Opinion
B230428
09-21-2011
BHIKHABHAI A. PATEL, Plaintiff, Cross-defendant and Respondent, v. JAGDISH PATEL, Defendant, Cross-complainant and Appellant.
Law Offices of Mark Rabinovich, Mark Rabinovich and Anthony P. Malecki for Defendant, Cross-complainant and Appellant. Law Office of Jon R. Barker and Jon R. Barker for Plaintiff, Cross-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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. LC081110)
APPEAL from a judgment of the Superior Court of Los Angeles County, Paul Gutman and Frank J. Johnson, Judges. Affirmed.
Law Offices of Mark Rabinovich, Mark Rabinovich and Anthony P. Malecki for Defendant, Cross-complainant and Appellant.
Law Office of Jon R. Barker and Jon R. Barker for Plaintiff, Cross-defendant and Respondent.
INTRODUCTION
Appellant Jagdish Patel appeals from a judgment in favor of respondent Bhikhabhai A. Patel entered after a court trial. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Respondent filed his complaint on April 15, 2008, for breach of contract and common counts against appellant. Appellant filed an answer on May 19, 2008 and a cross-complaint on August 1, 2008.
A three-day court trial was held on April 27 through 29, 2009 before the Honorable Paul Gutman. After submission of written closing arguments, on June 18, 2009, Judge Gutman issued a "Ruling on Submitted Matters: Memorandum of Intended Decision." In the ruling, Judge Gutman found that there was a contract in writing between the parties, respondent performed thereunder, appellant breached the contract and respondent was damaged. The trial court also indicated that it intended to award judgment in favor of respondent and against appellant on the cross-complaint.
The court ordered respondent to prepare and submit a proposed statement of decision and a proposed judgment. Respondent did so on June 22, 2009. Appellant filed an objection to the proposed judgment on the grounds that (a) a statement of decision would be requested, and (b) there was no memorandum of costs yet filed, therefore, they should not be included in the judgment.
On June 25, 2009, appellant filed a document entitled "[Appellant's] Request for Statement of Decision, or, Alternatively, [Appellant's] Objections to Ruling on Submitted Matters: Memorandum of Decision and [Respondent's] Proposed Statement of Decision."
On July 20, 2009, Judge Gutman issued a denial of appellant's request for a statement of decision, holding that of the 35 issues on which appellant sought specific statements and decisions from the court, "very few . . . qualify under and pursuant to the language of [Code of Civil Procedure] [s]ection 632 in that they do not [rise up] to the level of 'principal controverted issues.'"
All further statutory references are to the Code of Civil Procedure.
On August 7, 2009, appellant filed an amended request for a statement of decision and a proposed statement of decision. At a hearing on July 20, 2010, the Honorable Frank J. Johnson informed the parties that Judge Gutman had passed away. On August 20, 2010, Judge Johnson signed the statement of decision as proposed by respondent pursuant to Judge Gutman's order following the issuance of the ruling. On October 22, 2010, Judge Johnson signed the judgment.
Appellant filed a motion for new trial on the ground he did not receive a fair trial because Judge Gutman was not the judicial officer who signed the statement of decision. Judge Johnson heard the motion on December 7, 2010 and, on December 20, denied the motion based upon the authority of Leiserson v. City of San Diego (1986) 184 Cal.App.3d 41, on the ground the ruling issued by Judge Gutman was a "Statement of Decision" pursuant to section 632, and not a tentative decision within the meaning of Armstrong v. Picquelle (1984) 157 Cal.App.3d 122.
On January 20, 2011, appellant filed the notice of appeal, appealing solely from the "judgment after court trial."
DISCUSSION
Statement of Appealability
Initially, respondent contends that appellant's failure to include a statement of appealability in the opening brief subjects the brief to being stricken. We disagree.
California Rules of Court, rule 8.204(a)(2) states, "An appellant's opening brief must: [¶] (A) State the nature of the action, the relief sought in the trial court, and the judgment or order appealed from; [and] [¶] (B) State that the judgment appealed from is final, or explain why the order appealed from is appealable . . . ." A notice of appeal "is sufficient if it identifies the particular judgment or order being appealed." (Id., rule 8.100(a)(2).) Notices of appeal are liberally construed. (Ibid.; Hart v. Browne (1980) 103 Cal.App.3d 947, 951, fn. 1.) On the cover of appellant's opening brief, it states it is an appeal of the "Judgment entered October 22, 2010." That is sufficient compliance with California Rules of Court, rule 8.204(a)(2).
Statement of Decision
Appellant contends that the issuance of a statement of decision by someone other than the trial judge deprived him of the right to a fair trial, requiring reversal of the judgment. Respondent claims that appellant waived his right to a statement of decision but, in any event, appellant has failed to show there was sufficient evidence to support his proposed statement of decision.
Section 632 provides in part that upon the request of any party to a case, within 10 days after a court announces its tentative decision, a court "shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial . . . ." The California Rules of Court state that "[o]n the trial of a question of fact by the court, the court must announce its tentative decision by an oral statement, . . . or by a written statement filed with the clerk." (Cal. Rules of Court, rule 3.1590(a).) "The tentative decision does not constitute a judgment and is not binding on the court." (Id., rule 3.1590(b).)
In the instant case, Judge Gutman issued a "Ruling on Submitted Matters: Memorandum of Intended Decision" and directed respondent to prepare and submit a proposed statement of decision. The purpose of a statement of decision "is to provide an explanation of the factual and legal basis for the court's decision." (Onofrio v. Rice (1997) 55 Cal.App.4th 413, 425.)
After appellant filed a request for a statement of decision, Judge Gutman issued a detailed denial of appellant's request for a statement of decision, holding that of the 35 issues on which appellant sought specific statements and decisions from the court, "very few . . . qualify under and pursuant to the language of . . . [s]ection 632 in that they do not [rise up] to the level of 'principal controverted issues.'"
With the permission of Judge Gutman, appellant filed an amended request for statement of decision. Respondent submits that appellant's amended proposed statement of decision also goes far beyond the scope of "principal controverted issues" and sought the court to decide numerous factual and evidentiary issues, at least eighteen of which were near-verbatim copies of the issues set forth in the original request for statement of decision. Even assuming that the amended proposed statement of decision was proper under section 632, we find that the failure of Judge Gutman to sign the statement of decision did not violate appellant's right to a full and fair trial, requiring reversal of the judgment.
The facts in the instant case are similar to Leiserson v. City of San Diego, supra, 184 Cal.App.3d 41, cited by Judge Johnson in his denial of appellant's new trial motion. In Leiserson, the trial court filed an "'Intended Decision.'" The plaintiff filed objections to the "'Intended Decision.'" A hearing on the objections was commenced and then continued. Before it was scheduled to resume, the trial judge died. Over the plaintiff's objection, the acting presiding judge entered judgment in conformity with the intended decision. (Id. at pp. 47-48.)
On appeal, the court held that the judgment had been properly entered in conformity with the "'Intended Decision,'" where there was no indication that the judge contemplated any modification in his decision, and where the proposed statement of decision provided a complete and adequate basis for appellate review. The presiding judge had the authority pursuant to section 635 to sign and enter the judgment. (Leiserson v. City of San Diego, supra, 184 Cal.App.3d at p. 48.) The court explained that "[n]o violence is done to [the principle that 'the judge who hears the evidence should be the one to decide the case'] here because [the trial judge's] 'Intended Decision' is in reality the 'statement of decision' initially requested by Leiserson pursuant to section 632." (Leiserson, supra, at p. 48.) Under Leiserson, it was certainly within the power of the court to find that the ruling issued by Judge Gutman was a statement of decision within the meaning of section 632 and not simply a tentative decision.
Section 635 provides as follows: "In all cases where the decision of the court has been entered in its minutes, and when the judge who heard or tried the case is unavailable, the formal judgment or order conforming to the minutes may be signed by the presiding judge of the court or by a judge designated by the presiding judge."
--------
The cases cited by appellant are inapposite. In Swift v. Daniels (1980) 103 Cal.App.3d 263, at the conclusion of the trial, the judge who presided made his intended decision to enter judgment in defendant's favor. Thereafter, he became incapacitated, and a second judge signed the formal findings of fact and conclusions of law. (Id. at p. 265.) The appellate court held that the judge who heard the evidence should be the one to decide the case unless findings are waived by both sides or agreed findings are filed. (Ibid.)
In Raville v. Singh (1994) 25 Cal.App.4th 1127, the trial judge announced his tentative decision in open court. After trial, a litigant submitted a written request for a statement of decision. A proposed statement of decision and judgment were submitted to the trial judge. Objections were filed and before ruling on the objections, the trial judge died. The proposed statement of decision and judgment were submitted to the supervising judge for signature. The proposed statement of decision and judgment were signed. (Id. at pp. 1129-1130.) The court held that section 632 requires the trial judge, at a minimum, to issue a statement of decision in order to allow a supervising judge to sign a judgment for an incapacitated trial judge pursuant to section 635. The court held that the fact that the trial court has issued a statement of intended decision does not satisfy the statutory requirements of section 632. (Id. at pp. 1132-1133.)
In Armstrong v. Picquelle, supra, 157 Cal.App.3d 122, the trial court announced its tentative findings, which were entered in the minutes. The defendant filed a request for a statement of decision. The trial judge retired and plaintiff submitted his proposed statement of decision to the presiding judge, who signed the proposed statement of decision, then signed a judgment based on that statement of decision. (Id. at pp. 125-126.) The court concluded that a new trial was necessary because the defendant had timely requested a statement of decision, and the presiding judge's act of signing his own statement of decision deprived the parties of their right to a statement of decision from the trial judge who conducted the trial. (Id. at pp. 127-128.)
On appeal, the court held that section 635 "does not . . . authorize the presiding judge to enter a formal judgment whenever the judge who has heard the evidence has orally entered a tentative decision . . . ." (Armstrong v. Picquelle, supra, 157 Cal.App.3d at p. 127.) "To interpret section 635 to allow a presiding judge to enter judgment on the basis of a tentative decision entered in the minutes would strip the parties of their section 632 right to a statement of decision after the trial judge's tentative ruling." (Armstrong, supra, at p. 127.) It would "wrest from the parties the right to have 'the judge who hears the evidence . . . decide the case' [citation], depriving them of their right to a full and fair trial." (Id. at pp. 127-128.)
The instant case is distinguishable from Swift, Raville and Armstrong and factually similar to Leiserson. In Leiserson, a detailed intended decision supplied by the trial court to the litigants was held comparable to a statement of decision for purposes of appellate review. Similarly here, Judge Gutman did not give a tentative decision orally. He filed a six-page memorandum of intended decision announcing his decision with particularity. The memorandum of intended decision stated the factual and legal basis for the decision and qualified as a statement of decision. (People v. Casa Blanca Convalescent Homes, Inc. (1984) 159 Cal.App.3d 509, 524-525, disapproved on another ground in Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 184-185.)
Additionally, Judge Gutman denied appellant's initial request for a statement of decision. In other words, Judge Gutman, as trier of fact, had an opportunity to modify his tentative decision in response to appellant's request for a statement of decision but chose not to do so. Appellant's amended request for a statement of decision, which Judge Johnson denied, did not differ significantly from the original request.
In sum, appellant's right to a fair trial was not violated. The written memorandum of intended decision prepared by Judge Gutman was clear in finding that there was a contract in writing between the parties, that respondent performed the contract except where the performance was excused, appellant breached the contract by failing to submit engineering plans capable of being approved and respondent was damaged. The statement of decision subsequently signed by Judge Johnson was based on Judge Gutman's ruling. Judge Gutman's unavailability to sign the statement of decision and judgment did not "wrest from the parties the right to have 'the judge who hears the evidence . . . decide the case.'" (Armstrong v. Picquelle, supra, 157 Cal.App.3d at p. 128.)
DISPOSITION
The judgment is affirmed. Respondent is to recover costs on appeal.
JACKSON, J. We concur:
WOODS, Acting P. J.
ZELON, J.