Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. MSC03-00783
NEEDHAM, J.
Defendants Charles A. Koss (Koss) and Gagen, McCoy, McMahon & Armstrong (the firm) moved for a nonsuit following the presentation of evidence by plaintiff Miller Avenue Professional and Promotional Services, Inc. (MAPPS) during a jury trial. The trial court granted the motion and entered judgment in defendants’ favor. MAPPS appeals, arguing that its evidence was sufficient to submit the case to the jury on its claims of civil conspiracy and aiding and abetting. It alternatively challenges a number of the court’s evidentiary rulings. We affirm.
I. FACTS AND PROCEDURAL HISTORY
Andrew Coy was the president of Enterprise Acquisition Partners, Inc. (EPI). MAPPS, a corporation owned by Patricia Mapps, loaned EPI $125,000 in July 2001. This loan was secured by EPI’s accounts receivable and was due December 1, 2001. EPI defaulted on the loan.
In January 2002, Patricia Mapps contacted Coy and told him MAPPS would be filing a lawsuit to recover the $125,000. In February 2002, Coy met with defendant Koss, a lawyer with the firm, who had represented EPI in various matters. They discussed a promissory note dated June 11, 1999: “Enterprise Acquisition Partners, Inc., Borrower, doing business as EPI Staffing Solutions “EPI”, promises to pay to the order of Andrew B. Coy, Lender, the sum equal to the outstanding balance of monies loaned to EPI plus computed interest of 8.5%....” The note granted Coy a security interest in “all EPI assets.”
Koss informed Coy he could not represent him in claims against EPI. He referred Coy to James Thorp (Thorp), a lawyer with whom Koss had worked in the past. According to Thorp, Koss called him and told him that Coy’s company was dissolving but Coy wanted to continue the business using a different corporation. Koss mentioned that Coy intended to capitalize his new company with assets from the current company. Thorp and Koss discussed the procedure for enforcing a security interest under Uniform Commercial Code former section 9505 (Stats.1974, ch. 997, § 46, now §§ 9620-9621), under which a creditor may accept collateral in satisfaction of a secured debt, but only after giving the debtor notice and an opportunity to insist instead on the sale of the collateral with the balance of any sale proceeds to be paid to the debtor. Koss told Thorp that any foreclosure notices issued to EPI under section 9505 should be sent to him (Koss) on EPI’s behalf.
Thorp met with Coy personally and prepared the articles of incorporation for his new company, Clayton Holdings, Inc. On March 1, 2002, Thorp sent Koss the following unsigned letter by mail: “Dear Mr. Koss: [¶] I am an attorney for Clayton Holdings, Inc., a California Corporation. Clayton Holdings, Inc. is the assignee of Andrew B. Coy and the holder in due course of that certain promissory note (‘the note’) dated June 11, 1000 [sic] between Enterprise Acquisition Partners, Inc., dba EPI Staffing Solutions. A copy of the assignment of note is enclosed. [¶] Clayton Holdings, Inc. has secured its position as provided by the note, by filing a UCC-1 Financing Statement with the California Secretary of State. A copy of the UCC-1 filing is enclosed. My client is not aware of any other written claims of interest in the collateral secured by the note. [¶] The purpose of this letter is to advise you that Enterprise Acquisition Partners, Inc., dba EPI Staffing Solutions is in default of its obligations under the note. The current amount due and owing my client under the note, as of March 1, 2002, is $372,666.47. [¶] Clayton Holdings, Inc. proposes that it retain the collateral identified in the UCC-1 Financing Statement in full satisfaction of the obligation, pursuant to California Uniform Commercial Code Section 9505, and this letter is also notice, pursuant to that section of law, of my client’s intent to retain the collateral, etc.” The collateral identified in the UCC-1 notice included EPI’s furniture and equipment, computer system and software, accounts receivable, cash, customer relationships and other goodwill. Thorp faxed Koss a signed copy of the same letter on March 29, 2002.
Koss did not receive this letter until March 15, 2002. MAPPS suggests that this means it must have been mailed on March 14, 2002.
Meanwhile, on February 11, 2002, MAPPS had filed a lawsuit against EPI and Coy to recover the $125,000. (Alameda County Superior Court No. 2002-040545.) On March 14, 2002, Koss told MAPPS’s counsel that Coy was going to realize his security interest in EPI. On March 28, 2002, MAPPS obtained a temporary protective order preventing the transfer of all of EPI’s tangible and intangible property.
EPI filed for bankruptcy on April 24, 2002.
MAPPS received about $35,000 from EPI, a payment that was contested by Koss in bankruptcy court but was eventually confirmed by a bankruptcy appellate panel. MAPPS paid about $30,000 in attorney fees for its representation in bankruptcy court.
MAPPS filed the instant lawsuit for civil conspiracy and other causes of action against Coy, Koss and the firm. (Contra Costa Superior Court No. C03-00783.) The first lawsuit against EPI and Coy, and the claims against Coy in this second lawsuit, were settled by EPI’s insurance carrier for a payment of $125,000. MAPPS paid about $85,000 in attorney fees during the first lawsuit.
Koss and the firm filed a demurrer against MAPPS’s first amended complaint in the instant lawsuit, which was sustained without leave to amend. This court reversed the judgment of dismissal, concluding that the allegations in the first amended complaint were sufficient to state a cause of action for conspiracy and aiding and abetting. (Miller Avenue Professional and Promotional Services v. Koss et al., No. A105874 (Oct. 27, 2005, nonpub. opn.).) The case was remanded to the trial court, where it proceeded to a jury trial on those claims.
At trial, MAPPS’s theory was that Coy had fabricated or backdated the 1999 promissory note and that Koss had conspired with and aided and abetted Coy in his efforts to fraudulently transfer the assets of EPI to Clayton Holdings, Inc. so that MAPPS was unable to recover the $125,000 debt it was owed. In his opening statement, counsel for MAPPS asserted the evidence would show that if the assets had been left in EPI, MAPPS could have collected its debt and could have bought EPI for the amount of the debt.
Following the close of the plaintiff’s evidence, Koss and the firm moved for a nonsuit. Among other things, they argued that MAPPS had failed to establish that the 1999 promissory note was backdated or fraudulent, that Koss was involved in its creation or knew it was backdated or fraudulent, or that MAPPS had suffered any damages as a result of their conduct. The trial court granted the motion and entered judgment in favor of Koss and the firm.
II. DISCUSSION
A. Order Granting Nonsuit
MAPPS’s first and primary contention on appeal is that the trial court erred when it granted the motion for nonsuit rather than allowing the case to proceed to verdict by the jury. We disagree.
When reviewing a judgment of nonsuit, we must view the evidence in the light most favorable to the plaintiff to determine whether it is legally sufficient to support a jury verdict in plaintiff’s favor. (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1214.) “ ‘ “In determining whether plaintiff’s evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give ‘to the plaintiff[’s] evidence all the value to which it is legally entitled,... indulging every legitimate inference which may be drawn from the evidence in plaintiff[’s] favor....” ’ ” (Ibid.) The same standard applies in an appeal from a judgment of nonsuit. (Id. at p. 1215.) We must therefore consider whether substantial evidence was presented that would have supported a verdict against Koss or the firm under a theory of conspiracy or aiding and abetting.
“Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. [Citation.] By participation in a civil conspiracy, a coconspirator effectively adopts as his or her own the torts of other coconspirators within the ambit of the conspiracy. [Citation.] In this way, a coconspirator incurs tort liability co-equal with the immediate tortfeasors.” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511.) To establish a civil conspiracy, the plaintiff must show: (1) the formation and operation of a conspiracy; (2) wrongful conduct in furtherance of the conspiracy; and (3) damages arising from the wrongful conduct. (Id. at p. 511; Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1581 (Kidron).) The conspiring defendants must have actual knowledge that a tort is planned, concur in the tortious scheme with knowledge of its unlawful purpose, and intend to aid in its commission. (Kidron, supra, at p. 1582.)
Viewing the evidence presented at trial in the light most favorable to MAPPS, it showed that Koss met with Coy to discuss the promissory note dated June 11, 1999, and, after advising Coy he could not represent him in an action against EPI, referred him to attorney Thorp. Thorp testified that he and Koss discussed the foreclosure procedure under Uniform Commercial Code former section 9505, and the jury could have inferred that Koss was aware that Coy would seek foreclosure on the note. Thorp assisted Coy in forming his new corporation, Clayton Holdings, Inc., which was assigned the promissory note and which took steps to foreclose on EPI’s assets under that note. The foreclosure notice to EPI was sent to Koss at Koss’s direction. Neither EPI nor Koss resisted the foreclosure, although that foreclosure was stopped when MAPPS obtained a temporary protective order in late March 2002.
MAPPS’s position at trial was that Coy had backdated the promissory note to 1999 to give himself a secured interest in EPI assets where none would otherwise exist, and had then assigned that note to Clayton Holdings, Inc. Coy was not a party to the lawsuit, and MAPPS’s conspiracy claim against Koss and the firm were predicated on a theory that Koss had advised or encouraged Coy to backdate the note, and had orchestrated the foreclosure proceedings under former section 9505 based on that fraudulent note. The evidence is not sufficient to support this version of the facts.
MAPPS cites the opinion of its legal expert, attorney Robert Zadek, who testified that the note was irregular because it had no due date and did not specify whether the security interest it memorialized arose from the note itself or from a separate document. But this suggests only that the note was inartfully drafted by someone other than a skilled attorney. It does not demonstrate the note was fraudulent or backdated, much less that Koss was aware it was fraudulent or backdated. MAPPS also observes that the note, though dated June 11, 1999, describes EPI as “Enterprise Acquisition Partners, Inc., Borrower, doing business as EPI Staffing Solutions.” It suggests this is inconsistent with testimony by Robert Manning, an programmer for EPI who testified that his paychecks did not begin bearing the name “EPI Solutions” until the year 2000. That “EPI Solutions” was used on a paycheck in 2000 does not demonstrate that the name “EPI Staffing Solutions” was not used by EPI for other purposes in 1999.
Focusing on other irregularities in the promissory note, MAPPS observes that it appears to have been given in anticipation of future loans rather than for a loan that had already been made, making it unlikely that Coy would have required its execution at the time it was purportedly signed in 1999. MAPPS contends a reasonable interpretation of the evidence is that Coy instead created the note in 2001 or 2002, after he realized he would need a secured interest in EPI assets to move them to Clayton Holdings, Inc. through foreclosure.
In support of this argument, MAPPS observes that under Corporations Code section 310, any transaction between a director and a corporation must be approved by disinterested shareholders or directors. Thus, it reasons, any transaction between Coy and EPI that was not so approved would be deemed void unless it took place in 1999, when Coy was the only shareholder of EPI. This requirement supplied a motive to backdate the note. The problem with this argument, aside from its circular nature (because the note would only have been enforceable if created in 1999, it must have been fraudulently backdated to 1999), is that even if we assume Coy had a motive to backdate the note to 1999, there is no substantial evidence he did so with the encouragement, assistance or knowledge of Koss.
Because of the attorney-client privilege, only limited evidence was presented concerning the conversations between Koss, Thorp and Coy. The evidence that was admitted showed that Koss knew of the pending foreclosure on the note dated June 11, 1999, but it did not establish that he knew it had been backdated or that he assisted or encouraged Coy in a scheme to backdate the note. To the contrary, in letters to MAPPS’s counsel during the first lawsuit brought by MAPPS against EPI and Coy, Koss asserts that it was his understanding the promissory note was genuine and that Coy had actually loaned EPI a great deal of money over the years. Koss may well have understood that the security interest asserted by Coy in EPI’s assets was only enforceable through foreclosure if it was created when Coy was the sole shareholder, but it does not logically follow that he advised Coy to backdate a promissory note. While a judgment may be supported by an inference, that inference must be a reasonable conclusion based on the evidence and cannot be based on speculation, suspicion and conjecture. (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 839.)
There is no contention on appeal that the court improperly excluded evidence of attorney-client communications that were admissible under the crime-fraud exception of Evidence Code section 956.
MAPPS argues that a jury could find Koss assisted Coy in a fraudulent scheme when he instructed Thorp to send the foreclosure notice to his attention. Because Koss had represented EPI in several matters, this does not suggest an illegal or fraudulent intent. MAPPS also argues that Koss falsely testified at trial about his “noninvolvement” in the foreclosure, from which consciousness of guilt may be inferred. But Koss did not deny speaking to Coy about the foreclosure; rather, he asserted the attorney-client privilege as to the substance of his conversation with Coy and testified that he referred Coy to Thorp but did not recall whether he spoke to Thorp directly about the case.
Additionally, MAPPS failed to produce any substantial evidence that Koss’s conduct proximately caused damages to MAPPS. The focus of the conspiracy claim was an alleged plan by Koss and Coy to transfer EPI assets to Clayton Holdings, Inc. through foreclosure on the 1999 promissory note, thus precluding MAPPS from recovering its $125,000 loan to EPI. But the evidence showed this foreclosure was unsuccessful—MAPPS acknowledges in its opening brief that it was stopped on March 29, 2002, when MAPPS obtained a Temporary Protective Order to prevent the transfer of those assets. Although Koss wrote a letter to MAPPS’s counsel on April 9, 2002 acknowledging that some of EPI’s assets had been transferred before the protective order issued, there is no evidence as to their nature or value or whether they included accounts receivable, the only type of asset on which MAPPS could have foreclosed under the terms of its own note. Based on the evidence before the court, MAPPS’s suggestion in its opening brief that it was thwarted in its efforts to recover money from a valuable income stream from EPI clients is purely speculative.
MAPPS suggests that if not for the foreclosure proceedings on Coy’s promissory note, EPI would not have filed for bankruptcy and MAPPS could have recovered a greater portion of the debt, without the need for paying attorney fees in the bankruptcy court. There was no showing of any nexus between the filing of bankruptcy and the initiation of foreclosure proceedings, and no evidence of EPI’s financial circumstances in 2001 and 2002. In the absence of any proof that the foreclosure was a cause of the bankruptcy, it cannot be inferred that it was the cause of any damages to MAPPS attributable to the bankruptcy.
Because MAPPS failed to present substantial evidence that in the absence of the foreclosure proceeding it would have recovered the $125,000 it loaned to EPI, avoided the fees and costs incurred to recover that money, or successfully executed its own foreclosure on the property, nonsuit was properly granted. (See generally Saunders v. Taylor (1996) 42 Cal.App.4th 1538, 1543 [nonsuit properly granted on fraud claim when buyers failed to prove they were damaged by misrepresentations].)
MAPPS argues that even if a nonsuit was properly granted on the conspiracy claim, substantial evidence was presented to show that Koss aided and abetted Coy in taking EPI’s assets notwithstanding the protective order that issued in favor of MAPPS in connection with its first lawsuit. Liability for aiding and abetting an intentional tort arises when the defendant has substantially assisted or encouraged another party to act, with the knowledge that the other party’s conduct constitutes a breach of duty. (Casey v. U.S. Bank Nat. Assn. (2005) 127 Cal.App.4th 1138, 1145.)
This claim fails because the evidence does not support an inference that Koss assisted or encouraged Coy in fraudulently or illegally moving any assets from EPI to Clayton Holdings, Inc. To the extent that Koss’s letter of April 9, 2002 to MAPPS’s counsel acknowledged that some assets were moved before the issuance of the protective order, it does not demonstrate that any transfer was improper or in violation of the protective order. MAPPS also failed to show that EPI transferred any assets in which MAPPS had a security interest under its note (i.e., accounts receivable). The court properly granted nonsuit on the aiding and abetting claim.
B. Denial of Continuance to Subpoena Coy as Trial Witness
Trial in this case was originally set for July 9, 2007, but was continued until December 3, 2007 at MAPPS’s request. MAPPS had subpoenaed Coy as a witness for the trial set to commence July 9, but did not serve a new subpoena for the December trial date. Coy did not appear as a witness at trial, and the court indicated it would not allow MAPPS to read his deposition to the jury because it had not been established that he was legally unavailable. (See Evid. Code, § 1291, subd. (a)(2) [hearsay exception for prior recorded testimony of unavailable witness]; Code Civ. Proc., § 2025.620 [deposition of nonparty may be read at trial consistent with rules of evidence]; Haluck v. Ricoh Electronics, Inc. (2007) 151 Cal.App.4th 994, 1005.) MAPPS contends the trial court should have granted its motion to continue the trial so it could obtain Coy’s attendance.
We review the trial court’s denial of a continuance for abuse of discretion. (Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1603.) “[A] reviewing court should not disturb the exercise of a trial court’s discretion unless it appears that there has been a miscarriage of justice.... ‘Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)
Rule 3.1332(c) of the California Rules of Court provides, “Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include: [¶] (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstance.” The failure to subpoena a witness does not, generally speaking, amount to good cause. (See Pham v. Nguyen (1997) 54 Cal.App.4th 11, 18.)
MAPPS suggests that because Coy was subpoenaed for the July 2007 trial date, his failure to appear at the December 2007 trial amounted to a violation of that subpoena. We disagree. A subpoena is “a writ or order directed to a person and requiring the person’s attendance at a particular time and place to testify as a witness.” (Code Civ. Proc., § 1985.) A witness must appear at that time and place unless he or she makes a different agreement with the attorney who issued the subpoena. (Code Civ. Proc., § 1985.1.) Although MAPPS claims that its trial counsel “agreed” with Coy at Coy’s deposition that he would not have to appear on July 9, 2007, and instructed him to contact Koss’s counsel concerning the date he would be required to appear, it made no showing that Coy was told he should appear in December in lieu of the July trial date. Koss’s counsel recalled that after the trial had been continued, he offered to advise Coy he did not have to appear as scheduled, but he did not inform Coy of the new trial date. Moreover, Koss’s counsel did not advise MAPPS’s counsel that he would notify Coy of the new trial date. The trial court was entitled to credit the explanation given by Koss’s counsel and conclude that Coy had not been properly subpoenaed for the December 2007 trial. Absent an effective subpoena, the court did not abuse its discretion when it denied the motion for a continuance.
Even if we assume the court should have granted a continuance, MAPPS has not established that it was prejudiced by its inability to call Coy as a witness. “In civil cases, a miscarriage of justice should be declared only when the reviewing court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (O’Hearn v. Hillcrest Gym & Fitness Center, Inc. (2004) 115 Cal.App.4th 491, 500; see Cal. Const., art. VI, § 13; Evid. Code, § 353, subd. (b).) MAPPS has not shown that Coy’s testimony would have supplied substantial evidence supporting its theory that Koss conspired with Coy or aided and abetted him in a fraudulent scheme to transfer assets from EPI to Clayton Holdings, Inc. Nor has MAPPS demonstrated that Coy would have testified to facts supporting a jury determination that MAPPS was actually damaged by the alleged fraudulent scheme, such that it would have avoided a nonsuit on that basis.
C. Court’s Exclusion of Evidence Not Produced in Discovery
During discovery in this case, Koss propounded form interrogatories to MAPPS requesting such general information as the basis for damages it was claiming in this lawsuit. MAPPS made blanket objections to the interrogatories and did not respond. Koss did not file a motion to compel additional responses, but requested at trial that any information not disclosed during discovery be excluded. The court ruled, consistent with its customary practice and courtroom policy, that evidence that was requested during discovery but not produced would be excluded, even in the absence of a motion to compel. MAPPS complains that this ruling was erroneous and prejudicial.
We reject the claim because MAPPS made no offer of proof showing that relevant and admissible evidence was actually excluded as a result of the trial court’s ruling. Evidence Code section 354 provides: “A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless... it appears of record that: [¶] (a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means.” The statutory offer of proof requirements allow the trial court to fully assess the proffered testimony and “provide the reviewing court with the means of determining error and assessing prejudice.” (People v. Schmies (1996) 44 Cal.App.4th 38, 53.) “[A]n offer of proof must be specific. It must set forth the actual evidence to be produced and not merely the facts or issues to be addressed and argued.” (Ibid.)
Because MAPPS has failed to identify the evidence, if any, that was excluded as a result of the trial court’s order, it did not comply with section 354 and has failed to establish a miscarriage of justice requiring reversal. (Cal. Const., art. VI, § 13; Evid. Code, § 353, subd. (b).)
D. Limitation of Legal Expert’s Testimony
The trial court ruled that MAPPS’s legal expert could not testify as to steps an attorney could have taken to forestall the foreclosure notice under Uniform Commercial Code former section 9505 that was sent to EPI by Clayton Holdings, Inc. The court reasoned that legal malpractice was not at issue and absent such a claim, evidence that Koss could have done more to avoid the foreclosure was irrelevant and unduly confusing under Evidence Code section 352.
Even if we assume that such testimony was potentially relevant to establish that Koss was acting in concert with Coy, MAPPS has not established prejudice. Expert testimony suggesting that Koss failed to take available steps to stop the foreclosure on EPI assets by Clayton Holdings, Inc. would not have established that the promissory note held by Coy had been backdated or that Koss knew it had been backdated. And, as already discussed, there was no evidence presented to show that the foreclosure resulted in the actual transfer of accounts receivable, on which MAPPS could have foreclosed under its own promissory note, or that in the absence of the foreclosure MAPPS could have recovered its $125,000 loan without the necessity and expense of a lawsuit. It is not reasonably probable that MAPPS would have obtained a better result at trial if Zadek had been permitted to testify about ways in which the foreclosure could have been stopped.
E. Miscellaneous Evidentiary Issues
Proposed Exhibit No. 18 was a letter signed by Coy and addressed to “All EPI Solutions—Employee Leasing and General Staffing Clients.” It was dated March 7, 2002 and stated: “Please be advised, Clayton Holdings, Inc. ‘CHI’ has acquired certain assets of Enterprise Acquisition Partners, Inc. including the Employee Leasing Division. The relationship you have had with EPI’s Leasing, Temporary Employees and Full Time Placements will not change in any way, other than you will now be invoiced by Clayton Holding[s], Inc. Your next invoice will be for the period 3-16-02 to 3-31-02 (for S[e]mi-Monthly billing) and 3-4 to 3-10 (for Weekly billing) and will be invoiced by Clayton Holdings, Inc....” MAPPS argued that the court erred when it excluded this letter as hearsay, because it was offered for the non-hearsay purpose of showing that Coy believed the foreclosure by Clayton Holdings, Inc. on EPI assets was “a done deal”—which in turn suggested that Koss had told Coy there would be no objections by EPI to the foreclosure.
Even if such an inference could logically be drawn from Coy’s letter, a communication by Koss to the effect that EPI would not resist the foreclosure could support a conspiracy theory only if Koss knew the promissory note underlying the foreclosure was fraudulent. Exhibit 18 does not tend to prove this critical fact, and there was no prejudice in excluding the letter. For similar reasons, we reject MAPPS’s assertion that the court committed prejudicial error in limiting evidence that Coy had told employee Robert Manning on March 19, 2002, that he was now working for a new company.
MAPPS also challenges the court’s exclusion of evidence that Patricia Mapps was to receive EPI stock in exchange for the $125,000 loan. The existence of the loan and its terms were undisputed, and MAPPS makes no effort to explain how such evidence would have helped prove its claims of conspiracy and aiding and abetting by Koss.
Finally, MAPPS argues that the court should have admitted proposed Exhibit No. 48, a fictitious business statement filed in April 2000 showing that EPI was using the name “EPI Staffing Solutions.” It contends the promissory note held by Coy, which also refers to a “dba” of “EPI Staffing Solutions,” must have been generated after the filing of this fictitious business statement; i.e., after its purported date of June 11, 1999. According to MAPPS, this in turn suggests the note was backdated by Coy.
The fictitious business statement was signed by Maria Thea David as Vice-President, who was not called as a witness at trial. The trial court ruled that the document was lacking in foundation, irrelevant and more prejudicial than probative under Evidence Code section 352, because it did not show when EPI began using the “Staffing Solutions” name. This was not an abuse of discretion. (See Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247, fn. 15.) The form states, “The registrant commenced to transact business under the fictitious business name or names listed above on ______”, and a date of “2/15/00” had been written in but was crossed out. The court reasonably concluded that the document was not probative of whether EPI was using the “Staffing Solutions” name in 1999.
F. Discovery Order
Without providing any factual details or authority for the proposition, MAPPS argues that the trial court improperly restricted its right to discovery in a pretrial order dated September 20, 2006. MAPPS acknowledges that this issue is moot if the order of nonsuit is affirmed, but it requests the opportunity to present additional briefing in the event a new trial is ordered. Because we have affirmed the judgment of nonsuit, we need not address the discovery issue.
III. DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to defendants/respondents.
We concur. JONES, P. J., SIMONS, J.