Filed 8/21/17 Defenstech International v. Fyfe CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Richard W. Luesebrink, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to Cal. Const., art. VI, § 6 of the Cal. Const.) Affirmed.

Roylaw and Derik J. Roy III for Plaintiff and Appellant.

Gibbs Giden Locher Turner Senet & Wittbrodt, Glenn E. Turner III and Victor F. Luke for Defendants and Respondents.

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Plaintiff and appellant Defenstech International, Inc. appeals from a judgment in favor of defendants and respondents Edward Robert Fyfe (Fyfe), Hexcel-Fyfe Co, LLC, Fibrwrap Construction, L.P., Fibrwrap Construction, Inc., Fyfe Group, LLC, and Fyfe Beta, Inc. (collectively defendants). Plaintiff contends the court committed structural error by prohibiting it from presenting certain evidence and unduly delaying issuance of the judgment. Plaintiff also argues the judge was so unfair as to deprive it of a fair trial.

These claims have no merit and we affirm.

FACTS AND PROCEDURAL HISTORY

The facts underlying the case are not relevant to the issues raised in the appeal. Suffice it to say a dispute arose after Fyfe Co., a company related to defendants, sold a patent (Patent) to plaintiff, with Fyfe Co. retaining a license. In serial transactions Fyfe Co. and certain of the defendants later mistakenly included the Patent as part of a group of patents it was selling. When they learned of the error defendants executed assignments to give plaintiff clear title.

Plaintiff claimed it had had an agreement to sell the Patent for $7.9 million that fell through when the buyer learned of the mistaken transfers. Plaintiff then filed this action for breach of fiduciary duty, slander of title, and declaratory relief. Fyfe cross-complained for breach of fiduciary duty, libel, breach of contract, declaratory relief, and on a common count against plaintiff and Alan Sporn (Sporn), one of plaintiff’s principals.

After a bench trial, the court ruled in favor of defendants on the complaint and awarded Fyfe $10,000 on the common count in the cross-complaint against plaintiff and Sporn. It found Sporn was not credible and plaintiff’s expert witness testimony was speculative and had no foundation in “reliable facts or analysis,” while it found the opposite true of defendants’ witnesses.

Additional facts are set out in the discussion.

DISCUSSION

1. Exhibits

On the first day of trial the parties presented the court with two, four-inch binders containing approximately 110 joint exhibits. The judge commented that if he “read all of this, I’d be delighted if I were still alive at the end of it.” Plaintiff’s lawyer responded that other than “a couple of critical pieces of evidence,” the documents were primarily materials on which defendants’ expert had relied. The court observed that current method in litigation was to “dump on the other side” as many documents as possible to confuse the court. It then stated. “Now, I’m not going to read all this stuff.”

Plaintiff’s counsel agreed, stating, “I wouldn’t expect you to.” For his part, there were only two “critical documents.” The court replied it was going to order the lawyers to “suffer and distill the exhibits into something that’s realistic.” Plaintiff’s attorney responded, “I’m certainly happy to do that.” “This case can be tried with three exhibits.”

The next day the parties stipulated to a total of 11 exhibits. As trial progressed, plaintiff requested three additional exhibits be admitted and they were.

Plaintiff claims the court “depriv[ed it] of its ability to present exhibits and evidence to support its position at trial.” Plaintiff faults the court for failing to provide “guidelines or rationale” for the reduction and asserts the conduct was egregious and arbitrary. This argument fails for several reasons.

For one thing, plaintiff did not object to the order. There is not even a hint of dissatisfaction with the reduction in documents. In fact, plaintiff was “happy” to do it, blaming defendants for the surfeit of exhibits and initially representing it needed only three documents to prove its case. Generally, failure to object in the trial court bars a party from arguing error on appeal. (Mundy v. Lenc (2012) 203 Cal.App.4th 1401, 1406.)

There is no merit to plaintiff’s claim it would have been futile to object. In addition to plaintiff’s stated willingness to pare down the exhibits, nothing in the record excuses a failure to object. Plaintiff did not even attempt to explain why it might need additional exhibits. Neither the judge’s instruction to cull exhibits nor his so-called “overall demeanor” suggests he would not have listened had plaintiff asserted it needed to introduce more evidence. In fact during trial the court admitted three additional exhibits at plaintiff’s request. And there is no evidence plaintiff would have been prejudiced, much less “further prejudice[d],” if it had objected.

In addition, plaintiff does not describe or even list any documents it would have liked to offer but which the court disallowed. And plaintiff points to nothing in the record showing the court rejected any proffered exhibit. Thus, plaintiff failed to show reduction of the number of exhibits was error.

But even assuming error, it does not warrant reversal. “‘A judgment may not be reversed on appeal, . . . unless “after an examination of the entire cause, including the evidence,” it appears the error caused a “miscarriage of justice.” (Cal. Const., art. VI, § 13.) When the error is one of state law only, it generally does not warrant reversal unless there is a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached. [Citation.]’ [Citation.]” (Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103, 1114 (Gordon).) Plaintiff has not shown how admission of additional exhibits would have resulted in a more favorable outcome nor has it shown actual prejudice. (Id. at p. 1115.)

We reject plaintiff’s argument this was structural error, making the error reversible per se. (Gordon, supra, 170 Cal.App.4th at p. 1115.) “Structural errors affect ‘the framework within which the trial proceeds, rather than simply an error in the trial process itself.’” (Aulisio v. Bancroft (2014) 230 Cal.App.4th 1516, 1527.) “‘In the civil context, structural error typically occurs when the trial court violates a party’s right to due process by denying the party a fair hearing.’” (Ibid.)

Structural error occurs when a court rejects all evidence proffered by a party as occurred in the case on which plaintiff relies, In re Marriage of Carlsson (2008) 163 Cal.App.4th 281. There the judge walked out of the courtroom, terminating the trial, before the appellant had finished his case-in-chief. This was reversible per se. (Id. at pp. 291, 292.)

Here, however, all evidence plaintiff offered was admitted. There was no error.

2. Delay in Issuing Statement of Decision and Judgment

Plaintiff claims the eight-month delay between the conclusion of the trial and issuance of the statement of decision and judgment was unreasonable, again arguing this constituted structural error requiring reversal. We disagree.

On the last day of trial, plaintiff’s counsel asked the court to allow the parties to set a briefing schedule, noting they wanted a copy of the reporter’s transcript for use in the briefs. Counsel noted the court reporter had advised the transcript would run about 1,000 pages and would take two to three weeks to complete.

The court agreed, reiterating what he had told the parties when beginning the trial: he shared the courtroom with another retired judge and is there only every other month. So he would be back in November. When counsel asked if mid-November would be acceptable, the court inquired, “Can you make it by the 10th?” to which plaintiff’s counsel replied, “We can certainly try.” The court noted the Thanksgiving holiday would be coming up.

The parties executed a stipulation setting November 6 as the date for filing the final brief. The parties also agreed to postpone the deadline for every day the transcript was not completed after October 11. The parties executed two more stipulations extending the schedule. The last brief was timely filed on December 15. The parties also submitted a list of controverted issues.

On March 29, the court issued a tentative decision by responding to the controverted issues, ordering defendants to prepare a proposed statement of decision upon plaintiff’s request, which was filed on April 8. The statement of decision was filed May 24. Nothing in the record shows when the court received the proposed statement of decision submitted by defendants.

There are no absolute deadlines for deciding a case. (Wyatt v. Arnot (1907) 7 Cal.App. 221, 228.) “[T]he matter of the time when a judge may decide a case submitted to him for decision is as much a matter of judicial discretion and judgment as the matter of how he may decide it.” (Ibid., italics omitted.) Pursuant to Government Code section 68210, a judge must defer salary if he does not decide a case within 90 days after it has been submitted. But failure to decide a case within that 90-day period is not itself a ground for reversal. (Hassanally v. Firestone (1996) 51 Cal.App.4th 1241, 1245.)

Plaintiff has not explained why the delay requires reversal and we see none. Of the eight-month period about which plaintiff complains, three months elapsed before briefing was completed. Just over three months passed the time the last brief was filed in mid-December and issuance of the tentative ruling. But the judge did not work in December. And, as defendants suggest, assuming the judge returned January 4, the first working day of the month, the tentative decision was filed 83 days later. Further, the statement of decision was filed less than two months later. Given the fact the judge worked only every other month this timetable was not unreasonable. And plaintiff does not explain how it was prejudiced.

Plaintiff contends failure to issue a timely requested statement of decision is reversible per se. But that has no bearing on the question before us because the court did issue a statement of decision. Plaintiff cites no authority to support his conclusion a delay is reversible per se.

Even if there were error it was not structural error since it did not “affect ‘the framework within which the trial proceed[ed].’” (Aulisio v. Bancroft, supra, 230 Cal.App.4th at p. 1527.) There is no basis to reverse.

3. No Personal Disdain

As its final claim of structural error, plaintiff argues the judge expressed “personal disdain” for trying the case. The judge’s alleged “pervasive judicial unfairness” is based on only two things. One is the order to reduce the number of exhibits, which we have already determined was not error. The other was the judge’s pretrial statement, “I’m not real wild about going through a five-to-seven-day trial.”

This statement was made while the court was considering a motion to bifurcate. Defendants claim the court was “obviously weighing whether judicial economy could be realized” if the trial was bifurcated, noting the court stated it was considering continuing the case to November to hear the motion. While the record is not completely clear, that is a reasonable interpretation of the statement.

But even if we were to take the statement literally, it is not a basis to reverse. It does not show the judge was unfair. And plaintiff points to no statements or conduct by the judge that somehow deprived plaintiff of a fair trial. This claim is wholly without merit.

DISPOSITION

The judgment is affirmed. Defendants are entitled to costs on appeal.

THOMPSON, J.

WE CONCUR:

O’LEARY, P. J.

FYBEL, J.