Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, 37-2007-00050242- CL-BC-NC; UN022480, 37-2007- 00050415-CL-BC-NC Lisa Guy-Schall, Judge.
BENKE, Acting P. J.
Plaintiffs and cross-defendants GOFAT, LLC, and Bernard Goldstein (together, Goldstein) appeal the judgment after a bench trial. The court found Goldstein deliberately concealed and misrepresented information during his negotiation with defendant and cross-complainant William Hamilton Scott Pilot III, which led Pilot to enter into a lease with Goldstein in order for Pilot to operate a wrestling training facility in Carl1sbad, California. The trial court also found Pilot reasonably relied on such information when he entered into the lease, and awarded Pilot damages of $25,235.80. In so doing, the court found Goldstein was not entitled to unpaid rent under the lease, despite its earlier ruling in favor of Goldstein on that issue. Finally, the court found by clear and convincing evidence that Goldstein engaged in fraudulent behavior in connection with the negotiation of the lease, and ordered him to pay Pilot punitive damages of $5,000.
Addressing the threshold, procedural issue first, we conclude the trial court's initial order regarding Goldstein's entitlement to unpaid rent was an interlocutory order, and thus subject to revision based on additional evidence heard by the court in the consolidated case. We also conclude the record contains substantial evidence in support of the damages awarded Pilot. However, because Pilot filed a limited jurisdiction complaint against Goldstein, we further conclude Pilot's judgment cannot exceed the statutory maximum of $25,000, and thus modify his judgment accordingly.
FACTUAL AND PROCEDURAL BACKGROUND
The part of this summary in quotes is taken from the trial court's statement of decision. In addition, portions of the factual and procedural history of this case relevant to specific claims of error by Goldstein are discussed post, in connection with those issues.
This lawsuit involves the consolidation of three cases: (1) an unlawful detainer action filed in December 2006 by Goldstein against Pilot in connection with the lease of a warehouse located at 3031 Washington Street, Carlsbad, California, case No. UN022480; (2) a breach of contract action filed in February 2007 by Goldstein against Pilot for damages to the warehouse after Pilot vacated the premises, case No. 37-2007-00050242-CL-BC-NC; and (3) a limited civil case for fraud filed in February 2007 by Pilot against Goldstein for the latter's misrepresentations in connection with the negotiation and performance of the lease, case No. 37-2007-00050415-CL-BC-NC.
In June 2006 Pilot leased the warehouse from Goldstein to operate a wrestling training center for high school and college students. However, because Pilot was unable to obtain the necessary approvals from the City of Carlsbad (City) to operate the center, and because he claims Goldstein refused to cooperate with him to meet the requirements imposed by the City to obtain such approvals, Pilot terminated the lease effective December 1, 2006.
Goldstein filed his unlawful detainer action against Pilot on December 20, 2006. Pilot, appearing in propria persona throughout these proceedings, subsequently removed his tenant improvements from the warehouse and vacated the premises. The parties stipulated that possession was no longer an issue, and in February 2007 the case was transferred to the limited civil trial department.
"All of the three aforementioned cases were consolidated on June 1, 2007. The matters were deemed at issue on June 1, 2007, and a trial date was set for December 12, 2007, at 8:30 a.m., in Department 31. On December 13, 2007, due to considerable disputes between the parties, the Court ordered that the unlawful detainer damages' portion of the trial would proceed in advance of the remaining causes of action. The Court directed the parties to meet and confer to resolve the disputes on those unresolved claims prior to a new trial date being set on those matters. The trial with respect to the unlawful detainer damages began on December 17, 2007, and concluded on December 19, 2007. At the conclusion of this portion of the trial, the Court made the following findings and rulings.
"The Court found that the original condition of the disputed property was best demonstrated by evidence presented by Mr. Pilot by way of percipient witness testimony and photographic exhibits. The Court further found that Mr. Goldstein had made various representations prior to the signing of the lease and subsequent to the signing of the lease. But none of these promises came to fruition. The Court further found that Mr. Goldstein's claim that his property had been trashed upon Mr. Pilot vacating the premises was false. The Court found that there was no proof of vandalism by Mr. Pilot or his associates. That the most competent evidence established that Mr. Pilot and his associates only removed those tenant improvements that had been personally installed by them when he originally took possession of the property. The Court found that, although Mr. Goldstein was in a position to memorialize the condition of the property contemporaneous with the signing of the lease, he failed to do so. The Court further found that the two additional pages of the lease had been added after the signing of the original lease document period. The Court found that Mr. Goldstein had falsely attached these documents after the fact. The Court therefore ruled that there was no viable attorneys' fees and costs clause. The Court did find that Mr. Pilot did take possession of the property contemporaneous with the signing of the lease, and that he did not elect to rescind the lease or vacate the property prior to the filing of the unlawful detainer action. As such, the Court found at this stage of the proceeding, prior to hearing all causes of action, that Mr. Pilot had an obligation to pay rent under the terms of the lease. The Court further determined that the terms of the attachment and addendums to the lease contained inherently inconsistent language and, as such, in making its finding that the lease was to be enforced, the Court chose to purge that language from the overall enforcement of the lease. The Court found that at the time the premises were finally vacated there was rent due for the months of December, January and through February 12 [2007]. The monthly rate of rent was $2,000.00, and the daily rental rate was $66.67. The Court therefore found on December 19, 2007, for the plaintiff in the amount of:
"Rent totaling
$4,000.00
"Prorated February rent of
1,400.00
"Less security deposit
- 2,000.00
"Balance owed
'$3,400.00
"On January 28, 2008, the Court reconvened to continue the balance of the trial to address the remaining causes of action alleged within cases ending in Number 415 and 242. At this proceeding, Mr. Pilot presented witnesses and evidence that established the installation of tenant improvements, supporting documents of those expenditures and percipient witness[es] who either labored to install these improvements or were witnesses thereto. Mr. Pilot testified that he would not have made these improvements, but for Mr. Goldstein's representations regarding the signage, parking and other mandatory permits [from the City] being met. Mr. Goldstein provided testimony, witnesses and exhibits claiming that the improvements were not reimbursable, pursuant to the terms of the lease, and that he did not make any independent representations to Mr. Pilot as a condition of Mr. Pilot entering into the lease.
"At the conclusion of the evidence, the Court invited a written closing argument from each party to be filed by no later than February 20, 2008. The Court is in receipt of these written closing arguments and has reviewed same, in addition to all of the testimony from the first and second stage trials, all exhibits and previous rulings of the Court. The Court now makes the additional findings and rulings.
"The Court determines that the chief remaining issue to be decided in this matter is whether or not Mr. Pilot has established that a fraud was perpetrated by Mr. Goldstein contemporaneous with the creation and signing of the lease. And that this fraud encompassed intentional misrepresentations, concealment of facts and false promises that had been relied upon by Mr. Pilot and but for these particulars he would not have entered into the lease and remained at the property in an effort to get his business up and running. The Court does find that the negotiations between the parties clearly explored what Mr. Pilot's needs were going to be in his creating this particular business. The testimony established that there were conservations surrounding the creation of Mr. Pilot's business and Mr. Goldstein's understanding of the particular needs of that business. The key is determining the credibility of the witnesses. The Court looked at various times throughout the trial that demonstrated the truthfulness of each of [the] key witnesses in the case including the parties and their percipient witnesses. This Court notes that Mr. Goldstein lied to the Court with respect to the lease itself.... The lie is intertwined with the negotiations and at the foundation of the agreement entered into by the parties. It is this Court's belief that Mr. Goldstein has been less than candid in explaining his behavior that occurred throughout these proceedings. His testimony was impeached at many times.
"[¶] Additionally, Mr. Pilot had independent witnesses, including Mr. Pilot's father who testified credibly and with great clarity on these key issues. It was his recollection that Mr. Goldstein was mindful of the parking, permit and other needs that would be necessary for this business to become operational and agreed to ensure that there would be no problem. Although this Court has found Mr. Pilot was mindful of the condition of the warehouse at the time he took possession, he nonetheless had a reasonable belief that Mr. Goldstein was in a position to ensure the acquisition of the necessary permits and the cooperation from the City of Carlsbad to make his business operational. The Court does find that these were key and necessary events. That Mr. Goldstein was mindful of these mandated conditions as a result of his own interaction with the City officials as a property owner in Carlsbad. Mr. Pilot was clearly at a disadvantage and was relying upon the representations and the business acumen of Mr. Goldstein when he agreed to enter into this lease. This is further demonstrated by the continued effort of Mr. Pilot to make amendments to his [business] operation in the hopes of being in compliance with the guidelines set forth by the City of Carlsbad and confirmed by his continued correspondence with Mr. Goldstein to solicit his assistance in this regard. At no time did the court see any written evidence or hear any oral testimony from any independent witness for Mr. Goldstein wherein Mr. Pilot was put on notice that his reliance in this regard was misplaced.
"Therefore, this Court finds that Mr. Goldstein deliberately concealed and misrepresented information during his negotiations with Mr. Pilot and that Mr. Pilot reasonably relied upon these misrepresentations in entering into the lease for the property in question. Therefore this Court further finds that Mr. Pilot was damaged as a result of those misrepresentations. Damages are as follows:
"Rent paid $
14,000.00
"Electrical bills
725.00
"AT&T internet services
726.60
"Trash dumpster
423.49
"U-Haul rental
193.71
"Labor costs
1,000.00
"Store receipts
3,178.00
"Tile materials
534.00
"Damaged mats
4,455.00
"TOTAL
$25,235.80
"This Court has inherent power to amend the Statement of Decision at any time before the entry of judgment. Bay World Trade Ltd. v. Nebraska Beef, Inc. 101 CA 4th 135, 141, 123 CR 3d 632. In light of this Court's finding that the lease was the result of fraud and has for all intents and purposes been rescinded, it holds that Mr. Goldstein is not entitled to the unpaid rent previously ordered on December 19, 2007.
"The Court having found by clear and convincing evidence that Mr. Goldstein did engage in fraudulent behavior during the negotiations and signing of the lease it must now address the issue of punitive damages. The Court finds that although Mr. Goldstein clearly engaged in behavior to mislead Mr. Pilot, the Court also notes that Mr. Pilot has now recovered, in damages, a significant amount of those monies previously spent. The Court, however, believes it is necessary to ensure that Mr. Goldstein does not engage in this conduct with other unsuspecting parties in the future.
"In addition to the aforementioned damages ordered Mr. Goldstein is ordered to pay punitives in the amount of $5,000.00."
The trial court's tentative statement of decision, set forth herein, was filed unchanged in March 2008 as the statement of decision, and judgment was entered thereon in April 2008.
DISCUSSION
A. Consolidation for all Purposes
By stipulation, the parties consolidated the three cases into the unlawful detainer action. Code of Civil Procedure section 1048, subdivision (a), authorizes the trial court, when appropriate, to "order a joint hearing or trial" or to "order all the actions consolidated." "Under the statute and the case law, there are thus two types of consolidation: a consolidation for purposes of trial only, where the two actions remain otherwise separate; and a complete consolidation or consolidation for all purposes, where the two actions are merged into a single proceeding under one case number and result in only one verdict or set of findings and one judgment." (Hamilton v. Asbestos Corp. (2000) 22 Cal.4th 1127, 1147 (Hamilton), citing Sanchez v. Superior Court (1988) 203 Cal.App.3d 1391, 1397, and 4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, §§ 310-311, pp. 404-406.)
In Hamilton the California Supreme Court concluded the parties had consolidated two actions for all purposes and not for trial only based on the language of the trial court's consolidation order: "More important, the court's order granting the motion was not limited to a consolidation for trial: rather the court declared that 'IT IS ORDERED that Action[s] Nos. 955576 and 975884 are consolidated as Action No. 955576 ." (Hamilton, supra, 22 Cal.4th at p. 1148.) The court also noted all further filings by the parties bore only a single case number, No. 955576, and "there was only one verdict and one judgment." (Ibid.)
Goldstein contends the trial court entered judgment in his favor at the conclusion of the unlawful detainer/breach of contract portion of the case (referred to as "phase I"), when it ruled Pilot owed back rent under the lease of $3,400. Goldstein further contends the court itself recognized judgment was entered because more than once the court referred to its ruling as a judgment during the trial on Pilot's fraud claim (referred to as "phase II" of the consolidated case). Goldstein thus argues the trial court lacked the power to alter or nullify the "judgment" in phase I when it subsequently ruled in favor of Pilot on his fraud complaint at the conclusion of phase II, amended its previous ruling and found Goldstein was not entitled to unpaid rent, and entered judgment for Goldstein of $30,235.80. We disagree.
The record instead shows the three actions were in fact consolidated into one for all purposes. The actions were consolidated in June 2007, several months before trial and while discovery was ongoing. In addition, as was the case in Hamilton, after consolidation the filings of the parties bore only case No. UN 022480, further supporting the conclusion all three cases were merged into the unlawful detainer case.
Moreover, the trial court's consolidation order was not limited to a consolidation for trial. (See Hamilton, supra, 22 Cal.4th at p. 1148.) Rather, the court declared case Nos. 37-2007-000502242-CL-BC-NC and 37-2007-00050415-CL-BC-NC were "consolidated under [c]ase [n]umber UN022480" because the "subject cases meet the criteria set forth in [Code of Civil Procedure] section 1048," inasmuch as the "facts and evidence provided demonstrate that consolidation... will promote the ends of justice because the actions are not complex and common questions of fact and law predominate that are significant to the litigation." "[I]t is for the trial court to consider whether the consolidation is for all purposes or for trial only." (Hamilton, supra, 22 Cal.4th at p. 1149; see also Committee for Responsible Planning v. City of Indian Wells (1990) 225 Cal.App.3d 191, 196, fn. 5.) Here, the trial court's order provides additional support the actions were consolidated for all purposes.
Because we conclude the three actions were consolidated into one case for all purposes, we further conclude the case on which Goldstein primarily relies, Stubblefield Constr. Co. v. City of San Bernardino (1995) 32 Cal.App.4th 687, 701-702, is inapposite here because there the actions were consolidated for trial only.
The fact the trial court itself more than once referred to its ruling in phase I as a judgment is not determinative. Indeed, the record also shows the trial court considered its ruling in phase I to be subject to modification and not final, as demonstrated by the statement of decision where the trial court noted it had the inherent authority to reconsider and amend its earlier ruling.
In addition, at the conclusion of the phase I, in announcing its decision that Pilot owed back rent of $3,400, the court added the caveat that it had not yet decided whether Pilot in fact would have to pay Goldstein that amount because Pilot's rent obligation depended on the outcome of phase II, which the court had yet to hear and decide.
The court also specifically stated that it was not entering separate judgments in the consolidated case as it was informing the parties regarding the scope of phase II, noting: "These were consolidated cases. So I'm not going to give independent judgments. If I think there is an offset, I will reduce the [$]3,400... accordingly." (Italics added.)
Because possession of the leasehold premises was no longer in issue between the parties, it is unclear why the trial court separately tried the "damages on the unlawful detainer," which it described as "unpaid rents" and damages based on the "condition" of the leasehold premises when Pilot vacated the premises (phase I), on the one hand, from the damages on Pilot's fraud action (phase II), on the other hand. However, neither party objected to this procedure. In any event, while the court's decision to try these issues separately is curious, we conclude there is no resulting prejudice to the parties because as we discuss post, they each were afforded a full and complete opportunity—within the bounds of the trial court's discretion—to litigate fully the consolidated case. (See Jud Whitehead Heater Co. v. Obler (1952) 111 Cal.App.2d 861, 866-867.)
The trial court here considered its ruling at the conclusion of phase I to be an interim order that was subject to modification at the conclusion of phase II. "If a court believes one of its prior interim orders was erroneous," it has the inherent power to correct that order on its own motion. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108.) We thus reject Goldstein's contention that judgment was entered at the conclusion of phase I of the consolidated case, and instead conclude the court's ruling was interlocutory in nature and subject to further modification.
B. Photographic Evidence
The next issue is whether the trial court abused its discretion when, during phase II of the consolidated case, it refused to allow Goldstein to use photographs of the warehouse taken by Pilot after he took possession of the subject premises, in order to prove Goldstein's damages for destruction of property by Pilot when he vacated the premises in February 2007.
Specifically, Goldstein argues Pilot was required by the terms of the lease to take photographs of the premises and Pilot failed to produce such photographs in response to valid discovery. He further argues the photographs show Pilot damaged the warehouse when he vacated the subject property, and thus the trial court erred when it refused to allow Goldstein to use the photographs in phase II to prove his breach of contract case.
1. Background
The lease agreement between the parties is comprised of the first two pages of the pre-printed, standard residential lease form prepared by the California Association of Realtors, an attachment signed and dated by the parties and an addendum also signed by the parties. The attachment provides, among other things, that the premises "should be returned to the owner as per attached pictures."
As we discuss post, at trial Goldstein argued the parties used the first five pages of the standard residential lease form prepared by the California Association of Realtors. However, as previously noted, the trial court found Goldstein had forged Pilot's initials on pages 4 and 5 of the lease, and added those two pages after the parties' original agreement. We conclude this finding is supported by substantial evidence. (See Bowers v. Bernards (1984) 150 Cal.App.3d 870, 874.)
In early June 2007 Goldstein propounded form interrogatories on Pilot. When Pilot failed to respond to the discovery, Goldstein filed a motion to compel, which the court granted and sanctioned Pilot $750. Pilot ultimately answered the form interrogatories, but he did not respond to form interrogatory No. 12.4, which asked: "Do YOU [Pilot] OR ANYONE ACTING ON YOUR BEHALF know of any photographs, films, or videotapes depicting any place, object, or individual concerning the INCIDENT or plaintiff's injuries?" The record shows that Goldstein took no additional steps to obtain a response from Pilot to form interrogatory No. 12.4.
During phase II of the consolidated case, Pilot relied on certain photographic evidence to establish the improvements he made to the warehouse. The odd-numbered photographs showed the condition of the warehouse in October or November 2006, before the tenant improvements but after Pilot had taken possession, and the even-numbered photographs showed the changes to the warehouse after those improvements. When Pilot moved to admit these photographs into evidence, Goldstein's counsel had no objection and the court received them.
During cross-examination of a witness in phase II of the consolidated case, a dispute arose between the parties regarding whether Pilot had in fact removed all of the tenant improvements he made to the warehouse when he vacated the premises. Goldstein's counsel argued he was attempting to establish Pilot had not left certain improvements on the premises, to which the court responded:
"Up to now... I've presumed from previous testimony in the last trial proceeding [phase I]... that most of tenant improvements got pulled out. So if you [Goldstein] want to dispute what he's [Pilot] claiming, go ahead. [¶] I will tell you this as a heads-up. He didn't have to leave any of the tenant improvements. He left it -- and my ruling was -- [the warehouse was] actually in better condition than [when Pilot] originally got it."
In response to Goldstein's argument the trial court had never made a "formal ruling" on his "complaint for damages over and above the rent" in connection with phase I, the trial court said:
"Sir, you did and I ruled on it. And I said no. I made a finding I did not believe [Goldstein's] representations as to the condition of the place. [¶]... [¶]... I already ruled on this as it relates to [Goldstein]. I am not reopening that door. That was [Goldstein's]... opportunity to put on evidence as [he] saw fit, and I've ruled on that. [¶] If you want to put on evidence that attacks [Pilot's] measure of damages, you can do that, but I'm not going to hear evidence that relitigates those issues. Time and opportunity to put on that evidence was in [the] three-day trial back in December [2006]."
The trial court further rejected Goldstein's argument that he never received the photographs, despite the fact the lease required them and he had conducted discovery on the issue, observing:
"Sir [Goldstein's counsel], that's your problem. You didn't conduct proper discovery if you didn't get it.... I see no motions having been brought for production of discovery in that regard. [¶] It was [Goldstein's] lease where he made the demand for certain photographs within the lease. Didn't get [them], according to his testimony, during the time that [Pilot] had the lease. And I saw no order to produce by a Superior Court judge. So this particular commentary is irrelevant... on the issue of photographs you did or didn't get prior to trial. [¶]... [¶] Trial's already been conducted [in phase I] on the issue of [Goldstein's] claim against [Pilot] on the breach of contract and all of the issues surrounding that were brought out with respect to the condition of the warehouse before [Pilot] moved in, when he moved in, and when he exited."
2. Findings in Phase I Regarding Goldstein's Breach of Contract Action
On December 19, 2006, after hearing three days of testimony from various witnesses regarding the condition of the premises both before and after Pilot's lease, the trial court observed the next phase of the case was Pilot's "because [Goldstein's counsel] has pretty much indicated, unless he tells you [Pilot] differently, he's put on his whole case as it related to the breach [of] the lease. There is nothing left. So, [Goldstein's counsel] is going to be defending... your claim of damages [for fraud in phase II]."
The trial court stated it believed Pilot's testimony and his evidence over the evidence proffered by Goldstein, found the warehouse had been in "disarray for some time" while owned by Goldstein, and had been "full of furniture, wood, siding, pipes, and the like" when Pilot took possession. The trial court further found that the warehouse was not in "good condition," despite what the lease said, as it had cracked toilets, inoperable plumbing, no electricity and a leaky roof, was "very run down, in need of considerable work before it -- to even come close for human habitation or work area of any kind"; and that Goldstein got a "great bargain" when it leased the warehouse to Pilot because he cleaned it up and got rid of all the "junk" on the premises.
Based on the credibility of the evidence, the witnesses and the parties themselves, the court also found Pilot had not demolished or vandalized the premises when he vacated the subject property:
"[Pilot] only took what [he] put in to [the warehouse to] begin with, and that was agreed between the parties. [Pilot] could take the tenant improvements with [him], which -- quite honestly, you [Goldstein] gave [him] a shell to begin with. [Pilot] cleaned up the shell. Looks like [he] epoxied the floor of the main foundation, which is a big investment for you because it keeps out the moisture from being seeped up right in through the cement. I mean, a lot of things were done that makes this thing a lot more marketable. [¶] So when you [Goldstein] argue through [counsel] that this thing -- their leaving it in the condition [that] made it untenantable and was unable to be rented is a real stretch when I consider how [Pilot] rented it and -- in what was a very seedy condition. [¶]... [¶] But -- the real question, though, is -- trying to paint him into this position of being a -- deliberately engaging in vandalism to trash your place was a real mistake because when you did that, you started me down the road on making a decision on who I wanted to believe or not. A lot of times in cases it's a mixture of truth. It's everyone's idea of what the truth is. [Goldstein], I had a -- real trouble believing your truthfulness, and I'll tell you what really put a bullet in it is the lease."
During phase I of the consolidated case, Pilot argued Goldstein had forged additional pages of the form residential lease agreement. As already noted, the trial court agreed, and found the two added pages included an attorney fees and costs provision. That provision would benefit Goldstein, who was represented by counsel, and not Pilot, who was (and remains) in propria persona. In making this finding, the court observed the first few pages in the lease had a very different appearance than the last two pages, the last two pages only included Pilot's initials on the bottom of the page, whereas in the first few pages Pilot had initialed "anything that was important," and the pen used by the parties in the first few pages of the lease was different than the pen used in the final two pages.
The court thus concluded:
"So, sir [Goldstein], I think you padded the story here. I think you dragged in two additional pages to this [lease] that weren't part of the original contract. So your credibility is at an all-time low with me."
3. Analysis
Despite this record, Goldstein argues he was deprived of the opportunity to litigate fully his breach of contract action in phase II of the consolidated case because the court prevented him from using photographs relied on by Pilot in that proceeding. We disagree.
The record shows Goldstein had a full and complete opportunity to litigate his breach of contract action against Pilot in phase I of the consolidated case. The record further shows the court considered the evidence proffered by Goldstein in phase I, which included the testimony of several witnesses and various other pieces of evidence, and ruled against him, finding Pilot had not vandalized or damaged the warehouse when he vacated the premises, and he left the warehouse in better condition than when he originally took possession. Although Goldstein has not specifically challenged these findings, we conclude from our review of the record they are in fact supported by substantial evidence. (See Bowers v. Bernards, supra, 150 Cal.App.3d at p. 874.)
Moreover, the record further shows Goldstein's counsel agreed that Goldstein had in fact fully litigated his breach of contract action in phase I. At the conclusion of that proceeding, Goldstein's counsel offered no objection or disagreement to the trial court's statement that the next phase of the case would be limited to Pilot's fraud action, inasmuch as the trial court's ruling had fully disposed of Goldstein's breach of contract action.
We also reject Goldstein's argument because it appears Pilot was not legally obligated to produce the photographs in the first place. The lease does not specify whether Pilot or Goldstein was required to take the pictures of the subject premises. The record shows, however, that Goldstein purchased the leasehold premises before the previous tenant vacated the warehouse in 2005. Goldstein thus had ample opportunity to take pictures of the subject premises before Pilot took possession.
Goldstein's brief claims the trial court allowed Pilot to "hide" the photographs in phase I of the consolidated case, and then to use them in phase II. There is no evidence in the record whatsoever to support this claim, however. "In reaching a decision on appeal an appellate court is governed by the record; will not consider facts having no support in the record; and will disregard statements of such facts set forth in a brief." (Oldenkott v. American Electric, Inc. (1971) 14 Cal.App.3d 198, 207.)
In addition, as the trial court noted, Goldstein did not request the production of any documents in pretrial discovery. And in the interrogatories he did serve, Goldstein did not move to compel a further response from Pilot in connection with form interrogatory No. 12.4.
Finally, we note that Goldstein has not argued the outcome of his case would have been any different had the court agreed, during phase II of the consolidated case, to reopen his breach of contract action litigated in phase I and allow him to use Pilot's photographs. The record shows the photographs were taken in October or November 2006, several months after Pilot had taken possession. The photographs thus would not have established the condition of the premises at or before the time Pilot took possession of the subject property. On this record, Goldstein cannot establish he was prejudiced by any error of the trial court in connection with the photographs. (See People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2004) 116 Cal.App.4th 1253, 1280.)
Goldstein filed on April 1, 2009, a motion seeking an order requiring Pilot to lodge his exhibits, including the photographs that are the subject of this appeal. Although we agreed to consider this motion in connection with the appeal, Pilot lodged his exhibits with this court on April 14, 2009. We have received the exhibits and conclude they do not change the outcome of the case.
C. Fair Trial/Judicial Misconduct
Goldstein next argues he was denied a fair trial because the trial court judged his credibility (or lack thereof) on the basis of his counsel's alleged procedural miscues and/or lack of organization, and not on the basis of the evidence presented. The record does not support this contention, however.
Instead, the record shows the trial court was frustrated with both parties and admonished both of them (and Goldstein's trial counsel, inasmuch as Pilot was in propria persona) during the examination of Goldstein, after the parties and counsel continued to interrupt the court and displayed what it considered to be an overall lack of respect for the court and its rulings.
By rejecting Goldstein's argument he did not receive a fair trial based on the court's admonishment of both parties, we are not condoning the way the court handled this matter. However, our task " 'is not to determine whether the trial judge's conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judge's behavior was so prejudicial that it denied [the appellant] a fair, as opposed to a perfect, trial.' " (People v. Snow (2003) 30 Cal.4th 43, 78; see also Catchpole v. Brannon (1995) 36 Cal.App.4th 237, 245 [due process of law minimally requires "the opportunity to be fully and fairly heard before an impartial decisionmaker"].)
During this colloquy, the court told Pilot he was "rude," "discourteous" and constantly interrupting the court, and asked Pilot to apologize, which the court accepted with a "thank you." The court also asked Goldstein's counsel to apologize, which he did. The court then addressed Goldstein, and said:
"Mr. Goldstein, you stop talking over me and volunteering information. You're a bright, intelligent man, but you are taking a lot of latitude with the questions here by answering the way you choose to answer them. These questions are oftentimes a 'yes' or 'no,' but instead you decide to launch into a narrative."
After further admonishing the parties, the court stated this case "comes down to the facts," and "[t]hey don't lie." The court then allowed the examination of Goldstein to continue.
Thus, the record does not support Goldstein's argument that the trial court decided the credibility issue against him because the court blamed him and his counsel for the procedural problems that plagued this case from the outset. Instead, as we have already noted, ante, the trial court made its credibility determinations based on the evidence, the parties, their witnesses and its finding (supported by substantial evidence in the record) that Goldstein had forged Pilot's initials on pages 4 and 5 of the form residential lease agreement, after the parties' original agreement.
Goldstein also never objected to the alleged judicial misconduct, which provides a separate and independent basis to reject his claim he was denied a fair trial. (See People v. Fudge (1994) 7 Cal.4th 1075, 1108.)
The record also shows the court stated it would decide the case based on the facts. The examination of Goldstein then continued without further incident. This supports the inference the court kept an open mind as the case continued, and was not prejudiced against Goldstein or otherwise lacked impartiality. (See Gary v. Avery (1960) 178 Cal.App.2d 574, 579-580.) We therefore reject Goldstein's contention he was denied a fair trial under the circumstances presented here.
D. Challenges to the Statement of Decision
Goldstein also challenges certain findings in the statement of decision. However, Goldstein did not object to the tentative statement of decision when it was issued by the court in February 2007, despite the fact it expressly provided the parties had 10 days to object before it would become final. When a party fails to object to the trial court's findings in a statement of decision, that party waives the right to claim on appeal that the statement was deficient. (See Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 140-141.) Despite his lack of objection to the statement of decision, we address head-on his claim it is deficient.
Goldstein's primary argument is there is insufficient evidence in the record to show Pilot could have reasonably relied on any representations made by Goldstein after September 2006 because Pilot admitted he "hit a wall" at that time when the City refused to issue him a business license because the subject premises lacked sufficient parking. Goldstein thus argues Pilot is not entitled to recover damages for rent paid or improvements made after September 2006.
Goldstein does not argue, however, there was insufficient evidence to show he knew before he leased the warehouse to Pilot that there was insufficient parking on the subject premises (per the City) for the type of business Pilot intended to operate.
However, the record also shows that Pilot, with the help of his father, continued until early December 2006 to negotiate with the City and come up with alternative solutions to the parking problem. Such alternatives included putting together a site plan that would allow for additional parking spaces to be constructed on the subject premises, contacting adjacent property owners to inquire whether they would be willing to give up some of their parking, and applying in October 2006 for a retail license from the City, in the hope of using the warehouse for retail sales and for a training facility.
It was not until early December 2006, in a meeting between Pilot and his parents, among others, that Pilot decided he would be unable to open his business as he had planned and terminated the lease. We thus conclude there is substantial evidence in the record to support the award of damages to Pilot up to December 2006.
Goldstein next argues the court improperly awarded Pilot $4,455 for "damaged mats." Because the mats sustained water damage from a leaky roof, and because Pilot agreed under the lease to be "fully responsible to do minor or major repairs on his own expense without any reimbursement" from Goldstein, Goldstein claims Pilot is not entitled to recover such damages.
While the lease prevents Pilot from recovering his out-of-pocket costs to repair the warehouse's cracked toilets, inoperable plumbing, lack of electricity and leaky roof, among other things, it does not prevent the court from compensating Pilot for the damage to his mats caused by the leaky roof. (See Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1240 [a defrauded buyer may recover out-of-pocket loss, together with consequential damages]; see also Civ. Code, § 3343, subd. (a).) To be recoverable, such damages "must be referable to, and caused by, the fraud." (Conrad v. Bank of America (1996) 45 Cal.App.4th 133, 159.) We therefore conclude the lease did not prevent the trial court from compensating Pilot for the damage to his wrestling mats.
We also reject Goldstein's argument that damages for electrical and Internet usage ($1,451) and for improvements to or for "remodel[ing]" of the warehouse ($3,178) were not consequential damages arising from Goldstein's fraud. (See Civ. Code, § 3343, subd. (a)(1)-(4).)
E. Jurisdictional Limits on the Judgment
Finally, Goldstein challenges the judgment because it exceeds the statutory maximum of $25,000 for a "limited jurisdiction" case. We conclude this contention has merit.
A case is deemed a limited civil action when the amount is controversy does not exceed $25,000 (exclusive of attorney fees, interest and costs). (Code Civ. Proc., §§ 85, 86.) Under Code of Civil Procedure section 580, "[n]otwithstanding" that in a contested case a trial court may grant "any relief consistent with the case made by the complaint and embraced within the issue" even if in excess of the amount demanded in the complaint, a party in a limited civil case "may not be granted... [r]elief exceeding the maximum amount in controversy for a limited civil case as provided in Section 85, exclusive of attorney's fees, interest, and costs." (Code Civ. Proc., § 580, subds. (a), (b)(1), italics added.) The comments of the Law Revision Commission support this view: "Subdivision (b)(1) [of section 580] makes explicit that although the jurisdiction of a unified superior court includes matters in which the amount in controversy exceeds the maximum for a limited civil case as provided in Section 85 [i.e., $25,000], the court cannot grant substantive relief exceeding that maximum in a limited civil case." (Recommendation: Trial Court Unification: Revision of Codes (July 1998) 28 Cal. Law Revision Com. Rep. (1998) p. 51, 189, italics added.)
Here, Pilot's lawsuit was on its face filed as a limited subject matter jurisdiction civil action where the demand "exceeds $10,000 but does not exceed $25,000." It is undisputed that although Pilot filed his lawsuit as a limited civil case, the trial court awarded him compensatory damages of $25,235.80 and punitive damages of $5,000, for a total award in excess of the statutory maximum.
Pilot argues Goldstein forfeited the right to raise this issue on appeal because he failed to object to the damage award in the statement of decision. We disagree.
The issue of whether a trial court may grant relief exceeding the $25,000 maximum for a limited civil case is one of subject matter jurisdiction. (Code Civ. Proc., § 580, subds. (a), (b)(1).) It is axiomatic that subject matter jurisdiction cannot be conferred by forfeiture, consent or estoppel. (See Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 307, fn. 9; Housing Group v. United Nat. Ins. Co. (2001) 90 Cal.App.4th 1106, 1113.) Thus, Goldstein's failure to object to the damage award on the basis it exceeded the statutory maximum does not confer subject matter jurisdiction on the trial court to award damages above that maximum amount in a limited civil case.
DISPOSITION
The judgment is modified to award damages to Pilot in the amount of $25,000. In all other respects, the judgment is affirmed. Pilot to recover his costs on appeal.
WE CONCUR: HUFFMAN, J., O'ROURKE, J.