Opinion
H032646.
2-25-2009
MARTIN DROBAC et al., Plaintiffs and Respondents, v. ARLENE BURNS et al., Defendants and Appellants. ARLENE BURNS, Plaintiff and Appellant, v. MARTIN DROBAC et al., Defendants and Respondents.
Not to be Published in Official Reports
This commercial lease dispute involves respondents Martin Drobac and Becky Drobac, the owners of a commercial building in Soquel, California, and appellants Arlene Burns and Danny Burns, the lessees/occupants. The relationship arose originally out of a 1995 written lease to Arlene, who established an antique store that included a number of sublessee-dealers. The Burnses occupied the premises until July 2005.
For the sake of clarity and meaning no disrespect, we refer to individual parties by their forenames.
Martin sued the Burnses for unlawful detainer in June 2005; he later amended his complaint to allege a claim for the reasonable rental value of the premises for a period of approximately one and one-half years and a claim for damages for waste. Arlene brought a separate action against the Drobacs. Ultimately, the two consolidated cases were tried in August 2007, and the jury found in favor of Martin on his complaint and in favor of the Drobacs on Arlenes complaint.
The Burnses appeal from the judgment, claiming that there was no basis for a jury finding of waste to support a damage award of $18,721.09 and that any award against Danny was improper in any event. They argue further that the court erred in granting nonsuit as to Arlenes cause of action for conversion. Lastly, the Burnses contend that they were erroneously deprived of the right to claim a setoff in Martins suit; that setoff was based upon the assertion that Arlene had paid $6,753 for utilities charges that should have been assessed to Martins warehouse. We reject these claims of error and accordingly will affirm the judgment.
PROCEDURAL BACKGROUND
Although we routinely present a statement of facts in our opinions—particularly where, as is the case here, an appeal is taken from a judgment entered after a trial on the merits—we are unable to do so in this instance because the Burnses have failed to designate a reporters transcript from which such a statement could have been derived.
On June 24, 2005, Martin filed a complaint for unlawful detainer (limited civil case) against the Burnses. In it, he alleged that in January 1995, Arlene had entered into a written lease under which she had leased from him an approximate 4,500 square foot building located at 3010 Center Street, Soquel, California (the premises). He alleged further that he had served her with a 30-day notice of termination of tenancy.
After a court trial, judgment was entered in August 2005 against Arlene and in favor of Martin. Arlene appealed and the appellate division of the superior court ultimately reversed that judgment.
On September 28, 2005, Arlene filed her own complaint against Martin. In it she alleged claims for (1) breach of oral contract (claiming that Martin promised her that he would re-lease the property to her); (2) conversion (of the "business of subleasing to antique dealers and the business goodwill"); (3) fraud (promise without intent to perform); (4) inducing breach of contractual relations (between Arlene and antique dealers); (5) intentional interference with contractual relations; and (6) intentional interference with prospective economic relationship (between Arlene and antique dealers). Arlene apparently amended her complaint at a later time to add Becky as a defendant. The court ordered the two cases consolidated. At the same time, it granted Martins oral motion for leave to file an amended complaint in which he reclassified the action to an unlimited case and added claims for waste and for intentional destruction of property.
The amended pleading was not included in either appellants or respondents appendices. We glean the information from an entry in the superior courts docket dated October 18, 2006, indicating that Arlenes complaint was "updated to add Becky Drobac as defendant (add party)."
Nearly two years later, Martin filed a motion for leave to file a second amended complaint. He alleged that it was necessary to amend his complaint because the Burnses had filed a Chapter 7 bankruptcy petition in December 2003; Martin was not included in the bankruptcy mailing list; Martin did not learn of the bankruptcy until June 2007; and the lease was surrendered automatically by operation of law because the bankruptcy trustee did not assume the lease within 60 days of the bankruptcy filing. Accordingly, Martin sought leave to amend to change the legal theory from breach of written lease agreement to a claim for reasonable rental value during the period the Burnses occupied the premises after the lease was surrendered by operation of law. The unopposed motion was granted by the court.
The consolidated actions proceeded to a three-day jury trial commencing on August 13, 2007. The court minutes reflect that a motion for nonsuit with respect to Arlenes complaint was argued by the parties and was granted as to the claims for conversion and breach of contract. The minutes further reflect that the court instructed the jury as to the applicable law and that after the matter was submitted to the jury, it returned a verdict on August 15, 2007.
Judgment was entered on August 30, 2007. It recited that the jury had rendered its verdict by eight special verdict forms. In the first special verdict form, the jury found that the Burnses had failed to pay the reasonable rental value of the premises from February 6, 2004, to July 18, 2005, and assessed the damages as $10,438.00. The jury then concluded in the second form that the Burnses had committed waste on the premises, and assessed the damages as $18,721.09. In the remaining six special verdict forms, the jury rejected Arlenes claims based upon intentional misrepresentation, false promise, intentional interference with contractual relations (two separate forms), and intentional interference with prospective economic relations (two separate forms). On August 30, 2007, the court entered judgment in favor of Martin on his complaint against the Burnses for $29,159.09, in favor of the Drobacs on Arlenes complaint, and found that the Drobacs were the prevailing parties, entitling them to statutory costs.
The Burnses filed timely a motion for judgment notwithstanding the verdict and a motion for new trial. Both motions were opposed by the Drobacs. The clerks minutes reflect that the court heard and denied both motions on October 24, 2007. The Burnses filed a timely notice of appeal on February 22, 2008.
We conclude that the appeal is timely based upon what we believe to be an anomaly in the California Rules of Court governing the timeliness of civil appeals. (All further references to rules are to the California Rules of Court.) A notice of appeal must be filed "(1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled `Notice of Entry of judgment or a file-stamped copy of the judgment, showing the date either was mailed; [¶] (2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled `Notice of Entry of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or [¶] (3) 180 days after entry of judgment." (Rule 8.104(a).) But rule 8.108(b) states that the appeal filing deadline is extended where a party files a valid new trial motion, "(1) [i]f the motion is denied, until the earliest of: [¶] (A) 30 days after the superior court clerk mails, or a party serves, an order denying the motion or a notice of entry of that order; [¶] (B) 30 days after denial of the motion by operation of law; or [¶] (C) 180 days after entry of judgment." Here, the superior court docket reflects that the clerk gave notice of entry of judgment on August 30, 2007, and the Drobacs gave notice of entry of judgment on September 4, 2007. (The clerks notice was not included in the appendix filed by the Burnses, and they provided only an incomplete copy of the Drobacs notice, in violation of rules 8.120(b)(1), and 8.124(b)(1)(A).) Had no valid new trial motion been filed, rule 8.108(b) would not have extended the time, and the appeal deadline would have been October 29, 2007. Under the extension provided by that rule, had the court provided a written order to the parties denying the new trial motion or had the Drobacs counsel given written notice at the time such denial was announced by the court, the appeal deadline would have been November 23, 2007, i.e., three months earlier than the notice of appeal filed here. Because the file reflects no such order or notice, however, we conclude under rule 8.108(b)(1)(C) that the appeal deadline was 180 days after entry of judgment, i.e., February 26, 2008. We surmise that this disparity in the application of the rules where there has been a notice of entry of judgment—where, had there been an order or notice advising of the denial of the new trial motion, the appeal deadline would have been extended by 25 days, but because there was none in this case the deadline was extended by 120 days—is an unintended one. We nonetheless conclude that a forfeiture of appellate rights here would be contrary to the plain wording of rule 8.108(b).
ISSUES ON APPEAL
The Burnses present the following issues:
1. The evidence did not support a judgment that the Burnses were liable to Martin for $18,721 in damages for waste. The judgment against Danny for waste was insupportable in any event because he was not a tenant of the premises.
2. The court erred in granting the motion for nonsuit as to Arlenes claim for conversion against the Drobacs.
3. The Burnses are entitled to a setoff for the amounts paid for utilities by Arlene that were properly chargeable to Martin.
We address each of these contentions below.
DISCUSSION
I. Recovery of Damages for Waste
The Burnses argue that the evidence did not support a finding of waste warranting the imposition of damages in the amount of $18,721. They assert that "even though all the facts are true, they do not establish a prima facie cause of waste." They attack each item identified by them as having comprised the components of Martins damage claim. First, the Burnses assert that claimed damages related to the removal of an exterior sign atop the premises were not recoverable because, among other things, the lease permitted the lessees removal of it and because the law permits a tenant to remove his or her personal property not permanently affixed to the premises. Second, they argue that for the same reasons it was proper for Arlene, as the lessee, to remove other personal property, including interior stall dividers, screens, and shutters. Third, the Burnses claim that electrical expenses incurred by the lessor were not recoverable as damages for waste because under the lease, the lessor was responsible for maintenance of the electrical system. Fourth, they challenge the charges for the cost of the lessors restoration and improvement of a bathroom on the premises.
As a related matter, the Burnses assert that the award of damages for waste against Danny was in any event improper. The lease was between the Drobacs and Arlene. Because Danny was not a party to the contract, the Burnses assert that he cannot be liable as a tenant for waste.
The Burnses claim of error here is a challenge to the sufficiency of the evidence supporting a portion of the judgment, i.e., the jurys special verdict finding the Burnses liable for waste and that the total damages under that claim were $18,721. A disputed factual issue that has been resolved by the trial court is reviewed on appeal under the substantial evidence standard. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) As explained by the Supreme Court a number of years ago, "In reviewing the evidence on such an appeal all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible. It is an elementary, but often overlooked principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court. [Citations.]" (Crawford v. Southern Pac. Co. (1935) 3 Cal.2d 427, 429.) Although the record must be reviewed in its entirety, "all of the evidence must be examined, but it is not weighed. All of the evidence most favorable to the respondent must be accepted as true, and that unfavorable discarded as not having sufficient verity, to be accepted by the trier of fact. If the evidence so viewed is sufficient as a matter of law, the judgment must be affirmed." (In re Teels Estate (1944) 25 Cal.2d 520, 527.)
It is the appellants burden to establish that the judgment is not supported by substantial evidence. (In re Adoption of Allison C. (2008) 164 Cal.App.4th 1004, 1011.) In meeting that burden, the appellant is charged with presenting an adequate record from which the error is demonstrated. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.) In the case of an appellant challenging the sufficiency of the evidence, his or her failure to provide a reporters transcript of the trial proceedings is fatal. As has been explained, "Where no reporters transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error. [Citation.] The effect of this rule is that an appellant who attacks a judgment but supplies no reporters transcript will be precluded from raising an argument as to the sufficiency of the evidence. [Citations.]" (In re Estate of Fain (1999) 75 Cal.App.4th 973, 992.)
National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510 presents an example that is instructive to us in resolving the Burnses challenges based upon the sufficiency of the evidence. The appellants there—an attorney and his professional corporation—asserted a number of challenges to the judgment, including the absence of evidence to support a contract action or other basis for personal liability as against the attorney. (Id. at p. 518.) The appellate court rejected these and other challenges, citing as a basis, inter alia, the appellants failure to provide a reporters transcript of the trial proceedings. "[The appellants] contend that `the judgment is incorrect, erroneous and inconsistent with the facts and the law applicable thereto. When the record on appeal is on the clerks transcript alone, the appellate court does not presume that the record contains `all matters material to a determination of the points on appeal, unless the error claimed appears on the face of the record. [Citation.] [¶] `It is axiomatic in appellate review that a judgment of a lower court is presumed correct. [Citation.] This presumption has special significance when ... the appeal is based upon the clerks transcript. [Citation.] `It is elementary and fundamental that on a clerks transcript appeal the appellate court must conclusively presume that the evidence is ample to sustain the findings, and that the only questions presented are as to the sufficiency of the pleadings and whether the findings support the judgment. [Citations.] [Citations.] [¶] Here, the appeal is based solely upon the clerks transcript and the record does not provide any evidentiary basis whatever for attacking the trial courts rulings. . . . The record on appeal does not contain any testimony regarding the formation, existence, interpretation, or performance of the contract between the parties, nor is there a settled statement which might support the allegations of claimed error. We therefore presume the receipt of sufficient evidence in favor of the judgment. [¶] [The appellants] argument focuses entirely on the fact that the written contract was, on its face, only between [the respondent] and [the professional c]orporation. However, we have nothing in the record to show us what evidence was presented to the trial court which supported its ultimate finding that [the attorney] was also a party. . . . There was no error." (Id. at pp. 521-522.)
Here, the jury found by special verdict that (1) the Burnses committed waste on the premises, and (2) Martin suffered total damages of $18,721.09 as a result of such waste. This was founded on underlying separate causes of action alleged in Martins second amended complaint against the Burnses. Martin alleged that both Arlene and Danny committed specific acts of waste when they moved out of the premises in July 2005. Martin alleged further that the total damages he sustained as a result of the acts of waste exceeded $25,000. Moreover, it was alleged in the second amended complaint that both Arlene and Danny had been occupants of the premises who continued to occupy them after the lease was surrendered by operation of law due to the failure of the bankruptcy trustee to assume the lease.
In addition, Martin alleged in his second amended complaint that in April 2001, the parties—including Danny—executed a compromise and settlement agreement and modification of lease, a copy of which was attached as an exhibit and purported to show Dannys signature, as well as the signature of Arlene.
The Burnses elected to proceed without a reporters transcript. Since the record on appeal contains no testimony whatsoever concerning this claim of waste—or for that matter, concerning any of the parties claims or defenses—we will "presume[] that the unreported trial testimony would demonstrate the absence of error. [Citation.]" (In re Estate of Fain, supra, 75 Cal.App.4th at p. 992.) Further, notwithstanding Dannys challenge on the basis that he did not execute the lease, it is apparent that Martins legal theory was that the lease had terminated by operation of law in or about February 2004, and that Arlene and Danny occupied the premises thereafter as tenants at sufferance. We will presume that the evidence established that (1) both Arlene and Danny committed acts of waste, (2) Danny bore a sufficient relationship to the premises to be charged with waste, and (3) Martin sustained damages as a result of that conduct totaling $18,721.09. The Burnses sufficiency-of-the-evidence challenges which are unsupported by any testimony from the record must therefore fail. (Ibid.)
In their initial designation of the record, the Burnses indicated that they wanted the oral proceedings of any nonsuit motions prepared. They subsequently filed an amended designation electing to proceed on appeal without a reporters transcript.
II. Conversion Claim
The Burnses contend that the court erred by granting the Drobacs motion for nonsuit with respect to Arlenes claim for conversion. They argue specifically that it was incorrect for the court to bar Arlenes claim that the Drobacs converted the goodwill she had accrued from her relationships with sublessees of the premises on the basis that the claim was not actionable because goodwill is an intangible asset not subject to conversion.
We recognize that the standard of review of an order granting nonsuit is one favorable to the Burnses here. "In reviewing a grant of nonsuit, we are `guided by the same rule requiring evaluation of the evidence in the light most favorable to the plaintiff. [Citation.] We will not sustain the judgment `"unless interpreting the evidence most favorably to plaintiffs case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law." [Citations.]" (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.)
Obviously, we are precluded from conducting a meaningful review of the nonsuit order challenged here by the Burnses because of the absence of a record disclosing what evidence, in fact, was presented. Since the Burnses failed to meet their burden of presenting an adequate record to support their appellate challenge (Maria P. v. Riles, supra, 43 Cal.3d at p. 1295), we reject their claim that the court erred in granting the nonsuit motion as to Arlenes conversion claim. (Hodges v. Mark (1996) 49 Cal.App.4th 651, 657 [rejecting cross-appellants challenge to order granting nonsuit because that party failed to provide reporters transcript necessary for appellate review].)
IV. Setoff
The Burnses argue that they are entitled to a setoff of $6,753 against the amount recovered by Martin in his second amended complaint. They contend that Arlene, in addition to making utility payments for the antique store, unwittingly made payments for utilities charged for Martins warehouse located on the property adjacent to the leased premises. They argue that the courts order granting nonsuit as to Arlenes affirmative breach of contract claim—which claim included the allegation that the Drobacs had wrongfully disallowed Arlene a setoff for these utilities payments against rent that was owing—did not preclude her assertion of a setoff as an affirmative defense in her answer.
The argument implied from the Burnses contentions is that the court erred by allegedly precluding them at trial from raising setoff as an affirmative defense consistently with their answer. But there is nothing in the record before us that the court, in fact, precluded such setoff claim. Indeed, as pointed out by the Drobacs, there is nothing in the record confirming that the Burnses even asserted the setoff defense at trial. We cannot address a claim of error based upon nothing more than speculation that the court acted in a manner that deprived appellants of the right to assert an affirmative defense. "To overcome the presumption of the correctness of the trial courts orders, [the appellant] needed to make sure the record adequately reflected whatever error he believed the trial court made. [Citation.]" (Estate of Davis (1990) 219 Cal.App.3d 663, 670, fn. 13.) Here, the record is not merely inadequate to demonstrate the alleged error; there is no record that the court ruled in any manner at all with respect to the Burnses setoff defense. Accordingly, the claim of error fails by reason of the Burnses failure to meet their burden of presenting this court with an adequate record demonstrating the error.
The Drobacs argue further that the Burnses failed to present any jury instructions or special verdict forms concerning their setoff defense and "did not object to the special verdict forms [that] were given to the jury even though a setoff defense was not included." While, given the absence of a reporters transcript, we have no way of confirming the truth of these assertions, we observe that the Burnses did not dispute them in their reply brief.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
Bamattre-Manoukian, Acting P.J.
McAdams, J.