Opinion
E062097 E064380
11-13-2017
JACQUELYN LOWDEN WILLIAMS, Plaintiff, Cross-defendant, and Appellant, v. KEITH IRA LOWDEN et al., Defendants, Cross-complainants, and Respondents.
Jacquelyn Lowden Williams, Plaintiff, Cross-defendant, and Appellant in pro. per. Greenberg Traurig and Frank E. Merideth, Jr. for Defendants, Cross-complainants, and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIC1209602) OPINION APPEAL from the Superior Court of Riverside County. Sharon J. Waters and Craig Riemer, Judges. Affirmed. Jacquelyn Lowden Williams, Plaintiff, Cross-defendant, and Appellant in pro. per. Greenberg Traurig and Frank E. Merideth, Jr. for Defendants, Cross-complainants, and Respondents.
Judge Waters assertedly denied appellant's request for a continuance of the trial and for a trial by jury. Judge Riemer made all of the other challenged rulings.
Plaintiff Jacquelyn Williams needed money to patent an invention. Her brother, defendant Keith Lowden, gave her approximately $4,000 for this purpose, in exchange for a percentage of any future profits from the patent. Later, he arranged for defendants Francis (Frank) and Linda Newman, a married couple, to give Williams a further $3,000, again in exchange for a percentage of future profits. All four of the parties signed a written contract giving Lowden a 20 percent share and the Newmans a separate 20 percent share.
Williams then sought to rescind the contract. She claimed that she had not read the written contract and that she thought the deal was different; among other things, she thought it was a loan, at 2,000 percent interest. After a bench trial, the trial court ruled against Williams on all of her claims (although it also ruled against defendants on some of their cross-claims).
Williams appeals, contending:
1. The trial court erroneously denied Williams's request for a continuance.
2. The trial court erroneously denied Williams's request for a jury trial.
3. The trial court erroneously denied Williams's request for relief from her discovery admissions.
4. Williams was entitled to rescission based on the lack of a meeting of the minds, mistake, or usury.
5. Frank and Linda Newman committed perjury.
6. The trial court erred by issuing a post-judgment order appointing an agent to enforce the patent.
We find no error. Hence, we will affirm.
I
FACTUAL BACKGROUND
The trial court issued a thorough and thoughtful statement of decision, including findings of fact. Because Williams does not challenge any particular findings as not supported by substantial evidence (see 420 Caregivers, LLC v. City of Los Angeles (2012) 219 Cal.App.4th 1316, 1331 ["On appeal, factual findings made by the trial court must be accepted if supported by substantial evidence."]), we use the trial court's findings as the framework for our statement of facts, although we supplement it with additional facts from the reporter's transcript and from the exhibits admitted at trial.
In 2004, Williams filed for a patent on a contoured and shaped feminine sanitary pad. Keith Lowden — her brother — paid some of the costs of the application; in return, Williams promised him a percentage of the proceeds of the patent. Initially, the Patent and Trademark Office (PTO) denied Williams's patent claims. In 2009, her application was deemed abandoned. Her time to reinstate the application was due to expire in December 2011.
Williams did not have the money that she needed (approximately $3,000) to attempt to reinstate the patent. Lowden identified Frank and Linda Newman as potential investors.
On October 10, 2011, the Newmans met with Williams and Lowden and discussed the patent. At that meeting, the parties reached an agreement in principle.
According to defendants, it was agreed that the Newmans would invest $3,000 in exchange for a 20 percent interest in the proceeds of the patent. Lowden would also get a separate 20 percent interest in the proceeds of the patent. In addition, Williams wanted defendants to have the authority to work with attorneys and with the PTO regarding the patent, because she "'didn't want to deal with it.'"
According to Williams, however, it was agreed that the Newmans would lend her $3,000, which she would repay "with an addition of 20 times the loan amount."
On October 12, 2011, the Newmans gave Williams the $3,000.
The trial court found, however, that, at this point, the parties still did not intend to be bound unless and until they signed a written contract. It was agreed that Frank Newman would draft a proposed written contract.
Over the next two weeks, Frank Newman prepared seven successive written drafts of the proposed contract and sent them to Williams. At trial, Williams claimed that she did not read any of them because she was busy with other matters. However, she provided comments on some of the drafts, and the trial court found that she reviewed at least two of them.
All seven drafts provided for a 60-20-20 split of the proceeds of the patent. Most of them gave the Newmans the authority to conduct business regarding the patent, in some form; the last two specifically provided for a "Power of Attorney."
On October 29, 2011, Williams and the Newmans all signed the final version of the contract. Lowden signed it the next day.
Gregory Williams — Williams's husband — signed an addendum to the contract, basically waiving any community property interest in defendants' 40 percent share.
According to the Newmans, one day before the signing, they emailed the final version to Williams. On the day of the signing, at 2:30 p.m., they went to her house, where they found her cooking. She commented that she had read the contract; in their presence, she read it again and then signed it.
According to Williams, however, Linda Newman came to her house, woke her up, and refused to leave until she signed the contract; she was sleepy and under the influence of medication, and she signed it without reading it.
The signed contract provided that Williams assigned a 20 percent interest in the proceeds of the patent to the Newmans and another 20 percent interest to Lowden. Defendants agreed to pay their pro rata share of any future "legal, court, or accounting costs" relating to the patent. It also provided that Williams granted defendants "Power of Attorney and all rights and privileges otherwise granted to the owner of the above invention/patent . . . ."
The signed contract was headed, "Assignment of limited partner's interest." However, it contained no terms creating or even mentioning a limited partnership. Linda Newman testified that this "was just a title." She and her husband were not attorneys; they understood it to mean only that they were becoming "partners in an investment."
In December 2011, Williams successfully obtained the reinstatement of the patent. In April 2012, the patent was issued.
In May 2012, a law firm advised Williams that she could not enforce the patent in her own name because of the power of attorney clause.
Later in May 2012, Williams contacted Linda Newman and asserted for the first time that the contract was invalid. In June 2012, she offered to sign an amended version of the contract; the only difference was that the power of attorney clause would be omitted. Later in June 2012, she sent defendants a notice of rescission, purporting to rescind, not the entire contact, but only the power of attorney clause.
Still later in June 2012, Williams filed this action, in which she sought to rescind the entire contract.
II
PROCEDURAL BACKGROUND
Williams filed this action against Lowden, Frank Newman, and Linda Newman. She asserted causes of action for mistake of fact, fraud, and undue influence; she sought rescission and damages.
Defendants filed a cross-complaint against Williams (and Gregory Williams) for breach of contract, seeking damages, specific performance, and declaratory relief.
Williams was represented by a law firm for about two and a half months, early in the case. At other times, whenever a pretrial court appearance was necessary, Attorney Jeffrey H. Sherter filed a "Notice of Limited Scope Representation" and appeared on her behalf. Sherter also represented her at her deposition. In every other respect, Williams was in propria persona.
About three weeks before trial, Sherter withdrew from even the limited scope representation. Thus, Williams represented herself at all further court appearances and at trial.
In April 2014, the matter was tried to the court. The trial court rejected Williams's claims of mistake of fact, fraud, and undue influence. It found that she reviewed at least some of the drafts of the contract, and that she was aware of the terms of the final written contract. It entered judgment accordingly.
III
THE DENIAL OF A CONTINUANCE OF THE TRIAL
Williams contends that the trial court erred by denying her request for a continuance.
A. Additional Factual and Procedural Background.
The case was set for trial on March 28, 2014. When the case was called, Williams stated that she was "[n]ot really" ready. She explained: "My computer has been compromised and also the voice message that I received from them has somebody else on it, along with my voice . . . ." She admitted, however, that she had first learned her computer was compromised "three or four months ago."
Williams also complained that she had not had an attorney to assist her with trial preparation: "I was trying to get the attorney to help me . . . ." " . . . I kept trying to find an attorney and they just kept saying it's just too much stuff that [defendants' counsel] bombards them with that they cannot help me." " . . . I have been getting help from limited scope, different attorneys that do different parts, and just been advised here and there. I tried to have things submitted. The attorney said, No. You don't need to submit them."
Counsel for defendants represented that Williams had not notified them that she was not ready for trial.
The trial court commented: "I usually do not entertain requests to continue trial on the day of trial. I expect people to come in in advance of that and give the court, and more importantly, the opposing party, fair notice that you're not ready to proceed."
This dialog ensued:
"THE COURT: What is your request in terms of continuing the trial? I assume you do not want to go to trial today?
"MS. WILLIAMS: No. I don't want to go to trial at all.
"THE COURT: Well, I can't make people settle.
"MS. WILLIAMS: Right. Then we have to go to trial.
"THE COURT: Yes. When people can't resolve things on their own, that's why we have trials.
"MS. WILLIAMS: Yes, ma'am.
"THE COURT: And the question is are you ready to proceed to trial?
"MS. WILLIAMS: As best I can.
"THE COURT: So you're ready?
"MS. WILLIAMS: I'm going to say I'm ready."
B. Discussion.
Williams asserts several times that the trial court erred by denying her a continuance. However, she fails to support this assertion with reasoned argument or citation of authority. "Every appellate brief must 'support each point by argument and, if possible, by citation of authority.' [Citation.] When an appellant asserts an argument but fails to support it with reasoned argument and citations to authority, we may treat the point as waived. [Citation.]" (Petitpas v. Ford Motor Company (2017) 13 Cal.App.5th 261, 271, fn. 4.) We do so here.
In any event, Williams never actually requested a continuance. When asked what she was requesting, she stated, "I don't want to go to trial at all." (Italics added.) She conceded, however, that she had to go to trial at some point because the case had not settled. She then stated that she was ready to go to trial. "Because [Williams] never requested a continuance . . . , we consider the argument forfeited. [Citations.]" (In re A.B. (2014) 225 Cal.App.4th 1358, 1366.)
Even if Williams did request a continuance, the trial court could properly deny it. "A party seeking a continuance of the date set for trial . . . must make the request for a continuance by a noticed motion or an ex parte application . . . , with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered." (Cal. Rules of Court, rule 3.1332(b).) Here, Williams failed to bring either a noticed motion or an ex parte application (i.e., on telephone or email notice) for a continuance. Even assuming that she could be viewed as making an ex parte application, she did not explain why she was unable to proceed by noticed motion. She also failed to submit a supporting declaration. And she failed to show that she had acted as soon as reasonably practical.
Last but not least, Williams failed to show any good cause. She claimed that her computer had been "compromised" and that a voice mail had supposedly been tampered with. However, she did not explain how either of these prevented her from being ready for trial. She also claimed that she had not had the assistance of an attorney. However, she had been in propria persona almost throughout the case. Attorney Sherter had agreed to make certain court appearances for her, but as we discuss further in part V, post, he had not agreed to assist her with trial preparation. Thus, she knew that she had to either retain an attorney well before trial or else represent herself. As she had already had plenty of time to retain an attorney, it did not appear that having more time would enable her to do so.
IV
THE DENIAL OF A JURY TRIAL
Williams contends that the trial court erred by denying her request for jury trial.
A. Additional Factual and Procedural Background.
When the case was called for trial, there was this discussion:
"THE COURT: And are you asking for a jury trial?
"MS. WILLIAMS: Yes, I am.
"THE COURT: One of the things you have to do in a jury trial is prepare jury instructions, verdict forms, have your exhibits properly marked. Have you done all that?
"MS. WILLIAMS: No. . . .
"THE COURT: Why would you want to proceed to jury trial today if you don't have your jury instructions
"MS. WILLIAMS: What other choice do I have?
"THE COURT: You have [the] choice of a court trial, which is submit it to a judge. . . .
"MS. WILLIAMS: That will be best for me then. Okay."
Counsel for defendants waived a jury. The minutes of the hearing recite: "All parties waive jury trial."
B. Discussion.
A jury trial may be waived in several ways, including "[b]y oral consent, in open court, entered in the minutes." (Code Civ. Proc., § 631, subd. (f)(3).) Here, Williams initially said she wanted a jury trial, but she added, "What other choice do I have?"; when told that she had the alternative of a court trial, she indicated that that was what she wanted. Her consent was entered in the minutes. This was a valid and effective waiver.
Williams argues that waiver "is inapplicable" because Attorney Sherter supposedly breached his "duty" to assist her with trial preparation. She does not explain why his breach would relieve her of her waiver, nor does she cite any authority supporting this proposition. In any event, according to the notices of limited representation that Sherter filed — and that Williams signed — he was hired only to appear at certain hearings. For example, three weeks before trial, Sherter filed a notice that recited, "Attorney [has] been retained for the hearing on Motion for Summary Judgment scheduled for March 13, 2014 and for no other purpose. Attorney's representation does not extend beyond March 13, 2014." Also on March 13, 2014, Sherter filed a "Substitution of Attorney," signed by Williams, in which he withdrew completely from any further representation. Thus, the record shows that Sherter had no duty to assist Williams with trial preparation.
V
RELIEF FROM DISCOVERY ADMISSIONS
Williams contends that the trial court erred by denying her request for relief from her discovery admissions.
A. Additional Factual and Procedural Background.
Defendants filed a motion in limine to preclude Williams from disputing the admissions she had made in response to certain specified requests for admissions. (See Code Civ. Proc., § 2033.410, subd. (a).)
On the first day of trial, the trial court asked Williams to respond to that motion. She asserted, among other things, that her attorney at the time had been "doing . . . the minimum." The trial court granted the motion.
On the second day of trial, Williams filed a motion to withdraw certain specified admissions (Code Civ. Proc., § 2033.300), "due to lack of full clarity and overstanding [sic] of some of the phrases in the [requests] . . . ." The trial court denied the motion to withdraw, on the grounds that (1) Williams had not given notice of the motion, (2) the motion was not supported by a declaration, and (3) defendants would be substantially prejudiced if the motion were granted.
B. Discussion.
Williams argues that defendants propounded more than 35 requests for admission, in violation of Code of Civil Procedure section 2033.030. However, they were allowed to do so, provided that either (1) the additional requests related to the genuineness of documents (Code Civ. Proc., § 2033.030, subd. (a)), or (2) defendants served a declaration for additional discovery (Code Civ. Proc., §§ 2033.030, subd. (b), 2033.040, subd. (a), 2033.050). Williams claims that defendants did not serve a declaration, but she does not claim that the requests did not relate to the genuineness of documents; moreover, she does not support her claim with any citation to the record. Even assuming that defendants violated the numerical limit, Williams's remedy was to object and to refuse to respond to any more than 35 requests. (Code Civ. Proc., §§ 2033.030, subd. (b).) By responding to the requests instead, she forfeited the objection. She additionally forfeited it by failing to raise it in her motion for relief below.
Williams also asserts that some of the requests for admission were served too late to meet the discovery cut-off date. However, again, she does not support this claim with any citation to the record. Moreover, she does not show that she objected to the requests on this ground. And finally, she forfeited this claim by failing to raise it in her motion below.
Next, Williams claims that she was busy with trial preparation and had "only limited assistance from a paralegal." Yet again, Williams does not cite any support in the record for this claim. In any event, this was no excuse. "A party who chooses to act as his or her own attorney '"is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.]"' [Citation.] 'Thus, as is the case with attorneys, pro. per. litigants must follow correct rules of procedure.' [Citations.]" (Stover v. Bruntz (2017) 12 Cal.App.5th 19, 31.)
Williams cites Fredericks v. Kontos Industries, Inc. (1987) 189 Cal.App.3d 272, which held a trial court has discretion to admit evidence to explain an ambiguous admission. (Id. at pp. 276-279.) However, she does not show how her original admissions were ambiguous nor how she would have explained them. And again, she did not raise this argument in her motion below.
We also note that, even if all of Williams's arguments were otherwise well-taken, the trial court still could properly deny her motion on the grounds that it stated - i.e., that Williams had not given notice of the motion, the motion was not supported by a declaration, and granting the motion would substantially prejudice defendants.
Last but not least, Williams has not shown that the asserted error was prejudicial. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Elsner v. Uveges (2004) 34 Cal.4th 915, 939.) In its statement of decision, the trial court did cite and rely on some of Williams's admissions. However, it added: "[Williams] sought to rescind the entire contract on three grounds: a mistake of fact; undue influence; and fraud." "In substance, [Williams] contends that she is entitled to relief because she did not realize what the contract said at the time she signed it. . . . Even assuming [Williams]'s claim is not controverted by [her] binding admission, the weight of the evidence does not support the assertion that she was unaware of the contract terms." (Italics added.) Williams does not claim that, if allowed to withdraw her admissions, she would have introduced any different or additional evidence. Thus, it is clear that, even in the absence of the challenged ruling, the trial court would still have ruled against her on the merits of her claims.
VI
RESCISSION BASED ON LACK OF A MEETING OF THE MINDS OR USURY
Williams contends that she was entitled to rescission based on lack of a meeting of the minds or usury.
We interpret this as attacking the trial court's statement of decision after trial, rather than its earlier order denying Williams's motion for summary judgment. Admittedly, Williams does state, "The issue of rescission was raised in Appellant's motion for summary judgment . . . ." Moreover, while her discussion of the evidence cites some trial testimony, it also cites her entire motion for summary judgment. However, "[a]s a general rule, the denial of summary judgment is harmless error after a full trial covering the same issues. [Citation.]" (Legendary Investors Group No. 1, LLC v. Niemann (2014) 224 Cal.App.4th 1407, 1410-1411.)
In other words, she asks us to review some 672 pages of the clerk's transcript. "This is a wholly unacceptable method of appellate advocacy." (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1011.)
"'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error." [Citations.]" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
"'Where findings of fact are challenged on a civil appeal, we are bound by the "elementary, but often overlooked principle of law, that . . . the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted," to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor . . . .' [Citation.]" (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053.)
"[The appellant], on the other hand, in order to sustain [her] contention must 'demonstrate that there is no substantial evidence to support the challenged findings.' [Citations.]" (Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 64.) "A recitation of only [the appellant's] evidence is not the 'demonstration' contemplated under the above rule. [Citation.] Accordingly, if, as [the appellant] here contend[s], 'some particular issue of fact is not sustained, [she is] required to set forth in [her] brief all the material evidence on the point and not merely [her] own evidence. Unless this is done the error assigned is deemed to be waived.' [Citations.]" (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881-882.)
Williams has violated these rules by failing to set forth all of the relevant material evidence. We therefore deem her present contention forfeited.
Separately and alternatively, we also reject it on the merits.
Williams maintains that there was no meeting of the minds (or there was a mistake) because she, at least, understood the agreement to be that (1) the Newmans would lend her $3,000, and she would pay them 2,000 percent interest; (2) Lowden would not be a party; and (3) there would be no power of attorney. Just because she testified to this, however, does not mean that the trial court had to believe her. Linda Newman testified that all of these contract terms were agreed on in principle at the very first meeting. All seven of the draft contracts provided for the first two such terms; most of them included the general concept of a power of attorney, and the last two of them provided for a "Power of Attorney" in so many words. Linda Newman also testified that Williams told her that she had read the final version of the contract before signing it; moreover, Williams read it again in her presence. Finally, when Williams first demanded rescission, she objected only to the power of attorney clause, not to the entire contract.
She may also be arguing that there was no meeting of the minds (or there was a mistake) as to whether the contract created a limited partnership. However, she understood that there was no limited partnership, and defendants likewise understood that there was no limited partnership. Linda Newman testified that the words "Assignment of limited partner's interest" were "just a title."
Even assuming that Williams really did not read the contract and really did subjectively believe that it said what she claims, the trial court could still rule against her. "'"Contract formation is governed by objective manifestations, not the subjective intent of any individual involved. [Citations.] The test is 'what the outward manifestations of consent would lead a reasonable person to believe.' [Citation.]" [Citation.]' [Citation.]" (G & W Warren's, Inc. v. Dabney (2017) 11 Cal.App.5th 565, 575.) By signing the contract, whether she read it or not, Williams manifested an intent to be bound by its contents. "Plaintiff has cited no California cases (and we are aware of none) that stand for the extreme proposition that a party who fails to read a contract but nonetheless objectively manifests his assent by signing it — absent fraud or knowledge by the other contracting party of the alleged mistake — may later rescind the agreement on the basis that he did not agree to its terms. To the contrary, California authorities demonstrate that a contracting party is not entitled to relief from his or her alleged unilateral mistake under such circumstances. [Citations.]" (Stewart v. Preston Pipeline Inc. (2005) 134 Cal.App.4th 1565, 1589.) The Newmans had no reason to know of Williams's alleged mistake, because they had no reason to suppose that she had not read the drafts she was sent.
Williams maintains that the contract was usurious because the transaction was (or was intended to be) a loan. Once again, however, the trial court did not have to believe this. The written contract provided for an investment, not a loan. "'The advancing of money as a hazardous investment in an enterprise must be distinguished from the advancing of money as a loan, and the former is outside the purview of the usury law.'" (Teichner v. Klassman (1966) 240 Cal.App.2d 514, 522.)
Williams's usury claim also fails for a separate and additional reason: She did not assert usury below, in her complaint or otherwise. "[A]ppellant cannot challenge a judgment on the basis of a new cause of action [she] did not advance below. [Citations.]" (United States Golf Assn. v. Arroyo Software Corp. (1999) 69 Cal.App.4th 607, 623.) "'The rule is well settled that the theory upon which a case is tried must be adhered to on appeal. A party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant. [Citation.]' [Citations.]" (Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 874.)
In a single paragraph, unsupported by any citation of authority, Williams accuses the trial court of bias. The accusation is based on this exchange:
"[WILLIAMS:] So you consider — you giving me a loan, we became partners?
"THE COURT: Ma'am, you keep referring to 'loan,' and [counsel for defendants]
"MS. WILLIAMS: Or investment. We became partners.
"[LINDA NEWMAN]: Yes, we became partners in an investment."
Williams forfeited any claim of bias by failing to bring a disqualification motion below. (Code Civ. Proc., § 170.3, subd. (c)(1); People v. Guerra (2006) 37 Cal.4th 1067, 1111, disapproved on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.) She further forfeited any such claim by failing to file a prompt writ petition. An appellate court can review a claim of judicial bias only by writ, not by way of appeal. (Code Civ. Proc., § 170.3, subd. (d); People v. Brown (1993) 6 Cal.4th 322, 335-336; Roth v. Parker (1997) 57 Cal.App.4th 542, 547-549.)
In any event, the exchange quoted above does not show bias. Williams was claiming that the transaction was a loan; defendants were claiming that it was an investment. Accordingly, Williams's use of the word "loan" made her question objectionable as argumentative (1 Jefferson, Cal. Evidence Benchbook (Cont. Ed. Bar 4th ed. 2015) § 28.43, pp. 28-28-28-29 (rev. 3/17)), and also, at least at that point, as assuming a fact not in evidence. (Id., § 28.51, p. 28-32.) "A trial court may interpose and sustain its own objections. [Citation.]" (People v. Harris (2013) 57 Cal.4th 804, 852.) Thus, the trial court was not displaying bias; it was just doing its job.
VII
SUPPOSED PERJURY BY THE NEWMANS
Williams accuses defendants Frank and Linda Newman of perjury.
She fails to demonstrate that the Newmans' testimony was false. She does not discuss Frank Newman's testimony at all. She quotes some of Linda Newman's testimony, with citations; she then quotes some more, albeit without citations, which supposedly contradicts it.
In context, however, there was no contradiction. Linda Newman testified that, on October 2, she met with Lowden, who told her that Williams was looking for someone to invest in her patent. She also testified that on October 10, she met with Williams for the first time and agreed to invest $3,000. After this, at one point, she said she did not know anything about the patent before October 10. However, she immediately corrected herself; she volunteered: "I think I got a date wrong. I'm sorry. The first time I heard of your invention, I'm sorry, through [Lowden], was on October the 2nd, I'm sorry, not the 10th. On the 2nd." In other words, she confused the dates of the two meetings and she immediately corrected herself. This is hardly perjury.
Even if Linda Newman did contradict herself, her testimony would still be substantial evidence. "It is well settled that the trier of fact may accept part of the testimony of a witness and reject another part even though the latter contradicts the part accepted. [Citations.]" (Stevens v. Parke, Davis & Co., supra, 9 Cal.3d at p. 67.) This is true even "if [the trier of fact] believed [the witness] had wilfully sworn falsely as to a material point [citation]. On appeal that [part of the testimony] which supports the judgment must be accepted as true. [Citations.]" (People v. Rodriguez (1959) 169 Cal.App.2d 771, 777.)
And finally, even if the record did show that Linda Newman committed perjury, the remedy for perjury (other than bringing criminal charges) is prompt action at trial. One may attempt to impeach the witness or to introduce evidence that will prove the witness wrong; one may argue in closing that the witness is not credible. One may even bring a motion for a new trial (Bowler v. Roos (1931) 213 Cal. 484, 486-487), if there is still time. However, we know of no appellate remedy for perjury.
VIII
POST-JUDGMENT ORDER ENFORCING THE JUDGMENT
Williams (apparently) contends that the trial court erred by issuing a post-judgment order to enforce the judgment.
A. Additional Factual and Procedural Background.
Defendants took the position that Williams agreed to assign them 40 percent of the patent (as opposed to 40 percent of the proceeds of the patent). They asked the trial court to order her to execute a written assignment of the patent to them, and moreover to execute "an irrevocable power of attorney respecting all aspects of the [p]atent . . . ." In closing argument, their counsel asserted that the power of attorney should be exclusive — i.e., it should prevent Williams from making decisions concerning the patent.
The trial court's statement of decision was even-handed, in that, while it ruled against Williams on the claims in her complaint, it also ruled against defendants on these claims. Thus, it found that the written contract did not assign defendants any interest in the patent. The trial court declared Williams "the sole decision-maker and the sole voice" regarding the patent. However, it retained jurisdiction "to impose . . . alternative remedies in the future."
Not quite one year after judgment was entered, defendants filed a "Motion to Enforce Judgment." (Capitalization altered.) In it, they claimed that Williams had "stonewalled" their requests that she enforce the patent; they asked the trial court to appoint an agent with the exclusive power to enforce the patent for the benefit of all of the parties.
This time, the trial court granted the motion. Williams filed a separate notice of appeal from this post-judgment order.
B. Discussion.
Williams's argument on this point has a separate heading, as required. (Cal. Rules of Court, rule 8.204(a)(1)(B).) However, it consists of a single garbled sentence; we cannot make sense of it. Moreover, it is not supported by any citation of authority. "Given the absence of comprehensible argument and citation . . . we treat the point as waived. [Citation.]" (Vargas v. City of Salinas (2011) 200 Cal.App.4th 1331, 1350.)
IX
DISPOSITION
The judgment is affirmed. The post-judgment order enforcing the judgment is likewise affirmed. Defendants are awarded costs on appeal against Williams.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. SLOUGH
J.