Opinion
G053961
11-28-2017
CHERYLL GOTO, as Trustee, etc., Plaintiff and Appellant, v. WILLIAM SOTO, Defendant and Respondent.
Law Offices of John A. Belcher, John A. Belcher and Nicholas W. Song for Plaintiff and Appellant. Baker & Baker, William E. Baker, Jr., and Brook John Changala for Defendant and Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING; NO CHANGE IN JUDGMENT
It hereby is ordered that the opinion filed in the above-entitled matter on November 28, 2017, is MODIFIED as follows:
1. On page 8, the second sentence of the third paragraph, beginning with "For this reason, a trial court's failure," delete the entire sentence.
2. On page 8, at the end of the third paragraph, after the case citations, add the following sentence and case citation:
Nonetheless, "a trial court's error in failing to issue a requested statement of decision is not reversible per se, but is subject to harmless error review." (F.P. v. Monier (Nov. 27, 2017, S216566) ___ Cal.4th ___, ___ [2017 Cal. Lexis 8923, *16.)
3. On page 11, the sixth and seventh sentences of the second paragraph, beginning with "On these facts" and "We therefore reverse," delete both sentences so that the paragraph ends after the fifth sentence, beginning with "Nonetheless, she later filed."
4. On page 11, insert the following new paragraph as the third paragraph on the page between the paragraphs beginning with "Goto, unlike the appellant" and "The trial judge who presided":
On these facts, we conclude Goto did not waive her right to a statement of decision and the trial court committed prejudicial error by failing to provide one. Indeed, the court's error in preventing the parties from making closing arguments and requesting a statement of decision hardly can be considered harmless because the court not only prevented the parties from identifying the issues they wanted it to decide, but the trial court also prevented this court from determining the basis for the judgment. We therefore reverse and remand for the court to hear the parties' closing arguments and issue a statement of decision based on any request the parties make before the court submits the case for decision.
5. On page 12, at the end of the final sentence of the partial paragraph at the top of the page, beginning with "Accordingly, if the trial judgment who heard this matter," add the following footnote number 1:
1 Soto filed a rehearing petition arguing we must grant rehearing under Government Code section 68081 (section 68081) because he "was never afforded the opportunity to brief the issues regarding the statement of decision." He is mistaken. Section 68081 requires rehearing when an appellate court "renders a decision in a proceeding . . . based upon an issue which was not proposed or briefed by any party to the proceeding." The parties do not "have a right under section 68081 to submit supplemental briefs or be granted a rehearing each time an appellate court relies upon authority or employs a mode of analysis that was not briefed by the parties. The parties need only have been given an opportunity to brief the issue decided by the court, and the fact that a party does not address an issue, mode of analysis, or authority that is raised or fairly included within
the issues raised does not implicate the protections of section 68081." (People v. Alice (2007) 41 Cal.4th 668, 679; see Mark v. Spencer (2008) 166 Cal.App.4th 219, 228, fn. 4; Plumas County Dept. of Child Support Services v. Rodriquez (2008) 161 Cal.App.4th 1021, 1029, fn. 1.)
Although Goto did not cite the authorities we discuss, the final section of her opening brief is entitled "The Court Was Unable To Articulate Any Reasoning Upon Goto's Request." In response to this section, Soto's brief argued that Goto waived her right to a statement of decision and therefore we must imply findings to support the judgment. Accordingly, the trial court's obligation to provide a statement of decision and the consequences of its failure to do so are fairly included within the statement of decision issues the parties raised and section 68081 does not apply.
These modifications do not change the judgment.
The rehearing petition filed by respondent William Soto is DENIED.
ARONSON, J. WE CONCUR: O'LEARY, P. J. MOORE, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2013-00692098) OPINION Appeal from a judgment of the Superior Court of Orange County, Richard Luesebrink, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to Cal. Const., art. VI, § 21.) Reversed and remanded. Motion for sanctions. Denied. Law Offices of John A. Belcher, John A. Belcher and Nicholas W. Song for Plaintiff and Appellant. Baker & Baker, William E. Baker, Jr., and Brook John Changala for Defendant and Respondent.
* * *
Plaintiff Cheryll Goto, as Trustee of the Robert K. Garren Revocable Trust (Trust), sued defendants William Soto for breach of an unsecured promissory note. The trial court conducted a bench trial on Goto's claim and announced at the close of evidence a tentative decision in Soto's favor. The court stated Goto failed to meet her burden, but provided no other explanation for its decision.
The trial court, however, announced its tentative decision without allowing the parties to make their closing arguments. When Goto attempted to make her argument, the court interrupted her and stated she had the court's tentative decision. The court further stated it assumed the parties would request a statement of decision and ordered Soto's counsel to prepare a proposed statement of decision. Soto's counsel promptly did so, but the court entered judgment without acknowledging or taking any action on the proposed statement.
We conclude the trial court erred in failing to provide a statement of decision and remand for the trial court to hear the parties' closing argument and then provide a statement of decision based any requests the parties make before the court submits the matter. If the trial judge who heard this matter no longer is sitting by assignment or otherwise is legally unavailable to hear this matter and issue a statement of decision, we remand for a new trial. As we explain, the court may not defeat a party's right to a statement of decision by announcing its tentative decision and submitting the matter before the parties have an opportunity to present closing argument and request a statement of decision.
Soto filed a motion for sanctions, arguing this appeal is frivolous and Goto unreasonably violated the rules of appellate practice. We deny the motion because the appeal is not frivolous as demonstrated by our decision. Although Goto's brief improperly relies on evidence she failed to present to the trial court, her conduct does not warrant sanctions.
I
FACTS AND PROCEDURAL HISTORY
In the fall of 2006, Soto agreed to pay $1 million to purchase a commercial property from Robert Garren by making a $250,000 down payment and giving Garren an unsecured promissory note for the $750,000 balance. During the sales negotiations, Soto prepared three different payment schedules for the $750,000 balance. Soto and Garren signed two of the schedules to show they were acceptable. In December 2006, Soto deposited into escrow a $250,000 down payment and a signed and notarized promissory note for the balance. The note was an unsecured, installment note; no trust deed or other security was provided. None of the payment schedules Soto and Garren discussed were attached to the note that Soto signed and deposited into escrow. When escrow closed, Garren received the original note and Soto received title to the property.
After taking possession, Soto discovered many undisclosed problems that prevented him from renting much of the property, including broken sewers, a leaking roof, mold, and an unusable electrical system. In earlier 2007, Soto took out a loan on the property to pay Garren an additional $250,000 toward the purchase and to make about $200,000 in repairs so he could rent the property. Soto eventually rented all of the property's suites, except one suite that Garren used to store his personal property. Garren had not removed his property despite Soto's repeated requests. Consequently, Soto lost between $1,800 and $2,000 in monthly rent.
A downturn in the economy and the lost rent from the suite Garren used for storage eventually caused Soto to fall behind on the loan he took out on the property. In December 2008, the lender recorded a notice of default after Soto fell nearly $16,000 behind in his payments. Soto contacted the lender, but it was unwilling to work with him to bring the loan current. In March 2009, Soto spoke to Garren about his difficulties with the property, and sent Garren a copy of the loan statement showing the amount of arrears.
A few days later, Soto met with Garren and asked him to take the property back because Garren could not bring the loan current. Soto asked an escrow company to prepare a deed reconveying the property to Garren, and the company prepared two deeds—one conveying the property to both Garren and Soto as joint tenants and one conveying the property solely to Garren. Soto signed both deeds, but only notarized the joint tenancy deed. Garren agreed to accept the property back and said he would see what he could do to bring the loan current. Soto gave Garren both deeds and Garren returned the original promissory note to Soto. Soto and Garren did not enter into any written agreement regarding this exchange, but afterward Soto heard nothing from Garren about the property for nearly five years.
In December 2013, Garren filed this lawsuit against Soto alleging claims for fraud, constructive fraud, breach of fiduciary duty, elder abuse, and breach of contract for failing to pay off the promissory note. After multiple demurrers, the operative fourth amended complaint alleged one cause of action for breaching the unsecured promissory note. A copy of the operative note attached to the complaint is an unsigned copy with one of the signed payment schedules attached to serve as Soto's signature on the note. Garren died before trial and Goto was substituted as plaintiff in her capacity as the Trust's successor trustee.
In May 2016, the trial court conducted a bench trial on the breach of promissory note claim. Goto introduced into evidence the unsigned copy of the note with the payment schedule attached as the operative note. Soto was the only witness to testify at trial. He introduced the original signed and notarized promissory note, and testified it had been in his possession since Garren returned it to him in March 2009. Soto testified he paid Garren $500,000 on the note when Garren returned the note to him in exchange for the deeds, and he made no further payments to Garren after that exchange. Soto further testified the original note he signed and deposited into escrow never had a payment schedule attached to it, he and Garren never decided which payment schedule would apply, he never deposited any of the payment schedules into escrow, he never authorized escrow or anyone else to attach any of the payment schedules to the executed note, and he had no idea how or who attached the schedule to the note.
After Soto completed his testimony, the trial court invited closing argument from Goto. But before Goto began, the court interrupted to "summarize [its] reaction" to the evidence the parties presented. The court explained Goto had the burden of proof and Garren's death made it difficult to meet that burden because the court found Soto "to be a credible witness." The court then said, "so with that in mind, the tentative decision is in favor of [Soto], and if you want a statement of decision, then I'll order it. But you'll have that 15-day period or whatever it is to request a statement of [decision]."
Goto then inquired whether the court was "accepting the accord and satisfaction defense," and the court responded, "I'm saying you didn't meet your burden of proof for an action on a promissory note[, and] I'm not here to be deposed." As Goto then attempted to present her closing argument, the court again interrupted her and said, "I've given you my tentative decision and . . . [¶] if a statement of decision is requested, then [Soto's counsel] will get one along with the judgment."
Goto responded it was important to go through the chronology of events, and she asked for a "couple minutes here, your honor, to try to change your tentative." The Court next stated, "You can do that in writing to a proposed statement of decision by [Soto's counsel]. [¶] . . . [¶] . . . So I've stated my tentative decision. I assume there'll be a request for a statement of decision. [Soto's counsel], you're ordered to submit a proposed statement of decision." With that, the trial ended without Goto completing her closing argument or Soto providing any closing argument.
On May 26, 2016, Soto submitted a proposed statement of decision and a proposed judgment. On May 31, 2016, Goto filed written objections to the proposed judgment, and on June 2, 2016, she filed a written request for a statement of decision. Goto, however, failed to include a copy of her request for a statement of decision in the appellate record. On July 18, 2018, the trial court entered Soto's proposed judgment without taking any action on the proposed statement of decision Soto filed or the request for a statement of decision Goto filed. This appeal followed.
II
DISCUSSION
A. The Trial Court Erred in Failing to Issue a Statement of Decision
Goto contends the trial court erred by failing to issue a statement of decision explaining the factual and legal basis for its judgment. We agree.
Upon any party's request in a nonjury trial, the trial court must "issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial." (Code Civ. Proc., § 632; see Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1124-1125 (Muzquiz).) "A statement of decision . . . provides a complete record of the court's reasoning. . . . [It] gives the trial court 'an opportunity to place upon [the] record, in definite written form, its view of the facts and the law of the case, and to make the case easily reviewable on appeal by exhibiting the exact grounds upon which judgment rests.' [Citation.] 'If a statement of decision is given, it provides us with the trial court's reasoning on disputed issues and "is our touchstone to determine whether or not the trial court's decision is supported by the facts and the law."'" (A.G. v. C.S. (2016) 246 Cal.App.4th 1269, 1282, italics omitted.) "A statement of decision is as much, or more, for the benefit of the Court of Appeal as for the parties." (In re Marriage of Sellers (2003) 110 Cal.App.4th 1007, 1010.)
For nonjury trials completed within one calendar day or in less than eight hours over multiple days, a party must request a statement of decision "prior to the submission of the matter for decision." (Code Civ. Proc., § 632; Cal. Rules of Court., rule 3.1590(n).) A nonjury matter is deemed submitted "'when either of the following first occurs: [¶] (1) the date the court orders the matter submitted; or [¶] (2) the date the final paper is required to be filed or the date argument is heard, whichever is later.'" (In re Marriage of Gray (2002) 103 Cal.App.4th 974, 977.) "A matter is not 'submitted' until argument is complete. Thus, the court cannot cut off a party's right to request a statement by announcing its decision while counsel is in the middle of making a closing argument." (Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2017) ¶ 16:137, p. 16-31, citing Social Service Union v. County of Monterey (1989) 208 Cal.App.3d 676, 680 (Social Service Union).) For nonjury trials lasting longer than one day or eight hours, a party must request a statement of decision within 10 days after the court announces or serves its tentative decision, whichever is later. (Code Civ. Proc., 632; Cal. Rules of Court., rule 3.1590(d).)
A party may request a statement of decision orally or in writing. (Whittington v. McKinney (1991) 234 Cal.App.3d 123, 126; In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 283-284.) Regardless of whether it is oral or written, the request must specify the principal controverted issues on which the party seeks a statement of decision. (Code Civ. Proc., § 632; Cal. Rules of Court., rule 3.1590(d).) A principal controverted issue is one that is "'relevant and essential to the judgment and closely and directly related to the trial court's determination of the ultimate issues in the case.'" (R. E. Folcka Construction, Inc. v. Medallion Home Loan Co. (1987) 191 Cal.App.3d 50, 53; see Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2017) ¶ 16:170, pp. 16-39 - 16-40.)
"A statement of decision need not address all the legal and factual issues raised by the parties. Instead, it need do no more than state the grounds upon which the judgment rests, without necessarily specifying the particular evidence considered by the trial court in reaching its decision. [Citations.] '[A] trial court rendering a statement of decision . . . is required to state only ultimate rather than evidentiary facts because findings of ultimate facts necessarily include findings on all intermediate evidentiary facts necessary to sustain them.'" (Muzquiz, supra, 79 Cal.App.4th at pp. 1124-1125.)
In announcing its tentative decision, a trial court may order one of the parties to prepare a proposed statement of decision. (Cal. Rules of Court., rule 3.1590(c); Thompson v. Asimos (2016) 6 Cal.App.5th 970, 982, fn. 10.) Regardless of whether the court or a party prepared the proposed statement, any affected party may object that the statement omits findings on a principal controverted issue or its findings are ambiguous. (Code Civ. Proc., § 634; Cal. Rules of Court., rule 3.1590(g); Bay World Trading, Ltd. v. Nebraska Beef, Inc. (2002) 101 Cal.App.4th 135, 140.)
A party waives the right to a statement of decision by failing to timely request one. (In re Marriage of McHugh (2014) 231 Cal.App.4th 1238, 1248.) Similarly, a party waives any objection to a statement's adequacy by failing to identify any omitted issue in its initial request or failing to object that the proposed statement omitted the issue or was ambiguous. (Fladeboe v. American Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 59-60 (Fladeboe) [failure to object to proposed statement]; City of Coachella v. Riverside County Airport Land Use Com. (1989) 210 Cal.App.3d 1277, 1292 [failure to request statement on issue].) When a party waives the right to a statement of decision or fails to object to a proposed statement, the doctrine of implied findings applies and an appellate court must infer the trial court made all necessary findings on the issue that are supported by substantial evidence. (Code Civ. Proc., § 634, Fladeboe, at pp. 58-60.)
"'[A] trial court's failure to issue a statement of decision can have a significant adverse effect on that party's ability both to assess whether an appeal is justified and, if an appeal is filed, to present an effective challenge to the trial court's decision.' [Citation.] For this reason, a trial court's failure to file a statement of decision following a timely request constitutes 'per se reversible error.'" (Wallis v. PHL Associates, Inc. (2013) 220 Cal.App.4th 814, 825 (Wallis); see Espinoza v. Calva (2008) 169 Cal.App.4th 1393, 1397-1398.)
Here, the trial court did not provide a statement of decision explaining the factual and legal basis for its judgment. It ordered Soto's counsel to prepare a proposed statement of decision and counsel promptly did so, but the court took no action to accept, reject, or modify Soto's proposed statement. The proposed statement in the record shows it was merely "received" by the court, and there is no minute order or entry in the register of actions showing the court filed or otherwise adopted the proposed statement. Both sides acknowledge the court did not sign or issue Soto's proposed statement of decision.
Without a statement of decision, we can only speculate on the basis for the trial court's judgment. In its tentative decision, the court stated it was ruling in Soto's favor because Goto failed to "meet [her] burden of proof for an action on a promissory note." The court provided no further explanation. Moreover, the tentative decision is not binding on the court (Cal. Rules of Ct, rule 3.1590(c); Horning v. Shilberg (2005) 130 Cal.App.4th 197, 203) and it is not a substitute for a statement of decision (Wurzl v. Holloway (1996) 46 Cal.App.4th 1740, 1756; In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 646-647). On appeal, a court's tentative decision may not be relied upon either to support or impeach the court's judgment. (Ibid.)
Soto's arguments demonstrate the difficulty we would face in deciding this appeal without a statement of decision. To support the trial court's judgment, Soto argues Goto committed a fraud on the court by attaching the signed payment schedule to the unsigned note, Soto's performance under the note was excused, the parties modified the note by mutual agreement, the unsigned note and the signed payment schedule were too vague to enforce, and Soto satisfied the note when he reconveyed the property and Garren returned the original note. Although he offered evidence to support these various arguments, the court decided the matter without giving Soto the opportunity to present these arguments in a closing argument.
Soto contends we may infer the trial court made all findings necessary to support its judgment based on any of these arguments because Goto waived her right to a statement of decision by failing to timely request one. The parties agree the court completed the trial in less than eight hours over two days, and a party must make the request for a statement of decision before the court takes the matter under submission. Soto asserts the court took the matter under submission and issued its tentative decision before Goto requested a statement of decision and therefore the written request she filed several days after the trial was too late. But the court announced its tentative decision before giving Goto an opportunity to request a statement of decision or make her closing argument, and the court nonetheless ordered Soto to prepare a proposed statement of decision.
After inviting closing argument, the court repeatedly interrupted Goto's attempts to present her closing argument and prevented her from identifying the principal controverted issues she thought the court must address to decide this case. Instead, the court simply announced its tentative decision, told the parties it would order a party to prepare a statement of decision if one of them requested it, and said it assumed one of them would request a statement of decision. As Goto attempted in her closing argument to persuade the court to change its tentative decision, the court interrupted Goto, ordered Soto's counsel to prepare a proposed statement of decision, and ended the trial without allowing Goto a meaningful opportunity to present her closing argument or allowing Soto to present any argument at all. The court may not defeat Goto's right to a statement of decision in this manner. (Social Services Union, supra, 208 Cal.App.3d at pp. 680-681.)
Social Services Union presents a strikingly similar set of facts. There, the trial court announced its tentative decision from the bench while the appellant was making its closing argument and before respondent had an opportunity to make closing remarks. The appellant's counsel then orally requested a statement of decision and a few days later filed a written request for a statement of decision. The trial court denied both requests, concluding the statements it made from the bench were adequate. The appellant appealed. (Social Services Union, supra, 208 Cal.App.3d at pp. 679, 680.)
The Court of Appeal concluded the trial court's oral statements did not constitute an adequate statement of decision, and also rejected the respondent's contention the appellant waived the right to a statement of decision by failing to timely request one. The Social Services Union court explained, "To hold that this request was untimely because the judge's statement effected a submission of the matter would have the absurd result of precluding a request for a statement of decision in any one-day hearing at any point after the court orally announced its intended ruling. [¶] . . . We conclude that counsel's request for a statement of decision in this case was made prior to submission of the matter for decision under Code of Civil Procedure section 632, and was therefore timely." (Social Services Union, supra, 208 Cal.App.3d at pp. 680-681.)
Goto, unlike the appellant in Social Services Union, did not make an oral request for a statement of decision after the trial court announced its tentative decision, but that does not render Social Service Union's conclusions any less applicable. Goto attempted to identify the principal controverted issues, but the court repeatedly cut her off and then abruptly ended the trial. More importantly, the court stated it assumed the parties would request a statement of decision and it ordered Soto's counsel to prepare one. There was no need for Goto to request what the court already had ordered. Nonetheless, she later filed a written request for a statement of decision within the period allowed for filing a request concerning a trial that lasts longer than one day or eight hours. On these facts, we conclude Goto did not waive her right to a statement of decision and the court committed reversible error by failing to provide one. We therefore reverse and remand for the court to hear the parties' closing arguments and issue a statement of decision based on any request the parties make before the court submits the case for decision.
The trial judge who presided over the trial and heard the evidence is the only one who may provide a new statement of decision when either a request for a statement of decision is erroneously denied or a statement fails to decide all principal controverted issues. (Karlsen v. Superior Court (2006) 139 Cal.App.4th 1526, 1531 (Karlsen); Raville v. Singh (1994) 25 Cal.App.4th 1127, 1132-1133 (Raville).) When the trial judge is unavailable due to incapacity, death, disqualification, or retirement, no other judge can complete the statement of decision process and the matter must be retried. (Karlsen, at p. 1531; see Wallis, supra, 220 Cal.App.4th at p. 827; Raville, at p. 1129; Armstrong v. Picquelle (1984) 157 Cal.App.3d 122, 127-128.) Accordingly, if the trial judge who heard this matter no longer is sitting by assignment or otherwise is unavailable, we remand for a new trial. B. The Appeal Is Not Frivolous and Goto's Conduct Does not Otherwise Warrant Sanctions
Soto filed a motion for appellate sanctions, arguing Goto's appeal is frivolous and she repeatedly violated the rules of appellate practice by relying on evidence she failed to present in the trial court and raising a new challenge in her reply. As sanctions, Soto seeks the nearly $13,000 in attorney fees and costs she has incurred on this appeal. We deny the motion.
Under Code of Civil Procedure section 907, we may impose appellate sanctions "[w]hen it appears . . . the appeal was frivolous or taken solely for delay." (See Cal. Rules of Court., rule 8.276(a).) In In re Marriage of Flaherty (1982) 31 Cal.3d 637, our Supreme Court established that an appeal may be found frivolous and sanctions imposed when (1) the appeal was prosecuted for an improper motive to harass the respondent or delay the effect of an adverse judgment; or (2) the appeal indisputably has no merit because any reasonable attorney would agree the appeal is totally and completely without merit. (Id. at p. 650.)
Here, Soto does not argue Goto prosecuted this appeal for an improper purpose and we conclude the appeal is not frivolous as demonstrated by our conclusion to reverse the judgment based on the trial court's failure to provide a statement of decision. (See California Wholesale Material Supply, Inc. v. Norm Wilson & Sons, Inc. (2002) 96 Cal.App.4th 598, 610 ["Our reversal of the trial court's ruling establishes that Wilson's appeal is meritorious and obviates any need to discuss the issue of sanctions"].)
"'[E]ven if an appeal is neither frivolous nor filed solely for delay, we have independent authority under rule [8.276(a)] of the California Rules of Court to sanction a party who "has been guilty of any . . . unreasonable infraction of the rules . . . as the circumstances of the case and the discouragement of like conduct in the future may require."'" (Bryan v. Bank of America (2001) 86 Cal.App.4th 185, 194.)
Soto contends Goto violated appellate rules by arguing deposition testimony and request for admission responses in this court that Goto did not present to the trial court. Goto responds it is proper to cite any deposition transcript or discovery response that is part of the record, and "[a]ll exhibits admitted in evidence, refused, or lodged are deemed part of the record [on appeal]." (See Cal. Rules of Court., rule 8.124(b)(4).) Goto misconstrues this rule.
An entire deposition transcript is not in evidence simply because a party lodged or submitted it to the trial court during trial. Rather, only those specific questions and responses that a party read or sought to read during trial may be considered as evidence on appeal because those are the only questions and responses that were presented to the court and to which the opponent had an opportunity to object. Similarly, only those requests for admissions and responses that were presented to the trial court are evidence that may be argued on appeal. Lodging a set of requests and responses with the trial court does not make the entire set admissible as evidence.
Here, Goto cites several deposition excerpts and her responses to a request for admissions she submitted to the trial court, but she failed to introduce this material evidence at trial. Nonetheless, we merely caution Goto about this conduct and conclude it does not rise to a level warranting sanctions.
Soto also argues Goto improperly expanded the scope of her appeal by attacking the court's failure to provide a statement of decision in her reply brief. Goto's opening brief, however, argues the trial court failed to articulate the basis for its judgment and all parties have had an opportunity to brief the issue. Accordingly, we also deny the request for sanctions.
III
DISPOSITION
We reverse the judgment and remand for the trial court to hear the parties' closing arguments and issue a statement of decision based on the requests for a statement of decision, if any, the parties make before the court submits the matter for decision. If the trial judge who heard this matter no longer is sitting by assignment or otherwise is legally unavailable to issue a statement of decision, we remand for new trial. We deny the motion for sanctions. Goto shall recover her costs on appeal.
ARONSON, J. WE CONCUR: O'LEARY, P. J. MOORE, J.