Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC296709. Robert L. Hess, Judge, and Murray Gross, Commissioner.
John L. Dodd & Associates and John L. Dodd for Defendants and Appellants.
Baker & Hostetler, Michael R. Matthias and Thomas D. Warren for Plaintiff and Respondent.
ASHMANN-GERST, J.
Defendants and appellants Anton Ostermeier, Anton Ostermeier doing business as O.P. Rental Co., Tony’s Auto Painting, and Gullwing Cars, Inc. (collectively Ostermeier) appeal from a trial court judgment in favor of plaintiff and respondent Gullwing International Motors, Ltd. (Gullwing). Ostermeier argues: (1) Ostermeier was entitled to judgment because Gullwing’s action was time-barred; (2) the damage award was excessive and improper; (3) the trial court erroneously allowed the testimony of expert Brian Davidoff (Davidoff); (4) the trial court erroneously allowed Gullwing to recover certain costs, including prejudgment interest; (5) the trial court erroneously allowed Gullwing to recover attorney fees incurred by George Rosenstock (Rosenstock) and his “respective law firms” and DeCastro, West, Chodorow Inc. (DeCastro); and (6) the trial court erred is granting Gullwing’s postjudgment motion for an assignment and in denying Ostermeier’s subsequent motion for reconsideration of that order.
We reverse the trial court’s order awarding Gullwing attorney fees incurred by Rosenstock and DeCastro. Gullwing did not provide adequate authentication and foundation for those legal bills. Thus, they must be stricken from Gullwing’s attorney fee award.
In all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Factual Background
In accord with the usual rules of appellate review, we state the facts in the light most favorable to the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
In 1977 or 1978, Ostermeier began building replicas of the Mercedes Benz Gullwing vehicle originally produced in the 1950’s. By 1991, he was regularly manufacturing and selling them, including selling 36 cars in one year and 125 cars over a six-year period. In the later part of 1996, Ostermeier contacted Joseph R. Edington (Edington) to ask if he had any interest in purchasing the business. Ostermeier claimed that he wanted to sell the business so that he could spend more time flying his airplanes and visiting his children.
Edington was interested, and had a number of meetings with Ostermeier to better understand the business and the implementation of a growth plan for the business. Edington spent a significant amount of time with Ostermeier, reviewing the accounting as well as the costs involved in producing a replica car.
Ostermeier assured Edington that the business was profitable. He also assured Edington that the strategic business plan, which projected $7 million in profits for the third year alone, was achievable. Ostermeier’s exact words to Edington were: “Trust me. This is a gold mine.”
Based upon these assurances and others, Edington decided to purchase the business. On April 1, 1997, Ostermeier and Gullwing, a company of Edington that was not an operating entity, executed an agreement for the purchase of the business assets for $3.3 million. Under the asset purchase agreement, Gullwing paid Ostermeier $1.5 million in cash at the time of sale and executed a promissory note in the amount of $1.8 million, payable in installments, to Ostermeier. In addition, Ostermeier signed an employment agreement, pursuant to which he agreed to be responsible for the day-to-day management of the business and provide his technical expertise. The plan was for a two-year transition period in which Ostermeier would pass his experience to a group of employees who could run the business after Ostermeier’s departure.
Following the purchase, Gullwing deposited $400,000 into an operating account for the ongoing operation of the business. However, the business appeared to operate at a significant loss, requiring Edington to fund Ostermeier’s “very regular” distress calls for additional operating capital. In total, over the next three years, Gullwing deposited over $1.3 million into the operating accounts of the business.
In view of the business’s losses, Edington could no longer afford to make payments on the promissory note that Gullwing had given for the balance of the purchase price of the business. Starting in the latter half of 1998 and continuing through 1999, Ostermeier issued default notices and attempted to foreclose on a security agreement covering the business assets.
Thereafter, Edington paid $400,000 down on the promissory note and infused the company with $200,000 in additional capital. In exchange, Ostermeier rescinded the notice of foreclosure and reinstated Gullwing’s ownership of the business as if the default had never occurred. In addition, Ostermeier agreed to provide Gullwing with an accounting of the financial activity of the company during the default period.
Edington made repeated requests for the financial accounting from Ostermeier. In April 2000, an accountant for both the replica business and Ostermeier’s other ventures, Sarah Chavez (Chavez), informed Edington that she had concerns about the manner in which Ostermeier was operating the business. Edington decided to review the additional accounting from Ostermeier before arriving at any conclusions.
Finally, on or about June 1, 2000, Ostermeier produced a financial summary prepared by his accountant, Benson Wohl (Wohl), regarding the activity of the business during the “default” period.
Because Edington was suspicious of the report’s conclusions, he asked Chavez to review Wohl’s summary. In the middle of June 2000, Chavez submitted a report to Edington on Wohl’s summary that revealed “that there was a lot of money missing, a lot of misrepresentations.” Edington was “in shock.” Among other things, Ostermeier was paying for labor and materials for his other businesses out of Gullwing’s business account. He also was creating fraudulent invoices for Gullwing cars so that he could secretly pocket the proceeds for the sale of Gullwing cars. It became clear to Edington “why we had these hundreds of thousands of dollars in losses.”
Procedural Background
On November 9, 2000, Gullwing filed a complaint against Ostermeier in federal court. The federal litigation concluded on January 14, 2003, when the district court dismissed the matter for lack of jurisdiction.
Gullwing filed the instant state court action on June 2, 2003. It later filed a first amended complaint. Ostermeier’s demurrer was overruled on June 9, 2004, and Ostermeier filed an answer.
A jury trial commenced in November 2007. Ultimately, the jury found in favor of Gullwing, awarding it compensatory damages in the amount of $17,178,000 and punitive damages in the amount of $1 million. Judgment was entered on January 2, 2008.
On January 22, 2008, Gullwing filed a memorandum of costs. In response, Ostermeier filed a motion to tax costs, which the trial court granted in part and denied in part.
Ostermeier’s motions for a new trial and for judgment notwithstanding the verdict were denied.
On February 29, 2008, the trial court granted Gullwing’s ex parte request for an order directing Ostermeier to turn over to the Orange County Sheriff’s Department the original note secured by deed of trust executed by Calvary Church in South Bay in favor of Ostermeier and his wife. One month later, Gullwing sought and obtained an ex parte order preventing Ostermeier from assigning or disposing of any rights he had purchased to a note secured by deed of trust. Then, on May 9, 2008, the trial court ordered Ostermeier to assign the note secured by the deed of trust to Gullwing.
On April 18, 2008, the trial court granted Gullwing’s motion for attorney fees in part, awarding Gullwing $457,615.25 in attorney fees.
Ostermeier timely appealed from the judgment, the orders on Ostermeier’s motion to tax costs and Gullwing’s motion for attorney fees, and the May 9, 2008, assignment order.
DISCUSSION
I. Gullwing’s Complaint was Timely Filed
Ostermeier contends that the judgment must be reversed because Gullwing’s action was time-barred. He assigns three errors: (1) The trial court erred in overruling his demurrer to Gullwing’s first amended complaint; (2) the trial court erred in refusing to dismiss the complaint after trial; and (3) the trial court erred in refusing to give jury instructions on the issue of the statute of limitations.
In their unnecessarily lengthy appellate briefs, both parties blur their analyses of the statute of limitations issue. They do not set forth distinct discussions of the challenged orders, and they neglect to provide us with appropriate legal authority, including the standard of review. As a result, they left us with what amounts to an academic debate regarding the two competing interpretations of the federal tolling statute (28 U.S.C. § 1367(d)). Their shoddy work left us with the task of sorting through the issues to present them properly.
For example, in arguing that the trial court erred in overruling his demurrer, Ostermeier directs us to evidence presented at trial regarding when Gullwing allegedly learned of Ostermeier’s fraud. “‘A demurrer tests the pleading alone, and not the evidence or the facts alleged.’” (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315.) Thus, the fact that Ostermeier presented evidence at trial that Gullwing may have known of the alleged fraud outside the statutory period is irrelevant for purposes of the demurrer.
A. Demurrer
1. Standard of review
“An order overruling a demurrer is not directly appealable, but may be reviewed on appeal from the final judgment.... [¶]... [¶] The standard of review for an order overruling a demurrer is de novo.” (Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 182.)
“‘The defense of statute of limitations may be asserted by general demurrer if the complaint shows on its face that the statute bars the action.’ [Citations.]” (E-Fab, Inc. v. Accountants, Inc. Services, supra, 153 Cal.App.4th at p. 1315.) In other words, “‘[a] demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. [Citation.]’ [Citation.]” (Geneva Towers Ltd. Partnership v. City and County of San Francisco (2003) 29 Cal.4th 769, 781.) “‘The ultimate question for review is whether the complaint showed on its face that the action was barred by a statute of limitations, for only then may a general demurrer be sustained and a judgment of dismissal be entered thereon.’ [Citation.]” (E-Fab, Inc. v. Accountants, Inc. Services, supra, at p. 1316.)
2. Gullwing’s first amended complaint was not time-barred
For purposes of appeal, the parties seem to agree that Gullwing’s action is governed by the three-year statute of limitations, because the gravamen of the causes of action is fraud. (E-Fab, Inc. v. Accountants, Inc. Services, supra, 153 Cal.App.4th at p. 1316; see Code Civ. Proc., § 338, subd. (d) [“Within three years: [¶]... [¶] (d) An action for relief on the ground of fraud or mistake. The cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake”].)
Gullwing’s trial brief on this issue argued that some of the causes of action were subject to a four-year statute of limitations.
Applying the three-year statute of limitations to the allegations in Gullwing’s first amended complaint, the pleading is not time-barred. At paragraph 35, the first amended complaint alleges that Gullwing was not aware of the alleged fraud until some undisclosed time after preparation and distribution of a June 1, 2000, financial report. The state court action was filed on June 2, 2003. Nothing on the face of the pleading shows that Gullwing’s action is time-barred. Because there is no indication that Gullwing became aware of the June 1, 2000, financial report on that date (which would have rendered the filing of the state court action one-day late), the trial court rightly overruled Ostermeier’s demurrer.
B. Motion to Dismiss
Ostermeier contends that the trial court erred in refusing to dismiss Gullwing’s first amended complaint.
1. Procedural background
At the close of evidence, the parties revisited the statute of limitations issue. Specifically, after reviewing proposed jury instructions, the trial court commented: “I don’t know, defense, what the concept is with regard to the statute of limitations defense. [¶]... [¶] It seems to me like that is going to present an issue of law. The facts are what the facts are. And whether the action is barred by a statute of limitations, that sounds to me like something that’s typically for the court.”
In response to the trial court’s query, Ostermeier’s defense counsel explained: “I think that the working concept that I have in mind... is that there are perhaps issues concerning [Gullwing’s] state of knowledge at various time periods... [of] the conduct which they now allege is either a breach of contract or some sort of fraud; whether that’s concealment, misrepresentation.... [¶]... I think it’s clear that there was knowledge on [Gullwing’s] part sufficient to run that statute of limitations.”
The trial court continued the discussion to the following day to allow counsel time to prepare specific jury instructions, tailored to the statute of limitations issue. At the hearing, Gullwing submitted a brief regarding the statute of limitations issue. Ostermeier’s counsel offered oral argument. After explaining why the three-year statute of limitations governed all of Gullwing’s claims as a matter of law, Ostermeier asserted that a triable issue of fact existed concerning when Gullwing learned of Ostermeier’s alleged fraud. In this regard, Ostermeier pointed the trial court to Chavez’s testimony; she stated that she had a meeting with Edington in April 2000, at which time she informed him of Ostermeier’s alleged wrongdoing. Because the state action complaint was not filed until June 2003, more than three years after April 2000 (if the jury believed Chavez), Gullwing’s action was time-barred, unless it was saved by the federal tolling statute (28 U.S.C. § 1367(d)).
Oral argument continued regarding the federal tolling statute, and the conflict between Kolani v. Gluska (1998) 64 Cal.App.4th 402 (Kolani) and Bonifield v. County of Nevada (2001) 94 Cal.App.4th 298 (Bonifield). Ultimately, the trial court ruled: “[T]o the extent that there’s an argument or a motion for dismissal of any of the claims on the basis of the statute of limitations, it’s denied.”
2. The trial court properly denied Ostermeier’s makeshift motion to dismiss
It is unclear whether Ostermeier actually moved to dismiss Gullwing’s action. In light of the trial court’s ruling and the parties’ failure to address this issue adequately, we will assume that such a motion was made and denied. We treat Ostermeier’s motion to dismiss as a motion for nonsuit and/or a motion for a directed verdict.
“Like a motion for nonsuit [(Code Civ. Proc., § 581c, subd. (a))], a motion for a directed verdict [Code Civ. Proc., § 630, subd. (a))] is in the nature of a demurrer to the evidence. [Citations.] In determining such a motion, the trial court has no power to weigh the evidence, and may not consider the credibility of witnesses. It may not grant a directed verdict where there is any substantial conflict in the evidence. [Citation.]” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 629.) A directed verdict against a plaintiff properly may be granted “‘“only when, disregarding conflicting evidence and giving to plaintiff’s evidence all the value to which it is legally entitled, [and] indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff if such a verdict were given.” [Citations.] Unless it can be said as a matter of law [that] no other reasonable conclusion is legally deductible from the evidence... the trial court is not justified in taking the case from the jury.’” (Hilliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 395.)
Applying these well-settled principles, we conclude that the trial court properly denied Ostermeier’s motion. There was evidence that Gullwing was unaware of Ostermeier’s fraud until June 2000, at the time it reviewed the June 1, 2000, report. Based upon this evidence, the trial court correctly did not dismiss Gullwing’s action.
C. Jury Instructions
Ostermeier contends that the trial court erred in refusing his “request to permit the jury to resolve factual questions concerning the statute of limitations.” We review a trial court’s ruling on jury instructions for abuse of discretion. (Jiagbogu v. Mercedes-Benz USA (2004) 118 Cal.App.4th 1235, 1245.)
1. Procedural background
As mentioned above, following the close of evidence, Ostermeier asked that the trial court submit the statute of limitations issue to the jury. After engaging in a lengthy discussion with defense counsel, the trial court determined that “there is nothing to go to the jury on statute of limitations on any of these claims.” Thus, the trial court stated: “So on instruction 300, we’re going to delete the reference to statute of limitations from the last two lines.”
2. Analysis
“A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572.) Necessarily, “[i]n order to complain of failure to instruct on a particular issue, the aggrieved party must request the specific proper instruction.” (7 Witkin, Cal. Procedure (5th ed. 2008) Trial, § 260, p. 313.)
Here, the appellate record reveals that, in a broad fashion, Ostermeier requested some sort of jury instruction regarding Gullwing’s knowledge of the fraud. Yet Ostermeier does not identify what instruction was requested, if any, and denied. Having failed to request a particular instruction, Ostermeier has not preserved this issue for appellate review. (Stalberg v. Western Title Ins. Co. (1991) 230 Cal.App.3d 1223, 1232.)
Admittedly, the reporter’s transcript indicates that one jury instruction’s reference to the statute of limitations was deleted. But, there is no indication in the appellate record what specific instruction Ostermeier requested, if any. Because Ostermeier failed to provide an adequate record regarding its jury instruction request, the issue must be resolved against him. (See, e.g., Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.)
D. Equitable Tolling is Moot
In light of our conclusions regarding the three challenged trial court orders, we need not reach the issue of equitable tolling. (28 U.S.C. § 1367(d); compare Kolani, supra, 64 Cal.App.4th 402 with Bonifield, supra, 94 Cal.App.4th 298.) Any decision on this issue would be merely an advisory opinion, which we have no power to render. (See, e.g., People ex rel. Lynch v. Superior Court (1970) 1 Cal.3d 910, 912; Nowlin v. Department of Motor Vehicles (1997) 53 Cal.App.4th 1529, 1539.)
II. Substantial Evidence Supports the Damage Award
Ostermeier challenges the general damage award as follows: (1) The general damage award is not supported by substantial evidence because Gullwing’s damages expert, Michael David Cohen (Cohen) based his damage calculation on speculation concerning theoretical future profits. (2) The general damage award is excessive because it relies on erroneous methods of calculation and far exceeds Gullwing’s losses. (3) The jury instructions were erroneous.
Ostermeier also objects to the punitive damage award on the grounds that (1) there was no evidence of Ostermeier’s assets at the time of trial, and (2) it is excessive because it exceeds 10 percent of Ostermeier’s net worth.
Finally, Ostermeier complains about the jury’s award of prejudgment interest.
A. General Damage Award
We review the jury’s damage award for substantial evidence. (Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1078.) The testimony of a single credible witness may constitute substantial evidence. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) However, speculation is not substantial evidence. (Western Digital Corp. v. Superior Court (1998) 60 Cal.App.4th 1471, 1487.) And, “[i]f [an] expert’s opinion is not based upon facts otherwise proved or assumes facts contrary to the only proof, it cannot rise to the dignity of substantial evidence.” (Toscano v. Greene Music (2004) 124 Cal.App.4th 685, 696.)
Ostermeier argues that Cohen’s opinion regarding Gullwing’s profitability was speculative because it relied upon an unfounded business plan; therefore, his testimony did not constitute substantial evidence. We cannot agree.
Cohen did not rely solely upon the business plan is assessing Gullwing’s damages. Rather, he derived his opinion in part from his interview with Edington, who informed Cohen that “there were long conversations about the business plan that... Edington put together, and whether or not it was achievable. [¶] And [Ostermeier]... assured [Edington] that yes, it was achievable.” Cohen also examined the business and various documents regarding the costs of building cars and their sales price, noting “quite a profit in them.”
In asking us to overturn the damage award, Ostermeier nit-picks portions of Cohen’s and Edington’s respective testimonies. His efforts fail. Regarding the “back order” of or “interest in” 100 cars, it does not appear that Cohen relied upon the 100 backorders in calculating damages. As for Edington’s testimony that the business was a “total speculation and high risk”, Ostermeier takes that excerpt out of context. Edington made that comment in October 1999, two years after purchasing the business, because the business was suffering losses and because of the manner in which Ostermeier ran the company. In fact, Edington explained that he made the comment because he did not understand all the losses. But, Edington also testified that he did not believe that Gullwing was a high risk business when it was purchased. At that time, he “thought [he was] walking into an operating company that had been in business for six years, that was represented to me that the company was profitable, and it was properly positioned to become a much larger go, and that was [his] motivation for making the decision to buy the company.”
On appeal, Ostermeier does not dispute that his wide-ranging fraud caused damage to Gullwing. “Where the fact of damages is certain, the amount of damages need not be calculated with absolute certainty. [Citation.] The law requires only that some reasonable basis of computation of damages be used, and the damages may be computed even if the result reached is an approximation.” (GHK Associates v. Mayer Group, Inc. (1990) 224 Cal.App.3d 856, 873.) This is particularly true when a plaintiff alleges and proves fraud. “If plaintiff’s inability to prove his damages with certainty is due to defendant’s actions, the law does not generally require such proof.” (Clemente v. State of California (1985) 40 Cal.3d 202, 219; see also Civ. Code, § 3517.)
Because substantial evidence supports the jury award, the trial court properly denied Ostermeier’s motion for judgment notwithstanding the verdict. (Hauter v. Zogarts (1975) 14 Cal.3d 104, 110; Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68; Begnal v. Canfield & Associates, Inc. (2000) 78 Cal.App.4th 66, 72–73.)
Ostermeier also objects to Cohen’s damage calculation on the grounds that it was based on an erroneous legal theory. Specifically, Ostermeier argues that Gullwing was not entitled to lost profits damages because its business was unestablished. We review this issue de novo. (Toscano v. Greene Music, supra, 124 Cal.App.4th at p. 691.)
As explained in Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, the California Supreme Court distinguishes between established business and unestablished businesses in the showing required for reasonable certainty as to lost profits. (Id. at pp. 882–883.) Damages for loss of prospective profits due to interference with an operation of an established business by breach of contract are generally recoverable because their “occurrence and extent may be ascertained with reasonable certainty from the past volume of business and other provable data relevant to the probable future sales.” (Id. at p. 883.) Once the extent and occurrence of lost profits for an established business are shown with reasonable certainty, a plaintiff will recover even if “the amount cannot be shown with mathematical precision.” (Resort Video, Ltd. v. Laser Video, Inc. (1995) 35 Cal.App.4th 1679, 1698.) Lost profits of unestablished businesses, without a track record, are typically more “uncertain, contingent and speculative” than those of established businesses, but such new or prospective operations may also receive lost profit damages where these can be shown by “evidence of reasonable reliability.” (Kids’ Universe v. In2Labs, supra, at p. 883.)
Ostermeier challenges the damage award on the grounds that Gullwing was an unestablished business. This argument is unconvincing.
Edington purchased Ostermeier’s existing business, which had been in operation for at least six years—far more than a very short period of time. (Maggio, Inc. v. United Farm Workers (1991) 227 Cal.App.3d 847, 870.) And, there was testimony regarding the operation and profitability of the business. Finally, as set forth above, there even was a strategic business plan. Under these circumstances, we readily conclude that Gullwing was an established business, and the fact that Edington sought to expand it did not transform the established business into an “essentially... new business.”
Ostermeier argues that the judgment must be reversed because the trial court erroneously instructed the jury on damages. According to Ostermeier, because there was no substantial evidence presented as to what Gullwing would have received had the contracts been performed, this instruction should not have been given. For the reasons set forth above, substantial evidence supports the damage award. It follows that this instruction did not constitute reversible error.
Ostermeier objects to the following specific language: “Damages claimed by [Gullwing] for breach of contract includes: [¶] 1. What [Gullwing] would have received if the contracts had been fully performed by both sides.”
Ostermeier further challenges the judgment on the grounds that “the best value of the business was the price at which it actually sold, $3.3 million. Cohen’s artificially-inflated value of over $9.7 million for the exact same business is grossly excessive. Second, applying Cohen’s methodology to the business as it existed in 1997 results in an even lower valuation.” But, what Ostermeier ignores is the fact that Cohen’s damage calculation was based upon the strategic business plan discussed above. And, notably, Ostermeier did not cross-examine Cohen on his lost profits calculation. If Ostermeier believed that Cohen’s analysis was faulty, he should have cross-examined him on this issue or offered his own expert testimony regarding damage calculation.
For the same reasons, Ostermeier’s challenge pursuant to Civil Code sections 3333 and 3359 fails. Admittedly, “[d]amages must, in all cases, be reasonable and where an obligation of any kind appears to create a right to unconscionable and grossly oppressive damages, contrary to substantial justice, no more than reasonable damages can be recovered.” (Civ. Code, § 3359; see also Civ. Code, § 3333 [“For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not”].) Cohen’s testimony confirms that the damage award was reasonable and compensated Gullwing for all damage caused by Ostermeier’s misconduct.
Ostermeier contends that the trial court erroneously instructed the jury regarding damages. Specifically, he claims that the benefit of the bargain instruction should not have been given as to Gullwing’s fraud and conversion causes of action because, under Civil Code section 3343, only out-of-pocket losses are recoverable.
Ostermeier is mistaken. Civil Code section 3343 provides: “One defrauded in the purchase, sale or exchange of property is entitled to recover the difference between the actual value of that with which the defrauded person parted and the actual value of that which he received, together with any additional damage arising from the particular transaction.” (Civ. Code, § 3343, subd. (a).) “The enactment of [this statute] marked California’s adoption of the ‘out-of-pocket’ rule as the exclusive measure of damages in fraud cases, except those involving the breach of fiduciary duties.” (Saunders v. Taylor (1996) 42 Cal.App.4th 1538, 1542.)
Here, Gullwing’s claims are not based upon Ostermeier’s fraud in connection with the purchase and sale of the business. Rather, its claims stem from Ostermeier’s fraud in the years following the purchase of his business by Gullwing. In this regard, as the jury expressly found, Ostermeier breached fiduciary duties owed to Gullwing and caused Gullwing harm. Under these circumstances, the jury instruction was not erroneous.
Even if the damages arose out of the sales of the business itself, Civil Code section 3343, subdivision (a)(4) allows for an award of lost profits in addition to the out-of-pocket damages.
Finally, Ostermeier argues that the damages were excessive—they were excessive as damages for fraud, they were excessive as damages for breach of contract, and they were excessive as damages for conversion. The problem for Ostermeier is that the jury returned a general verdict on damages: The jury awarded Gullwing $17,178,000 in damages resulting from Ostermeier’s “misconduct.” It is well-established that a general verdict will be upheld if supported by substantial evidence on any one theory. (Tavaglione v. Billings (1993) 4 Cal.4th 1150, 1157.) As set forth above, the jury award is supported by substantial evidence. The damage award was not excessive.
B. Punitive Damage Award
Ostermeier argues that the $1 million punitive damage award must be reversed because Gullwing declined to present evidence of Ostermeier’s net worth.
“Net worth” has become the guidepost of punitive damages; although other factors may be considered and may be dispositive, courts continue to require consideration of net worth. (See Adams v. Murakami (1991) 54 Cal.3d 105, 109; Kenly v. Ukegawa (1993) 16 Cal.App.4th 49, 57.) Thus, a punitive damage award requires “meaningful evidence” of the defendant’s net worth. (Adams v. Murakami, supra, at p. 109.) There must be substantial evidence of the defendant’s financial condition in the record. (Lara v. Cadag (1993) 13 Cal.App.4th 1061, 1064.)
Here, there is ample evidence of Ostermeier’s net worth to sustain the punitive damage award. Specifically, Ostermeier received $1.9 million in cash from Gullwing for the business assets; he also wrote checks to himself totaling $710,000, and stole approximately $1.2 million from Gullwing. Ostermeier testified at trial that he owned several private airplanes, including a jet, an older model military aircraft, and a bonanza propeller airplane. Ostermeier also sold commercial real property in 2001 to a neighboring church for $2.1 million.
Alternatively, Ostermeier argues that even if there was evidence of his net worth, the punitive damage award was excessive. In light of the evidence, we cannot agree. Additionally, Gullwing’s action here is based upon Ostermeier’s fraud. Under the gain-based measure of punitive damages in this sort of fraud case, the $1 million punitive damage award is not excessive. (Johnson v. Ford Motor Co. (2005) 35 Cal.4th 1191, 1208; Cummings Medical Corp. v. Occupational Medical Corp. (1992) 10 Cal.App.4th 1291, 1299–1300.)
C. Prejudgment Interest
Ostermeier argues that prejudgment interest should not have been awarded.
Arguably, this claim has been forfeited on appeal. “To preserve for appeal a challenge to separate components of a plaintiff’s damage award, a defendant must request a special verdict form that segregates the elements of damages.” (Greer v. Buzgheia (2006) 141 Cal.App.4th 1150, 1158.) As mentioned above, the jury awarded Gullwing the total sum of $17,178,000 in damages. There is no indication that Ostermeier requested a special verdict form that separated prejudgment interest from the remainder of damages. Having failed to do so, his claim could be deemed waived on appeal.
We need not decide this procedural issue because, on the merits, Ostermeier’s argument fails. Civil Code section 3288 provides: “In an action for the breach of an obligation not arising from contract, and in every case of oppression, fraud, or malice, interest may be given, in the discretion of the jury.” (Civ. Code, § 3288.) Here, the jury found that Ostermeier engaged in his misconduct “with malice, oppression or fraud.” Under these circumstances, the jury was permitted to exercise its discretion and award prejudgment interest.
III. Denial of Motion to Strike Testimony of Davidoff
Ostermeier argues that the trial court’s denial of his motion to strike Davidoff’s testimony constituted reversible error.
A. Procedural Background
At trial, Gullwing called Davidoff, an attorney, as a witness. As Davidoff explained, he was “asked to give an opinion as to the validity of the... March 1999, purported foreclosure by [Ostermeier].” Davidoff concluded that Ostermeier “could not strictly foreclose [on the Gullwing assets because he was] not in possession of the assets.”
Following direct examination, cross-examination, redirect examination, and recross-examination, Davidoff was excused. Then, outside the presence of the jury, counsel and the trial court discussed business foreclosure law. Towards the end of the conversation, Ostermeier’s counsel asked: “Isn’t this expert really usurping the court’s function... ?” The trial court responded: “If you thought so, why didn’t you bring a motion? [¶] Where was your motion in limine... ? [¶] Where was your objection to his testimony? [¶] You didn’t—you are not—you didn’t believe that... and at least not enough to raise the issue.” Counsel replied: “Well, I am objecting now. I think it should be stricken.”
Gullwing’s counsel objected to Ostermeier’s counsel’s request to strike Davidoff’s testimony on the grounds that the objection was untimely. Not only had the expert’s report had been around for years, but Ostermeier also should have objected during the introductory portion of his direct examination (before Davidoff offered his opinion).
The trial court agreed, finding a waiver. In so ruling, the trial court noted that Ostermeier’s counsel had displayed Davidoff’s report to the jury, “after being warned that that would be subject to being admitted in to evidence.”
B. Analysis
The trial court did not err in denying Ostermeier’s belated motion to strike Davidoff’s testimony. Generally speaking, an appellate court reviews any ruling by a trial court as to the admissibility or exclusion of evidence, including expert opinion testimony, for abuse of discretion. (People v. Rowland (1992) 4 Cal.4th 238, 266; People v. McAlpin (1991) 53 Cal.3d 1289, 1299.) In order to preserve the right to challenge on appeal the erroneous admission of evidence, an appellant must make a timely and proper objection clarifying the specific ground for the objection. (Evid. Code, § 353, subd. (a); In re Joy M. (2002) 99 Cal.App.4th 11, 20; Pineda v. Los Angeles Turf Club, Inc. (1980) 112 Cal.App.3d 53, 60.)
Here, Ostermeier’s counsel did not make a timely objection to Davidoff’s expert testimony. He did not file a motion in limine prior to trial or at any time prior to when Davidoff was called to testify. He did not object during Davidoff’s testimony. Rather, Ostermeier waited, until after the witness testified in front of the jury and was excused before raising his objection. Under these circumstances, the trial court rightly denied Ostermeier’s request to strike Davidoff’s testimony.
Moreover, even after a warning from the trial court, Ostermeier’s counsel himself introduced Davidoff’s expert report into evidence. Having introduced the very expert report upon which Davidoff based his testimony, Ostermeier invited any alleged error. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403.)
In his reply brief, Ostermeier cites Horsemen’s Benevolent & Protective Assn. v. Valley Racing Assn. (1992) 4 Cal.App.4th 1538, 1557 and argues that the invited doctrine does not apply because he did not present Davidoff’s testimony. As such, his cross-examination was defensive. We disagree. In that case, counsel first objected to the direct testimony of the witnesses on the disputed matter and then cross-examined those same witnesses on the issue. (Id. at p. 1557.) “Cross-examination in that context was by definition, defensive” and thus did not constitute invited error. (Ibid., italics omitted.) In contrast, Ostermeier did not object to Davidoff’s testimony either before or during his testimony.
Regardless, even if Davidoff’s testimony should have been excluded, that error does not compel reversal. A judgment cannot be reversed based on the erroneous admission of evidence unless, after an examination of the entire cause, including the evidence, the court is of the opinion that the error complained of has resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; see also Code Civ. Proc., § 475; Evid. Code, § 353, subd. (b).) Error is deemed harmless unless it is reasonably probable that the objecting party would have obtained a more favorable result in its absence. (Soule v. General Motors Corp., supra, 8 Cal.4th at p. 570.) The appellant bears the burden of demonstrating prejudice. (Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 853–854.)
Here, Ostermeier has failed to meet his burden. Even if Davidoff’s testimony had been stricken, there was ample evidence to support the jury’s liability determinations as to breach of fiduciary duty, fraud, and conversion; the foreclosure-related transfers were only one component of Gullwing’s case.
IV. Motion to Strike Particular Items from Cost Bill
As set forth above, following trial, Gullwing filed a memorandum of costs. Ostermeier filed a motion to tax costs, which the trial court granted in part and denied in part. Ultimately, the trial court awarded Gullwing $34,742.66 of the $60,742.89 costs requested.
“[A] prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).) Allowable costs are set forth in Code of Civil Procedure section 1033.5, subdivision (a). Additionally, “[i]tems not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.” (Code Civ. Proc., § 1033.5, subd. (c)(4).) As the parties agree, we review the trial court’s order for abuse of discretion. (Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370, 1380.)
A. Process Serving Costs
Ostermeier objects to the trial court’s allowance of $1,169.16 in service of process for witnesses costs. He claims that these costs should not have been permitted because these witnesses did not testify in this case and it “appears” that these fees were incurred in the federal action.
Costs related to service of process are expressly allowed by Code of Civil Procedure section 1033.5. (Code Civ. Proc., § 1033.5, subd. (a)(4).) Thus, the burden was on Ostermeier to show that these costs were unnecessary or unreasonable. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) Ostermeier did not meet this burden. The fact that the witnesses did not testify is irrelevant; the evidence establishes that they were served. And, Ostermeier’s claim that it “appears” that these fees were incurred in the federal action (as opposed to the instant state court action) is nothing more than speculation.
B. High-Tech Equipment and Exhibits
Ostermeier objects to costs for certain “[m]odels, blowups, and photocopies of exhibits.”
Code of Civil Procedure section 1033.5, subdivision (a) provides: “The following items are allowable as costs under [Code of Civil Procedure] Section 1032: [¶]... [¶] (12) Models and blowups of exhibits and photocopies of exhibits may be allowed if they were reasonably helpful to aid the trier of fact.”
1. Easel
Ostermeier argues that the $70 fee for an easel should have been rejected “as this is a piece of law firm office equipment.” There is no evidence that the easel was a piece of Gullwing’s counsel’s office equipment. The trial court did not abuse its discretion.
2. Computer Design, Technicians, and Projector Rental
Ostermeier argues that Gullwing is not entitled to costs for computer design, art direction, “‘infodesign’ and someone to run the projector.” He claims that these fees are for expert services, not costs. Citing Science Applications Internat. Corp. v. Superior Court (1995) 39 Cal.App.4th 1095, 1104–1105 (Science Applications), he asserts that these costs are not recoverable. We find no abuse of discretion. The trial court had the discretion to find that these costs fall within the scope of allowable costs for models and blowups of exhibits. (Code Civ. Proc., § 1033.5, subd. (a)(12); Science Applications, supra, at p. 1104; El Dorado Meat Co. v. Yosemite Meat & Locker Service, Inc. (2007) 150 Cal.App.4th 612, 619.)
While a less expensive “overhead projector may have served the job just as well,” Ostermeier’s opinion does not compel a finding that the trial court abused its discretion in awarding this cost.
3. Blowups not Used at Trial
Citing Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 775, Ostermeier contends that the trial court abused its discretion in awarding Gullwing $7,344 for blowups of exhibits because “[t]here is no indication one of these was shown to the jury [and Gullwing’s] opposition [to Ostermeier’s motion to tax costs] did not claim which specifically were used at trial.” Ostermeier’s argument is not persuasive.
Ladas v. California State Auto. Assn., supra, 19 Cal.App.4th 761 is distinguishable. In that case, none of the exhibits was used because the case was dismissed before trial. (Id. at p. 775.) In contrast, the instant case went to trial. Gullwing and its counsel needed to get ready for trial, and to do so they prepared exhibits that may or may not have been used. Thus, its costs incurred in connection with the preparation of these exhibits were reasonable. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 856.)
V. Attorney Fees
A. Background
On March 27, 2008, Gullwing filed a motion for attorney fees, seeking “$1,162,532.93 in attorneys’ fees and disbursements.” In support of the motion, Gullwing offered a declaration from attorney Michael R. Matthias (Matthias), a partner of the law firm Baker & Hostetler LLP (Baker), attorneys of record for Gullwing. In his declaration, Matthias “set forth the qualifications of the lawyers and paralegal staff who worked on this matter to support the propriety of hourly rates and work done on this matter since [Baker] was retained to represent [Gullwing] in or around March, 2007. This litigation dates back to 2001, when the matter was first litigated in United States District Court for the Central District of California. The lawsuit was dismissed in Federal Court and was re-filed in this Court in or around June, 2003. From the inception of the lawsuit until [Baker] was retained in March, 2007, [Gullwing] was represented primarily by attorney George Rosenstock and his respective law firms.”
Attached to Matthias’s declaration as exhibit C were copies of Gullwing’s “attorneys’ billing statements for the relevant period.” He attested: “As the primary partner at [Baker] responsible for this litigation, I am the custodian of records of the billing statements of [Baker] attached hereto. The remaining billing statements represent the bills from [Gullwing’s] prior counsel, namely, George Rosenstock and his respective law firms. I have reviewed these records and believe them to be in order. [Gullwing’s] attorneys’ fees and disbursements total $1,162,532.93. For ease of reference, Exhibit C has been organized by the different law firms retained by [Gullwing] in the course of this lawsuit.”
Ostermeier opposed Gullwing’s motion for attorney fees. Ostermeier objected to those attorney fees that were incurred in the federal action and the requested disbursements, which are not allowed under Code of Civil Procedure section 1033.5, subdivision (b). Ostermeier also objected to the billing records for all of the attorneys and law firms other than Baker on the grounds that the exhibits lack foundation and are hearsay. Ostermeier also argued that Gullwing failed to present evidence regarding the training, experience, reputation, and skill of all attorneys other than those employed by Baker.
Gullwing filed a reply brief on April 11, 2008, agreeing to reduce its attorney fee request to $457,615.60 and disbursement request to $39,552.10, for a total of $497,165.35. These amounts were incurred only in connection with the state court action.
Moreover, Gullwing offered a declaration from Edington to lay further foundation for the attorney fee business records. Edington declared that he reviewed exhibit C to Matthias’s declaration, and that exhibit C contains “true and correct copies of the invoices [Gullwing] received from its attorneys and other services providers in the ordinary course of business which relate to [Gullwing’s] attempts to pursue its claims against [Ostermeier] under the Asset Purchase Agreement and Employment Agreement. [Gullwing] has paid these invoices from the inception of the dispute through trial. These invoices constitute business records of [Gullwing] and were maintained in the ordinary course of business. [Gullwing] believes that the fees and disbursements stated in these invoices were reasonably incurred given the breadth and complexity of this litigation.”
Edington continued: “To initiate this lawsuit, [Gullwing] was referred to Van Etten Suzumoto and Becket which [Gullwing] believed to be a reputable firm fully capable of handling a matter of this scale and type. This lawsuit was assigned to attorney George Rosenstock who litigated the matter until [Gullwing] retained [Baker].... [Gullwing] believes that the rates of the various law firms retained by [Gullwing] are reasonable and comparable to those charged by other firms of the same or similar experience. This belief is based upon my discussions with attorneys in the Los Angeles area regarding their billing rates and qualifications.”
At the hearing on April 18, 2008, the trial court ruled: “Attorneys fees allowed in the sum of $457,615.25. The Court is satisfied from the detail of the billings and the fact that the bills were paid by the client. [¶] The request for disbursements is denied.”
B. Analysis
On appeal, Ostermeier does not challenge the attorney fees awarded that are allocable to Baker. He does challenge attorney fees awarded for legal services of Rosenstock and DeCastro on the grounds that the fees were unreasonable and the purported evidence in support of the fee request (the bills) were not properly authenticated.
Preliminarily, we consider Gullwing’s contention that “[b]ecause Ostermeier failed to make the particular challenges to particular attorney’s fees to the trial court, he has waived any claim of error.” Certainly, “it is the burden of the challenging party to point to the specific items challenged, with a sufficient argument and citations to the evidence. General arguments that fees claimed are excessive, duplicative, or unrelated do not suffice. Failure to raise specific challenges in the trial court forfeits the claim on appeal.” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564.)
Albeit weakly, Ostermeier did preserve this issue for appeal. In his opposition to Gullwing’s motion for attorney fees, Ostermeier pointed out that Gullwing had the “burden of proof to present competent, admissible evidence of the reasonableness of the fees sought” and did not meet its burden. And, Gullwing understood Ostermeier’s objection. After all, in its reply to Ostermeier’s opposition, Gullwing addressed Ostermeier’s claim that it had not proffered admissible evidence and submitted a declaration from Edington in an attempt to cure the defect. Thus, we turn to the merits of Ostermeier’s argument on appeal.
“[A]n award of attorney fees is a matter within the sound discretion of the trial court and absent abuse of discretion the determination of the trial court cannot be disturbed.” (Gonzales v. Personal Storage, Inc. (1997) 56 Cal.App.4th 464, 479.) Likewise, evidentiary objections are reviewed for abuse of discretion. (People v. Rowland, supra, 4 Cal.4th at p. 266; People v. McAlpin, supra, 53 Cal.3d at p. 1299.)
“To enable the trial court to determine whether attorney fees should be awarded and in what amount, an attorney should present ‘(1) evidence, documentary and oral, of the services actually performed; and (2) expert opinion, by [the applicant] and other lawyers, as to what would be a reasonable fee for such services.’ [Citations.] ‘In many cases the trial court will be aware of the nature and extent of the attorney’s services from its observation of the trial proceedings and the pretrial and discovery proceedings reflected in the file.’ [Citation.] However, in the absence of such crucial information as the number of hours worked, billing rates, types of issues dealt with and appearances made on the client’s behalf, the trial court is placed in the position of simply guessing at the actual value of the attorney’s services. That practice is unacceptable and cannot be the basis for an award of fees.” (Martino v. Denevi (1986) 182 Cal.App.3d 553, 558–559.) There is no requirement that an attorney submit billing statements to support its declaration seeking attorney fees; an attorney’s testimony as to the number of hours worked is sufficient evidence, even if the absence of detailed time records. (Steiny & Co. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285, 293.)
As with all motions, evidence offered in support of a motion for attorney fees must comply with California’s evidentiary requirements. Thus, Gullwing was required to provide the proper foundation and authentication for the attorney fee bills from Rosenstock and DeCastro. (Evid. Code, § 1271; see also California Steel Buildings, Inc. v. Transport Indemnity Co. (1966) 242 Cal.App.2d 749, 759–760.) It did not do so.
First, Matthias’s declaration is inadequate. He has no personal knowledge of either Rosenstock’s or DeCastro’s bills. In fact, all he stated was that he “reviewed [those] records and believe[d] them to be in order.” Yet, his belief is not evidence. (Franklin v. Nat C. Goldstone Agency (1949) 33 Cal.2d 628, 631.) And, he offers no testimony regarding the number of hours worked, services rendered, the reasonableness of those services, and the like. Similarly, he does not, and presumably cannot, offer testimony regarding the preparation of these attorneys’ bills.
Edington’s declaration fails as well. All his declaration establishes is that Gullwing paid Rosenstock’s and DeCastro’s bills. Like Matthias’s declaration, Edington’s declaration does not lay a proper foundation for or properly authenticate these attorney bills. (See Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 796 [“This declaration fails to support the assertions for which it is offered. It lacks foundation for the basis for the declaration and amounts to nothing more than inadmissible hearsay”].)
In sum, the attorney fee award is reversed in part. Gullwing only is entitled to $316,331.50, the amount of attorney fees incurred by Baker.
VI. Postjudgment Orders Concerning Alleged Trust Assets
A. Background
Following the entry of judgment, Gullwing initiated a levy against a $1.6 million promissory note executed by Calvary Chapel South Bay (Calvary Chapel) in favor of Ostermeier and his wife. The promissory note represented the proceeds of the sale of commercial property owned by the Ostermeiers to Calvary Chapel in April 2001. Under the terms of the promissory note, the Ostermeiers received monthly cash payments from Calvary Chapel in the amount of $12,349.06 through April 2016.
On February 20, 2008, an Orange County Sheriff’s Deputy attempted to execute on the levy by obtaining the original promissory note from Ostermeier. Ostermeier informed the deputy that he did not have the original promissory note.
On February 29, 2008, Gullwing filed an ex parte application for an order directing Ostermeier to turn over the original promissory note to the Orange County Sheriff. The trial court granted Gullwing’s application, ordering Ostermeier to transfer the original promissory note within five days. Ostermeier did not comply with the trial court’s order.
Thus, on March 25, 2008, Gullwing filed an ex parte application for an order restraining Ostermeier from assigning or otherwise disposing of the promissory note. The trial court granted Gullwing’s request.
Also on the same date, Gullwing filed a motion for an order assigning the promissory note and payment rights to it. Ostermeier opposed the motion, arguing that the promissory note was not Ostermeier’s asset. According to Ostermeier, the subject real property was an asset of the Anton Ostermeier and Ulrike Ostermeier Family Trust, and had been since 1995. The promissory note became part of the trust when the trust was amended and restated on April 20, 2005. Because the promissory note was a trust asset, and the principal place of administration of the trust was Orange County, venue and jurisdiction over assignment of the note were only proper in Orange County.
On May 6, 2008, the trial court entertained oral argument on the matter. The trial court found no evidence that the promissory note was transferred from Ostermeier to the trust. Thus, the trial court granted Gullwing’s motion for assignment order and restraining order. Ostermeier was ordered to assign the right to payment under the promissory note to Gullwing. Ostermeier was further restrained from disposing of the right to payment under the note.
Ostermeier filed a motion for reconsideration to set aside the assignment order, arguing that he was sick and thus unable to put the complete record before the trial court in connection with Gullwing’s motion. Gullwing opposed Ostermeier’s motion, again arguing that nothing in the documents indicated that the promissory note had been transferred to a trust. In particular, Gullwing noted that Calvary Chapel had made all monthly payments under the terms of the promissory note directly to Ostermeier, not to a trust.
After engaging Ostermeier’s counsel in a discussion regarding the assignment order and applicable civil procedure, the trial court denied Ostermeier’s motion for reconsideration.
B. Analysis
We are called upon to consider whether Gullwing’s motion for an assignment order should have been heard in Orange County. According to Ostermeier, because he claims that the promissory note was a trust asset, and the trust is administered in Orange County, only an Orange County court can decide whether the promissory note was in fact a trust asset. In support, Ostermeier relies upon Code of Civil Procedure sections 699.720 and 709.010 and Probate Code section 17000.
Ostermeier’s reliance on these statutes is misplaced, in that his argument is based on the faulty premise that Gullwing is attempting to enforce a money judgment against Ostermeier’s interest as a beneficiary of the trust. (See, e.g., Code Civ. Proc., § 709.010, subd. (b) [“The judgment debtor’s interest as a beneficiary of a trust is subject to enforcement of a money judgment only upon petition under this section by a judgment creditor to a court having jurisdiction over administration of the trust as prescribed in Part 5 (commencing with Section 17000) of Division 9 of the Probate Code”].) Nothing could be further from the truth. Gullwing is attempting to enforce a money judgment against Ostermeier in his individual capacity. In that regard, it filed a motion and offered evidence that the promissory note was Ostermeier’s individual asset. Ostermeier submitted contrary evidence. The trial court considered the evidence, and believed Gullwing. We cannot disturb that finding. (In re Charlisse C. (2008) 45 Cal.4th 145, 159 [“As to disputed factual issues, a reviewing court’s role is simply to determine whether substantial evidence supports the trial court’s findings of fact; ‘the reviewing court should not substitute its judgment for... express or implied [factual] findings [that are] supported by substantial evidence. [Citations.]’”
C. Motion for Reconsideration
Ostermeier also argues that the trial court erred in denying his motion for reconsideration. He contends that his “hospitalization and illness [were] sufficient justification for not producing additional documents at the prior hearing [on Gullwing’s motion for an assignment of the promissory note].” The trial court did not abuse its discretion. (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457; Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.)
Gullwing argues that we cannot review the trial court’s order denying Ostermeier’s motion for reconsideration because the order is not appealable. An order denying a motion for reconsideration is not separately appealable, but is reviewable on an appeal from the underlying appealable order. (Rojes v. Riverside General Hospital (1988) 203 Cal.App.3d 1151, 1160, overruled on other grounds in Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1605; but see In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 81 [courts of appeal are divided as to whether an order denying reconsideration is appealable].)
At the May 8, 2008, hearing on Gullwing’s motion, Ostermeier requested additional time to secure documents showing that the property was transferred to the trust. In his motion for reconsideration, Ostermeier submitted those documents. Yet, the trial court still found that Gullwing was entitled to an assignment order. For the reasons set forth above, we agree with the trial court. It follows that the trial court did not abuse its discretion in denying Ostermeier’s motion for reconsideration.
DISPOSITION
We reverse the trial court’s order awarding Gullwing attorney fees incurred by Rosenstock and DeCastro. In all other respects, the judgment is affirmed. Parties to bear their own costs on appeal.
We concur: DOI TODD, Acting P. J., CHAVEZ, J.