Opinion
G044011
08-04-2011
THOMAS RICOTTA, SR., Plaintiff and Respondent, v. WILLIAM BURR, Defendant and Appellant.
Sanborn & Sine and David M. Sine for Defendant and Appellant. Law Office of Gary L. Zerman and Gary L. Zerman 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 30-2009-00118075)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Jamoa A. Moberly, Judge. Affirmed.
Sanborn & Sine and David M. Sine for Defendant and Appellant.
Law Office of Gary L. Zerman and Gary L. Zerman for Plaintiff and Respondent.
BACKGROUND
This is an appeal from a judgment for the plaintiff in a breach of contract action, but the "contract" is a little unusual. The contract was a settlement agreement arising out of probate litigation, specifically plaintiff Thomas Ricotta's challenge to the 2006 death-bed will and trust of 89-year-old Robert Julian Ballard. Defendant William Burr was named in the 2006 will and trust as Ballard's primary beneficiary. Prior to 2006, the primary beneficiary was Ricotta. Ballard was a mutual and longtime friend of both Ricotta and Burr, but Ricotta never accepted the legitimacy of the 2006 change.
Much of the story leading up to the settlement agreement has already been recounted by our colleagues in Division Two of this district. In October 2006, Ricotta challenged the 2006 change of primary beneficiaries. A month later, Ricotta and Burr came to a settlement agreement. Ricotta would receive $10,000 from Ballard's estate, and Burr would transfer six tangible assets of Ballard's -- including a 1980 Dodge pickup truck -- to Ricotta. (See Ricotta v. Burr (April 2, 2009, E043849) [nonpub. opn.] (Ricotta I).) But less than a month after that, in December 2006, Ricotta changed his mind about the deal and repudiated the settlement agreement. Two months further on, in February 2007, Burr filed a motion in the Riverside trial court to enforce the settlement agreement. Burr won. Ricotta appealed, contending that the settlement agreement was valid only if Burr had authority to enter into it on behalf of Ballard's estate, and since Ricotta thought the underlying will and trust were not valid, the settlement agreement wasn't valid either. (Id. at p. 2.) The appellate court in Division Two disagreed. It held that Ricotta's "claims against Burr regarding the validity of Ballard's 2006 will and revocable trust are irrelevant because Ricotta resolved those claims when he entered into the settlement agreement." (Id. at p. 3.) In sum, Ricotta was stuck with the settlement agreement.
The statement of decision in the present case fills in some details where the opinion in Ricotta I leaves off. In mid-April 2007, the trial court in Riverside had determined that the settlement agreement was enforceable. Two things happened in the wake of that determination: One, Ricotta appealed from that decision, which was the appeal that resulted in Ricotta I. Two, despite his appeal, Ricotta began to seek the benefit of the bargain he had made in the settlement agreement, and made efforts to collect the items which he had been promised. Hence, in late July 2007 Ricotta went to Ballard's residence in Riverside to collect the assets owed him under the agreement. Ricotta collected a check for $10,000 and apparently a Dodge pickup, but none of the other items. However, the transfer of the various items was problematic. The only item to which Burr had title was the Dodge pickup, and it was Oregon title at that. Burr told Ricotta that "somewhere" he had "the paperwork and titles for the other items, but had not been able to locate them and was looking for them."
In mid-August 2007 Ricotta took the Dodge pickup to a repair shop where he learned that the vehicle's original gas engine had been replaced with a diesel engine. Worse, the vehicle had a cracked motor mount. Ricotta tried to register the truck at a local DMV, but was told the truck could not be registered in California because of deficiencies in the form of Oregon title (e.g., it had been signed in the wrong place) and was also told to take the pickup to the DMV's auto theft unit. There, an officer found that the vehicle identification number had been removed.
The problems with the truck prompted Ricotta to write a letter in late August 2007, asserting the settlement agreement was invalid. His assertion of invalidity was a reiteration of the same position taken the previous December. Ricotta backed up his reiteration, though, by returning the $10,000 check.
At that point the parties came to what appears to have been a temporary standoff. In correspondence, Burr took the position that Ricotta was obligated to come and pick up the remainder of the items, lest he would charge Ricotta for storage, albeit Burr was not yet able to proffer title documents. Ricotta wanted good title documents.
Finally, having decided that Burr had breached the settlement, Ricotta filed this action in Orange County in February 2009, though we note that Burr has not included the complaint in the record on appeal. (We only know of the filing date of the original complaint from the Superior Court docket, which is included in the record.) Division Two issued its final opinion in Ricotta I two months later, in early April 2009. (Perhaps the anomaly between the February filing date in the Orange County litigation and the April end date of the Riverside litigation was the result of the tentative decision procedure used in Division Two, where litigants receive a tentative written opinion prior to the filing of the final opinion.)
From what we can glean from the statement of decision, the case was tried to the court based on Burr's alleged failure to perform the settlement agreement. The trial court awarded $60,000 to Ricotta, reasoning that Burr, by having failed to deliver good title on the various items "in a timely manner," had breached the contract. In more specific terms, Burr never "properly" transferred the 1980 Dodge pickup because the change of engines was "illegal" and hence the vehicle was "unable to be registered." Ricotta had to go out and purchase a replacement for the storage container in January 2007, a replacement for the trailer in November 2007, and a replacement for the motorhome in December 2008. As to the Ford service truck and camper van, Burr did not attempt to proffer titles on them until late November 2009, which, said the trial court, was three years too late. Indeed, it appeared to the trial court that Burr did not attempt to proffer good titles to any of these items until late November 2009. The trial court also concluded that the required payment of $10,000 from Burr to Ricotta was excused in light of the (apparently unpaid) attorney fees that Ricotta owed Burr as a result of Ricotta's unsuccessful attempt in Riverside to overthrow the settlement agreement.
The $60,000 judgment was filed May 14, 2010, the $60,000 being "in place of the assets" that Ricotta was to receive from Burr. An amended judgment also providing for costs of about $4,000 and attorney fees of about $19,000 was filed on July 6, 2010. The notice of appeal was filed July 30, 2010. It designated a judgment filed on May 18, 2010, which is apparently a typo, since the original judgment was filed on May 14, 2010. (There is nothing else filed on May 18 in the trial court docket. Accordingly, we conclude that the typo would not have misled Ricotta as respondent.) In any event, and no matter whether the notice of appeal applies to the original or amended judgment, it is timely.
In his opening brief Burr presents four arguments. In substance, those arguments are: (a) the trial judge allowed "prejudicial hearsay" evidence against Burr; (b) the trial judge erroneously relied on Thompson v. Sprague (1951) 107 Cal.App.2d 647 (Thompson)to conclude that Burr's failure to deliver title on the six items equaled a failure to deliver the items as promised under the contract; (c) the trial judge erred by not concluding that Ricotta had failed to mitigate his damages; and (d) the trial judge was obligated to consider Ricotta's "implied obligation under the contract," but didn't. It is not clear from Burr's opening brief what precisely this "implied obligation" required Ricotta to do, but from the reply brief we can infer that Burr's point is that Ricotta had an obligation to first notify Burr that he intended to take actual possession of the items, presumably on some date certain, before Burr had any obligation to deliver those items. As explained below, none of Burr's four arguments require reversal of the judgment.
DISCUSSION
1. Preliminary Observations
Ricotta barely escaped being sanctioned by the court in Division Two for having brought a frivolous appeal in Ricotta I. Respondent Burr pointed out, and the panel in Division Two agreed, that Ricotta's "briefing violates every pertinent court rule and principle of appellate practice." It was only because the court in Ricotta I expressly considered the fact of Ricotta's "self-representation" that the appellate court, in effect, took mercy upon him and let him off with a caution, declining to assess appellate sanctions. Said Ricotta I: "we strongly encourage Ricotta to consult an attorney before he pursues this matter further."
Ricotta took the appellate court's advice in Ricotta I and retained an attorney for his Orange County breach of contract litigation. As we have related, he was considerably more successful than he had been in "pro per." Burr is now the appellant.
It is somewhat ironic then, that this time it is Burr's brief and appellate record that is deficient. We have already noted that the clerk's transcript does not include a copy of the complaint. (We do, fortunately, have a copy of the settlement agreement, since the parties did lodge the trial court exhibit book with this court.)
The clerk's transcript here in fact contains very little of substance. Besides the docket and the documents associated with the appeal, it basically consists of a copy of Ricotta's trial brief, the trial judge's tentative decision, Burr's request for a formal statement of decision, and a (much longer than the tentative) formal statement of decision obviously prepared for the court by Ricotta's counsel. The absence of the complaint is noteworthy because Judge Moberly's tentative decision makes the point that the "court finds in favor of the defendant Burr on all counts but the breach of contract count." (Italics added.) Because of the truncated record, however, we do not know the claims or issues on which Burr prevailed. All we know is that Burr lost on a breach of contract claim.
More significantly, the appellant's opening brief does not attempt to summarize the evidence in favor of the judgment on the breach of contract claim. In fact, almost all of the statement of facts in the opening brief consists of excerpts from the unpublished opinion in Ricotta I, culminating in that court's determination that the settlement agreement was the operative contract. There is not a word in the statement of facts bearing on the evidence supporting the actual breach of the settlement agreement. Facts relating to the breach of the settlement agreement, to the degree they are included at all in the opening brief, are simply sprinkled into the discussion under the various argument headings.
The problem with the opening brief is this: It means that this court has no reasonably complete summary of the evidence. Therefore, to the degree Burr presses an argument based on the absence of substantial evidence to support the judgment, he has waived it. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; McCauley v. Howard Jarvis Taxpayers Assn. (1998) 68 Cal.App.4th 1255, 1266 (McCauley).)
To be sure, Burr has not denominated any of his headings or subheadings in terms of a lack of substantial evidence. But the absence of a summary still has implications for the arguments he does make, because the absence of a summary of the evidence does not allow this court to gauge the degree to which any purported errors of the trial court might have been prejudicial.
2. Hearsay
Burr's opening brief does not quote the questions that he now claims called for hearsay answers and which the trial court, erroneously in his estimation, did not overrule. Nor does it attempt to explain how those answers were prejudicial, which, as we have just noted, is impossible to do without a reasonable statement of the evidence. What the opening brief does provide is, literally, a list of six citations to the reporter's transcript, without any attempt to demonstrate either (a) how the referenced passage shows the admission of inadmissible hearsay or (b) how, if hearsay was improperly admitted as evidence, it prejudicially affected Burr.
As the opening brief is written then, this court must literally invent Burr's hearsay arguments for him, guessing what precise language he considers to have called for inadmissible hearsay, then evaluating that language to see if it really did call for inadmissible hearsay, and then finally, if we do determine it to call for inadmissible hearsay, speculate as to how that might have been prejudicial.
As a matter of appellate procedure, however, this court is not required to guess the precise nature of an appellant's argument, or fill in gaps when the appellant has not presented the precise language challenged on review. (Supervalu, Inc. v. Wexford Underwriting Managers, Inc. (2009) 175 Cal.App.4th 64, 84 [in an insurance dispute, failure of appellant to cite precise "policy language" that supported appellant's contentions meant that appellant's arguments on the point were waived]; Hahn v. Mirda (2007) 147 Cal.App.4th 740, 750, fn. 4 [mere citation of cases at oral argument without analysis meant appellate court was not required "to 'guess' the basis" behind the argument]; In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 ["We are not bound to develop appellants' arguments for them."].)
The absence of specification is not just unfair to this court, it is unfair to an opposing respondent. (Utz v. Aureguy (1952) 109 Cal.App.2d 803, 807 [agreeing with respondent's lament that "'the brief of appellant is so faulty that it presents difficulty in the making of a proper reply as it is not possible to determine from it upon what ground, if any, appellant is seeking to reverse the judgment of the lower court'"].)
Accordingly, we hold that the hearsay argument is waived. We will only note that, having looked up the bare record references identified in the opening brief, almost all of them center on the circumstances leading up to the settlement agreement itself, as distinct from its breach. Now, perhaps, strictly speaking, the circumstances leading up to the settlement agreement were irrelevant to the narrow question of whether Burr breached that agreement. On the other hand, the failure to include the complaint in the record means we cannot even say that. Who knows what other claims might have been relevant? And in any event, on appeal, the presumption is that, when there is a vacuum in the record, the judgment is correct and it is appellant's burden to demonstrate error. (E.g., People v. Seneca Ins. Co. (2004) 116 Cal.App.4th 75, 80 ["Seneca has failed to provide this court with an adequate record to review its claim. The judgment and orders of the trial court are presumed on appeal to be correct . . . . Appellants have the burden of overcoming this presumption by presenting a record that demonstrates error."].) Here, that burden has certainly not been carried.
Finally, yet another rule of appellate procedure requires the conclusion that Burr has waived his hearsay argument. On appeal, the operative presumption is that the trial judge has not relied on irrelevant or incompetent evidence. (Demps v. San Francisco Housing Authority (2007) 149 Cal.App.4th 564, 575 ["'it is presumed on appeal that a judge has not relied on irrelevant or incompetent evidence'"].) It is the appellant's burden to show otherwise. Here, however, Burr has made no attempt to demonstrate otherwise, and our own review of the statement of decision only corroborates the presumption of trial court correctness. At root, the trial judge's decision was based on the uncontroverted fact that Burr never tendered good title to any of the six items, not any arguably irrelevant shenanigans that might have occurred in the hospital on Ballard's death bed.
3. Application of Thompson v. Sprague
Burr next asserts that the trial court erroneously relied on Thompson, supra, 107 Cal.App.2d 647. There is no question, from the statement of decision, that the trial court did indeed rely on the case for the proposition that failure to transfer proper incidents of title to a vehicle means there has been no legal transfer. Essentially, Burr argues that Thompson is distinguishable.
There are two parts to the Thompson opinion. The first part (Thompson, supra, 107 Cal.App.2d at pp. 648-650) deals with the law of transfer. The facts are simple. The buyer of a dump truck purchased it in early April, but by September 20 had yet to receive either the pink slip (certificate of ownership) or the white slip (certificate of registration). The Thompson court held that "not being able to obtain title, he was in a position to rescind the contract." (Id. at p. 650.) The case is, on the question of whether Burr had breached the contract, directly on point. By not providing good title in a reasonable time, Burr could hardly be said to be, as called for by the settlement agreement, "transferring the following Trust asserts . . ." in return for Ricotta's dismissal of his claims in the Riverside probate court.
The fact that Burr might have had an excuse for not tendering title certificates to the various items makes no difference. The particular excuse here is that Burr was worried Ricotta would try to make him liable for having the vehicles impounded illegally, so he did not "insist" on having Ricotta "take title."
This excuse argument has impliedly been rejected by the trial court in its construction of the settlement agreement. The text of the settlement agreement required Burr to satisfy Ricotta's claims by "transferring the following Trust assets, upon full execution of this Agreement," not just sit back and wait for Ricotta to come and demand title as a condition precedent to the transfer.
Burr's other argument on title involves Vehicle Code section 5600, which is the successor to former Vehicle Code section 186, explicated in the Thompson case. (See Thompson, supra, 107 Cal.App.2d at p. 649.) The argument at this point in his brief is somewhat hard to follow, but it appears to be (relying on Burr's own trial testimony) that because Burr actually did obtain four new California title certificates for all the vehicles with the exception of the Dodge pickup, once Burr had made "proper endorsement and delivery of the Certificate of Ownership," that was sufficient as a matter of law to discharge his duties under the settlement.
The argument as to Vehicle Code section 5600 fails because the statement of decision of the trial court found Burr never actually delivered good title to Ricotta, quite independent of the operation of the Vehicle Code. To quote from the statement of decision: "The Court finds that Burr breached the contract by his failure to tender and transfer these items, with proper titles/ownership documents in a timely manner." Burr does not attempt to show that the contract contemplated only physical transfer even without good title documents.
We should also note here that there is, in fact, no discrepancy between the contract and the Vehicle Code. The language of Vehicle Code section 5600 subdivision (a)(1) contemplates the actual transfer of title documents to the transferee: "(a) No transfer of the title or any interest in or to a vehicle registered under this code shall pass, and any attempted transfer shall not be effective, until the parties thereto have fulfilled either of the following requirements: (1) The transferor has made proper endorsement and delivery of the certificate of ownership to the transferee as provided in this code . . . ." (Italics added.) Again, Burr seems to assume that just expecting Ricotta to come and pick up what Burr already had in his possession sufficed under the statute. Having title documents available for delivery, however, is not the same as delivery.
The second part of Thompson was a classic misrepresentation-of-a-vehicle case. In April, the seller had told the buyer the dump truck was in "first class" mechanical condition. (Thompson, supra, 107 Cal.App.2d at p. 648.) In reality, as the buyer quickly found out, the dump truck had faulty brakes, a crankshaft that had been distorted (worn "oval") and the cylinders were also "'out-of-round,'" all resulting in a distinct lack of power. (Id. at p. 651.) Accordingly, the appellate court also upheld the judgment based on a cause of action for misrepresentation.
Burr's argument is that Thompson is inapplicable because Ricotta, unlike the buyer in Thompson, actually knew the poor condition of the six items from the beginning. The argument fails because this judgment is not based on misrepresentation, it is based on failure to deliver.
4. Mitigation of Damages
Burr's argument under the mitigation-of-damages heading is that Ricotta failed, as a matter of law, to mitigate his damages. Instead of "running out and allegedly spending $60,000 on the remaining items," Ricotta should simply have "taken possession of those items." According to Burr, had Ricotta done so, "his damages would have been at most a few thousand dollars." The argument fails because it is a variation of the argument, rejected first by the trial court and now by this court, that Ricotta was somehow obligated to accept physical possession of the items without good title from Burr.
Thompson, in fact, is again on point. Trial exhibit 14, a memo to Ricotta from Burr's attorneys, gives rise to the reasonable inference that "good title" to the various items was not obtained until October 2009. The memo, from David M. Sine to Thomas Ricotta was dated October 5, 2009, and opened with the line, "Mr. Ricotta: The trust now has good title to all the subject vehicles, and a Bill of Sale has been prepared for the container." (Italics added.) If, in Thompson, failure to transfer good title in a period of less than six months (April 1947 through September 20, 1947, see Thompson, supra, 107 Cal.App.2d at pp. 648-649) meant a contract was breached, a fortiori the failure to transfer good title in the much longer period here means this contract was breached as well.
5. Ricotta's Own Obligations
Burr's final argument is yet another variation on the theme that Ricotta was obligated to come and pick up the items before Burr had to deliver good title. He contends that "Ricotta never returned to claim any of the other items, even though he told Burr he would return." If we understand his argument, it is that the settlement agreement contained a condition precedent to Burr's obligation to tender good title documents, namely Ricotta's obligation to first pick up the items. (Other than the Dodge pickup, of course, which had already been picked up). Burr cites us to nothing in the settlement agreement (or any California legal authority) to that effect, and in any event the theory is contrary to Thompson.
DISPOSITION
The judgment is affirmed. Ricotta will recover his costs on appeal.
RYLAARSDAM, ACTING P. J. WE CONCUR: BEDSWORTH, J. O'LEARY, J.