Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 30-2008-00110701, James DiCesare, Judge.
Law Offices of Sunil Shah and Sunil Shah for Defendants and Appellants.
Wheatley Bingham & Baker, Mark Baker and Roger P. Bingham for Plaintiff and Respondent.
OPINION
ARONSON, J.
Jagdish K. Garach, a former bus driver for CUSA PCSTC, LLC (CUSA), and his wife Anila J. Garach (A. Garach) appeal from a judgment entered against them after a bench trial on CUSA’s claims for conversion and unjust enrichment. The lawsuit arose after CUSA issued a payroll check to Garach based on a data entry error crediting Garach with 8, 768 hours worked in a one-day shift. Defendants spent all of Garach’s payroll check, ignoring CUSA’s requests to return the excess funds. Garach argues the evidence and equity required the trial court to reach a decision in his favor. Specifically, he argues CUSA’s pretrial admission in response to an interrogatory that Garach was “not at fault for depositing” (italics added) the payroll check required a defense verdict. Invoking equity, he also asserts estoppel, waiver, and CUSA’s alleged unclean hands compelled a decision in his favor because CUSA included the total amount of the deposited check in Garach’s W 2 statement, increasing his tax obligation. According to Garach, the W-2 constituted conclusive evidence he earned the total amount CUSA paid him in the contested check or, alternatively, the W-2 demonstrated CUSA intended the excess amount as a gift, and in either case, waiver or estoppel prevented CUSA from disputing Garach’s position.
None of these claims has merit. Garach misunderstands the role of the trier of fact and the appellate standard of review. The trial court was not required to view the evidence in the light most favorable to his position, and we may not do so on appeal. The judgment is affirmed as to Garach.
The trial court found Garach misspent $39,000 of the overpaid funds on a personal, nonmarital obligation, and thus held A. Garach jointly liable in conversion and unjust enrichment only for spending about $3,000. But the trial court also concluded Garach earned more than $3,300 of the disputed $43,220.14 payroll check. Because Garach’s earnings exceeded any expenditures attributable to A. Garach, there is no basis for the judgment against her. Accordingly, we reverse that part of the judgment.
I
FACTUAL BACKGROUND
The appellant has the duty to fairly summarize all of the facts in the light most favorable to the judgment. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) This duty increases with the length of the record. (Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 290.) Appellants have utterly failed in this duty, setting forth an entirely self-serving version of the facts. We draw the following from the record and the statement of decision, and we view the evidence in the light most favorable to the prevailing party, resolving all conflicts in its favor. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 787.)
The record in this case includes a clerk’s transcript of almost 800 pages and a reporter’s transcript exceeding 500 pages.
CUSA employed Garach as a bus driver between May 2007 and August 2008. For the pay period between July 7 and July 20, 2008, Garach was credited with working 8, 768 hours on July 18, 2008, instead of eight hours. CUSA’s payroll processing company issued Garach a check for $43,220.14 on July 25, 2008, and he deposited the check that day in his bank account. The gross amount credited to Garach for this pay period totaled $88,423.58, including more than $45,000 withheld for tax purposes.
Garach admitted at trial he expected a check for less than $1,000 for the pay period. He testified that, suspecting there was “something wrong” with the check, he contacted his “supervisor, ” Frances Aguilar, who told him the check was a bonus. Aguilar contradicted Garach. She testified she was a driver and a dispatcher and did not supervise Garach. She acknowledged Garach approached her about his payroll check the week after he received it, and she specifically advised him, “Jack, we work for Coach. There is no way that is a bonus.” She warned him to return the check rather than deposit it, but Garach claimed his wife already had deposited it. Garach withdrew $4,800 from his account as soon as his bank made that amount available on August 1, 2008.
Tony Hancuff, CUSA’s vice president and general manager, testified he did not become aware of the high-dollar check issued to Garach until August 7, 2008, and he met with Garach the next day. Hancuff explained the error and requested repayment, but Garach claimed his wife had the check and was away for the weekend. Hancuff emphasized CUSA required restitution by Monday, August 11th. Garach admitted at trial Hancuff explained the check was a mistake that had to be corrected, and Garach also admitted his wife was not out of town that weekend and he had not given her the check for deposit, but already had deposited it himself. He admitted that as of August 11, 2008, $38,000 of the $43,000 check remained in his bank account because the bank did not release the funds until that date.
Garach skipped his meeting with Hancuff on August 11 and withdrew $12,600 from his bank account that day. He withdrew $19,000 the next day. He withdrew further sums on August 13 and 14, and he withdrew $3,600 on August 28, eventually admitting he withdrew and spent all the money.
Meanwhile, CUSA twice extended the deadline for Garach to return the funds. When Garach failed to do so, CUSA terminated him and filed the underlying complaint against him on August 18, 2008. In January 2009, CUSA issued Garach his W-2 statement for 2008, which included the $43,220.14 net amount of the disputed check and $45,303 in tax withholding for that pay period. In a bench trial, the trial court found Garach earned only $780.02 during the disputed pay period and $1,181.33 and $1,359.69, respectively, in the two remaining pay periods before he was terminated, for a total of $3,321.04. The trial court concluded Garach unjustly enriched himself and converted the remainder of the disputed check to his personal use, and therefore the trial court awarded judgment to CUSA against Garach in the amount of $39,899.10. As we explain, the trial court also awarded judgment against Garach’s wife for $2,997.75.
II
DISCUSSION
A. Garach Was Not Entitled to Judgment as a Matter of Law
Garach hinges his argument for reversal on the allegedly conclusive effect of CUSA’s admission in discovery that he bore no fault for “depositing” his payroll check and the assertedly similar dispositive nature of his W-2 statement. Garach’s premise is faulty: the evidence he relies on was not determinative. The trial court was entitled to weigh the discovery admission and the W-2 statement against other evidence Garach did not earn more than 8, 000 hours of wages in a single day and testimony that CUSA did not intend the excess funds as a gift or bonus, as Garach asserted. Parties at trial naturally take conflicting views of the evidence, but an appellate court may not second-guess the trier of fact’s conclusions. “With rhythmic regularity, ” we must remind trial litigants that on appeal “we have no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom.” (Overton v. Vita-Food Corp. (1949) 94 Cal.App.2d 367, 370 (Overton), disapproved on other grounds in Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 866, fn. 2.)
Put another way: “‘A judgment or order is presumed correct. All intendments and presumption are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ [Citations.]” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, original italics (Denham).)
Garach relies on the principle that discovery admissions are binding and a party may not contradict them at trial. (See Cembrook v. Superior Court (1961) 56 Cal.2d 423, 429 [admitted matters are “not... to be tried”].) But it is also true that an admission may not be conclusive or dispositive on a particular issue. (Fredericks v. Filbert Co. (1987) 189 Cal.App.3d 272, 278.) So it is here. CUSA’s admission Garach deposited his payroll check without fault did not constitute an admission Garach could ignore CUSA’s requests to return the excess funds. Garach made no effort to return any sum, but instead spent it all. As noted, we must draw all “intendments and presumptions” in favor of the judgment. (Denham, supra, 2 Cal.3d at p. 564.) The issue here is not whether Garach bore some fault in the act of depositing the paycheck CUSA mistakenly issued to him. Rather, the issue was whether he subsequently misused the proceeds. Accordingly, in light of Garach’s dishonesty in failing to return the excess funds, CUSA was entitled to sue for conversion and unjust enrichment. (See, e.g., Haigler v. Donnelly (1941) 18 Cal.2d 674, 681 [conversion lies to recover money where “a specific sum capable of identification is involved”].)
In a related claim, Garach argues the trial court erred by overruling his motion “TO CONCLUSIVELY ESTABLISHED [sic] ADMITTED MATTERS BY PLAINTIFF’S RESPONSES TO REQUEST FOR ADMISSIONS....” Garach insists the trial court should have treated the pretrial motion as one for judgment on the pleadings, and erred by failing to grant judgment in his favor. This tack, however, does no more than recycle Garach’s argument that CUSA’s check-deposit admission was somehow conclusive or dispositive in negating CUSA’s legal claims. As discussed above, that is not the case.
Garach’s reliance on the W-2 statement is similarly unavailing. He asserts the W-2 form CUSA issued equitably estopped it from continuing to prosecute its lawsuit. Not so. Equitable estoppel applies where an innocent party, ignorant of the true state of facts, relies to its detriment on the other party’s statement or conduct, which that party as a matter of equity will not be permitted to contradict. (Bailey v. Outdoor Media Group (2007) 155 Cal.App.4th 778, 790 (Bailey).)
The doctrine does not apply for the simple reason of timing: Garach did not rely on the W-2, but instead withdrew and spent all the overpaid funds before it issued months later. He points to no reliance on the W-2 statement in expending the funds. In any event, equitable estoppel is a question of fact (Bailey, supra, 155 Cal.App.4th at p. 790), and thus we may not disturb the trier of fact’s assessment of the equities. A reasonable fact finder could conclude Garach was not ignorant of the true state of facts; rather, his conduct showed he knew or suspected he was not entitled to the funds, but nevertheless unjustly withdrew and converted them to his own use. It was for the trial court to determine whether he was a credible witness, and the court rejected both his purported reliance on the W-2 form and his claimed reliance on a nonsupervisor’s advice that he should spend the funds or that they were a bonus. It was for the trier of fact to assess the equities and determine whether Garach was lying or whether any asserted reliance was reasonable. (Ibid.; see also Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 926 [“All issues of credibility are... within the province of the trier of fact”].)
Garach’s other equitable arguments concerning the W-2 statement also fail, including waiver. “The essence of waiver... is the voluntary relinquishment of a known right....” (City of Hollister v. Monterey Ins. Co. (2008) 165 Cal.App.4th 455, 487.) Garach presented no evidence concerning CUSA’s preparation or submission of the W-2 statement to suggest CUSA knowingly and voluntarily intended the W-2 statement to act as a waiver of its right to recoup its funds. Contrary evidence abounded. For instance, CUSA continued to pursue its lawsuit against Garach for the funds. Doing so was not fatally inconsistent because, as the trial court observed, any tax issues could be resolved with amended returns after a trial resolved the disputed nature of the funds. It was for the trier of fact to resolve the conflicting evidence (Overton, supra, 94 Cal.App.2d at p. 370) and any conflicting equities (Bailey, supra, 155 Cal.App.4th at p. 790). In particular, the issue of CUSA’s alleged voluntary waiver was for the trial court, not this court, to determine as a matter of fact. (See, e.g., People v. Holloway (2004) 33 Cal.4th 96, 115.)
In another equitable argument, Garach states he is “still asserting latches [sic] as a complete defense to Plaintiff’s action.” But he adds nothing beyond the bare assertion; he provides no substantive rationale for laches, nor cites any authority. Consequently, the argument is forfeited. (People v. Stanley (1995) 10 Cal.4th 764, 793; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785; see Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 [“Issues do not have a life of their own: If they are not raised or supported by argument or citation to authority, [they are] waived”].) Garach also forfeits all arguments he does not identify by the required heading or subheading in his opening brief. (Cal. Rules of Court, rule 8.204; Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4 (Opdyk).)
Garach suggests in his reply brief that judicial estoppel applies to CUSA’s issuance of Garach’s W-2 form, acting as a binding determination that CUSA’s overpayment actually constituted part of his legitimate 2008 earnings. Garach forfeits this argument on appeal by not raising it until his reply brief. (REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500.) In any event, the argument is spurious because a W-2 is not itself a judicial proceeding or determination by a tribunal, a requirement for the judicial estoppel doctrine to apply, according to the very authority Garach cites. (See Aguilar v. Lerner (2004) 32 Cal.4th 974, 986-987.) Garach therefore errs in accusing the trial court of “promoting... illegality” by accepting what Garach claims amounted to a criminally false W-2 statement when CUSA successfully contested his claim he earned the overpaid funds. Garach grossly misunderstands the trial court’s role, which was not to evaluate federal tax law or the intricacies of W-2 statements, but rather to determine the claims before it. The trial court as the trier of fact reasonably could determine Garach did not earn over 8, 000 hours of wages in a single day, that CUSA did not intend to give Garach the overpaid funds, and that the equities lay with CUSA instead of a tortfeasor who unjustly converted the funds. It was for the trier of fact to determine the issue of unclean hands Garach so strenuously asserts. In sum, Garach’s attempts to invoke equity and reargue factual matters on appeal are wholly without merit.
B. Other Arguments Concerning the Admissibility or Effect of Evidence
Garach insists the trial court should have taken judicial notice his W-2 statement established his actual earnings for 2008 included the disputed payroll check. This is no more than a rehash of Garach’s position that the W-2 form required judgment in his favor. But as discussed, Garach’s right to keep the full amount of the payroll deposit was a matter of dispute. Disputed factual issues such as those here are not matters subject to judicial notice. (Evid. Code, §§ 451, subd. (f), 452, subds. (g) & (h).) Accordingly, the argument fails.
Similarly, Garach misunderstands the nature of hearsay evidence. He insists the W-2 statement was admissible as a party admission. (Evid. Code, § 1220.) The claim is misplaced because the trial court admitted the W-2 statement, but simply did not find it dispositive. Unlike a discovery admission, evidence falling under a hearsay exception is not conclusive; rather, the exception simply makes the evidence admissible (Evid. Code, § 1200, subd. (b)), leaving the trier of fact to determine its weight and effect. There was nothing determinative about the W-2 form as admissible hearsay evidence.
Garach’s reliance on Evidence Code section 622 for the W-2’s conclusive effect is misplaced. Garach quotes the statute, but does not explain how it applies or how the W-2 statement qualifies as an “instrument” between the parties, nor how the sum stated on the W-2 form escapes the express exception for “consideration.” The argument is therefore forfeited. (Opdyk, supra, 34 Cal.App.4th at pp. 1830-1831, fn. 4 [“coherent argument[]” required].) In any event, the presumption established by section 622 “is nothing more than the doctrine of ‘estoppel by contract’” (Estate of Wilson (1976) 64 Cal.App.3d 786, 801 — and since the W-2 bears no resemblance to a contract nor establishes, as discussed, a reason for estoppel, Garach’s reliance on the presumption fails.
Evidence Code section 622 provides: “The facts recited in a written instrument are conclusively presumed to be true as between the parties thereto, or their successors in interest; but this rule does not apply to the recital of consideration.”
Finally, Garach lists by number several exhibits he complains should have been excluded because CUSA did not include them on a pretrial list. But Garach fails to describe any of the exhibits, except one in a conclusory fashion (“reenacted paycheck stub, exhibit 112”), making it impossible to judge the prejudicial effect of the trial court’s asserted error in admitting the exhibits. (Cal. Const., art. VI, § 13; City of Oakland v. Public Employees’ Retirement System (2002) 95 Cal.App.4th 29, 51-52 [appellant must demonstrate not only error, but prejudice].) Moreover, the trial court expressly stated it did not rely on the contested exhibits, including Exhibit 112. Consequently, there is no conceivable basis for reversal.
C. The Judgment Against A. Garach Must Be Reversed
The trial court found Garach misspent $39,000 of the overpaid funds on a personal, nonmarital obligation, sending that amount to a relative in India. Accordingly, the trial court held A. Garach jointly liable with Garach in conversion and unjust enrichment for spending about $3,000 of the disputed check on marital community items. But the trial court also concluded that in his final three pay periods, Garach earned more than $3,300 of the contested $43,220.14 payroll check. Because Garach’s earnings exceeded any expenditures attributable to A. Garach, there is no basis for the judgment against her. Accordingly, we reverse that part of the judgment.
III
DISPOSITION
The judgment is affirmed as to Jagdish Garach, but reversed concerning his wife Anila Garach. Respondent is entitled to its costs on appeal, but only against Jagdish Garach and not Anila Garach. Anila Garach is entitled to her costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P.J., MOORE, J.