Opinion
H049431
09-13-2023
VICTOR EVERETT, Plaintiff and Appellant, v. ROMELIA SOTO, Defendant and Respondent.
NOT TO BE PUBLISHED
(Santa Clara County Super. Ct. No. 17CV309904)
LIE, J.
Plaintiff Victor Everett appeals from a judgment after trial in which he attempted to prove he owned two real properties in partnership with defendant Romelia Soto. When he did not appear for the second day of trial, the trial court granted judgment for Soto, finding that Everett had failed to meet his burden of proof, and that his claims were barred for reasons including the statute of limitations and unclean hands; the court thereafter denied his motion to reconsider or set aside the judgment. We express no opinion on the strength of the evidence Everett might have been able to present, had he fully participated in pretrial discovery and at trial. But on the record that delimits our review, we are obliged to affirm the judgment.
In a second amended motion to augment the record, Everett requests that we allow augmentation with reporter's transcripts and documents filed in other cases between the same parties (family law, elder abuse, and domestic violence) or, alternatively, that we take judicial notice of those documents. Although the transcripts and other documents from other cases the parties have litigated may bear some factual relationship to this case, it is not apparent that any of them were before the court in this civil lawsuit. (Evid. Code, § 452, subd. (d); Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632 ["As a general rule, documents not before the trial court cannot be included as part of the record on appeal and thus must be disregarded as beyond the scope of appellate review."].) We therefore deny the request.
Everett sued Soto, with whom he was once in a long-term cohabiting relationship, in May 2017. Everett disputed Soto's assertion of sole ownership of two residential properties: the Banff property and the Blue Mountain property. According to Everett, he and Soto jointly purchased the properties in 1978 and 1981, which they and, at various times, other Soto family members thereafter occupied. Everett contends that in May 2016, based on false claims of sole ownership and false allegations of criminal conduct, Soto wrongfully had him evicted from property he jointly owned.
We do not have the operative complaint in the record, but the judgment refers to causes of action for: (1) breach of partnership agreement; (2) constructive fraud; (3) constructive trust; (4) accounting; (5) conspiracy; and (6) conversion. Everett is self-represented on appeal, as he was at trial.
Over four years of pretrial proceedings-during which time Everett was variously represented by counsel and self-represented-Everett did not respond to Soto's discovery requests. In a December 11, 2019 order, the court (the Honorable Mark Pierce) granted Soto's motion to compel answers to interrogatories and document requests and to deem requests for admissions admitted.
The matter proceeded to trial by video conference in June 2021, the Honorable Roberta S. Hayashi, presiding. Everett contended at trial that the parties had a "verbal partnership, [that] what [they] built and what [they] bought would be for each other, not for her family nor for my family." In response to the trial court's question about what he did "in furtherance of [the] agreement," Everett asserted that he did all the maintenance work on the properties and paid all of the mortgage payments and taxes.
We understand the reference to a "verbal partnership" to mean an oral agreement.
At trial, Everett proffered certain evidence in his case in chief, including what he claimed was an original deed to one of the properties, but the court declined to admit evidence that would contradict the admissions Judge Pierce's December 2019 order deemed Everett to have made. On Soto's motion in limine, the trial court further ruled that "[t]o the extent that Mr. Everett now seeks to introduce evidence at trial, . . . any evidence . . . that was not produced in discovery may not be admitted." The trial court noted as well that Everett had executed a quitclaim deed in favor of Soto, leaving title to both properties in Soto's name only. Although Everett asserted that some of the deeds he sought to admit contained "stipulations . . . to protect [Soto] and protect [him]self" from Everett's "ex-wife[,] who tried to steal everything" that Everett had, the trial court observed that the stipulations did not purport to affect title to the properties.
"The owner of the legal title to property is presumed to be the owner of the full beneficial title. This presumption may be rebutted only by clear and convincing proof." (Evid. Code, § 662.) We understand from Everett's remarks at oral argument that he sought at trial to rebut this presumption from the current title documents by evidence of the parties' past dealings and their relative contributions to the acquisition of the properties.
The trial judge attempted to ask Everett about money he may have contributed to the payment of the mortgage on the Banff property and any rent received, but technical difficulties at times prevented the judge and court reporter alike from hearing Everett's responses. The court also took testimony from a third-party witness, certified public accountant Phillip Steven Foster, before concluding its questioning of Everett. Foster testified that as Soto's tax preparer since 2016, he never saw any indication she was in a partnership with Everett. He was further allowed to opine that, to his knowledge, the Banff and Blue Mountain properties were owned solely by Soto.
Given the technical difficulties during this first day of trial, the trial judge told Everett that for the next day of trial, he could either "continue to appear remotely or . . . come into the courtroom, it's your call." Everett agreed to appear in person for the resumption of trial the following morning at 9:00 a.m. The next day, however, Everett did not appear, either in person or by video. The court resumed the trial in Everett's absence and ultimately granted judgment in Soto's favor, dismissing without prejudice a cross-complaint filed by Soto.
At the hearing on Everett's motion for reconsideration, the court stated that it had attempted to call him on this second day of trial but received no answer, waited until 9:20 a.m. before proceeding on the record for another 25 to 30 minutes, but heard nothing from Everett during that time. Everett represents in his reply brief on appeal that illness prevented him from attending the second day of trial and that he called a deputy clerk and left a message to that effect. In his declaration in support of his motion for reconsideration, Everett mentioned generally that the stress of litigation had caused him "a severely painful and disturbing medical issue" for several days prior to trial, although he did not specifically explain his nonappearance on the trial's second day.
In determining that Everett "failed to meet his burden of proof for a prima facie case on his causes of action," the trial court specifically found that (1) there was no written agreement demonstrating the real property was held as a partnership, and any oral agreement to that effect would be barred by the statute of frauds; (2) Soto held sole title to the two pieces of real property for years and Everett knew that more than four years prior to filing his complaint; (3) Everett presented no evidence that he contributed any funds to the purported partnership within those four years, so his claims for constructive fraud, constructive trust, restitution/accounting, and conversion were barred by the applicable statutes of limitations; (4) Everett's requests for equitable relief (constructive fraud, constructive trust, and accounting) were barred by the doctrine of unclean hands; and (5) the responses to Soto's requests for admission established that there was no partnership, no agreement, no breach within the four-year statute of limitations, and no conversion of Everett's personal property.
Nineteen days after entry of judgment, Everett filed a motion for reconsideration or, in the alternative, a motion to vacate/set aside judgment, under Code of Civil Procedure sections 1008 and 473, respectively. Among Everett's asserted grounds for relief, he contended that the trial judge should have recused herself upon his oral statement of disqualification under Code of Civil Procedure section 170.6 and that he had been prejudiced by wrongful acts or omissions by his former attorney and Soto's present attorney. He further argued his and Soto's relative lifetime earnings supported his continued ownership interest in the disputed real properties.
The trial court denied the motion, finding it untimely as a motion for reconsideration. The court also addressed the merits of the motion to set aside the judgment, finding that Everett "failed to show fraud, mistake, inadvertence or excusable neglect to support his motion to set aside the Judgment of June 9, 2021, or grounds for new trial." Specifically, the trial court stated that Everett's disqualification motion had been untimely, made as it was after Everett had been sworn as a witness. The court also reiterated its prior determination that Everett "could not meet his burden of proof" because there was no agreement relating to holding the real property as a partnership, there was no admissible evidence to rebut the presumptions of title, and several of Everett's causes of action were barred by the statute of limitations. The court stated that "[t]hese bases for Judgment would not be altered by the Court's 'reweighing' of the limited admissible evidence now proffered by [Everett]."
Everett attached to his motion documents including the judgment, deeds, social security earnings, a list of items from the house, part of a domestic violence restraining order application, handwritten responses to 64 questions put to him by his attorney (presumably in response to discovery requests), some correspondence, his trial exhibits, checks from his and Soto's joint checking account, trust and insurance documentation, and the Santa Clara County Bar Association Code of Professionalism.
Everett timely appealed.
II. DISCUSSION
A. Standard of Review
It is well settled "that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment." (Jameson v. Desta (2018) 5 Cal.5th 594, 609 (Jameson).) "Stated another way, all presumptions are indulged to support the trial court order or judgment 'on matters as to which the record is silent, and error must be affirmatively shown.'" (Smith v. Ogbuehi (2019) 38 Cal.App.5th 453, 473.)
Where the basis for challenging a judgment is the sufficiency of the evidence, "an appellate court must affirm the decision of a trial court if, after resolving all evidentiary conflicts and indulging all reasonable inferences in support of the judgment, there is substantial evidence to support it." (County of Riverside v. City of Murrieta (1998) 65 Cal.App.4th 616, 620.) "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.) Where, as here, a trial court determines that the party assigned the burden of proof has failed to carry that burden," 'the question . . . becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) "uncontradicted and unimpeached" and (2) "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding." '" (Juen v. Alain Pinel Realtors, Inc. (2019) 32 Cal.App.5th 972, 978.)
To the extent a party disputes a trial court's ruling on the admissibility of evidence, we review under the deferential standard of abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 717.) The imposition of a discovery sanction, such as the exclusion of documents or testimony not produced in discovery, is likewise entrusted to the trial court's discretion and is "subject to reversal only for manifest abuse exceeding the bounds of reason." (Kuhns v. State of California (1992) 8 Cal.App.4th 982, 988.)
B. Everett's Claims of Error
Everett devotes much of his briefing to his perspective on his former attorney's deficient performance, the veracity of Soto's counsel, and events occurring in other cases involving the same parties. Everett argues that-as "a result of 'ineffective assistance' of his own counsel, of violations of the Rules of Professional Conduct, legal misconduct by [Soto's] attorneys, [Soto's] refusal to release Everett's property, negligent, judicial error in Family Court, the [COVID] pandemic, an overbooked court calendar, [s]uperior court clerk's errors compiling the [r]ecord &violations of California [c]anons"-he was denied the right to present his case to the court and have it heard on its merits. But other than the reported nonfeasance of his counsel, which Everett contends resulted in the adverse discovery order that affected what Everett could present at trial, none of the other issues are before us in this appeal. Everett's appeal from the judgment calls for us to review only whether the trial court in this particular civil lawsuit committed prejudicial error.
On appeal, Everett represents that his attorney failed to respond to or even inform Everett about discovery propounded by Soto. Soto's counsel at oral argument conceded that Everett made this claim in the trial court before issuance of the December 2019 order deeming the requested admissions admitted; she asserted, however, that the trial court based the December 2019 order on Everett's own unresponsiveness after his counsel was relieved. Although we are unable to confirm the accuracy of her assertion, it is the appellant's burden to affirmatively demonstrate error on the record before us. (Jameson, supra, 5 Cal.5th at pp. 608-609.) Accordingly, we are not permitted to speculate as to the contents of missing portions of the record or issues an appellant may have raised below. (Kearl v. Board of Medical Quality Assurance (1986) 189 Cal.App.3d 1040, 1051-1052.) We must presume that the record before Judge Pierce supported imposition of the discovery sanction based on Everett's conduct and not his former lawyer's.
Elsewhere in his opening brief, Everett does identify several purported errors in the trial proceedings here: (1) ineffective assistance of counsel denied him a right to be heard in his earlier-filed family court cases and then in this civil action; (2) the court failed to allow "exculpatory" testimony and other evidence; (3) Everett proved evidence presented by Soto to be "false," but the court considered it true; (4) the court failed to exclude libel and false allegations; (5) some evidence entered by Soto was incomplete or altered; (6) Everett's peremptory challenge to the trial judge was wrongfully denied as untimely; (7) the court did not provide for orderly conduct of the proceedings; and (8) the court did not accurately apply the statute of limitations to Everett's complaints regarding actions initiated by Soto and Soto's children in 2014 and 2016.
First, "the general rule is that attorney neglect in civil cases, if any, is imputed to the client." (In re Marriage of Campi (2013) 212 Cal.App.4th 1565, 1575 [distinguishing criminal and dependency proceedings].) In arguing for a civil right to effective representation, Everett relies on case authority from dependency proceedings, where (by statute) "[a]ll parties who are represented by counsel . . . are entitled to competent counsel." (Welf. &Inst. Code, § 317.5; In re A.R. (2021) 11 Cal.5th 234, 243; In re Kristin H. (1996) 46 Cal.App.4th 1635, 1662.) But this is not a dependency case, and we must apply the general rule applicable to civil proceedings, where failures of representation are strictly a matter to be resolved between client and counsel, rather than between the parties.
Likewise, Everett's argument regarding a right to present "exculpatory" evidence has no application in a civil lawsuit such as this one, because "exculpatory evidence is evidence that tends to exonerate [a criminal] defendant from guilt." (J.E. v. Superior Court (2014) 223 Cal.App.4th 1329, 1335.) This civil proceeding is governed by the Civil Discovery Act (Code Civ. Proc., § 2016.010 et seq.) and not the constitutional principles applicable in a criminal case. We understand Everett by his reference to exculpatory evidence to assert that the trial court erred in the enforcement of evidence sanctions, but a discovery order will be set aside only when there has been an abuse of discretion by the trial court. (MacQuiddy v. Mercedes-Benz USA, LLC (2015) 233 Cal.App.4th 1036, 1045.) Everett establishes no such abuse.
Once certain matters had been deemed admitted, such as the genuineness of the deeds, they were conclusively established against Everett, and he could "withdraw or amend an admission made in response to a request for admission only on leave of court granted after notice to all parties." (Code Civ. Proc., §§ 2033.300, 2033.410.) With regard to the preclusion of testimony and evidence not produced in discovery, a trial court's "power to impose discovery sanctions is a broad discretion subject to reversal only for arbitrary, capricious, or whimsical action." (Calvert Fire Ins. Co. v. Cropper (1983) 141 Cal.App.3d 901, 904.) This power includes the imposition of an evidence sanction prohibiting a party from introducing designated matters in evidence. (Code Civ. Proc., § 2023.030, subd. (c).) Everett blames his former counsel, and purported deceit by opposing counsel, for the problems with discovery; he points to no error by the trial court in this regard, instead asserting that the trial judge should not have "expected Everett to understand complicated procedural rules." In our deferential review, we have no basis to conclude that "no reasonable judge would have made a similar order under the same circumstances." (In re Marriage of Winick (1979 89 Cal.App.3d 525, 528; see also Kuchins v. Hawes (1990) 226 Cal.App.3d 535, 541 ["An appellate court may reverse the trial court's decision only if, based on the evidence viewed most favorably in support of the trial court's decision, it finds that no reasonable judge could have reached the same result."].)
A trial court may permit such withdrawal or amendment "only if it determines that the admission was the result of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially prejudiced in maintaining that party's action or defense on the merits." (Code Civ. Proc., § 2033.300, subd. (b).) If this is granted, the court may impose conditions including that "the party who obtained the admission be permitted to pursue additional discovery related to the matter involved in the withdrawn or amended admission." (Code Civ. Proc., § 2033.300, (c)(1).) The record does not reflect that Everett gave notice of a request for leave to withdraw or amend his admissions.
Everett's failure to support his remaining claims of trial error "with reasoned argument or citation to authority" is likewise fatal to those claims. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784; Cal. Rules of Court, rule 8.204(a)(1)(B) [each brief must state each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority].) "It is a fundamental rule of appellate review that the judgment appealed from is presumed correct." (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) "It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness." (Ibid.) Accordingly, "[w]hen an appellant asserts a point but fails to support it with reasoned argument and citations to authority, we treat the point as forfeited. [Citation.]" (Tellez v. Rich Voss Trucking, Inc. (2015) 240 Cal.App.4th 1052, 1066.)
It has been recognized that when a case involves a self-represented litigant, a court must "balance the sometime conflicting public interests in (1) a judiciary that acts with independence, integrity and impartiality and (2) a judicial system that provides citizens with meaningful access to justice." (Nuno v. California State University, Bakersfield (2020) 47 Cal.App.5th 799, 809.) A trial court is expected to both" 'dispose of matters promptly . . . and efficiently'" while also" 'provid[ing] all litigants the opportunity to have their matter fairly adjudicated in accordance with the law.'" (In re Marriage of Knox (2022) 83 Cal.App.5th 15, 41, fn. 14, italics omitted (Knox).)" '[W]hen a litigant is self-represented, a judge has the discretion to take reasonable steps, appropriate under the circumstances and consistent with the law and the canons, to enable the litigant to be heard. [Citation.]'" (Ibid., italics omitted.)
Yet the court is also required" 'when engaging in such activities to avoid becoming an advocate and stepping out of the judicial role.' [Citation.]" (Knox, supra, 83 Cal.App.5th at p. 41, fn. 14.) Self-represented litigants "are held to the same standards as attorneys." (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543; see also Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1270 ["self-represented litigants are generally entitled to no special treatment"].) "[M]ere self-representation is not a ground for exceptionally lenient treatment." (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984.) Otherwise, "exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation." (Id. at p. 985.)
Everett has not sufficiently identified or explained, with citations to relevant authorities and references to the record, any specific error made by the trial court in this lawsuit. Further, despite being instructed to appear for the second day of trial by the trial court, so that he could present additional evidence, Everett did not do so. We have no basis in the record to treat this as a consequence of his self-represented status, any error by his prior counsel, or any conduct by Soto or opposing counsel. On this record, we cannot state that the trial court abused its discretion in making evidentiary rulings or that its judgment was not supported by substantial evidence.
C. Reconsideration/Set Aside
Everett provides no basis for finding error by the trial court in denying his motion for reconsideration or to set aside the judgment. He notes that his motion for reconsideration included "127 pages of [s]upporting [d]ocumentation," but he does not explain why any potentially new evidence should be exempted from the scope of the discovery sanction or, alternatively, why he could not have proffered it at trial, including on the second day of trial at which he did not appear. To the extent the trial court declined to excuse his nonappearance without documentation of his stated inability to appear, we are unable to conclude that the trial court abused its discretion in implicitly rejecting his explanation. To the extent Everett argues that bias or prejudice by the trial judge and the denial of his motion to disqualify her is relevant to our review, he acknowledges that the denial of his disqualification motion is not an appealable order. (See Code Civ. Proc., § 170.3, subd. (d).) We further observe that Everett points to no evidence of bias in the record. Although he suggests that the trial judge "went out of her way" to show a witness how to use Microsoft Teams but "only criticized" Everett in connection with his use of Teams, our review of the reporter's transcript discloses no such criticism. For the reasons discussed in connection with the appeal of the judgment, we affirm the order on the motion for reconsideration or to set aside the judgment.
III. DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to Soto.
WE CONCUR: GREENWOOD, P.J., GROVER, J.