Opinion
G052602
03-17-2017
OSIO INTERNATIONAL, INC., Plaintiff and Respondent, v. CALIFORNIA CUSTOM BOTTLES, INC., et al., Defendants and Appellants.
Law Offices of Leonard J. Cravens and Leonard J. Cravens for Defendants and Appellants. Stern & Goldberg, Alan N. Goldberg and Peter Tran for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2013-00682578) OPINION Appeal from a judgment of the Superior Court of Orange County, Carmen R. Luege, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. Law Offices of Leonard J. Cravens and Leonard J. Cravens for Defendants and Appellants. Stern & Goldberg, Alan N. Goldberg and Peter Tran for Plaintiff and Respondent.
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Plaintiff Osio International, Inc., sued defendants California Custom Bottles Inc. (CCB), and Harry Hart (CCB's alleged officer, director, and controlling shareholder) for breach of written contract, breach of personal guaranty, and other claims stemming from plaintiff's lease of equipment to CCB and Hart's guarantee of CCB's obligations under the lease. After a bench trial, the court found CCB had breached the lease by failing to pay monthly payments and that Hart was personally liable for the damages pursuant to his guaranty of CCB's obligations. The court ordered defendants to pay plaintiff $133,650 in unpaid rent, as well as $72,347.50 in attorney fees.
On appeal defendants' sole contention is that the "court erred in excluding a party to the action [Hart] from the [courtroom] during testimony of a key witness." We affirm the judgment. Defendants have waived and are estopped to raise their contention on appeal.
Defendants' opening brief asserts that "[t]he particular facts of this case need not be discussed in detail in this Appeal. The issue on appeal is the manner in which the trial court conducted the trial." Consequently, defendants recite only the following facts: "The parties to this action are a Plaintiff corporation, a Defendant corporation and an individual Defendant [Harry Hart]. Harry Hart was present in his individual capacity and in his capacity of representative of [CCB]. [Citation.] [¶] A joint witness list had been submitted prior to the commencement of trial, which included Michael Maragh [citation]. He is a major player and employee of [CCB]. He was called by Plaintiff as an adverse witness, and Plaintiff's counsel requested that the court exclude Harry Hart from the court during Mr. Maragh's testimony. The trial court agreed and excluded Harry Hart from the courtroom during Michael Maragh's testimony [citation]." "Harry Hart was excluded from a portion of the trial in which he was an individual party and a representative of another party. . . . No rationale was stated by the court, and no rational basis for concluding that the absence of such error would not have affected the outcome of the trial exists in the record. [¶] Michael Maragh was a witness for the Defendants, but was first called by the Plaintiff's counsel as an adverse witness [presumably]. His testimony during Harry Hart's absence was in excess of 73 pages of transcribed testimony . . . ."
But the record reveals the true and complete relevant facts are as follows:
Three witnesses testified at trial: Matthew Hendricks, Michael Maragh, and Harry Hart. In its case-in-chief, plaintiff called all three witnesses.
After Hendricks completed his testimony as plaintiff's first witness, plaintiff's counsel called Hart to the stand. But after Hart was duly sworn, the court, after noting that "lots of people [were] waiting outside," asked plaintiff's counsel whether it would "mess [him] up" to call Hart out of order. The court noted that Hart, as a party (i.e., as "the client"), would probably be present the next day anyway.
Defense counsel stated, "Your Honor, oh, thank you for reminding me. Michael Maragh is not available tomorrow. He's flying to Singapore tonight." Defense counsel then requested, "So I was wondering if we could call him first."
Plaintiff's counsel stated he did not "have much for" Hart and taking him first would "flow[] better," nor did plaintiff's counsel "have much for" Maragh. Plaintiff's counsel assured the court he could finish with both witnesses that day, unless defense counsel took one on redirect.
The court asked whether plaintiff's counsel could call Maragh first since Maragh had a plane to catch.
Plaintiff's counsel explained he had Maragh outside because he "didn't [want him] hearing things," and he (plaintiff's counsel) had "very focused questions on Mr. Hart."
The following colloquy ensued: "[Court]: Okay. So can we arrange that by asking [Hart] to step outside, so that [plaintiff] doesn't— "[Defense counsel]: Sure. "[Court]: — get prejudiced in any way? "[Defense counsel]: Sure. "[Plaintiff's counsel]: That's fine. "[Court]: That's [plaintiff's counsel's] concern, so why don't you [Hart] step outside for now. "And let's bring in Michael Maragh, so that we can finish Michael Maragh. "[Defense counsel]: Okay. Thank you, Your Honor. "[Court]: Okay. And then we'll bring — "[Plaintiff's counsel]: Okay. "[Court]: — him back in. It's just I — it's a legitimate concern if [plaintiff's counsel] has certain types of questions that he doesn't want to — "[Defense counsel]: Sure."
Clearly, defendants' meager factual recitation in their opening brief violates California Rules of Court, rule 8.204(a)(2)(C), which requires every appellant's opening brief to "[p]rovide a summary of the significant facts . . . ." Defendants "presented 'facts' not supported by or contrary to the record and failed to include other relevant facts." (Evans v. Centerstone Development Co. (2005) 134 Cal.App.4th 151, 166.) Defendants have thereby waived their contention on appeal. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)
Furthermore, defendants have forfeited the issue and are estopped to complain about Hart's exclusion from the courtroom because defense counsel (1) requested the court to allow Maragh to testify prior to Hart, and (2) enthusiastically consented to the court's offer to exclude Hart. "The 'doctrine of invited error' is an 'application of the estoppel principle': 'Where a party by his conduct induces the commission of [alleged] error, he is estopped from asserting it as a ground for reversal' on appeal." (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403.) Similarly, when a party acquiesces in and contributes to an alleged error, it waives the issue on appeal. (Sperber v. Robinson (1994) 26 Cal.App.4th 736, 742-743.)
DISPOSITION
The judgment is affirmed. Plaintiff Osio International, Inc., shall recover its costs incurred on appeal.
IKOLA, J. WE CONCUR: O'LEARY, P. J. FYBEL, J.