudicial error as basis to grant new trial].)
DISPOSITION
The judgment is affirmed.
We concur: ORTEGA, Acting P. J., VOGEL (MIRIAM A.), J.
Code of Civil Procedure section 1988 provides that if a subpoenaed witness is evading service of the subpoena, the court may make an order permitting the sheriff to serve the subpoena and "may break into the building or vessel where the witness is concealed."
Penal Code section 166, subdivision (a)(5), provides that "resistance willfully offered by any person to the lawful order or process of any court" constitutes misdemeanor contempt of court. "Advising a witness to conceal himself for the purpose of avoiding service of a subpoena is in violation of Penal Code section 136.1 and therefore is unlawful." (In re Holmes (1983) 145 Cal. App. 3d 934, 942, 193 Cal. Rptr. 790.)