Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Ct. No. LC 065552. Richard B. Wolfe, Judge. Affirmed.
Schimmenti & Berberian and John J. Schimmenti, for Defendant and Appellant.
No appearance by Plaintiff and Respondent.
RUBIN, J.
Dr. Jehan Zeb Mir appeals from the judgment entered for Alamo Medical Supply & Equipment in its action against Mir for Mir’s failure to pay for medical testing equipment he bought from Alamo. We affirm.
FACTS AND PROCEDURAL HISTORY
Alamo Medical Supply & Equipment sued Dr. Jehan Zeb Mir, doing business as A.L.R. Family Health Center (ALR), for breach of contract, claiming that Mir owed Alamo more than $36,000 for several items of medical testing equipment that it sold to Mir in February and March 2003 and delivered to Mir’s North Hollywood medical clinic (the Valley office).
Alamo’s complaint also included a common count for money had and received.
Mir cross-complained against Anush and Lillit Davtyan, contending that they actually owned and operated ALR and were the business managers of Mir’s Los Angeles medical clinic (the LA office). According to Mir, he had no connection with the Valley office, which was run solely by the Davtyans and ALR. Mir alleged that the Davtyans tricked Alamo into believing the February and March equipment purchases were made on his behalf and denied that he ever ordered or took possession of those items. Mir sued the Davtyans and ALR for breach of contract, conversion, and an accounting, contending that they owed him as much as $200,000 for funds collected on his behalf for services at the LA office, and for preventing him from retrieving medical equipment and supplies worth $31,456 from the LA office. Mir also alleged that ALR and the Davtyans were liable to him in the amount of $36,110.62 for the equipment that Alamo mistakenly delivered to the Valley office under the false impression that Mir had ordered it. Mir also cross-complained against Alamo for breach of contract and conversion, alleging that he paid Alamo $10,000 for a portable vascular lab in February 2003 that Alamo misdelivered to ALR at the Valley office. The Davtyans and ALR did not answer the cross-complaint and their defaults were entered in June 2004.
Conflicting evidence was offered by both sides at the January 2005 bench trial. Alamo financial officer Moiz Talei testified that he sold equipment to Mir, doing business as ALR, in December 2002. A December 11, 2002, invoice showed an equipment purchase by Mir of more than $26,000 for delivery to the address of the LA office. Another, dated December 18, 2002, was for slightly more than $1,353 and states that those goods were sold to ALR at the same address. Mir paid those orders in full. In February 2003, Mir and Anush Davtyan came to Alamo to buy more equipment. Mir told Talei that the new purchases were intended for Mir’s new Valley office. A follow-up purchase was made in March 2003, for a combined total of $46,660.62. Mir paid $10,000 toward the February purchase and $500 toward the March purchase. The equipment was delivered to the Valley office as requested, but no more payments were ever made. Talei verified the two separate invoices that he claimed reflected the terms of Alamo’s sales agreement with Mir, both of which listed Mir as the buyer at the Valley office address. The February 2003 invoice identified Anush Davtyan as the contact person for that purchase. Talei also produced a check from Mir for $10,000, that included a notation by one of Talei’s employees that listed the invoice number of the February 2003 purchase. After Alamo made repeated demands for payment, Mir told Talei to pick up the equipment. When a pick-up was attempted at the Valley office, however, Talei was told that the equipment had been taken in a burglary the night before. Talei said he was told, and Mir also claimed, that the LA office was also burglarized that same night, resulting in a loss of equipment at that office.
Mir testified that in October 2002 he responded to a newspaper ad by ALR seeking to hire a doctor. Instead, he ended up hiring ALR to run the business operations at the LA office, counting on ALR to collect fees and pay expenses, then deliver the remaining funds to him. In short, Mir had no interest in ALR and did not do business by that name. According to Mir, he and Anush Davtyan showed up at Alamo within minutes of each other in February 2003, purely by coincidence, with Anush coming separately in order to buy equipment for ALR’s Valley office. Mir ordered and paid $10,000 in full for a portable vascular lab, which was to be delivered to his LA office. Instead, Anush tricked Alamo into believing that the vascular lab and the equipment she ordered were all intended for the Valley office. He never got the vascular lab he paid for, had nothing to do with the Valley office, and never received any of the equipment Anush bought. According to Mir, he gave notice in March or April 2003 that he was terminating his relationship with ALR. After he vacated the LA office, Mir claimed that the Davtyans prevented him from retrieving his equipment, including the portable vascular lab and the items he acknowledged purchasing from Alamo in December 2002.
The court issued a statement of decision finding that a contract existed between Mir and Alamo for the February and March 2003 equipment purchases. The court found that Mir owed Alamo $36,160.62, less a $10,000 offset for Mir’s down payment. The court awarded Mir nothing against Alamo on Mir’s cross-complaint, but, pursuant to the defaults of ALR and the Davtyans, found against them in the amount of $124,403.75, which was comprised of $96,800 for medical services performed at the LA office and $27,603.75 for Mir’s equipment at that office.
Mir moved for a new trial on two grounds relevant to his appeal: (1) that he was improperly impeached on cross-examination by surprise evidence of a January 2003 City of Los Angeles business license in his name at the same address as the Valley office; and (2) that he had newly discovered evidence to present in the person of a Dr. Jorge Moran, who Mir claimed was the true operator of the Valley office. That motion was denied. Mir also brought a motion to amend the default against the Davtyans and ALR in two respects: (1) to increase his damage award by the $10,000 he paid Alamo for the portable vascular lab that ALR obtained and kept at the Valley office; and (2) to increase his damage award by the $36,160.62 value of the medical equipment retained by ALR at the Valley office that was the subject of Alamo’s complaint against Mir. The latter argument was based on the effect of ALR’s and the Davtyan’s default on the cross-complaint, which effectively admitted Mir’s allegation that they obtained the medical equipment from Alamo by deceiving Alamo into believing the equipment was intended for Mir. If the court did not grant that motion, Mir contended that Alamo’s judgment against Mir had to be vacated, with Mir awarded $10,000 from Alamo instead. The court granted the motion to increase the amount of Mir’s default judgment against ALR and the Davtyans.
On appeal, Mir contends the judgment for Alamo must be reversed because: it is inconsistent with his default against ALR and the Davtyans; Alamo is bound by a judicial admission that it misdelivered the disputed items to the Valley office; the trial court failed to join ALR and the Davtyans as indispensable parties; Alamo’s purported contract with Mir violated the statute of frauds; the judgment was not supported by substantial evidence; a new trial should have been granted due to newly discovered evidence and Alamo’s improper use of surprise evidence; and there was no evidence to support the common count award.
The trial court found for Alamo on the common count claim but declined to make an award on that claim because it was duplicative of Alamo’s contract cause of action. Because we affirm the breach of contract findings, we need not address the common count.
DISCUSSION
1. The Judgment Was Supported By Substantial Evidence
Under the substantial evidence standard of review, we consider all the evidence in the light most favorable to the judgment, giving it the benefit of every reasonable inference while resolving evidentiary conflicts in support of the findings. We do not resolve conflicts or disputes in the evidence or otherwise reweigh the evidence. Our authority begins and ends with a determination as to whether, based on the entire record, there is any substantial evidence, contradicted or uncontradicted, to support the judgment. Where the evidence is undisputed, if two or more different inferences can be drawn from the evidence, we will accept the inferences favorable to the judgment. To be substantial, the evidence must be of ponderable legal significance, reasonable in nature, credible, and of solid value. “Substantial evidence” does not mean any evidence, however. We must decide whether it was reasonable for the trier of fact to make the ruling in question in light of the whole record. (ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1266.)
Alamo did not file a respondent’s brief, thus triggering California Rules of Court, rule 8.220(a). As set forth in our discussion concerning the substantial evidence issue, Mir’s statement of facts was slanted. As a result, we do not accept his version of events as true. (Stoner v. Williams (1996) 46 Cal.App.4th 986, 990, fn. 1.) We have instead examined the record, and will reverse only if Mir carries his burden of demonstrating that prejudical error occurred. (Estate of Supeck (1990) 225 Cal.App.3d 360, 365; American Motorists Ins. Co. v. Carver (1969) 275 Cal.App.2d 793, 794.)
Mir contends the judgment for Alamo was not supported by substantial evidence, but his argument is based solely on conflicts in the evidence. These include his own testimony and version of events, along with purported defects or inconsistencies in Talei’s testimony and the documentary evidence supporting Alamo’s case. In particular, Mir points to testimony by Talei that he wanted 25 percent down on purchases, but took more than that amount on some and less than that amount on others, Talei’s absence of a receipt for a $500 down payment by Mir on one of the disputed purchases, and the absence of documentation showing that some of the disputed equipment was in fact ever delivered to the Valley office.
While this and other evidence certainly raised a conflict, under the substantial evidence standard, Talei’s testimony that Mir told him the February and March 2003 purchases were intended for his new Valley office is enough by itself to support the judgment. It is also supported by other evidence that Mir does not mention. This includes: a November 2002 lease application for the LA office listing ALR as the tenant and identifying Mir as the president or owner of ALR; Mir’s claim that he paid $10,000 in full for a portable vascular lab when there was evidence that the true price was higher due to sales tax and where Mir admittedly did not have an invoice or receipt showing that he bought only that one piece of equipment; evidence that the portable vascular lab was small enough for Mir to have taken it by himself the day he supposedly purchased it, meaning there was no need to have it delivered at all; the absence of any documentary evidence showing that Mir ever severed his relationship with ALR; evidence that even though the Valley office door had been pried open the night of the supposed burglary, the parking lot gate remained chained and locked, and there was no way to haul off some of the larger items of medical equipment without a truck; and impeachment evidence showing a business license in Mir’s name at the Valley office. The trial court relied on this evidence and Mir does not mention it. Accordingly, we hold that there was substantial evidence to support the judgment. We alternatively hold that Mir waived the substantial evidence issue by failing to set forth and discuss all the evidence that was unfavorable to him. (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 737-738.)
Mir does discuss the business license evidence in his argument concerning the new trial motion, but does not discuss it as part of his substantial evidence argument.
2. The Alamo Judgment Is Not Inconsistent With ALR’s Default Judgment
As a result of the default by ALR and the Davtyans on Mir’s cross-complaint, Mir’s allegations were conclusively established against them. (Mitchell v. Jones (1959) 172 Cal.App.2d 580, 586-587.) Among these were allegations that ALR and the Davtyans tricked Alamo into believing that Mir was buying the disputed items of medical equipment, and that Mir in fact did not order them, did not receive them, and had no connection with the Valley office. Mir contends that these allegations now have conclusive effect against Alamo under the doctrine of collateral estoppel and are fatally inconsistent with a judgment for Alamo based on findings that Mir in fact bought those items.
We reject Mir’s contention. First, it is not entirely clear that the rule he cites applies to a default judgment entered on part of a cross-complaint when the action proceeds to trial on the rest of the cross-complaint and the underlying complaint before a default judgment is entered. (See Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 148.) Second, for collateral estoppel to apply against Alamo, Mir had to show Alamo was in privity with ALR and the Davtyans. (Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th 921, 943.) Apart from his conclusory and incorrect assertion that Alamo was in privity with ALR and the Davtyans because Alamo once sought leave to name them as Doe defendants, Mir does not discuss the privity issue at all, leading us to hold that it was waived. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.)
3. Alamo’s Discovery Admission Concerning the Delivery of Equipment to the Valley Office Was Not a Binding Admission
During discovery, Mir propounded a set of requests for admission to Alamo, one of which asked Alamo to admit or deny that it “delivered the vascular equipment (Portable Lab. Biomedix) to [the Valley office] instead of [the LA office], where . . . Mir’s offices were located.” In response, Alamo admitted this was true. Mir contends this was a binding judicial admission by Alamo that the disputed goods were delivered to medical offices that did not belong to or have a connection with Mir. As a result, he contends judgment for him and against Alamo was mandated.
Although a clear and unequivocal discovery admission may be binding at trial (Monroy v. City of Los Angeles (2008) 164 Cal.App.4th 248, 259-260), we do not read Alamo’s admission this way. First, the language of the requested admission does not clearly state that the LA office was, and the Valley office was not, owned by Mir. Second, the admission relates to only the vascular lab, not the other equipment. Third, as part of the same set of admissions requests, Alamo denied that the Davtyans and ALR bought or took possession of the disputed equipment, and denied that Mir had not ordered, promised to pay for, or taken possession of that equipment. Finally, when questioned at trial about the admission, Talei explained that Mir said the Valley office was his new location and that the equipment was delivered to the Valley office pursuant to Mir’s request. According to Talei, “we admitted that.” (Monroy, supra, at p. 260 [parol evidence allowable to explain discovery admissions].) Based on that, we hold that Alamo did not judicially admit that it delivered the goods to an office not run by or connected to Mir.
4. Failure to Join the Davtyans and ALR as Indispensable Parties
Mir contends that the trial court erred by failing to join ALR and the Davtyans as necessary or indispensable parties. (Code Civ. Proc., § 389 (section 389).) Under section 389, a person subject to service of process whose joinder will not deprive the court of jurisdiction shall be joined as a party if: (1) complete relief cannot be afforded the parties in his absence; or (2) he claims an interest relating to the subject of the action and is so situated that proceeding without him will impair his ability to protect that interest or leave the current parties subject to multiple actions. (§ 389, subd. (a).) If such a person cannot be made a party, the court shall determine in equity and good conscience whether the action should proceed without that party, or be dismissed because the absent party is indispensable. The court shall consider: (1) the possible prejudice to the missing party from a judgment in his absence; (2) the availability of protective measures to lessen that prejudice; (3) the adequacy of a judgment in his absence; and (4) whether the plaintiff or cross-complainant will have an adequate remedy if the action is dismissed for non-joinder. (§ 389, subd. (b).)
Mir contends he raised the issue both in his answer to Alamo’s complaint and by way of a separate motion. The record shows that Mir’s answer raised the “Non-joinder of Parties” as an affirmative defense, alleging that specific performance was barred because contract performance required the acts and consent of parties to the contract who were not before the court. He more clearly raised the issue in his trial brief, but never actually filed a motion on that ground.
We reject Mir’s argument for two reasons. First, by finding that Mir was liable for breach of the disputed medical equipment purchase contract, complete relief could be, and was, afforded without the joinder of ALR and the Davtyans. Second, a cross-complaint has long been considered one device for joining necessary or indispensable parties. (See Code Civ. Proc., § 428.20 [cross-complaint may join new parties if permitted by the various statutes governing joinder of parties]; Metropolitan Cas. Ins. Co. of N.Y. v. Margulis (1940) 38 Cal.App.2d 711, 714-715.) Because the Davtyans and ALR became parties to the action by virtue of Mir’s cross-complaint, they were joined and remained joined despite their eventual default.
5. Alamo’s Invoices Satisfied the Statute of Frauds
Mir contends that Alamo’s invoices did not create enforceable contracts because they were not signed by him and therefore did not satisfy the statute of frauds. (Cal. U. Com. Code, § 2201, subd. (1).) The trial court found that the statute of frauds was satisfied because Alamo delivered the goods after receiving partial payment. (Cal. U. Com. Code, § 2201, subd. (3)(c) [contract enforceable “[w]ith respect to goods for which payment has been made and accepted or which have been received and accepted.”].) Citing to Lockwood v. Smigel (1971) 18 Cal.App.3d 800, Mir contends this exception applies only to issues regarding the quantity of the goods received. He is wrong.
Lockwood concerned partial payment toward a car purchase, and the court discussed the differences between prior law, which enforced a contract in its entirety based on partial payment, regardless of how few items had actually been delivered, and the new California Uniform Commercial Code, which enforced a contract only up to the amount of items received. The Lockwood court noted that the new limitations were designed to avoid disputes over the quantity of items in dispute. (Lockwood, supra, 18 Cal.App.3d at pp. 803-804.) It held that the new California Uniform Commercial Code rule applied to make the contract enforceable even when only one indivisible unit, such as a car, was involved. Lockwood does not hold that the partial payment exception to the statute of frauds applies only when the quantity of goods purchased is in dispute. Instead, it is clear that partial payment will validate a contract as to the amount of goods actually delivered. (See Allied Grape Growers v. Bronco Wine Co. (1988) 203 Cal.App.3d 432, 441-442; 1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 380, p. 421 [former Sales Act made contract enforceable as to all the goods when buyer accepted and received only part of the goods, but Commercial Code made contract enforceable only as to goods actually received].)
Because we affirm the trial court’s findings that Mir paid $10,000 down toward equipment that Alamo actually delivered to Mir at the Valley office, we also affirm the court’s finding that Mir’s partial payment satisfied the statute of frauds.
As a result, we need not reach Mir’s attack on the trial court’s other ground for finding the statute of frauds had been satisfied: equitable estoppel.
6. New Trial For Surprise And Newly Discovered Evidence
Finally Mir contends the trial court erred by denying his new trial motion in two respects: (1) due to surprise caused when he was impeached on cross-examination with the Valley office business license in his name, which he contends was obtained by Anush Davtyan without his knowledge or consent; and (2) due to newly discovered evidence in the form of Dr. Jorge Moran, who Mir claimed was the true operator and owner of the Valley office clinic. As to the first, the disputed evidence was received without objection. Mir does not contend and the record does not show that he promptly objected on the ground of surprise and requested a continuance. As a result, the issue was waived. (People ex rel. Deptartment of Public Works v. Donovan (1962) 57 Cal.2d 346, 351.) As to the second, Mir focuses solely on the trial court’s finding that the new evidence would not have altered the outcome of the case, but ignores the court’s finding that Mir also failed to show the use of reasonable diligence to locate the new witness. (Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1161-1162.) Because Mir does not address an alternate ground relied upon by the trial court, we deem that issue waived as well. (Landry v. Berryessa Union School Dist., supra, 39 Cal.App.4th at pp. 699-700.)
DISPOSITION
For the reasons set forth above, the judgment is affirmed. Because respondent did not appear, it shall not be awarded appellate costs.
WE CONCUR: COOPER, P. J., FLIER, J.