Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 05CC04192, Ronald L. Bauer, Judge.
Richard V. McMillan for Plaintiff and Appellant.
Houser & Allison, Eric D. Houser and Jeffrey S. Allison for Defendant and Respondent.
OPINION
ARONSON, J.
Plaintiff John C. Zahn challenges the judgment entered in favor of defendant Aames Home Loan Company (Aames) following a bench trial of his claims seeking a partial refund of money Zahn paid to satisfy a loan made by Aames that was secured by real property his trust owns. Zahn contends Aames improperly added to the loan balance attorney fees and costs Aames incurred in defending a previous action Zahn brought against Aames. He asserts the trust deed required the trustee to defend only actions purporting to “affect the security hereof or the rights or powers of the Beneficiary or Trustee . . . .” (Italics added.) Zahn argues the term “affect” in the trust deed was ambiguous and the trial court should have interpreted it to exclude the fees and costs Aames incurred in the prior lawsuit Zahn brought against Aames. Zahn also contends the trial court erred in holding a bench trial on his claims, in overruling his objection to testimony by Aames’s expert witness that exceeded the scope of Aames’s expert witness designation, in denying his motion to tax costs, and in admitting a trial exhibit reflecting escrow disbursements added to the loan’s outstanding balance.
We conclude the term “affect” in the trust deed is not ambiguous, and that the prior lawsuit sought to affect the rights and powers of beneficiary and trustee, thus justifying Aames’s addition to the loan balance of the attorney fees and costs incurred in defending Zahn’s earlier lawsuit. The trial court did not err in granting Aames’s bifurcation motion on Zahn’s causes of action for money had and received and constructive trust because Zahn failed to object until after trial had concluded. Moreover, the trial court was not required to provide Zahn a jury trial because no unresolved issues remained after the trial court rendered its decision in the bench trial. We also conclude the trial court did not err in overruling Zahn’s objection to the testimony of Aames’s expert witness because Zahn failed to timely support his claim the testimony exceeded the scope of Aames’s expert designation. We reject Zahn’s challenge to the trial court’s denial of his motion to tax costs because Zahn provides no factual or legal argument on why the motion should have been granted. Finally, we decline to consider Zahn’s challenge to the trial court’s admission of trial exhibit 22 because he raised the issue for the first time in his reply brief. Accordingly, we affirm the judgment.
I
Factual and Procedural Background
Maria Damicog purchased a residence in the City of Garden Grove from Betty Bentley, who carried back a security interest for a portion of the purchase price. In January 1993, Damicog borrowed approximately $99,000 from Aames, and Bentley agreed to subordinate her interest to a first trust deed to secure the Aames loan.
Damicog defaulted on Bentley’s loan sometime before June 1996, and gave Bentley a deed in lieu of foreclosure, making Bentley again the property owner. At some point in late 1996 or 1997, Zahn noticed the property, which appeared neglected and in a state of disrepair. Because of his background as a general contractor, Zahn believed he could purchase, repair, and resell the residence at a profit. After locating Bentley, Zahn arranged to purchase the property through the Cherry Rainwater Trust, in which he was a beneficiary.
After several discussions with Aames concerning the loan, Zahn sued Aames in June 1998, asserting claims for breach of contract and fraud. (Zahn v. Aames Home Loan Company et al. (Super. Ct. Orange County, 1998, No. 795766 (Zahn I).) Zahn sought to: (1) enforce an alleged oral contract with Aames allowing him to assume the Damicog loan; (2) enjoin Aames from foreclosing on the loan or collecting any amounts due from Damicog; and (3) reduce the amount due on the loan for a short payoff. At the Zahn I trial, the court granted Aames’s nonsuit motion on the fraud claim and the jury awarded Aames judgment on Zahn’s breach of contract claim. Zahn appealed the judgment in Zahn I, and we affirmed. (Zahn v. Aames Home Loan Co. (Apr. 30, 2002, G027711 [nonpub. opn.].)
The loan matured in March 2003, becoming due and payable. At Zahn’s request, Aames issued a payoff statement on July 9, 2004, which disclosed a payoff amount of $156,122.11, including $57,493.16 for “Outstanding Fees or Advances,” and $5,946.76 for “Escrow Shortage.” At Zahn’s request, Aames explained that the “Outstanding Fees or Advances” included attorney fees and costs incurred in Zahn I. Receiving no payoff, Aames issued a notice of default on November 30, 2004, reflecting $160,509.11 as the total amount due, and a notice of sale on March 2, 2005, reflecting $167,743.10 due.
To prevent foreclosure and pay off the loan, Zahn sent a cashier’s check in the amount of $170,000 to Aames, along with a letter requesting a refund of any overpayment. After receiving the check, Aames cancelled the foreclosure sale and refunded $1,909.17 to Zahn.
Zahn then filed the present action to recover portions of the payoff amount attributable to Zahn I attorney fees and the escrow advances. The claims remaining for trial in Zahn’s second amended complaint were (1) conversion, (2) money had and received, and (3) constructive trust.
The trial court granted Aames’s bifurcation motion and conducted a bench trial on Zahn’s equitable claims, with any remaining legal claims to be tried by a jury. After the bench trial of the equitable claims, the court entered judgment on all causes of action in the second amended complaint. Zahn now appeals.
II
Discussion
A. The Term “Affect” in the Trust Deed Is Not Ambiguous
Aames included in the payoff amount attorney fees and costs incurred by the trustee in defending Zahn I because the trust deed required the trustee “[t]o appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of the Beneficiary or Trustee . . . .” Zahn contends the term “affect” in paragraph three of the trust deed is ambiguous, and that the trust deed is a contract of adhesion requiring a strict construction against the drafter. We disagree.
Zahn predicates his argument on the definition of the word “affect” in Black’s Law Dictionary, Fourth Edition, which provides: “‘To act upon; influence; change; enlarge; or abridge; often used in the sense of acting injuriously upon persons and things.’” Zahn asserts this definition “is so broad as to encompass virtually anything . . . .” Given this premise, Zahn concludes we must construe the word “affect” to mean only the impairment or diminution of security.
Zahn’s argument is meritless. Zahn focuses myopically on the phrase “affect the security,” while ignoring the rest of the sentence, which includes the disjunctive phrase “the rights or powers of the Beneficiary or Trustee.” The cases Zahn cites do not purport to narrow the definition of “affect” to mean only the diminishment of a security’s value, and are inapposite. As the trial court recognized, Zahn I sought to enjoin foreclosure of the trust deed and to reduce the amount owed under the loan. That Zahn I thereby sought to affect the rights and powers of both the beneficiary and trustee is so axiomatic that further discussion of the subject would be superfluous.
B. Zahn Failed to Object to Bifurcation Before Trial
Approximately three months before trial, Aames filed a motion to bifurcate the trial of equitable and legal claims, arguing the court should try Zahn’s constructive trust and money had and received claims before any of Zahn’s legal claims. Zahn did not oppose the motion. At the hearing on the bifurcation motion, Zahn’s counsel expressed concern over having two separate trials, and indicated a preference for having the jury render an advisory verdict on the equitable issues, noting: “I’ve never had a situation where we actually tried the equitable issues first, and then come back again and try the legal issues.” After the court and Aames’s counsel stated they had been involved in bifurcated trials before, Zahn’s counsel remarked: “So be it, then. That’s what we’ll do.”
Zahn now contends the money had and received claim required a jury trial, and that his constructive trust claim, although admittedly equitable, nonetheless “may have required a jury trial.” Zahn failed to present these arguments to the trial court; indeed, Zahn expressly agreed to the trial court’s bifurcation procedure.
“An appellate court will not consider procedural defects or erroneous rulings where an objection could have been, but was not, raised in the court below. [Citation.] Failure to object to the ruling or proceeding is the most obvious type of implied waiver.” (Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 1117 [objection to bifurcated proceedings held waived where no objection made before trial].) Because Zahn did not object to the trial court separately trying his claims for constructive trust and money had and received as equitable, nonjury issues, he may not raise the issue now.
C. The Trial Court’s Decision in the First Phase of the Bifurcated Proceedings Resolved All Disputed Issues
Zahn contends the trial court erred in failing to hold a jury trial on his legal claims after the bench trial on the equitable issues. We disagree.
“[W]hen a case involves both legal and equitable issues the court may in its discretion decide the equitable issues first. If the decision as to the equitable issues is such as is determinative of the legal issues a jury trial as to the latter is obviated. If not, the jury trial as to the remaining issues will follow.” (Jaffe v. Albertson Co. (1966) 243 Cal.App.2d 592, 609; see also Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1238 [“‘“When an action involves both legal and equitable issues, the equitable issues, ordinarily, are tried first, for this may obviate the necessity for a subsequent trial of the legal issues”’”].) Each of the claims in Zahn’s second amended complaint sought to recover $78,722.53, which Zahn claimed he overpaid Aames to end the nonjudicial foreclosure proceedings against his property. When the court decided in Aames’s favor on Zahn’s claims for constructive trust and money had and received, it determined the amount Aames had demanded for payoff of the loan was appropriate, and no further refund was required. Thus, the trial court’s decision addressed all issues raised by Zahn’s complaint.
Zahn does not explain what factual issues remained unresolved after the trial court’s adjudication of the equitable claims. Indeed, Zahn concedes that “[h]ad the Trial Court found for Zahn on the constructive trust issue, that finding would have been dispositive for it would have awarded Zahn money damages, the only relief sought in the Complaint, thereby leaving nothing to be determined on the legal issues.” If a ruling in Zahn’s favor on the constructive trust issue would have resolved the legal issues, we cannot understand how a ruling against Zahn would also not have done so. Accordingly, we conclude the trial court did not err by failing to hold a jury trial.
D. Zahn Failed to Timely Support His Objection to the Testimony of Aames’s Expert Witness
Zahn contends the trial court erred when it overruled his objection to the admission of testimony from Martin McGuinn, Aames’s expert witness, on subjects outside the scope of Aames’s expert witness disclosure under Code of Civil Procedure section 2034.260. We disagree.
The Discovery Act provides that upon the demand of any party for the exchange of expert witness information, each party shall provide “an expert witness declaration signed only by the attorney for the party designating the expert, or by that party if that party has no attorney.” (Code Civ. Proc., § 2034.260, subd. (c).) This declaration “shall be under penalty of perjury and shall contain: [¶] (1) A brief narrative statement of the qualifications of each expert. [¶] (2) A brief narrative statement of the general substance of the testimony that the expert is expected to give. [¶] (3) A representation that the expert has agreed to testify at the trial. [¶] (4) A representation that the expert will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning the specific testimony, including any opinion and its basis, that the expert is expected to give at trial. [¶] (5) A statement of the expert’s hourly and daily fee for providing deposition testimony and for consulting with the retaining attorney.” (Ibid., italics added.)
The purpose of the foregoing provisions is to give fair notice of what an expert will say at trial and to enable the opposing party to fully explore the relevant subject area at deposition. (Bonds v. Roy (1999) 20 Cal.4th 140, 146-147 (Bonds).) “It makes little practical difference whether the party proffering the expert testimony failed to submit an expert witness declaration or submitted an inaccurate one.” (Id. at p. 147.) In either case, the opposing party is denied fair notice of the expected testimony.
For example, in Bonds, a medical malpractice case, defendant disclosed an orthopedic surgeon who was to testify about the extent of plaintiff’s disability. (Bonds, supra, 20 Cal.4th at pp. 142-143.) At trial, however, defendant sought to have this witness testify about the standard of care. (Id. at p. 143.) The trial court refused to permit this testimony, finding the subject matter exceeded the scope of the testimony described in the expert witness declaration. (Ibid.) The Supreme Court affirmed the trial court’s ruling, concluding “the exclusion sanction . . . applies when a party unreasonably fails to submit an expert witness declaration that fully complies with . . . the requirement that the declaration contain ‘[a] brief narrative statement of the general substance of the testimony that the expert is expected to give.’ [Citation.] . . .To expand the scope of an expert’s testimony beyond what is stated in the declaration, a party must successfully move for leave to amend the declaration under [Code of Civil Procedure section 2034.610..” (Id. at pp. 148-149.)
Code of Civil Procedure section 2034.610 provides: “(a) On motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to do either or both of the following: [¶] (1) Augment that party’s expert witness list and declaration by adding the name and address of any expert witness whom that party has subsequently retained. [¶] (2) Amend that party’s expert witness declaration with respect to the general substance of the testimony that an expert previously designated is expected to give. [¶] (b) A motion under subdivision (a) shall be made at a sufficient time in advance of the time limit for the completion of discovery under Chapter 8 (commencing with Section 2024.010) to permit the deposition of any expert to whom the motion relates to be taken within that time limit. Under exceptional circumstances, the court may permit the motion to be made at a later time. [¶] (c) The motion shall be accompanied by a meet and confer declaration under Section 2016.040.”
In the present case, Aames’s expert disclosure provided that McGuinn would testify about the assessment and reasonableness of attorney fees and costs under the trust deed. During his testimony, however, McGuinn also provided an opinion about the accuracy of the escrow balance added to the amount needed to pay off the loan. While McGuinn explained the basis for his opinion, he began to describe a “force placed escrow.” Zahn’s counsel objected, stating “I think that exceeds the designation of the testimony of this witness that was provided to counsel. I don’t recall anything in that discussing force place[d] as being the subject mater of his testimony.” Zahn’s counsel, however, could not support the objection because he did not have a copy of McGuinn’s expert witness designation to give to the court. Having no basis upon which to consider the objection, the trial court allowed McGuinn to continue testifying. The following day, Zahn’s counsel provided the court with a copy of the designation and renewed his objection. The court, however, denied the objection because the court already had admitted McGuinn’s testimony on the subject.
A trial court exercises “‘broad discretion in ruling on the admissibility of evidence.’” (Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1431.) When Zahn’s counsel first objected, he was unsure whether the testimony exceeded the scope of Aames’s expert witness designation, stating his objection in terms of “I think” and “I don’t recall.” Zahn’s counsel did not request a recess in the proceedings to check with his office or have a copy of the designation sent to him by telefacsimile. Having no basis upon which to sustain the objection, the trial court properly allowed McGuinn to continue. When Zahn’s counsel renewed his objection the following day, McGuinn already had completed direct, cross, and redirect examination. Because Zahn’s counsel did not move to strike the testimony, it would have made little sense for the trial court at that point to preclude further recross and redirect examinations of the witness. We therefore conclude the trial court did not abuse its discretion.
E. Zahn Fails to Provide Any Argument or Authority Demonstrating the Trial Court Erred in Denying His Motion to Tax Costs
In addition to appealing the judgment, Zahn also appealed “from the December 18, 2006 denial of Plaintiff’s motion to tax costs.” In his brief, Zahn contends the trial court never ruled on his motion to tax costs, and that the effect of the court’s inaction was a denial of the motion. Zahn, however, fails to cite any legal or factual reasons why the motion should have been granted.
“‘[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]’” (People v. Stanley (1995) 10 Cal.4th 764, 793.) Accordingly, we affirm the trial court’s denial of Zahn’s motion to tax costs.
F. Zahn Cannot Properly Raise the Trial Court’s Admission of Exhibit 22 for the First Time in Its Reply Brief
In his reply brief, Zahn contends the trial court erred in admitting trial exhibit 22 into evidence. Zahn further contends that without this exhibit, Aames presented no evidence to support its assessment of $5,946.76 as an “Escrow Shortage.” Because these contentions were not raised in Zahn’s opening brief, we do not consider them. (Feitelberg v. Credit Suisse First Boston, LLC (2005) 134 Cal.App.4th 997, 1022 [“‘Points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before’”].)
III
Disposition
The judgment is affirmed. Aames is entitled to its costs of this appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., FYBEL, J.