Opinion
B226648
10-26-2011
INGLEWOOD FAMILY CORPORATION, Plaintiff and Respondent. v. JAMES B. CURRAN, Defendant, Cross-complainant and Appellant; HWA RAN YANG, Cross-defendant and Respondent.
Law Offices of Gilbert & Marlowe and Richard C. Gilbert for Defendant, Cross-complainant and Appellant. Law Offices of Cruz & Del Valle and Leonard G. Cruz for Plaintiff and Respondent. Howard D. Sacks for Cross-defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. YC057205)
APPEAL from a judgment of the Superior Court of Los Angeles County. Cary H. Nishimoto, Judge. Affirmed.
Law Offices of Gilbert & Marlowe and Richard C. Gilbert for Defendant, Cross-complainant and Appellant.
Law Offices of Cruz & Del Valle and Leonard G. Cruz for Plaintiff and Respondent.
Howard D. Sacks for Cross-defendant and Respondent.
Defendant and cross-complainant James B. Curran (Curran) appeals from a judgment entered against him and in favor of plaintiff Inglewood Family Corporation (IFC) and cross-defendant Hwa Ran Yang (Yang). He contends that he was "ambushed" at trial when the trial court allowed IFC to introduce certain documents (exhibit 7) into evidence that were not produced in response to Curran's request for production of documents.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This litigation arises out of a landlord-tenant dispute. On October 19, 2007, IFC filed a complaint against Curran for breach of written lease following Curran's failure to pay rent. Eventually, IFC filed a second amended complaint, the operative pleading. Curran answered, alleging as one of his affirmative defenses that IFC failed to mitigate its damages. Later, Curran filed a cross-complaint against Yang, seeking indemnity and contribution.
On August 11, 2009, Curran served a demand for production of documents on IFC, seeking documents relating to IFC's mitigation efforts. IFC responded on September 17, 2009, stating that it made a diligent effort and reasonable inquiry to locate the documents requested, but lacked the ability to comply as responsive documents were in the listing agent's possession. The listing agent's name, address, and telephone number were provided.
Shortly thereafter, on September 25, 2009, IFC's attorney wrote Curran's attorney and explained that in mitigation it posted "for rent" signs on the premises from October 17, 2007, until approximately March 2009 and marketed the property through a full-time onsite property manager as it had done for its property for the past 30 years. Enclosed was a letter from the listing agent and other various documents.
Trial commenced on February 3, 2010. On that date, Curran objected to the introduction of IFC's exhibit 7, which consisted of internet listings to rent the subject premises. Specifically, his counsel stated: "We've served discovery on [IFC]. Last discovery was back in August. And pursuant to that discovery request we asked for all mitigating efforts. And, unfortunately, they did not provide, or they did provide one set of documents subsequently. On the trial brief he included two documents that were not given to our office at the time. [¶] At this time I would ask the court to exclude exhibit seven."
IFC's counsel responded, pointing out that IFC did respond to the discovery and that the two subject documents were located after the discovery request. Had Curran propounded a follow up discovery request, IFC would have supplied a follow up discovery response.
The trial court then asked why the documents were significant; Curran replied that they would help refresh a witness's testimony. The trial court then inquired as to whether depositions were taken. When the parties indicated that no depositions were taken, it denied Curran's request.
Following the presentation of its evidence, IFC moved to admit its eight exhibits into evidence. In response to the trial court's query, Curran indicated that he had no objections.
On March 23, 2010, the trial court rendered its statement of decision, awarding judgment to IFC. In particular, it noted that Curran "did not meet his burden of proof that [IFC] failed to mitigate the damages it sustained as a result of [Curran's] non[]payment of rent." In fact, "Curran offered no affirmative evidence that [IFC's] efforts to re-let the subject premises to the [lawsuit] were not sufficient." The trial court further found that "Curran failed to carry his burden of proof against . . . Yang" and entered judgment in Yang's favor on the cross-complaint.
Subsequently, it appears that the trial court denied Curran's motion for a new trial.
This timely appeal ensued.
DISCUSSION
Curran argues that the trial court should have granted a new trial pursuant to Code of Civil Procedure section 657, subdivision 7, on the grounds that the trial court made an error of law "by allowing into evidence information or documentation relating to mitigation that was not provided to" Curran in response to the demand for production of documents served on IFC.
A. The Judgment in Favor of Yang is Affirmed
In addressing an appeal, we begin with the presumption that a judgment or order of the trial court is presumed correct and reversible error must be affirmatively shown by an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574; Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The appellant must "present argument and authority on each point made" (County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591; Cal. Rules of Court, rule 8.204(a)(1)(B)) and cite to the record to direct the reviewing court to the pertinent evidence or other matters in the record that demonstrate reversible error. (Cal. Rules of Court, rule 8.204(a)(1)(C).) It is not our responsibility to comb the appellate record for facts or to conduct legal research in search of authority to support the contentions on appeal. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.) If the appellant fails to cite to the record or relevant authority, we may treat the issue as waived. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.)
Curran has not met his burden on appeal regarding the judgment on the cross-complaint in favor of Yang. His only argument on appeal is that the trial court erred in admitting certain documents relevant to IFC's mitigation efforts. Curran offers no evidence or argument regarding Yang. Who is Yang? How is IFC's response to a document request propounded by Curran relevant to or binding upon Yang? Why should the judgment against her be reversed? These critical questions are left unanswered. Curran's silence compels us to affirm the judgment in Yang's favor.
B. The Judgment in Favor of IFC is Affirmed
Assuming that Curran sufficiently objected to the trial court's order admitting exhibit 7 into evidence and assuming that the trial court erred in admitting exhibit 7, we turn to the issue of whether that alleged error was prejudicial.
We express no opinion as to whether the trial court erred in admitting exhibit 7.
"A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] . . . [¶] (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice." (Evid. Code, § 353; see also Cal. Const., art. VI, § 13.) "An error made by a trial court must be prejudicial to be reversed. An error is prejudicial where there is a good probability, in the absence of the error, the result to the appellant would have been more favorable." (Finney v. Gomez (2003) 111 Cal.App.4th 527, 550, fn. omitted.)
Curran has not demonstrated prejudicial error. He bore the burden of presenting evidence of mitigation efforts. (Civ. Code, § 1951.2, subd. (a)(2) ["if a lessee of real property breaches the lease . . . the lessor may recover from the lessee: [¶] . . . [¶] . . . the amount of such rental loss that the lessee proves could have been reasonably avoided"]; Hunter v. Croysdill (1959) 169 Cal.App.2d 307, 318 ["[t]he burden of proving facts in mitigation of damages rests upon the defendant"].) Despite this requirement, Curran failed to offer any evidence that IFC's mitigation efforts to relet his former leasehold were not reasonable. Even worse, based upon the letter from IFC's counsel to Curran's counsel, Curran had evidence of mitigation efforts available to him to challenge or refute; instead, he did nothing. Under these circumstances, we cannot conclude that Curran satisfied his burden of demonstrating prejudicial error.
DISPOSITION
The judgment of the trial court is affirmed. IFC and Yang are entitled to costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
ASHMANN-GERST, J.
We concur:
DOI TODD, Acting P. J.
CHAVEZ, J.