Filed 11/20/18 Breazeale v. Shottelkorb CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
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MAJUN BREAZEALE, Plaintiff and Appellant, v. DEBRA SHOTTELKORB, Defendant and Respondent.
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No. A152327
Sonoma County Super. Ct. No. SCV-257542
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MAJUN BREAZEALE, Plaintiff and Appellant, v. DEBRA SHOTTELKORB, Defendant and Respondent.
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No. A152593
Sonoma County Super. Ct. No. SCV-260714
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MAJUN BREAZEALE, Plaintiff and Appellant, v. THOMAS BREAZEALE, SR., Defendant and Respondent. |
No. A152926
Sonoma County Super. Ct. No. SCV-260714
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MEMORANDUM OPINION[1]
These appeals arise out of a series of apparently related disputes among family members involving the sale of real estate and the handling of the proceeds of that sale. There are four parties involved: an elderly father, Thomas Edward Breazeale (Edward); his two adult children, daughter, Debra Shottelkorb, and son, Thomas Clarence Breazeale (Tom); and Tom’s former wife, Majun Breazeale (Majun). Underlying the appeals are three separate lawsuits, each of which has generated an appeal—No. 152327, No. A152926, and No. A152593. Majun is pursuing all of the appeals pro se. On our own motion, we ordered the appeals consolidate.
I.
In the lawsuit giving rise to No. A152327, Majun sued Debra seeking recovery of $35,000 on claims for money had and received and for breach of fiduciary duty. Debra cross-claimed for defamation, among other claims. The case was tried to the court, which entered judgment against Majun on her affirmative claims and in favor of Debra on the defamation cross-claim, resulting in a $35,000 damages award to Debra, including $10,000 in punitive damages.
Following trial in the case, although no request for a statement of decision was made, the court entered a detailed minute order resolving all claims. This posttrial minute order explained the basis for the court’s resolution of each claim and cited pertinent legal authority. The judgment the court eventually entered in accordance with the minute order also included a reasoned explanation for its disposition of all claims.
On appeal, Majun argues: (1) the defamation claim was untimely under the applicable one-year statute of limitations,[2] (2) the defamation claim was not the proper subject of a cross-complaint because it was unrelated to Majun’s claim for the unpaid $35,000, (3) the court’s in limine order excluding an audio recording Majun wished to use at trial to impeach Tom on cross-examination was erroneous, and (4) the court should have granted a new trial based on newly discovered evidence.
By way of response, Debra responds that (1) Majun failed to raise her statute of limitations argument by demurrer, in her answer, at any other time prior to entry of judgment, and, alternatively, most of the defamatory publications alleged and proved by Debra occurred within the one-year statute of limitations; (2) Majun’s argument that the defamation claim exceeded the permissible subject matter scope of the action has been forfeited for failure to raise it in the trial court, and, alternatively, rests on an incorrect understanding of the law governing the proper subject matter that may be raised by cross-claim; (3) the trial court did not abuse its discretion in refusing to admit the audio recording (which Debra contends was made surreptitiously by Majun in violation of Pen. Code, § 632); and (4) Majun fails to show that the evidence she claims justified the grant of a new trial was newly discovered or material enough to have changed the result at trial.
We will affirm the judgment. We agree that Majun has forfeited her first and second arguments contending Debra’s defamation cross-claim was untimely and exceeded the scope of a permissible cross-claim.[3] We see no abuse of discretion in the trial court’s in limine ruling or in its refusal to grant a new trial. Having reviewed the post-trial minute order and the judgment, we are satisfied that the trial court’s disposition of all claims was legally correct and that the findings on which the judgment is based, express and implied, are supported by substantial evidence.
II.
In the lawsuit giving rise to No. A152926, Majun sued Edward claiming he defrauded her out of part of the proceeds of the profits from sale of a house. Majun argued that, despite the entry of judgment against her in No. A152327, she should be entitled to bring a subsequent suit for fraud. The trial court sustained a demurrer on grounds of res judicata, without leave to amend. At the hearing on Majun’s motion for reconsideration, which was denied, the court explained to Majun that her suit is barred under the rule against claim-splitting.
Majun does not address claim-splitting on appeal. Instead, she argues that her first lawyer died, her second lawyer withdrew, and as a result she did not realize she had a fraud claim when she filed the earlier lawsuit. In response, Edward argues that Majun fails to present any coherent legal argument suggesting error in the trial court’s res judicata analysis, and thus the judgment should be summarily affirmed for failure to show error. Edward also contends that, on the merits, the demurrer was correctly denied because Majun failed to plead fraud with particularity. We agree with Edward on all points and will affirm the judgment.
III.
In the lawsuit giving rise to No. 152593, Majun sued Debra again, asserting fraud on the ground that Debra promised to pay Tom and her $119,000 when Edward went to a nursing home, but when Edward moved to the nursing home Debra failed to pay as promised. Majun claims she was thereby defrauded out of half of the $119,000. Here, too, the trial court sustained a demurrer on grounds of res judicata and failure to state a cause of action for fraud, without leave to amend. The arguments advanced by Majun on appeal and the responding arguments are, in substance, the same as those argued in No. 152926.
This appeal has no more merit than does No. 152926. To the extent Majun raises different arguments than she does in No. A152926—she complains at length about alleged failures by Debra’s counsel to meet-and-confer about deficiencies in her complaint before filing the demurrer, “false statements” that were made by Debra’s counsel in the trial court proceedings, and the court’s refusal to grant her leave to amend—we see no error on any of these grounds. Accordingly, we will affirm the judgment.
DISPOSITION
We affirm the judgments, respectively, in Nos. A152327, A152926 and A152593. Respondent in each appeal shall recover costs.
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Streeter, Acting P.J.
We concur:
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Reardon, J.*
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Lee, J.**
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[1] We resolve this case by a memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1. The parties are aware of the detailed factual and procedural background of this case.
[2] Perhaps anticipating that Debra may point out that her statute of limitations argument was not raised at or prior to trial, Majun’s opening brief on appeal (she filed no reply brief) prefaces this argument with the explanation that her first lawyer died, and her second lawyer withdrew, leaving her to defend herself pro se. She preemptively invokes Code of Civil Procedure section 473, subdivision (b), to excuse any forfeiture. We see no indication in the record that that issue was raised in the trial court.
[3] We decline to entertain for the first time on appeal Majun’s attempt to invoke Code of Civil Procedure section 473, subdivision (b), to relieve her forfeiture of the statute of limitations issue.
* Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
** Judge of the Superior Court of California, County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
