Filed 9/11/18 West v. Cooksey CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

David E. West (appellant) appeals from an adverse judgment on his complaint against several defendants in this business dispute. We affirm.

BACKGROUND[1]

“We recite the facts in the manner most favorable to the judgment and resolve all conflicts and draw all inferences in favor of respondents. [Citation.] Conflicts in the evidence are noted only where pertinent to the issues on appeal.” (Meister v. Mensinger (2014) 230 Cal.App.4th 381, 387.) We omit facts not relevant to our resolution of this appeal.

Appellant agreed to start a property management business, AYS Management, LLC (the LLC), with Shannon Hunt, Clarissa Cooksey, and Roger Zwiefelhofer. They signed a “Shareholder Agreement” (the Agreement), which was not meant to be the final agreement, and the parties continued to discuss the details. The Agreement included a salary schedule for the owners, but the intent was that no one would get paid who did not perform work for the LLC. Appellant did not perform work for the LLC and accordingly was not paid, or was paid only a small amount.

Around the time the Agreement was signed or shortly after, Hunt, Cooksey, and Zwiefelhofer met with Kevin Newsome. They discussed an ongoing administrative investigation into appellant’s broker’s license, and further discussed appellant’s recommendation that their business be an LLC, which cannot be licensed to manage rental property. Newsome filed a fictitious business statement to do business as AYS Management, and shortly thereafter met with all four LLC owners—including appellant—to discuss how they could work together. Subsequently, appellant quit the LLC. After appellant quit, Newsome was assigned the management of certain LLC business.

In his operative complaint, appellant sued Cooksey, the LLC, Newsome, and others.[2] Appellant alleged claims for breach of contract, breach of fiduciary duty, promissory fraud, civil conspiracy, fraud, embezzlement, Labor Code violations, constructive discharge, tortious interference with contract, wrongful termination, breach of the implied covenant of good faith and fair dealing, conversion, violation of the Business and Professions Code, and emotional distress. He sought punitive damages, among other relief.

A bench trial was held; no statement of decision was timely requested. Judgment issued for the defendants.

DISCUSSION

“On appeal, a judgment of the trial court is presumed to be correct. [Citation.] . . . . All intendments and presumptions are made to support the judgment on matters as to which the record is silent. . . . When no statement of decision is requested and issued, we imply all findings necessary to support the judgment.” (Cahill, supra, 194 Cal.App.4th at p. 956.)

Appellant argues the burden of proof should have been shifted to defendants because the LLC “never produced the email and correspondence on the company server.” Even assuming such a burden shift would be an appropriate discovery sanction, appellant fails to provide record citations for either the LLC’s failure to produce the evidence or appellant’s entitlement to discover it. He also fails to demonstrate (or assert) that he sought to shift the burden in the trial court. The argument is forfeited. (Professional Collection Consultants v. Lauron (2017) 8 Cal.App.5th 958, 970 (Professional Collection Consultants) [“ ‘Any statement in a brief concerning matters in the appellate record—whether factual or procedural and no matter where in the brief the reference to the record occurs—must be supported by a citation to the record.’ [Citation.] We have the discretion to disregard contentions unsupported by proper page cites to the record.”]; In re Marriage of Walker (2006) 138 Cal.App.4th 1408, 1418 [“As a rule, parties are precluded from urging on appeal any points that were not raised before the trial court.”].)

Appellant argues the trial court abused its discretion in finding Cooksey and Hunt credible witnesses. “ ‘ “ ‘To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.’ ” ’ ” (Bloxham v. Saldinger (2014) 228 Cal.App.4th 729, 750.) Appellant has failed to make any such showing.

Appellant argues the trial court erred in finding for defendants on each of appellant’s claims. Although he asserts we should review de novo his claims for Labor Code violations (unpaid wages) and breach of contract, he fails to articulate any legal errors or to demonstrate that the facts—as construed most favorably to the judgment—compel reversal. We note in particular, even assuming the Agreement was a final contract, appellant identifies no provision unambiguously stating that each owner will receive the designated salary regardless of the amount of work performed for the LLC. Moreover, although the Agreement required an owner be notified if his performance fell below acceptable standards in two consecutive quarters, appellant quit after less than one quarter.

Instead, appellant’s argument as to all his claims rests on challenging implied factual findings. “A party who challenges the sufficiency of the evidence to support a finding must set forth, discuss, and analyze all the evidence on that point, both favorable and unfavorable. [Citation.] Contrary to fundamental principles of appellate review, plaintiff has failed to do so. Instead, his opening brief sets forth only his version of the evidence, omitting any reference to the conflicting evidence submitted by [defendants], as described in our statement of facts.” (Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 218.) Appellant’s statement of facts failed to recite evidence that the LLC agreement was not final, the parties intended the owners only be paid if they performed work for the LLC, appellant did not perform work for the LLC, and appellant quit the LLC.[3] “Because plaintiff has failed in his obligations concerning the discussion and analysis of a substantial evidence issue, we deem the issue waived.” (Ibid.)

Even if appellant’s substantial evidence challenges were not waived, we would reject them. Appellant had the burden of proof on his causes of action. “In the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment . . . . [¶] . . . [¶] ‘Thus, where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant’s evidence was (1) “uncontradicted and unimpeached” and (2) “of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.” ’ ” (Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465–466.) Appellant has made no such showing. In particular, we note that, although appellant testified the other LLC owners did not inform him of their agreement with Newsome, there was evidence that appellant met with Newsome and the other LLC owners and the trial court could reasonably infer that appellant was aware of the agreement. Moreover, appellant quit the LLC before Newsome was assigned the management of LLC contracts.

DISPOSITION

The judgment is affirmed. Respondents shall recover their costs on appeal.

SIMONS, J.

We concur.

JONES, P.J.

BRUINIERS, J.