Hanford-Freund & Co. v. Scopetta

Filed 3/16/07 Hanford-Freund & Co. v. Scopetta CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Hanford-Freund & Company (Hanford), a managing agent for commercial real property, filed a complaint against tenants Giuseppe Scoppetta and Guiseppe Spinoso for rent payments, property taxes, utility charges, and late rent fees. The trial court granted summary judgment against Hanford, finding that Hanford failed to raise a triable issue of fact that it suffered any damages. Hanford appeals and we affirm the lower courts ruling.

BACKGROUND

Hanford is a managing agent for commercial real property located on Union Street in the City and County of San Francisco (the property). This commercial space was used as a restaurant in North Beach. Scoppetta and Spinoso and three others^[1]entered into a lease assignment with the original lessee of the property on January 9, 1995. Scoppetta and Spinoso took possession of the property subject, with some modifications, to the terms and conditions of the original lease.^[2]

On March 1, 2000, Hanford filed an unlawful detainer action against Scoppetta and Spinoso, their co-assignees, and their co-lessees. On October 18, 2000, while this unlawful detainer action was pending, Hanford consented to a second lease assignment for the property. Scoppetta and Spinoso remained responsible for the lease. After the unlawful detainer action was dismissed, Hanford filed a second unlawful detainer action against the same parties on October 15, 2002. That lawsuit was also dismissed without prejudice.

In January 2005, Hanford filed a second amended complaint for damages against Scoppetta and Spinoso and others.^[3] Hanford alleged that Scoppetta and Spinoso had breached their lease agreement, which resulted in Hanford losing rent in the amount of no less than $202,782.52, unpaid property taxes in the amount of no less than $3,520.58, unpaid utility charges in the amount of no less than $2,717.17, unpaid late charges in the amount of no less than $6,395.38, and real estate commissions and brokerage fees in the amount of $18,785.

Scoppetta and Spinoso moved for summary judgment against Hanfords second amended complaint. They claimed, among other things, that Hanford could not establish damages. In support of their motion, they submitted Hanfords responses to special interrogatories that Hanford had provided after the court had granted Scoppetta and Spinosos motion to compel responses. The special interrogatory requested the following information: If you contend that defendants owe rent payments to plaintiff pertaining to 667-671 Union Street in San Francisco, please state the exact principal sum you contend is now so owed. Hanford responded as follows: This amount will be determined and provided. Scoppetta and Spinoso propounded similar interrogatories regarding any property tax payments owed, any utility charge payments owed, and any late rent charges owed. Hanford similarly responded to these interrogatories that [t]his amount will be determined and provided.^[4]

Additionally, Scoppetta and Spinoso asserted that they noticed the deposition of Hanfords person most knowledgeable concerning damages and mitigation. They claimed that Hanford refused to permit its persons most knowledgeable to be deposed.^[5]

On April 14, 2006, the trial court granted summary judgment in favor of Scoppetta and Spinoso. It found there was no triable issue of material fact on the issue of damages and there was no reasonable probability that Hanford could establish the essential element of damages based on the evidence presented. Judgment was entered on April 14, 2006, and notice of entry of judgment was filed on April 17, 2006.

Scoppetta and Spinoso moved for an award of attorney fees, and the trial court awarded them fees in the amount of $90,000. Hanford moved for a new trial and for relief from judgment, which the court denied on June 9, 2006.

On June 16, 2006, Hanford filed a timely notice of appeal.

DISCUSSION

I. Summary Judgment Motion

A. Standard of Review

The court properly grants summary judgment if the record establishes no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc.,  437c, subd. (c).) [T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) Until the moving party meets his or her initial burden of production, the opposing party has no obligation to establish anything. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.) Although the burden of production shifts, the moving party always bears the burden of persuasion. (Aguilar, supra, at p. 850.) There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Ibid.) We review the record de novo. (Id. at p. 860.)

B. Damages

In the present case, Hanfords sole claim against Scoppetta and Spinoso was for damages resulting from the alleged breach of the commercial lease. Hanford contends that Scoppetta and Spinoso did not meet their initial burden of producing evidence sufficient to make a prima facie showing that Hanford cannot establish damages. Furthermore, Hanford asserts that, even if they produced sufficient evidence to shift the burden of proof, Hanford presented sufficient evidence to raise a triable issue of fact regarding damages. We consider each of these contentions.

1. Scoppetta and Spinosos Burden of Production

When moving for summary judgment a defendant may, instead of negating an element, show that the plaintiff does not possess and cannot reasonably obtain evidence. If a plaintiff has had the full opportunity to obtain discovery and to present all available evidence and still cannot support his claim, the trial court may reasonably infer that the plaintiff cannot do so. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 374, (conc. opn. of Chin, J.).)

Scoppetta and Spinoso moved for summary judgment on March 30, 2006, 30 days prior to the trial date of May 1, 2006. They argued that Hanford had not provided them with any evidence to support its claim that it was owed damages for rent, utility bills, property taxes, and late rent fees. To support this assertion they submitted Hanfords responses to special interrogatories regarding damages, which merely stated that the amount of damages would be determined and provided. Additionally, they provided the deposition testimony of Frederic S. Freund, the only person produced by Hanford as the most knowledgeable about damages and mitigation. Freund testified that he did not know the exact amount of damages and that another person had prepared the accounting statement.

Hanford contends that the foregoing evidence submitted by Scoppetta and Spinoso did not establish that Hanford does not possess or cannot reasonably obtain the needed evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 889 (Gaggero); see also Aguilar, supra, 25 Cal.4th at pp. 853-855.) Hanford claims that Scoppetta and Spinoso merely established that Hanfords evidence of damages is lacking, which is insufficient to shift the burden of production to Hanford. To support this argument, Hanford relies on Gaggero, supra, 25 Cal.App.4th 884, Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433 (Weber), and Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64 (Scheiding).

Gaggeroinvolved a claim that the defendant breached the implied covenant of good faith and fair dealing by refusing to close a real property sales transaction. (Gaggero, supra, 108 Cal.App.4th at p. 887.) At his deposition, the plaintiff refused to testify about his ability to purchase the property and objected to such questions on the grounds of his right to privacy. (Id. at p. 891.) Although this objection was groundless, the reviewing court concluded that the absence of evidence did not establish that the plaintiff did not possess, and reasonably could not obtain, evidence of his financial ability to perform under the Purchase Agreement . . . . (Id. at p. 893.) The court explained, [f]or summary judgment purposes, a deposition objection and instruction not to answer are not the equivalent of a factually devoid response, and therefore cannot be used to shift the burden from the moving defendant to the plaintiff . . . . (Ibid.) The court noted that, had the defendant obtained an order compelling answers to the questions of plaintiffs financial ability to perform and the plaintiff then admitted he had no evidence to show he could perform, the defendant would have met his burden. (Ibid.)

Similarly, here, Hanford maintains that Scoppetta and Spinoso did not move to compel deposition testimony and they did not move to compel further responses to the interrogatories and therefore they failed to meet their burden of establishing that Hanford did not possess or could not reasonably obtain evidence of damages. The Gaggerocourt, however, did not imply that such motions were necessary; the court merely noted that in the case before it the deponents groundless objection to the question on his financial ability to perform without any further attempts to compel a response was insufficient. (Gaggero, supra, 108 Cal.App.4th at pp. 892-893.) Moreover, in the case before us, Scoppetta and Spinoso did not simply rely on one refusal to answer a question during deposition. Rather, they attempted to garner the information through interrogatories and through their noticed depositions. After Hanford provided no responses to the special interrogatories concerning damages, Scoppetta and Spinoso moved to compel responses and for sanctions; the court granted the motion and imposed sanctions against Hanford. Thus, contrary to the situation in Gaggero, Hanford provided factually devoid answers even after the court ordered it to respond. Since Hanford had a duty to respond to discovery requests as completely and straightforwardly as possible given the information available to [it] (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 580, fn. 3), Hanford effectively admitted that it had no evidence in support of its claim of damages.

Weber, an asbestos case, is similarly unavailing to Hanford. In Weber, the plaintiff stated at his deposition that he had no recall of the defendants name and could not associate any product with the defendants name. (Weber, supra, 143 Cal.App.4that p. 1439.) The appellate court held that this statement did not establish that the plaintiff would be unable to provide evidence that the plaintiff was exposed to defendants product. (Ibid.) This evidence simply established that the plaintiff could not prove his case with his deposition testimony. (Ibid.) The defendant did not provide evidence that the plaintiffs failed to provide meaningful responses to comprehensive interrogatories designed to elicit all the evidence plaintiffs had to support their contention of liability. (Id. at p. 1442.)
Hanford maintains that, like the defendant in Weber, Scoppetta and Spinoso have not shown that extensive discovery revealed that it had no additional information. However, contrary to Hanfords assertion, Scoppetta and Spinoso did propound comprehensive interrogatories regarding the specific sums owed for the breach of contract claim and therefore, unlike the defendant in Weber, they did establish that Hanford could not or would not produce this evidence.

Finally, Hanford also attempts to rely on our holding and analysis in Scheiding, another asbestos case. In Scheiding, we concluded that summary judgment was improperly granted when the only support for the motion was a declaration from counsel that the plaintiffs did not mention the contractor defendant in discovery. (Scheiding, supra, 69 Cal.App.4th at p. 67.) The husband and wife plaintiffs had brought an action against hundreds of defendants and one defendant moved for summary judgment based on the plaintiffs inability to prove causation. (Ibid.) No defendant, however, had asked the plaintiff husband at his deposition whether he had worked at any jobsite where the general contractor was present. (Ibid.) We concluded that it would be unreasonable to infer from this record that [husband and wife] can produce no other evidence to link [the defendant] to [the husbands] illness. (Id. at p. 81.) We held that we could not infer anything when questions were neither asked nor answered. (Ibid.)

Hanford analogizes the present case to Scheiding by arguing that Scoppetta and Spinoso chose not to ask questions at deposition as to Hanfords damages. However, Freund was asked at his deposition about damages; specifically, he was asked about the accounting ledger, the only document Hanford submitted to support its claim of damages. Even though Freund had been produced as the person most knowledgeable regarding damages and mitigation, he stated that he had not prepared the accounting ledger. Thus, the present case does not resemble Scheiding; Scoppetta and Spinoso specifically asked Freund about damages.

The case before us differs significantly from Gaggero, Weber, and Scheiding. In all of the cases relied upon by Hanford, the plaintiff was never asked a question requesting all facts supporting an element of the claim. None of these cases considered whether any particular response to a comprehensive discovery request was factually devoid. In the present case, Hanford provided nonresponsive answers to special interrogatories designed to elicit information about any money owed for rent, utility bills, property taxes, and late rent payments.

Although not cited by either party, we have already considered in Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96 (Andrews) the question whether the plaintiffs nonresponsive answers to comprehensive discovery are sufficient to meet the defendants initial burden of production when the defendant moves for summary judgment. In Andrews, we concluded that the discovery was sufficiently comprehensive and the responses to it so devoid of facts, as to lead to the inference that plaintiffs could not prove causation upon a stringent review of the direct, circumstantial and inferential evidence contained in their interrogatory answers and deposition testimony. (Id. at p. 107.) We therefore concluded that the defendant had met its initial burden of presenting evidence sufficient to make a prima facie showing that a triable issue of fact did not exist regarding causation and the burden of production shifted to plaintiffs to establish a triable issue of fact regarding causation. (Ibid.)

When defendants conduct comprehensive discovery, a plaintiff cannot play hide the ball. (Andrews, supra, 138 Cal.App.4th at p. 106.) If the plaintiff responds to comprehensive interrogatories seeking all known facts with boilerplate answers that restate their allegations, or simply provide laundry lists of people and/or documents, the burden of production will almost certainly be shifted to [the plaintiff] once defendants move for summary judgment and properly present plaintiff[s] factually devoid discovery responses. (Id. at p. 107, fn. omitted.)

In the present case, Scoppetta and Spinoso propounded special interrogatories and then had to move to compel Hanford to provide full and complete answers. The court granted the motion and imposed sanctions on Hanford for misusing the discovery process. When specifically asked for the exact principal sums Hanford claimed Scoppetta and Spinoso owed in unpaid rent, property taxes, utility charges, and late rent charges, Hanford provided the same response, devoid of facts, to each question. Rather than give a sum, Hanford stated [t]his amount will be determined and provided.

Scoppetta and Spinoso also attempted to garner information on damages by deposing those people most knowledgeable about damages. In response to Scoppetta and Spinosos notice to depose the persons most knowledgeable concerning damages and mitigation, Hanford produced Freund. Freund testified that he had not prepared the accounting ledger produced in discovery. He stated that James Moore prepared the ledger. Freund could provide no information about the data in the accounting ledger. Thus, unlike the situation in Scheiding, Scoppetta and Spinoso asked Freund about the accounting ledger and he specifically stated that he was not the person who had prepared the ledger and that he had no personal knowledge regarding the preparation of the accounting statements.

In light of Hanfords failure to provide any specific sum in response to the special interrogatories on damages as well as Hanfords failure to produce for deposition the person who had prepared the accounting ledgerthe sole document regarding damages produced in discoverywe conclude that Hanford produced no admissible evidence on damages and effectively admitted that it had no such information. Accordingly, we conclude that Scoppetta and Spinoso met their prima facie burden of establishing that Hanford had not and could not reasonably produce any evidence to support its claim for damages. Therefore, the burden shifted to Hanford to establish that a triable issue of fact existed as to the element of damages.

2. Hanfords Evidence of Damages

The only evidence Hanford presented in its opposition to the motion for summary judgment regarding damages was the lease agreement, the assignment of the lease agreement, the declaration of Freund, and an accounting ledger. The lower court found the accounting ledger to be inadmissible. Hanford has failed to make a legal challenge to this evidentiary ruling in its briefs before this court. Thus, any challenge by Hanford to the evidentiary ruling has been waived on appeal. We disregard evidence as to which objections were made and sustained in the trial court. (State Dept. of Health Services v. Superior Court (McGinnis) (2003) 31 Cal.4th 1026, 1035.) Consequently, we do not consider the accounting sheet as part of the record on appeal.

The only admissible documents cited by Hanford in support of its claim of damages are the original lease and the assignment of the lease. The original lease and the assignment do not establish that Scoppetta and Spinoso owe a specific amount of money because, even if these contracts were breached, there is no evidence that Hanford suffered any damages. These contracts merely establish the parties rights and obligations under the contracts. Further, as Scoppetta and Spinoso point out, since the property has been occupied by other tenants, it was possible that Hanford suffered no damages because of mitigation.

Hanford also cites to the declaration of Freund, the vice-president and a salesperson of Hanford and the former president of Hanford. Freund stated in his declaration that this action for damages seeks to recover the delinquent rent and shortfall between the contract rent (the original lease and assignment) and re-lease to [another party]. Freund then proceeds to refer and cite to the accounting statement, which the lower court ruled was inadmissible evidence. There is nothing else in this declaration that provides any information regarding damages. Thus, Freunds declaration does not raise a triable issue of fact regarding damages.

Hanford also attempts to rely on declarations by Moore, the vice-president of Hanford and the person who had prepared the accounting ledger, and by John DeBenedetti, the owner of the property, as evidence of damages. Neither of these declarations was submitted in opposition to the motion for summary judgment and neither is part of the record of appeal on the summary judgment motion.

Since Scoppetta and Spinoso met their burden of production, Hanford had to provide by affidavits or by depositions, answers to interrogatories, or admissions on file specific facts showing that there is a genuine issue for trial. (Aguilar, supra, 25 Cal.4th at p. 844.) Hanford has completely failed to provide such evidence. It may very well be that it has such evidence, but it did not present this evidence in its opposition to the summary judgment motion and it refused to provide it to Scoppetta and Spinoso during the discovery procedure. Accordingly, we conclude that Hanford failed to present evidence raising a triable issue of fact regarding damages and therefore the lower court did not err in granting Scoppetta and Spinosos motion for summary judgment.

II. Motion for New Trial

The trial court denied Hanfords motion for a new trial. [A] trial judge is accorded a wide discretion in ruling on a motion for new trial and . . . the exercise of this discretion is given great deference on appeal. (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 871-872.)

Hanfords notice of appeal was from the judgment and the order denying the motion for a new trial. However, Hanford presented no legal argument in either its opening or reply brief that the lower court abused its discretion in denying this motion. When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary. (Landry v. BerryessaUnion School Dist. (1995) 39 Cal.App.4th 691, 699-700; see also People v. Earp (1999) 20 Cal.4th 826, 884.)

Further, even if Hanford had challenged the lower courts ruling on the motion for a new trial, Hanford could not prevail. Its argument in support of a new trial was based on the new evidence of the declarations of Moore and DeBenedetti. Hanford, however, has failed to provide a satisfactory explanation for its failure to produce the declarations of Moore and DeBenedetti at an earlier time. (Code Civ. Proc., 657, subd. 4; Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1198.) Hanford clearly could have and should have produced Moore, the current vice-president of Hanford, and DeBenedetti, the owner of the property, when Scoppetta and Spinoso noticed the deposition of the persons most knowledgeable about damages and mitigation. Accordingly, the lower court did not abuse its discretion in rejecting the motion for a new trial based on Hanfords attempt to submit this late evidence.

III. Attorney Fees

The trial court awarded Scoppetta and Spinoso attorney fees in the amount of $90,000. On review of an award of attorney fees after trial, the normal standard of review is abuse of discretion. However, de novo review of such a trial court order is warranted where the determination of whether the criteria for an award of attorney fees and costs in this context have been satisfied amounts to statutory constructionand a question of law. (Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 142.) We review for an abuse of discretion the trial courts determination of the prevailing party and the amount of the award. (Silver v. Boatwright Home Inspection, Inc. (2002) 97 Cal.App.4th 443, 449.)

Hanford does not challenge the legal basis for the lower courts award of fees. Rather, its sole argument is that the judgment should be reversed and therefore Scoppetta and Spinoso are not the prevailing parties and not entitled to attorney fees. Since we are not reversing the judgment, Scoppetta and Spinoso are the prevailing parties. We therefore affirm the lower courts award of attorney fees.

DISPOSITION

The judgment is affirmed. Scoppetta and Spinoso are awarded the costs on appeal.

_________________________

Lambden, J.

We concur:

_________________________

Kline, P.J.

_________________________

Haerle, J.

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^[1] The other three tenants were Nicola Pisani, Valerie A. Tashjian, and Ralph S. Tashjian.

^[2] The amount of rent and the term of the lease were modified.

^[3] The other named defendants were Ralph and Valerie Tashjian.

^[4] In response to a request for production, Hanford produced an accounting statement, which allegedly set forth the amounts owed by Scoppetta and Spinoso. The trial court sustained Scoppetta and Spinosos evidentiary objection to this document, and this ruling has not been challenged by Hanford. We therefore will not consider this evidence.

^[5] Hanford disputed this fact and argued that Scoppetta and Spinoso deposed Frederic Freund, the former president and current vice-present and salesperson for Hanford, on February 21, 2006. Freund, however, testified that he had not prepared the accounting ledger.