Opinion
B217962
12-13-2011
DANIEL BORSOTTI, Plaintiff and Appellant, v. SCOTT NINER et al., Defendants and Respondents.
Daniel Borsotti, in pro. per, for Plaintiff and Appellant. No appearance by Defendants and Respondents Scott Niner and Robin Niner.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. PC040224)
APPEAL from a judgment of the Superior Court of Los Angeles County, Margaret L. Oldendorf, Judge. Affirmed.
Daniel Borsotti, in pro. per, for Plaintiff and Appellant.
No appearance by Defendants and Respondents Scott Niner and Robin Niner.
Daniel Borsotti sued Scott and Robin Niner asserting breach of contract and related tort claims arising from Borsotti's purchase of the Niners' home. After conducting a bench trial, the trial court ruled Borsotti had established breach of an oral contract to pay rent, but had failed to prove his other claims. Borsotti contends the court erred in denying his motion to compel discovery responses and finding he had failed to prove a breach of fiduciary duty. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Complaint
Borsotti sued the Niners in February 2007 asserting claims for breach of oral and written contract, intentional infliction of emotional distress, fraud and breach of fiduciary duty. In the operative first amended complaint, Borsotti alleged that in February 2006 he entered into an oral agreement with the Niners to purchase their home. In return, the Niners agreed they would pay all closing costs, lease back the residence for two years and then repurchase the property from Borsotti at its then current market value. Scott Niner also agreed he would pay 24 months' rent in advance, immediately after escrow closed. The agreement would allow the Niners to avoid foreclosure and remain in their home until they could improve their financial situation.
On May 1, 2006 Borsotti and the Niners entered into a written rental agreement specifying a monthly rental obligation of $2,770.74. According to Borsotti, notwithstanding these agreements, the Niners refused to pay rent during the time they occupied the home and advised him they would not fulfill their obligation to purchase the house in May 2008. Borsotti also asserted the Niners had taken advantage of his disability—Borsotti suffers from traumatic brain injury as a result of a 2001 car accident—to induce him to use the settlement proceeds from his accident claim to purchase the home without any intention of fulfilling their contractual obligations. In addition, Borsotti alleged Robin Niner, who was employed by him to serve as his payee for social security disability benefits, was a fiduciary and her misconduct constituted a breach of her fiduciary duties.
2. Discovery Motions
On June 2, 2008 Borsotti filed a motion to compel the Niners' responses to his requests for admissions (set one) and special interrogatories (set one). According to the motion, the requests for admissions and special interrogatories were served on the Niners in November 2007. The Niners opposed the motion, asserting it was both untimely and moot. The Niners explained they had initially objected to the discovery on the ground their demurrer was still pending. Borsotti had not filed a motion to compel at that time. When Borsotti again propounded the same discovery—requests for admissions—in April 2008, the Niners responded. The Niners also informed the court that plaintiff's request for special interrogatories had not been served on them. The court denied the motion to compel on the ground it was moot.
3. The Bench Trial
The case was tried in a five-day bench trial. After hearing the evidence, the court found Borsotti had established the Niners' breach of an oral contract to pay rent during the eight months they lived in the home—an amount totaling $22,165—but had failed to prove his other claims. In a detailed explanation of its ruling, the court stated, "I listened very carefully to all of the testimony and the plaintiff, Mr. Borsotti, testified at length over many days over a long period of time, and I also heard from the defendant. It's my conclusion that plaintiff did not meet his burden of proof to establish claims for fraud or the breach of written agreement on the part of the defendants to repurchase the property at issue after 24 months. It is also my conclusion that the plaintiff did not meet his burden of proof concerning any alleged breach of fiduciary duty on the part of Robin Niner and also concerning the claims for intentional infliction of emotional distress or even negligent [infliction of emotional distress] as argued by plaintiff's counsel, which essentially I take it as a request to amend the pleading to conform to proof. I think there was insufficient evidence to indicate that the defendants guaranteed in writing or [orally] to buy back the residence within 24 months. In my view, the evidence reflected at most the agreement was for an option[] on the part of the defendants to purchase the property if the plaintiff were to put the house up for sale. This was essentially an oral agreement. I do not find after reviewing carefully the various versions of the purchas[e] [and] sale agreement that there was a written covenant to repurchase the property after 24 months."
Because transcripts of the trial have not been included in the record on appeal, we cannot determine what evidence was presented at trial.
Borsotti, who had represented himself during most of the pretrial proceedings, was represented by counsel at trial. He again represents himself in this appeal.
"I also conclude there was not sufficient evidence [to show] the defendants . . . guaranteed [an] up-front payment of 24 months' rent or even 12 months' rent as Mr. Borsotti testified. I have not found that by a preponderance of the evidence that the plaintiff established that that covenant, that that agreement was registered, and that frankly, in my view, the evidence indicates that both the plaintiff and the defendant, Scott Niner, executed false documents in connection with this transaction in an effort to have the sale go through . . . The evidence indicates that both the plaintiff and Scott Niner wanted to accomplish a sale of this residence to the plaintiff and [it]was a transaction that was beneficial to all the parties. It was beneficial to the plaintiff because it provided him an investment vehicle for the settlement proceeds he was receiving [from his car accident]. It was beneficial to the defendant, Mr. Niner, because it allowed an opportunity for him to get out from under a potential foreclosure on the residence and also allowed for the possibility for Ms. Robin Niner to remain in the residence . . . a home she felt very attached to."
"The evidence indicates that there was not a fiduciary relationship between the plaintiff and Robin Niner. Rather, the evidence indicates that . . . plaintiff and Ms. Niner were very close friends, as was Scott Niner at one time and that the plaintiff gave gifts of money to Robin Niner from time to time because of her circumstances. Even if Ms. Niner had a fiduciary relationship with the plaintiff, it was very narrow in scope and it related to her role as a payee representative in connection with Mr. Borsotti's social security disability payments. . . . [¶] . . . [¶] [B]ased on the evidence that I have heard, this has to be my decision."
DISCUSSION
1. Borsotti Has Not Demonstrated Error in Connection with the Court's Discovery Rulings
Borsotti has provided a confusing and, at times, totally unintelligible brief that fails to comply with the fundamental rules of appellate practice. (See, e.g., Cal. Rules of Court, rule 8.204(a)(1)(B) [appellate briefs must state each point under a separate heading summarizing the point, followed by argument and citation to authority].) We acknowledge a self-represented litigant's understanding of the rules on appeal are, as a practical matter, more limited than an experienced appellate attorney's. Whenever possible, we do not strictly apply technical rules of procedure in a manner that deprives litigants of a hearing; and we have done our best to decipher and address his claims. Nonetheless, Borsotti's near total lack of compliance with the California Rules of Court necessarily results in our inability to conduct a meaningful review of the trial court's decision. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)
Borsotti contends the "Niners and their counsel did everything they could to deter [him] from conducting meaningful discovery" and cites the Niners' repeated objections to his discovery requests. Although his brief includes a litany of complaints against the Niners and their counsel, he fails to identify any particular discovery ruling that was
improper and does not address any other purported error by the trial court. The most we can glean from his brief is that he believes the court abused its discretion in denying his June 2008 motion to compel written discovery responses. (See Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 891-892 [trial court's denial of motion to compel discovery subject to deferential abuse of discretion standard of review]; Saeta v. Superior Court (2004) 117 Cal.App.4th 261, 266 [same].) Borsotti, however, fails to provide any argument or authority to support his contention of error if, in fact, that is his contention. (See Cal. Rules of Court, rule 8.204(a)(1)(B) [each point in appellate brief must be supported by argument and, if possible, by citation of authority].) As a result, we have no basis to question the trial court's exercise of its broad discretion in such matters. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [cardinal rule of appellate review that judgment or order of trial court is presumed correct and prejudicial error must be shown]; Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1 [appellate court "will not develop the appellants' arguments for them"]; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546 [not proper function of court of appeal to serve as "backup appellate counsel"].)
In describing the procedural history of the case, Borsotti criticizes the trial court for failing to accommodate his disability by allowing him to tape-record the proceedings. However, Borsotti does not assert this as a ground for reversal, nor is it apparent from the limited record provided on appeal that denial of that request adversely affected Borsotti.
--------
2. Borsotti Has Not Demonstrated Any Error in Connection with the Court's Findings on his Breach of Fiduciary Duty Claim
The trial court found Borsotti had failed to satisfy his burden to demonstrate Robin Niner was a fiduciary. Although Borsotti contends this finding was erroneous, he has not provided a complete record that shows the testimony before the court. Accordingly, we are unable to conduct any meaningful review and simply cannot address this point. (See Ballard v. Uribe (1986) 41 Cal.3d 564, 575-576 [appellant's burden to show reversible error by adequate record; absent such a record, court need not consider merits of appeal].)
DISPOSITION
The judgment is affirmed. Borsotti is to bear his own costs on appeal.
PERLUSS, P. J.
We concur:
WOODS, J.
JACKSON, J.