Opinion
B190331
4-23-2007
Howard Posner for Defendants and Appellants Rapinder Singh Chima, Palvinder Kaur Chima, and Rajinder Singh Chima. Chet R. Bhavsar for Plaintiff and Respondent Jasbir Singh.
NOT TO BE PUBLISHED
INTRODUCTION
Defendants and appellants Rapinder Singh Chima (Rapinder), his brother Rajinder Singh Chima (Rajinder), and their mother Palvinder Kaur Chima (Palvinder) (collectively defendants) appeal from a judgment entered following a court trial of plaintiff and respondent Jasbir Singhs (plaintiff) action for breach of contract, common counts, and fraud arising from the alleged failure to repay a promissory note. On appeal, defendants contend that the trial court abused its discretion when it granted plaintiffs motion in limine to bar Rajinders testimony as a discovery sanction without previously having issued an order to comply with discovery. We hold that the trial court erred and reverse the judgment as to Rapinder and Palvinder. We dismiss the appeal as to Rajinder, who has not raised any issue contesting the default prove-up hearing as to him.
The original notice of entry of judgment was mailed February 6, 2006. Defendants filed their notice of appeal on April 5, 2006. An amended judgment to deal with an attorney fee and costs award was filed on June 1, 2006, and notice of entry of amended judgment was served on September 14, 2006. We deem the notice of appeal as having been filed immediately following the September 14, 2006, notice. (Cal. Rules of Court, rule 8.104(e)(1).)
We refer to Rapinder, Palvinder, and Rajinder by their first names, not out of disrespect, but because they share the same last name. Although Rajinder purports to appeal from the trial courts judgment, the trial court ruled that because a default had been taken against Rajinder, he had "no standing to do anything" at trial. The trial court treated the trial, as to Rajinder, as a prove-up hearing on damages. Despite service of a notice to appear under Code of Civil Procedure section 1987, Palvinder moved to India prior to trial and did not attend the trial.
BACKGROUND
In 1997, Rajinder "fell into some criminal trouble" and, ultimately, was "charged for trafficking narcotics." According to plaintiff, Rapinder and Rajinder approached him for a loan to "pay for the bond company" and for attorney fees. On or about July 22, 1998, plaintiff loaned $55,000 to Rapinder, Palvinder, and/or Rajinder; $60,000 was to be repaid within six months. The parties dispute who executed two identical promissory notes securing the loan, the legal status of the parties executing the notes (as borrower or guarantor), and the amounts and timing of payments made on the notes.
On June 25, 2004, plaintiff filed a complaint against defendants. In the complaint, plaintiff alleged that defendants made a payment of $1,500 (at trial he admitted this payment was $15,000) in May, 1999, and a payment of $1,000 in July, 2002. Rapinder and Palvinder answered the complaint, raising the statute of limitations as a defense, and denying the alleged $1,000 payment. Rajinder did not file an answer and his default was taken.
During the course of discovery, plaintiff propounded an interrogatory to Rapinder asking him to "State the last known address and phone number for defendant Rajinder Singh Chima." On June 1, 2005, Rapinder served the following response: "I do not recall exactly his last known address but I believe it is Dunsmore Street, Glendale, California. His telephone number is (818) 448-6978."
In a motion in limine to exclude Rajinders testimony, plaintiff purports also to have served the same interrogatory on Palvinder and to have attached Palvinders response as an exhibit. However, the motion in limine attached two copies of Rapinders response.
On July 15, 2005, plaintiff took Rapinders deposition. During the deposition, plaintiffs counsel referred to the address on Dunsmore Street in Glendale that Rapinder had identified as his brothers and asked if Rapinder had the actual street address. Rapinder responded that he did not. When asked if he had the address at home, Rapinder responded that the might have it. Plaintiffs counsel asked Rapinder, "If we leave a blank in the transcript when you review it could you fill that in?" Rapinder responded, "No problem."
Prior to trial, plaintiff filed a motion in limine to exclude Rajinders testimony as a discovery sanction for Rapinders failure to provide Rajinders address in discovery. In plaintiffs motion, plaintiff asserts that he served supplemental interrogatories on "the defendants" asking them to update their prior discovery responses. According to plaintiff, the responses to these supplemental responses were due on September 12, 2005. This date was after the discovery cut-off. (Code Civ. Proc., § 2024.020, subd. (a).) Defendants opposed the motion in part on the ground that plaintiff waived his right to a further interrogatory response by failing to move to compel a further answer.
The trial commenced on October 11, 2005. Thus, the discovery cut-off was no later than September 11, 2005. (Code Civ. Proc., § 2024.020, subd. (a).) All statutory citations are to the Code of Civil Procedure unless otherwise noted.
In connection with plaintiffs motion in limine to exclude Rajinders testimony, the trial court held a hearing under Evidence Code section 402. Rapinder testified that he truthfully answered the interrogatory asking for Rajinders address to the best of his recollection. He testified that the telephone number he provided was and remained Rajinders telephone number. Rapinder testified that he communicated with his brother primarily with his cellular telephone. In 2005, he did not have occasion to send Rajinder anything through the United States mail, UPS, Fedex or any other type of delivery service.
Rapinder testified that he had been in contact with Rajinder during the course of the litigation and had spoken with him three days before Rapinders deposition. He had intended to fill in the blank in his deposition transcript with Rajinders address, but he had only recently received the transcript which he never reviewed or signed. He testified that he never contacted his brother to get his address. The trial court asked if anyone could explain why the transcript was not available until then. Counsel for defendants and plaintiff both stated a lack of knowledge and that their respective offices had failed to follow up. Plaintiffs counsel stated that it appeared that the court reporter had sent his copy on September 16.
Rajinder testified that he lived with his brother, Ravinder, and his sister-in-law at 4606 Dunsmore in Glendale from April, 2002 to November or December, 2004. When Ravinder and his wife separated, Ravinder and Rajinder moved to La Crescenta until March 2005, when Rajinder moved to an apartment in Fullerton. Rajinder did not know the street address of the apartment in Fullerton. He received his mail at a private post office box in Burbank. He did not recall if Rapinder asked him for his address in 2005.
The trial court granted plaintiffs motion in limine to exclude Rajinders testimony. The trial court found that Rapinder had "easy access means" to obtain Rajinders address even if he did not actually know it, and that it would disadvantage plaintiff and reward Rapinder for concealing Rajinders address if Rajinder were allowed to testify.
In their "Pre-trial Statement," Rapinder and Palvinder argued that plaintiffs action was barred by the four-year statute of limitations. They denied that a $1,000 payment was made to plaintiff in July 2002. Thus, they contended that there was no payment that could extend the accrual of the statute of limitations. They also argued that they were guarantors not affected by any payment made by Rajinder, a principal obligor.
At trial, plaintiff testified that Rapinder and Rajinder executed one promissory note on July 22, 1998, and that Palvinder executed a second promissory note on July 23, 1998. After the noted was signed, they went to the bank and plaintiff gave "them" a cashiers check for $40,000 and $ 15,000 in cash. Plaintiff testified that he received a payment of $15,000 in the form of a cashiers check in Palvinders and Rajinders names in March or April, 1999, and a $1,000 payment from Rajinder sometime between July and September 2002. Hervinder Singh, plaintiffs brother-in-law, testified that he witnessed the September, 2002 cash payment from Rajinder.
In his testimony, Rapinder denied having asked plaintiff to loan him money. Rapinder testified that he first saw the note when he was served with plaintiffs complaint. He testified that he did not sign the note, but that the signature on the note appeared to be his signature.
DISCUSSION
Defendants contend that the trial court abused its discretion in excluding Rajinders testimony as a discovery sanction because they had not violated a discovery order. We agree.
I. Standard of Review
We review the trial courts imposition of a discovery sanction for abuse of discretion. (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545.) "`"The power to impose discovery sanctions is a broad discretion subject to reversal only for arbitrary, capricious, or whimsical action. [Citations.] Only two facts are absolutely prerequisite to imposition of the sanction: (1) there must be a failure to comply . . . and (2) the failure must be wilful [citation]." [Citation.]" (Ibid.)
II. Application of Relevant Principles
"To the extent authorized by the chapter governing any particular discovery method or any provision" of the Civil Discovery Act, a trial court may impose an evidence sanction against a party engaging in a misuse of the discovery process. (§ 2023.030, subd. (c)). Misuses of the discovery process include failing to respond to an authorized method of discovery (§ 2023.010, subd. (d)) and providing an evasive response to discovery (§ 2023.010, subd. (f)).
Section 2030.300 authorizes the imposition of sanctions for misuse of the discovery process involving interrogatories. Under section 2030.300, a party who deems an answer to an interrogatory to be evasive or incomplete may move for an order compelling a further response to the interrogatory. (§ 2030.300, subd. (a).) Prior to filing a motion to compel, the party must meet and confer to try to resolve the dispute. (§ 2030.300, subd. (b).) Notice of the motion to compel must be given within 45 days of the service of the response, or the propounding party waives any right to compel a further response to the interrogatory. (§ 2030.300, subd. (c).) The trial court must award a monetary sanction against a party opposing a motion to compel unless that party acted with substantial justification or other circumstances would make the imposition of such a sanction unjust. (§ 2030.300, subd. (d).) Under subdivision (e), "If a party then fails to obey an order compelling further response to interrogatories, the court may make those orders that are just, including the imposition of . . . an evidence sanction . . . ." (§ 2030.300, subd. (e).) The trial court also may impose a monetary sanction in lieu of or in addition to such a sanction. (Ibid.)
Section 2025.480 authorizes the imposition of sanctions for misuse of the discovery process involving depositions. Under section 2025.480, subdivision (a), "If a deponent fails to answer any question . . . the party seeking discovery may move the court for an order compelling that answer . . . ." The motion to compel is to be made within 60 days after the record of the deposition is completed and must include a meet and confer declaration. (§ 2025.480, subd. (b).) The trial court must award a monetary sanction against a party opposing a motion to compel unless that party acted with substantial justification or other circumstances would make the imposition of such a sanction unjust. (§ 2025.480, subd. (f)). A deponent who fails to obey an order under section 2025.480 may be considered in contempt of court and, when such a deponent is a party to the action, the trial court may impose an evidence sanction. (§ 2025.480, subd. (g).) The trial court also may impose a monetary sanction in lieu of or in addition to such a sanction. (Ibid.)
The trial court failed to comply either with the provisions of section 2030.300 or of section 2025.480. Under section 2030.300, subdivision (e), a prior order compelling an answer to an interrogatory about Rajinders address was a prerequisite to the imposition of an evidence sanction. (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327, fn. 8.) Likewise, under section 2025.480, subdivision (g), a prior order compelling an answer to a deposition question about Rajinders address was a prerequisite to the imposition of an evidence sanction. (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1214.)
Violation of a discovery order would not have been a perquisite to the imposition of an evidence sanction if Rapinder had "engaged in a pattern of willful discovery abuse that cause[d] the unavailability of evidence." (Karlsson v. Ford Motor Co., supra, 140 Cal.App.4th at pp. 1214-1215, citing Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1399; Vallbona v. Springer, supra, 43 Cal.App.4th at pp. 1544-1549; Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 35.) Such was not the case. In a verified response to an interrogatory, Rapinder stated his then knowledge about Rajinders address. As for Rapinders agreement to fill in the blank in the deposition transcript with Rajinders address, it appears that Rapinder never signed or made corrections to the deposition transcript due to its tardy preparation. Such action or inaction on Rapinders part cannot be described as "discovery abuse."
We note that because the deposition transcript apparently was not sent to the parties until September 16, 2005, after the discovery cut-off date, Rapinders provision of Rajinders address would not have benefited plaintiff because it was then too late to notice Rajinders deposition.
Although Rapinder might have made a greater effort to obtain Rajinders address for plaintiff, plaintiffs counsel is not without blame. The record does not reflect that plaintiffs counsel took any steps to obtain Rajinders address from Rapinder beyond issuing interrogatories and asking him to fill in the blank left in the deposition transcript. There is nothing in the record showing that plaintiffs counsel complied with his statutory obligation to meet and confer with Rapinders counsel and plaintiffs counsel did not file a motion to compel a further answer. When responding to defense counsels assertion that it would be unfair to exclude Rajinders testimony, plaintiffs counsel stated to the trial court, "Your honor, the only problem I have with that, that would mean that every time somebody gets discovery, Im supposed to go through every answer; there are objections that I respond to in meet and confer letters; there are responses that are not provided. I do that. But we cant dissect every single response every single time and say, Oh, by the way, this is your response. I want you to change it." In fact, if plaintiffs counsel wants to ensure answers to interrogatories under the Code of Civil Procedure, that is precisely what plaintiffs counsel is required to do.
The trial courts error was prejudicial. One of the defendants defenses in this case was that plaintiffs action was barred by the statute of limitations. California law provides a four-year statute of limitations for causes of action on a written contract. (§ 337.) The statute of limitations for common counts was not greater than four years. (Filmservice Laboratories, Inc. v. Harvey Bernhard Enterprises, Inc. (1989) 208 Cal.App.3d 1297, 1308 [breach of contract action barred by the statute of limitations "cannot be resurrected by the device of pleading common counts . . . " when the causes of action are factually identical].) Fraud is subject to a three-year statute of limitations. (§ 338, subd. (d).)
Plaintiff filed his action on June 25, 2004. In plaintiffs complaint and at trial, plaintiff claimed that defendants made a payment of $15,000 in May, 1999, and that Rajinder made a payment of $1,000 sometime between July and September, 2002. Accordingly, if Rajinder did not make a $1,000 payment in 2002, as contended by defendants, plaintiffs action would be time-barred. By excluding Rajinders testimony, the trial court effectively prevented defendants from introducing evidence supporting their statute of limitations defense. If Rajinder was not permitted to testify, he could not testify that he did not make the $1,000 payment in 2002.
"Normally the exclusion of evidence will not be considered on appeal unless the substance, purpose and relevance of the excluded evidence was made known to the trial court." (Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1142, citing Evid. Code, § 354, subd. (a) .) "An offer of proof should give the trial court an opportunity to change or clarify its ruling and in the event of appeal would provide the reviewing court with the means of determining error and assessing prejudice. [Citation.]" (People v. Schmies (1996) 44 Cal.App.4th 38, 53.) However, "[w]here an entire class of evidence has been declared inadmissible or the trial court has clearly intimated it will receive no evidence of a particular class or upon a particular issue, an offer of proof is not a prerequisite to raising the question on appeal, and an offer, if made, may be broad and general." (Beneficial Etc. Ins. Co. v. Kurt Hitke & Co. (1956) 46 Cal.2d 517, 522.)
Evidence Code section 354, subdivision (a) 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 the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and 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." (Italics added.)
TURNER, P. J.
I respectfully dissent from the reversal of the judgment. First, I do not believe there has been a sufficient showing of a reasonable probability of a different result had the challenged ruling excluding testimony been any different. Second, the absence of a specific offer of proof prohibits reversal of the judgment. The complaint alleged that defendants, Rapinder Singh Chima, Rajinder Singh Chima, who is known as Raj, and Palvinder Kaur Chima borrowed $55,000 from plaintiff, Jasbir Singh, on July 22, 1998. Defendants allegedly signed a promissory note promising to repay the $55,000 debt plus interest by January 22, 1999. The complaint further alleged the debt was not repaid by January 22, 1999, but a $1,500 payment was made in May 1999 and a $1,000 payment was made on or about July 21, 2002. Attached to the complaint is a promissory note for $55,000 which identifies plaintiff as the lender. The note identifies the borrowers as Rapinder and Ms. Chima. However, the note is signed by Ms. Chima and Rajinder. The signatures for plaintiff and Rajinder are dated July 22, 1998 Rajinders signature is dated July 22, 1998. The note contains a signature line for Rapinder. But the note is not signed by Rapinder. (As will be noted, there was evidence adduced during the trial that both Rapinder and Rajinder signed the note.) The statute of limitations is asserted as an affirmative defense.
Plaintiff testified as to circumstances leading up to the execution of the note. Plaintiff and Rajinder had been very close friends for several years. The two men were like brothers and considered going into business together. However, they would mostly see each other at plaintiffs restaurant, Indias Grill. Plaintiff was also a friend of Rapinder. Rapinder initially approached plaintiff about the loan on July 21, 1998. Rapinder and Rajinder went to Indias Grill, a restaurant owned by plaintiff. Rapinder asked if they could talk in private. At that point, Rapinder, Rajinder, and plaintiff stepped outside the restaurant.
Rajinder had been arrested and needed money to pay the costs of a bail bond and attorney fees. Plaintiff testified that both Rapinder and Rajinder asked for the loan. Plaintiff explained the money was going to be loaned to Ms. Chima and Rapinder who would sign the note. Ms. Chima was the mother of Rapinder and Rajinder. Plaintiff testified they agreed that Ms. Chima and Rapinder would be the obligors and not mere guarantors under the note. Rapinder stated that the money would be repaid when Ms. Chima went to India and sold some property. Rapinder gave plaintiff the names to place on the note. Plaintiff never expected Rajinder to repay the loan.
Plaintiff identified an exhibit 1.1 which contains Rapinders signature, dated July 22, 1998. Plaintiff saw Rapinder and Rajinder both sign the note at Indias Grill on July 22, 1998. Plaintiff acknowledged that in the body of the note, Rajinder was not identified as a borrower. Rather, Rajinder was identified only a signatory to the note. The two returned to the restaurant the following day with Ms. Chimas signature on the note. Plaintiff gave a $40,000 cashiers check and $15,000 in cash to Rapinder. Rajinder made payment of $15,000 to plaintiff. Rajinder made a $1,000 payment of between July and September 2002. The $1,000 payment was made after plaintiff called Rapinder. Plaintiff asked Rapinder about the money and was promised repayment of the loan. Plaintiff did not contact Rajinder about the unpaid balance. Plaintiff did not have Rajinders address.
Jaswinder Kaur, who is plaintiffs wife, testified that she worked at Indias Grill in July 1998. Ms. Kaur saw Rapinder and Rajinder come into the restaurant one day in July 1998. Ms. Kaur later received a promissory note via facsimile transmission. Ms. Kaur took the promissory note and handed it to her husband, who asked her to make copies. Ms. Kaur made two copies of the note and gave them back to plaintiff. Ms. Kaur personally saw plaintiff, Rapinder, and Rajinder sign copies of the note. Ms. Kaur had no idea how much money was loaned or repaid.
Hervinder Singh, who is plaintiffs brother-in-law, worked at Indias Grill in July 1998. Mr. Singh saw Rajinder enter the Electric Lotus restaurant in September 2002. Rajinder gave plaintiff an envelope with money. Mr. Singh heard plaintiff say that the envelope contained $1,000. Mr. Singh told Rajinder that it was not enough.
Rapinder denied assisting Rajinder with posting bail in connection with the drug trafficking charges. Rapinder denied knowing how the costs of bail or attorney fees were paid. Rapinder admitted talking to plaintiff about the note. But, Rapinder denied that plaintiff ever demanded repayment of the balance of the loan. Rapinder denied making any payments on the loan. Rapinder denied knowledge of any payments made in July 2002. The first time Rapinder saw the note was in 2004. Rapinder lived in Las Vegas in July 1998. Although Rapinder does not recall where he was on July 22, 1998, he was not in Los Angeles on that date. Rapinder denied ever asking for any money, signing the note, or refusing to repay it. Rapinder was a student at the University of Southern California until 1997 and made about $12,000 during the year 1998. Rapinder was starting an AM/PM franchise during the year 1998 in Las Vegas. Rapinder testified that Rajinder had repaid the entire debt.
First, there has been an no showing of a reasonable probability of a different result had the trial court permitted Rajinder to testify. California Constitution, article VI, section 13 provides in part: "No judgment shall be set aside, . . . in any cause, on the ground of . . . the improper admission or rejection of evidence, . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." Quoting College Hospital Inc. v. Superior Court 1994) 8 Cal.4th 704, 715, our Supreme Court explained the meaning of "miscarriage of justice" in Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800 as follows: "`[A] "miscarriage of justice" should be declared only when the 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. [Citation.] `We have made clear that a "probability" in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility. [Citation.]" (Orig. italics, People v. Watson (1956) 46 Cal.2d 818, 836; Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1051.) Moreover, because an appellate court cannot presume error, the appellant in every case has the burden of showing that the error has resulted in a miscarriage of justice. (County of Los Angeles v. Noble Ins. Co. (2000) 84 Cal.App.4th 939, 945; Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.) As Paterno v. State of California, supra, 74 Cal.App.4th at page 106 explained: "[An appellate courts] duty to examine the entire cause arises when and only when the appellant has fulfilled his duty to tender a proper prejudice argument. Because of the need to consider the particulars of the given case, rather than the type of error, the appellant bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice." (Accord, County of Los Angeles v. Noble Ins. Co., supra, 84 Cal.App.4th at p. 945.)
The trial court found Rapinder signed the note based on evidence the promissory note was prepared for his signature and two witnesses placed him at the restaurant at the time the noted was signed. The main issue, however, was whether Rajinder made a $1,000 payment in 2002. In the event no payment was made in 2002, the four-year Code of Civil Procedure section 337 statute of limitations would have run on the note. The action was filed on June 25, 2004, and the only other payment of $15,000 was alleged to have been made in January 1999. The 2002 partial payment of $1,000 would cause the statute of limitations to run anew thereby rendering the filing of the complaint on June 25, 2004, timely. (Code Civ. Proc., § 360; Eilke v. Rice (1955) 45 Cal.2d 66, 73-74.)
No miscarriage of justice occurred. The trial court analyzed the issue of defendants claim that the 2002 payment had not been made under the facts and theories asserted in this case. The trial court found as follows: "Im going to find that the thousand dollar payment was made later by — okay. These findings are all by what I [perceive] to be a preponderance of the credible evidence presented to the court today. [¶] Im going to find that there was a thousand dollar payment in 2002 which resets the clock on the statute of limitations."
During argument, prior to the foregoing ruling, defense counsel argued during a discussion of the part payment issue, "We deny that one instance occurred and we would proffer that that was only done to extend the statute of limitations." However, the trial court noted that, the statute of limitations defense was inconsistent with Rapinders testimony that Rajinder had paid off the note. The court stated: "If you argue the 7000—okay. But then youve got a total of three instances, only two of which relate to repaying of this loan. [¶] That the, theyre done by three instances, two were done by cash. And your position is, as I understand it, . . . the only cash payment that theres testimony of, never occurred. [¶] So what youre doing to, I think to be consistent, you are saying that since we, you know, we believe, even though theres no testimony, that other cash payments in unspecified amounts on unspecified dates occurred, and we point to the fact that there was the birthday party payment a number of years before from cash, very large amount, $7000, we point to that, and if we believed that the 2002 payment occurred, which we dont, which we deny, that proves it too. [¶] I mean theres a logical inconsistency here. I think you cant urge to prove something and yet simultaneously deny that it happened."
Defense counsels response was as follows: "Well, the consistency is that you wouldnt make a payment in July 2002 had you satisfied the debt in 1999. So thats the consistent — if all payments were made in cash . . . ." To which the trial court responded: "Then Ive got to have a scintilla of evidence to that. [¶] And it seems to me that what we see in 1999, to the extent that a payment is made, [Ms. Chima] is the person who knows about that because its on her account. [Ms. Chima], who is a named defendant here, has chosen not to appear at trial. We have no benefit of her evidence. [¶] If there was a source of funds, if I credit the notion that [Rajinder] has no money, or none that isnt tied up in trying to keep himself out of jail, and [Rapinder] has no money at this particular point in time, then the sole source of money to repay this is mom and moms liquor business. [¶] And Mom is a named defendant in this case. Mom chooses not to appear, not to make, not to offer testimony to that effect, not to make herself available in cross-examination. [¶] And under those circumstances, its a hard sell to persuade me that I should assume that this was paid off in 1999 by mom. If mom doesnt owe the money because it was paid back, then I would certainly expect, and moms sons dont own the money, either of them, because it was paid back, then I would expect mom to step up to the plate. [¶] And the fact that she has not and the cost, the exposure here that she has in this case greatly exceeds . . . the cost of getting back here from India. If she is a [United States] citizen, theres no problem about traveling. [¶] And I listened to these circumstances and I say, where, whats the balance of probabilities? Because this is a piece of information if there were testimony, if there were evidence to this effect, then it seems to me it lies within the control of the defense and defense didnt present it."
The trial court considered the issue of whether a payment of $1,000 was made in July 2002. Based on the trial courts findings, even if Rajinder had offered such testimony, it would not have changed matters. Rapinder was claiming that the debt had been repaid by Rajinder sometime in 1999. In that respect, the trial court further noted that the only evidence as to repayment was that the mother was repaying the debt and failed to appear at the trial. The trial court considered the mothers absence from the trial to be persuasive on the issue of repayment of the loan. The trial court inferred from her absence that the debt had not been repaid in its entirety. According to the trial court, if the mother had in fact repaid the debt, she would have appeared at the trial and offered evidence in support of the defense. The trial court, thus, found that it was unreasonable to infer that no payment would have been made in July 2002 because the debt had been repaid as asserted by Rapinder when he testified. There is no reasonable probability of a different result on the statue of limitations issue. Although the prejudicial question is closer on other issues, all Rapinder has demonstrated is that it is possible a different judgment would have been entered had Rajinder testified. Rapinders burden was to show a reasonable probability, not a mere possibility of a different result. (Code Civ. Proc., § 475 ["No judgment. . . shall be reversed . . . by reason of any error, ruling, . . ., or defect, unless it shall appear from the record that such error, ruling, . . . or defect was prejudicial, and also that by reason of such error, ruling, . . . or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed"]; Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1223 ["Although these disputed rulings were issued in the context of interpreting a discovery sanction, they were still rulings to exclude evidence. In order to obtain a reversal based on the erroneous exclusion of evidence, Ford must show that a different result was probable if the evidence had been admitted"]; Crouch v. Crouch (1944) 63 Cal.App.2d 747, 752 [no miscarriage of justice where "the trial courts ultimate determination" would not have changed by excluded evidence].) Thus, no miscarriage of justice occurred.
Second, putting California Constitution, article VI, section 13 aside, reversal is barred Evidence Code section 354, subdivision (a) which states: "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 the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and 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 . . . ." No offer of proof concerning the statue of limitations issue was made which satisfies the specificity requirements imposed by Evidence Code section 354, subdivision (a). (People v. Rodrigues (1994) 8 Cal.4th 1060, 1176 [""`The substance of evidence to be set forth in a valid offer of proof means the testimony of specific witnesses, writings, material objects, or other things presented to the senses, to be introduced to prove the existence or nonexistence of a fact in issue""]; In re Mark C. (1992) 7 Cal.App.4th 433, 444 [same]; see Douillard v. Woodd (1942) 20 Cal.2d 665, 669.) Thus, reversal is not an option. Notes:
For purposes of clarity, and not out of any disrespect, I will refer to Rapinder and Rajinder individually by their first names.
It was clear that Rajinders testimony was critical to defendants case. There was no need to make a further offer of proof, for Rajinder was the only witness defendants had in connection with their stated defense that a $1,000 payment was not made in 2002. (See Beneficial Etc. Ins. Co. v. Kurt Hitke & Co., supra, 46 Cal.2d at p. 522.) The trial court did not request an offer of proof. An offer of proof generally relates to the admissibility of evidence, not to whether a sanction should be imposed. The trial court was imposing the sanction because of purported discovery misfeasance, irrespective of the "substance, purpose, and relevance" of the testimony excluded. As noted, the critical importance of Rajinders testimony was clear as is the prejudice from the trial courts error in excluding it as a discovery sanction.
III. Dismissal of Rajinders Appeal
Rajinder purports to appeal from the judgment entered following trial. The trial served solely as a default prove-up hearing as to Rajinder. Rajinder makes no argument contesting the default prove-up hearing. Accordingly, his appeal is dismissed. (See Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 ["When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned"].)
DISPOSITION
The judgment is reversed as to Rapinder and Palvinder and dismissed as to Rajinder. Rapinder and Palvinder are awarded their costs on appeal.
I Concur:
ARMSTRONG, J.