Opinion
G042746 Super. Ct. No. 07CC12128
08-26-2011
COUNTY OF ORANGE, Plaintiff and Respondent, v. KANG-SHEN CHEN, Defendant and Appellant.
Kang-Shen Chen, in pro. per., for Defendant and Appellant. Nicholas S. Chrisos, County Counsel, and James C. Harman, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Randell L. Wilkinson, Judge. Affirmed.
Kang-Shen Chen, in pro. per., for Defendant and Appellant.
Nicholas S. Chrisos, County Counsel, and James C. Harman, Deputy County Counsel, for Plaintiff and Respondent.
INTRODUCTION
Kang-Shen Chen and his wife own property adjacent to a regional park owned by the County of Orange (the County). An archeological site is located on Chen's property so his property is subject to a resource preservation easement. The County sued Chen for building on his property and taking other actions that violated the easement, and for trespassing on the County's property. After a bench trial, the court found in favor of the County, awarded damages against Chen, enjoined Chen from further violations of the easement, and ordered him to restore the easement to its natural, open-space condition. On appeal, Chen raises a number of contentions. As explained in detail post, we affirm.
First, Chen challenges several of the trial court's findings. We conclude, however, that substantial evidence supports each of those findings.
Second, Chen contends he was denied his right to a trial by jury. The record is clear, however, that he waived the right to a trial by jury, and never requested relief from his waiver until after judgment was entered.
Third, Chen argues the trial court erred in limiting his right to cross-examination, and in permitting the County to offer rebuttal evidence at trial. Having fully reviewed the record, we find no error in the evidentiary rulings.
Fourth, Chen contends the trial court was biased against him. He has forfeited any claim of judicial misconduct by failing to raise it in the trial court, and by failing to provide any reference to the record substantiating his claims.
Fifth, Chen argues the trial court denied him the right to counsel, but forfeited the issue by failing to offer argument or reference to the record supporting it.
Sixth, he raises an issue regarding declaratory relief, but fails to offer argument, legal authority, or record references. We deem the issue to be forfeited.
Finally, Chen argues the trial court erred by denying his motion for a new trial. This issue was forfeited, because it was raised for the first time in Chen's reply brief on appeal. Moreover, the motion for a new trial was not timely filed, and was not properly supported on its merits.
Based on his oral argument before this court, we recognize how strongly Chen feels about this case. In this opinion, we explain in detail why we are affirming the trial court's judgment based on the record before us and the well-established laws of appellate review.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
The County owns and operates Santiago Oaks Regional Park (the Park). The property located at 6984 East Overlook Terrace in Anaheim is adjacent to the Park (the Property). An archeological site is located on the Property. In 1984, the County acquired a resource preservation easement on the Property from its developer. The easement, recorded in 1984, prohibited the removal or alteration of native vegetation and cultural resources on the archeological site, and further prohibited the alteration or interruption of the flow of a stream on the Property (the easement).
Chen acquired the Property in 1987, subject to the easement. Between 1987 and 2007, Chen built structures within the Park; diverted the stream on the Property from its natural course; erected a barbed wire fence around a portion of the Park; cleared natural vegetation within the easement area; planted nonnative trees and shrubs and built a patio, fireplace, and building within the easement area; and built a wood fence on the easement, which involved boring holes in historic stone outcroppings.
The County learned no later than February 1990 that Chen had made changes to the Property subject to the easement. Harry Huggins, the County's parklands asset manager, first met with Chen in 1991. Huggins demanded that Chen comply with the terms of the easement and threatened litigation. The County did not file a lawsuit against Chen at that time because it believed the local homeowners association was pursuing Chen's compliance with the easement.
In March 2007, the County was advised Chen was using a bulldozer within the Park. Chen told park ranger Donald Zeigler that he was using the bulldozer to grade the Park land to create a firebreak for the Property. Ziegler issued a notice directing Chen to stop using the bulldozer and dumping debris in the Park.
In May 2007, the County demanded Chen restore the Park and the easement area to their original state. Chen, however, failed to cooperate. The County itself removed Chen's construction within the Park at a cost of $68,475.44.
On November 19, 2007, the County filed a complaint against Chen and his wife, seeking declaratory relief, damages for trespass, preliminary and permanent injunctions, and an order directing them to restore the easement and the Park to their natural open-space conditions. The Chens filed an answer and Chen filed a cross-complaint against the County for fraud, negligence, malicious prosecution, and declaratory relief. The trial court sustained the County's demurrer to Chen's cross-complaint.
The trial court sustained the demurrer without leave to amend as to certain causes of action, and sustained it with leave to amend as to others. Chen never filed an amended cross-complaint.
Chen separately sued Huggins for fraud, misrepresentation, perjury, and "[f]alse [p]retenses." The trial court granted Huggins's anti-SLAPP (strategic lawsuit against public participation) (Code Civ. Proc., § 425.16) motion, and dismissed the case.
Chen might also have filed a lawsuit in federal court, alleging violation of his constitutional rights by the County, Huggins, Joe Vaughan, and others. (Vaughan is a code enforcement specialist for the County.) The appellate record in this case contains only "drafts" of Chen's original and amended complaints, which were attached to Chen's settlement proposal to the County. The record does not show what happened to that case, or if it was filed.
Following a bench trial, the court issued a statement of decision, in which it found Chen and his wife had trespassed within the Park, and had violated the easement. The court awarded the County $68,475.44 in damages, enjoined Chen and his wife from violating the easement, and ordered Chen and his wife to restore the easement to its natural, open-space condition. No party filed an objection to the statement of decision.
Judgment was entered on October 16, 2009. Chen moved for a new trial; the motion was denied. Chen timely appealed.
Chen's notice of appeal, which was filed on October 9, 2009, was premature. We have the discretion to treat the notice as filed immediately after entry of judgment, and we exercise that discretion in this case. (Cal. Rules of Court, rule 8.104(d)(2).) Mrs. Chen's separate appeal was dismissed for failure to timely deposit costs for preparation of the record on appeal. She is not a party to this appeal.
DISCUSSION
I.
DOES SUBSTANTIAL EVIDENCE SUPPORT THE TRIAL COURT'S FINDINGS?
Chen's appeal raises a number of challenges to the trial court's findings of fact. Where the trial court issues a statement of decision, and the parties fail to file any objections, we will infer that the court made all necessary implied factual findings to support its judgment. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134.) We next inquire whether substantial evidence supports those findings. (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 48.) "When a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion." (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.)
Chen first challenges the trial court's failure to find an oral contract was entered into between the County and Chen in 1992, regarding Chen's right to use the Park and the Property. The trial court's finding that "[a] possible compromise of the dispute between the County and the Chens was discussed in 1992 but none was ever reached" is supported by substantial evidence. Chen testified that Grace Secketa Dove, an employee of the County, told him in 1989 that the County had budget problems and could not afford to clear debris from the Park, and asked Chen to undertake the process himself. Chen also testified that Dove told him it was okay to landscape the easement. Dove, however, specifically denied entering into any such agreement, and testified she never gave Chen permission to build within the Park or to build structures on the easement, and she was not aware of anyone else at the County doing so.
Chen admitted he received a letter from the County, objecting to his construction on the Property and within the Park. This letter is inconsistent with an oral contract permitting such actions. Chen told Vaughan he had an agreement with the County, but was unable to provide anything in writing to substantiate his claim. Vaughan could not locate any such agreement, and no one at the County was aware of an agreement with Chen. Moreover, the approval of the board of supervisors would have been required to bind the County to any contract, including one to permit changes to the easement, and no such approval was proven. The trial court's finding that there was no oral contract was amply supported by substantial evidence.
Chen next argues the trial court erred in finding he trespassed within the Park. A cause of action for trespass requires proof that (1) the County owned the Park; (2) Chen intentionally or negligently entered the Park; (3) the County did not give Chen permission to enter the Park, or Chen exceeded the County's permission; (4) the County was actually harmed; and (5) Chen's entry or conduct was a substantial factor in causing the County's harm. (CACI No. 2000.) Each of these elements was supported by substantial evidence.
Chen stipulated that the County owned the Park. Chen's stipulation that he caused construction of structures within the Park and made other changes within the Park is evidence that he entered the Park. Zeigler observed Chen's contractor bulldozing on the Park land in March 2007, without the County's permission. Chen admitted to Vaughan he had erected a barbed wire fence and graded land within the Park. Chen also admitted to Zeigler he had hired a bulldozer operator to grade the area behind the Property to create a firebreak on the Park land. The County's objection to Chen's entry and/or the scope of Chen's actions within the Park was established by the County's stop-work orders, and the lack of a permit to bulldoze within the Park. Additionally, many of the County's employees testified they had advised Chen the County objected to his entry and construction within the Park. Evidence showed the County spent at least $68,475.44 to repair the damage to the Park caused by Chen. All the elements of the cause of action for trespass were supported by substantial evidence.
Chen next argues the trial court erred by finding he had interfered with the water flow on the Property. Chen stipulated that construction on the Property altered the watercourse along the easement. An archeologist hired by Chen testified Chen's construction of a large barbeque and fireplace built on the easement impeded and diverted the natural runoff of water along a natural watercourse. The archeologist also testified a pond built by Chen diverted water from its natural drainage path. Huggins testified he observed Chen's construction altering the watercourse, and Dove testified she advised Chen to remove the construction. That finding, too, was supported by substantial evidence.
Chen also argues the trial court erred in finding the County's claims were not barred by the doctrine of equitable estoppel. Chen contends that the County's failure to do anything for 16 years caused him to believe he and the County had an agreement, and that the County did not object to changes to the Park and the easement remaining after 1992. Chen bore the burden of proof to establish an equitable estoppel against the County. (General Motors Accept. Corp. v. Gandy (1927) 200 Cal. 284, 295.)
"Equitable estoppel 'will not apply against a governmental body except in unusual instances when necessary to avoid grave injustice and when the result will not defeat a strong public policy. [Citations.]' [Citation.]" (City of Goleta v. Superior Court (2006) 40 Cal.4th 270, 279; see also Hock Investment Co. v. City and County of San Francisco (1989) 215 Cal.App.3d 438, 449.) The trial court denied the County's motion in limine to exclude any evidence regarding equitable estoppel. The court nevertheless found there were "no unusual circumstances or grave injustice that would preclude such enforcement [of the terms of the easement] here." Chen did not establish he would suffer a grave injustice if the equitable estoppel doctrine were not applied. He had actual notice of the easement when he bought the Property. Chen nevertheless built on the site of the easement and disturbed its natural state. In this case, application of the doctrine of equitable estoppel would defeat the strong public policy to maintain land of historical significance in its natural state. (See generally Civ. Code, § 815 ["The Legislature finds and declares that the preservation of land in its natural, scenic, agricultural, historical, forested, or open-space condition is among the most important environmental assets of California"]; Building Industry Assn. of Central California v. County of Stanislaus (2010) 190 Cal.App.4th 582, 593-594.) The trial court's finding that equitable estoppel did not apply against the County was supported by substantial evidence.
Finally, Chen argues that the judgment's order to "restore the Resource Preservation Easement to its natural open space condition, including removing all artificial stone, pilasters, fencing, and other alterations of cultural resources" is vague and overly broad. Chen argues that no evidence was produced at trial to inform him to what state the easement must be returned. The judgment requires that before any work on the easement is done, Chen must obtain, and the County must approve, restoration plans prepared by a certified archeologist, a qualified biologist, and a certified arborist. Even if Chen himself was unable to determine what the natural open-space condition of the easement was, he is required to hire appropriate experts to determine it for him. Additionally, the record contains a report from the archeologist hired by Chen; that report details the condition of the easement site before Chen purchased the Property. Photographs were admitted at trial, depicting a portion of the easement that had not been built on, which showed "the type of native vegetation that the resource preservation easement was designed to protect." We conclude the judgment is neither vague nor overbroad.
II.
DID CHEN WAIVE THE RIGHT TO A TRIAL BY JURY?
Chen argues that the trial court improperly denied him his right to a trial by jury. The record, however, demonstrates he waived a jury trial.
First, Chen failed to appear at the start of trial. (Code Civ. Proc., § 631, subd. (d)(1).) When the case was called for trial, Chen's counsel advised the court Chen wanted to represent himself. The court asked Chen and his attorney to sign a substitution of attorney form over the lunch break, and advised the parties the court would proceed with trial at that time. Chen and his attorney failed to appear, and the County began presenting its case. Chen and his counsel appeared during the County's opening statement, and filed the substitution of attorney form, after which Chen appeared in propria persona.
Second, Chen failed to post jury fees. (Code Civ. Proc., § 631, subd. (d)(5) & (6).) Before trial started, Chen's then-counsel advised the court the trial would be a bench trial "because no jury fees have been posted."
Although the trial court retained discretion to allow a jury trial despite Chen's waiver (Code Civ. Proc., § 631, subd. (e)), Chen never requested relief until after judgment was entered. "Where the trial court refuses to allow a jury trial no relief can be obtained unless it is established that the litigant made a timely application for relief and the court grossly abused its discretion." (Byram v. Superior Court (1977) 74 Cal.App.3d 648, 651.) A request for relief from waiver of a jury trial must be made at the earliest possible opportunity. (Gonzales v. Nork (1978) 20 Cal.3d 500, 507-509.) Chen did not ask for relief from his waiver of a jury trial at the status conference, on the first day of trial, when he substituted out his attorney on the first day of trial, when he requested a continuance during trial, or when the court paused the trial to attempt to settle the case. "[I]t is well established that '. . . a party cannot without objection try his case before a court without a jury, lose it and then complain that it was not tried by jury.'" (Taylor v. Union Pac. R.R. Corp. (1976) 16 Cal.3d 893, 900.)
The trial court did not abuse its discretion in denying Chen a jury trial.
III.
DID THE TRIAL COURT IMPROPERLY DENY CHEN'S RIGHT TO CROSS-EXAMINE WITNESSES?
Chen argues the trial court improperly stopped his cross-examination of five of the County's witnesses.
Chen also argues he was prejudiced by the testimony of a sixth witness for the County, Virginia Chester, whose testimony confused Chen and prevented him from cross-examining her. The record reflects that after cross-examination of Chester by Mrs. Chen's attorney, the trial court asked Chen if the witness could be excused; Chen did not respond. Chen cannot claim error on appeal if he did not request an opportunity to cross-examine Chester or object to her dismissal from the witness stand. (People v. Alvarez (1996) 14 Cal.4th 155, 186.)
"'The extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court. It may exercise a reasonable judgment in determining when the subject is exhausted.'" (McCarthy v. Mobile Cranes, Inc. (1962) 199 Cal.App.2d 500, 507.) The record shows that in cross-examining each witness, Chen was given significant latitude, but attempted to offer direct testimony rather than formulating questions for the witness. With respect to Zeigler, the court told Chen it would correct him if he was not properly questioning the witness. The court then warned Chen on several occasions that it would end cross-examination if Chen did not refrain from asking irrelevant questions. When Chen failed to correct himself, the court ended cross-examination.
With respect to Vaughan, the court told Chen it would end cross-examination if Chen continued testifying rather than asking questions. The court later asked Chen for an offer of proof, and excused Vaughan when it found the questions Chen intended to pose to him were irrelevant.
With respect to Huggins, the court warned Chen that he could not ask irrelevant questions, or use the trial to conduct discovery for his federal case, and refused to either overrule earlier discovery orders or stop the trial to permit Chen to conduct discovery. The court later advised Chen he must restrict himself to relevant questions, or the court would end the cross-examination. When Chen continued to provide his own testimony rather than question Huggins, and to pose questions on irrelevant issues, the court excused Huggins.
With respect to rebuttal witnesses Dove and Gavin Archer, as soon as Chen began testifying rather than asking questions, the court excused those witnesses.
Archer is an archeologist and cultural resource consultant hired by Chen to assess the archeological site on the Property.
Chen did not object to the termination of cross-examination of any of the witnesses. We find no abuse of discretion.
Chen also claims that the trial court deprived him of the right to cross-examine witnesses because of his accent and "lack of professional skill." We find nothing in the appellate record that supports such a contention. To the contrary, the trial court appears to have attempted to give Chen as much latitude as possible. In propria persona litigants are held to the same standards as those represented by counsel, and the trial court did not have a duty to assist Chen in presenting his defense. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)
IV.
DID THE TRIAL COURT ERR IN ADMITTING REBUTTAL EVIDENCE?
Chen argues that the trial court improperly admitted rebuttal testimony by the County. Chen, however, did not object to the admission of rebuttal evidence. Further, Chen was permitted to provide surrebuttal evidence—through his own testimony—to counter the rebuttal evidence. The trial court did not abuse its discretion in permitting the County to offer rebuttal evidence. (Code Civ. Proc., §§ 607, 631.7; Evid. Code, § 320; Diamond Springs Lime Co. v. American River Constructors (1971) 16 Cal.App.3d 581, 602.)
Three rebuttal witnesses were offered by the County. Dove's testimony rebutted Chen's testimony that Dove had made an oral agreement with Chen regarding construction on the easement and in the Park. Archer's testimony rebutted Chen's testimony regarding the course of water on the easement. Chester's testimony rebutted Chen's testimony regarding the state of the Park and the Property in the late 1980's and early 1990's.
V.
DID CHEN ESTABLISH THAT THE TRIAL COURT WAS BIASED AGAINST HIM?
Chen argues the trial court was biased against him. Any claim of bias has been forfeited. "'As a general rule, judicial misconduct claims are not preserved for appellate review if no objections were made on those ground[s] at trial.'" (People v. Geier (2007) 41 Cal.4th 555, 613.)
Although Chen does not provide any citations to the appellate record showing where the trial court allegedly threatened him "with [a] big monetary judgment and [a] high priced restoration duty," the dates which Chen mentions appear to refer to the parties' attempt at settlement during a break in the trial. On June 11, 2009, the court paused the trial and encouraged the parties to try to settle the case, and all parties agreed. On July 17, 2009, the court made a record of the efforts to facilitate a settlement, and asked the County to draft a settlement proposal.
When no settlement was reached, the court resumed the trial on August 25, 2009. The record does not reflect that the court threatened Chen in any way. Chen did not make a record of any threatening comments by the court, which might have been made off the record. We conclude that even if the issue had not been forfeited, there is no evidence of bias on the part of the trial court.
VI.
DENIAL OF RIGHT TO COUNSEL
Chen argues the trial court denied him the right to counsel. (Chen substituted out his attorney of record on the first day of trial, and proceeded in propria persona.) But Chen's opening appellate brief is devoid of any reference to the record showing he ever informed the court he wanted to change attorneys, or showing the court refused such a request. The issue must be deemed forfeited. (Beroiz v. Wahl (2000) 84 Cal.App.4th 485, 498, fn. 9 [issue not raised in trial court is forfeited on appeal]; Cal. Rules of Court, rule 8.204(a)(1)(C) [appellate briefs must include a citation to the record for any reference to a matter in the record].)
VII.
CHEN'S ISSUE OF ERROR REGARDING DECLARATORY RELIEF IS UNINTELLIGIBLE.
Chen raises an argument regarding declaratory relief. This argument, however, is unintelligible, and therefore fails to raise a cognizable issue on appeal. To meet the burden of affirmatively demonstrating error, an appellant must raise issues for review, and support each issue raised with argument, legal authority, and citations to the record. (Niko v. Foreman (2006) 144 Cal.App.4th 344, 367-368; In re S.C. (2006) 138 Cal.App.4th 396, 406.) If an appellant fails to raise an issue, or fails to adequately support an issue raised, the appellate court may deem the issue forfeited. (People v. Stanley (1995) 10 Cal.4th 764, 793; Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 964.)
VIII.
MOTION FOR A NEW TRIAL
For the first time, in his reply brief, Chen argues the trial court erred in denying his motion for a new trial. This argument fails for many reasons.
Chen's reply brief also references an "application" for reconsideration of the judgment, but no motion for reconsideration was ever filed.
First, an argument raised for the first time in a reply brief on appeal is normally deemed forfeited. (Chicago Title Ins. Co. v. AMZ Ins. Services, Inc. (2010) 188 Cal.App.4th 401, 427-428.)
Second, the motion for a new trial was not timely filed. Notice of entry of judgment was served on October 16, 2009, and the motion for a new trial was therefore required to be filed no later than November 2, 2009, 15 days later. (Code Civ. Proc., § 659, subd. 2.) Chen's notice of intention to move for a new trial was filed November 4, 2009, and was therefore untimely.
Finally, as the trial court noted in its minute order denying the motion for a new trial, the motion would fail on its merits in any event. The grounds raised by Chen include the court's consideration of allegedly false testimony, the claim that the alleged 1992 agreement with the County prohibited any violation by Chen, and procedural irregularities, including the lack of a jury trial. Additionally, Chen presented the court with "newly discovered evidence"—a report by an environmental services consultant analyzing the "improvements" to the Property subject to the easement. This report, which was prepared at Chen's request after the conclusion of trial, is not newly discovered evidence for purposes of a new trial motion—it is newly created evidence. Chen failed to establish reasonable diligence in having this report prepared before trial, and the motion for a new trial was properly denied on its merits. (Trovato v. Beckman Coulter, Inc. (2011) 192 Cal.App.4th 319, 327.)
On our own motion, for good cause, we augment the record on appeal with the minute order denying the motion for a new trial, filed December 2, 2009, in County of Orange v. Chen (Super. Ct. Orange County, 2009, No. 07CC12128).
DISPOSITION
The judgment is affirmed. Respondent to recover costs on appeal.
FYBEL, J. WE CONCUR: ARONSON, ACTING P. J. IKOLA, J.