Opinion
G061054
07-10-2023
EVENTS AND TOURS, INC., Plaintiff and Respondent, v. CHRIS NOONAN, et al., Defendants and Appellants.
Law Offices of Robert R. Massey and Robert R. Massey, for Defendants and Appellants. Law Offices of Peter J. Porter and Peter J. Porter, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 30-2020-01145680 Glenn Salter, Judge. Affirmed.
Law Offices of Robert R. Massey and Robert R. Massey, for Defendants and Appellants.
Law Offices of Peter J. Porter and Peter J. Porter, for Plaintiff and Respondent.
OPINION
SANCHEZ, ACTING P. J.
Defendants Chris Noonan, Jim Shab, and Business Expo Center also known as Anaheim Business Expo Center appeal from the court's judgment awarding $39,350 in favor of plaintiff Events and Tours, Inc. The underlying action arises from an agreement between plaintiff and defendants whereby defendants agreed plaintiff could host an event at the Business Expo Center in Anaheim, California. The Anaheim Fire Marshall later informed plaintiff it could not host its event at the venue. Plaintiff and defendants then entered into a "Cancelled Event Release of Liability" (the Release of Liability).
According to the Release of Liability, defendants returned plaintiff's deposit and plaintiff agreed to release defendants from all claims or damages relating to the event cancellation.
Plaintiff ultimately filed a complaint against defendants for breach of contract and fraud. After a bench trial, the court found plaintiff's claims were not barred by the Release of Liability because there was no consideration for the waiver of damages and plaintiff was economically coerced into signing it. The court also awarded damages to plaintiff for its lost profits.
Defendants contend the court erred because consideration was not required for the waiver of damages provision in the Release of Liability. Alternatively, they claim there was adequate consideration because they refunded plaintiff's deposit. They further argue plaintiff failed to prove economic duress and could not rescind its agreement to the waiver of damages provision. Finally, defendants contend the damages award was not supported by the evidence. Unfortunately, the lack of a reporter's transcript from trial precludes defendants' arguments. Without an adequate record, we are unable to meaningfully review defendants' contentions. We accordingly affirm the judgment.
FACTS
The Complaint
In 2020, plaintiff filed a complaint alleging plaintiff and defendants had entered into an agreement pursuant to which plaintiff would host a New Year's Eve event at the Business Expo Center in Anaheim, California on December 31, 2019. Plaintiff would provide its own outside services, including a disc jockey, catering, and valet parking. About 500 to 600 guests were expected to attend the event.
According to the complaint, a few days before the event, the Anaheim Fire Marshall informed plaintiff the Business Expo Center was not allowed to host an event for the number of guests expected or to host the activities planned for the event. The complaint alleged defendants knew the event and large number of guests could not be hosted at the Business Expo Center at the time they entered into the agreement with plaintiff.
Because the event could not go forward at the Business Expo Center, plaintiff was forced to relocate the event to another location at a significantly higher cost. The new location required plaintiff to use in-house services, which also resulted in a financial loss. To pay for the new location, plaintiff needed defendants to refund $27,840 that plaintiff had paid to defendants. As a condition to refunding this amount, defendants required plaintiff to sign the Release of Liability. The complaint alleged plaintiff signed the Release of Liability under duress and coercion.
Based on the above allegations, the complaint sought $90,000 in damages and asserted causes of action for breach of contract and fraud.
Trial and the Court's Order
The case proceeded to a bench trial, and the court ultimately found in favor of plaintiff. In reaching this conclusion, the court noted the Anaheim Fire Marshall shut down plaintiff's event because the Business Expo Center was not allowed to host events of that size. The court added that defendant Jim Shab testified the venue was limited to 50 people but the City had previously given permission to hold larger events. According to the court's order, defendants proposed moving the event to M-3 Live and to return plaintiff's deposit. Plaintiff signed the Release of Liability, which purported to release any liability. Plaintiff thereafter used its deposit to hire a new venue, and the event was a success at the new location.
The court then summarized each party's position. Plaintiff argued defendants knew their venue could not host 500 people or more without permission from the City of Anaheim (the City) and they did not try to obtain a permit from the City. Defendants argued plaintiff's claims were barred by the Release of Liability, which contained a waiver of damages provision. They also argued plaintiff had the burden of obtaining a permit from the City to host the event.
With respect to the waiver of damages provision in the Release of Liability, the court found it was unenforceable because there was no consideration for the provision and plaintiff was economically coerced into signing it. The court emphasized the Release of Liability merely returned plaintiff's deposit, which plaintiff needed to secure a new venue.
With respect to any necessary permit for the event, the court found plaintiff did not have the burden to obtain the permit. First, the court noted the parties' agreement did not specify what type of permit was required, and plaintiff testified it was told to get an ABC license, which it attempted to do. Second, the court held, "[T]he undisclosed 'permit' that was needed from the [C]ity was not a standard ministerial act." Relying on the evidence presented at trial, the court noted the venue was not allowed under the City's municipal law to hold an event for that many guests. The court emphasized whether the City would have issued a permit for a larger event was discretionary. The court further noted the evidence did not indicate what permit was required, and no City representative was called as a witness to explain the permit requirement. Regardless, the court believed the permit was "akin to a conditional use permit." The court also indicated there was evidence defendants tried to obtain a conditional use permit from the City to host similar events in the past, but the City did not grant the permit. The court concluded defendants knew a non-ministerial permit was required but failed to tell plaintiff. Likewise, plaintiff was justified in believing its event could be hosted at the Anaheim Business Expo and defendants would obtain any necessary approvals. The court accordingly found defendants breached the parties' agreement and committed fraud.
Finally, as to plaintiff's damages for lost profits, the court identified four categories: (1) valet parking fees; (2) refunds issued to guests who no longer wanted to attend the event at the new venue; (3) bar sale revenues; and (4) profits associated with a hookah lounge. For the parking fees, the court held plaintiff did not show damages by a preponderance of the evidence. With respect to refunds, the court found it was likely some guests asked for a refund because the venue changed. Because plaintiff's testimony was not "inherently incredible" and there was no evidence to the contrary, the court awarded $6,850 to plaintiff for refunds issued to guests. The court also awarded $13,500 in bar sales because plaintiff testified it would have received a portion of the bar sales at the Business Expo Center but this was not allowed at M-3 Live. Again, the court noted plaintiff's testimony was not "inherently incredible" and there was no evidence to the contrary. As to the hookah lounge, the court indicated plaintiff testified the hookah lounge was better suited for the Business Expo Center and that plaintiff ended up with unsold hookahs and tobacco. The court ultimately awarded $19,000 in losses from the hookah lounge.
In November 2021, the court entered judgment and awarded $39,350 in plaintiff's favor. Defendants timely appealed.
DISCUSSION
Defendants contend the court erred by finding the waiver of damages provision in the Release of Liability was unenforceable. They also argue the evidence did not support the damages awarded to plaintiff.
The lack of a reporter's transcript from trial precludes defendants' latter argument. In the absence of a reporter's transcript or a settled statement describing the testimony at trial, there unfortunately is not much we can do when a party challenges the sufficiency of the evidence. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132 [if a defendant "elected not to provide a reporter's transcript of the trial proceedings," the defendant has "no basis upon which to argue that the evidence adduced at trial was insufficient to support the trial court's finding"]; Gonzalez v. Rebollo (2014) 226 Cal.App.4th 969, 977 ["Without a complete record, we are unable to determine whether substantial evidence supported the implied findings underlying the trial court's order"]; Navarro v. Perron (2004) 122 Cal.App.4th 797, 801 ["Where the appeal is on the clerk's transcript only, we must conclusively presume the evidence is sufficient to support the trial court's findings of . . . damages"].) We accordingly have no basis to conclude there was insufficient evidence to support the damages award.
Turning to the waiver of damages provision in the Release of Liability, defendants raise several arguments that likewise are based on the sufficiency of the evidence. For example, they argue the court erred by finding plaintiff was economically coerced into signing the Release of Liability. According to defendants, plaintiff had not proven economic duress because it "failed to offer any evidence it attempted to return the $27,840.00 paid to it [by defendants] for the Release." Defendants similarly contend plaintiff could not rescind its agreement to the waiver of damages provision because "[p]laintiff failed to offer any evidence it attempted to return the $27,840.00 paid to it for the Release." We are unable to meaningfully review these contentions because there is no reporter's transcript of what evidence was presented at trial. "Where no reporter's 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." (Estate of Fain (1999) 75 Cal.App.4th 973, 992.)
Defendants assert a few arguments that are not based on a sufficiency of the evidence. They claim the court erred by finding the waiver of damages provision in the Release of Liability was unenforceable because there was no consideration for the provision. According to defendants, consideration was not required for the provision to be enforceable. They alternatively claim there was consideration for the provision because they refunded the entire amount of plaintiff's deposit. But even assuming arguendo consideration was not required or that there was adequate consideration, the court found the waiver was unenforceable because plaintiff was economically coerced into signing the Release of Liability. As noted ante, there is no reporter's transcript or evidence suggesting the court erred in making this finding. We accordingly must affirm.
DISPOSITION
The judgment is affirmed. Plaintiff shall recover its costs incurred on appeal.
WE CONCUR: MOTOIKE, J., DELANEY, J.