Filed 9/28/17 The Reynolds Group v. Universal Molding Co. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 art. VI, § 6 of the Cal. Const.) Affirmed.

Merhab Robinson, Jackson & Clarkson and James T. Jackson for Defendant and Appellant.

Law Offices of Brian M. Brown and Brian M. Brown for Plaintiff and Respondent.

INTRODUCTION

The facts underlying this appeal are relatively straightforward. Universal Molding Company (Universal), through its principal, Dominick Baione, hired The Reynolds Group (Reynolds), an environmental consulting firm, to help it with contamination issues on a piece of Fullerton real estate purchased by Universal. Reynolds performed some testing and remediation services on the property. Universal paid for some of the services, but not all of them. Reynolds sued Universal for the unpaid fees. After a court trial, Universal was adjudged to still owe Reynolds $156,209. Universal has appealed.

Universal has identified four issues on appeal. First, it contends the court erred when it held Universal had waived its right to a jury trial and refused to grant relief from that waiver. Next, it objects that the court allowed testimony by an attorney for Universal on matters protected by the attorney-client privilege. Third, Universal contends the trial judge was biased against it and had prejudged the outcome of the case. Finally, Universal argues that the court’s statement of decision was deficient.

We affirm the judgment. Universal waived its right to a jury, and, under the circumstances presented here, we cannot find the trial court abused its discretion when it denied relief from the waiver. Universal’s contention that its attorney should not have testified at all is incorrect, and it has not explained what confidential information was revealed in answer to the only question it has identified on appeal as being privileged. The record does not show bias by the trial court against Universal. And finally, the statement of decision in this case meets the requirements of these documents – it records the findings on all the material issues in this case and reveals the trial court’s reasoning on each of them.

FACTS

We provide here a discussion of the facts intended to give an overview of the case and the trial; more specific facts will be presented as each issue is discussed. We also limit the discussion to the facts necessary to resolve the issues on appeal. As we are required to do when we review the outcome of a trial, we adopt the version of the facts most favorable to the judgment. (See Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 962.)

Universal is one of several companies owned by Baione. In 2006, Baione was looking to purchase some real estate as an investment property. James McFadden, a real estate agent who had represented Baione in the past, was assisting him in locating suitable properties.

One such property was located in Fullerton. McFadden represented Baione and Universal in negotiating for the sale of the property. During these negotiations, they learned the property was located in an area identified by the Orange County Health Care Agency and the Orange County Water District as covering a plume of contaminated groundwater. This groundwater contamination was the subject of an ongoing lawsuit by the water district.

As of early 2007, when Baione was considering buying the Fullerton property, the groundwater contamination was the only known active environmental problem,[1] and because of it, Universal succeeded in buying the property for a reduced price. Escrow opened in January 2007. It was supposed to close in March, but was delayed to June.

McFadden recommended Reynolds to Baione as environmental consulting experts, and Reynolds came on board in late December 2006/early January 2007. Baione, on Universal’s behalf, signed an engagement letter with Reynolds on January 4, 2007.

Reynolds recommended employing an attorney, John Glaser, to provide some protection in case it found contamination. Glaser specialized in environmental law, and he had worked with Reynolds on past projects. Glaser succeeded in obtaining a discount on the price of the property and a release for Universal from the groundwater litigation.

Before escrow closed, Reynolds performed a limited phase 2 assessment of the property.[2] It found evidence of soil contamination. After escrow closed, Reynolds found additional soil contamination that required more remediation than was initially anticipated.

Universal fell behind on its payments to Reynolds, and despite the latter’s efforts to collect, payment was not forthcoming. Finally, on February 1, 2011, Baione orally agreed to pay Reynolds $156,290 on the past due invoices; the unpaid amount billed exceeded $200,000. In fact, Universal did not pay Reynolds anything.

Reynolds sued Universal for breach of contract and common counts in February 2012, claiming $221,486 in damages for unpaid fees for its environmental services. The breach of contract claim alleged an oral contract. Reynolds filed an amended complaint in June 2012, alleging a written contract. Universal cross-complained in August 2012, alleging breach of contract and intentional and negligent misrepresentation. The alleged misrepresentations dealt with the severity of the contamination, the speed with which it could be cleaned up, and the level of remediation that could be achieved.

The initial case management conference was set for September 17, 2012, but was continued to November 19. The order from that conference recited that all parties waived trial by jury, the court trial was estimated to last six days, and it was set for September 9, 2013. The trial date was continued several times, finally commencing September 8, 2014, a year later.

Although trial was estimated to last six days, it somehow consumed 12 days of testimony.[3] Ten witnesses testified, including McFadden; Glaser; Baione and Edward Reynolds, as principals of their respective corporations; and Universal’s expert, Joseph Odencrantz. At the conclusion of trial, the court granted Reynolds’ motion to amend its complaint to conform to proof and denied a motion by Universal to amend its cross-complaint. The court took the matter under submission in late October 2014.

In a tentative decision issued January 23, 2015, the court found that an agreement, partially oral and partially written, existed between Universal and Reynolds for environmental services. Universal owed Reynolds $156,209 in unpaid fees for these services. The court found against Universal on its cross-complaint for breach of contract and fraud. It ordered Reynolds’ counsel to prepare a statement of decision if one was requested. It was. A final statement of decision was issued on March 30, 2015, and judgment was entered the same day.[4]

DISCUSSION

I. Waiver of Jury Trial

In civil cases, a jury can be waived only under the conditions specified in Code of Civil Procedure section 631, subdivision (f).[5] (§ 631, subd. (a).) Section 631, subdivision (f), provides in pertinent part: “A party waives trial by jury in any of the following ways: [¶] . . . [¶] (2) By written consent filed with the clerk or judge. [¶] (3) By oral consent, in open court, entered in the minutes. [¶] (4) By failing to announce that a jury is required, at the time the cause is first set for trial, if it is set upon notice or stipulation, or within five days after notice of setting if it is set without notice or stipulation. [¶] (5) By failing to timely pay the fee described in subdivision (b), unless another party on the same side of the case has paid that fee.” Once a jury has been waived, relief from waiver is subject to the trial court’s discretion. (Gonzales v. Nork (1978) 20 Cal.3d 500, 506-507; March v. Pettis (1977) 66 Cal.App.3d 473, 480.)

This matter was first set for trial on November 19, 2012.[6] The minute order of that date does not include an announcement by Universal that a jury was required. On the contrary, the order stated that a six-day court trial was scheduled for September 9, 2013, and that all parties waived trial by jury. (See § 631, subd. (f)(4).) The record shows the presence of both trial counsel at the case management conference.

Section 631, subdivision (b), requires at least one party demanding a jury to pay a nonrefundable fee. Under subdivision (c), the fees are due on or before the date scheduled for the initial case management conference, with some exceptions not pertinent here.

In this case, the initial case management conference was scheduled for September 17, 2012. Universal did not pay jury fees until March 12, 2014.[7]

Section 631, subdivision (d), provides, “If a party failed to timely pay the fee described in subdivision (b) that was due between June 27, 2012, and November 30, 2012, the party will be relieved of a jury waiver on that basis only if the party pays the fee on or before December 31, 2012, or 25 calendar days before the date initially set for trial, whichever is earlier.” Universal did not pay jury fees on or before December 31, 2012, or on or before 25 calendar days before the date initially set for trial (September 9, 2013). (See Harmon v. Hopkins (1931) 116 Cal.App. 184, 187 [party waived jury by failing to deposit fees within time limits of section 631].)

All minute orders dealing with trial subsequent to the November 2012 trial-setting conference specified a court trial of varying lengths, even those entered after March 2014, when the jury fees were posted. The record does not indicate any protest or objection from Universal about these orders. From the record before us, it appears that Universal first raised the issue in open court in September 2014, on the day before the first witness testified.

Universal’s first case management statement, filed on September 4, 2012, specified a non-jury trial. It filed another case management statement on November 5, 2012, specifying a jury trial. The order from the case management conference of November 19, 2012, however, stated that all parties had waived trial by jury. From that time on, up until September 8, 2014, the record is devoid of any request for or mention of changing from a court trial to a jury trial.[8] Universal did not post fees in a timely manner. It waived its right to a jury trial.

We cannot find that the trial court abused its discretion in refusing relief from the waiver. The case had been set for court trial for nearly two years. During all that time, despite multiple minute orders referring to a court trial, Universal never once mentioned its desire for a jury trial. It applied ex parte in July 2013 to have the trial continued for 60 to 90 days, a request Reynolds opposed. The subsequent hearing was reported; Universal did not mention a jury, even though Reynolds’ counsel told the court, “This is a four-day court trial.” The minute order issuing from that ex parte hearing stated, “The Court Trial is ordered continued to 10/07/2013 at 9:30 a.m.” It defies belief that Universal did not see the order granting its request to continue the trial, issued over a year before trial actually took place.

We need not seek far to find the prejudice to Reynolds. It had not prepared jury instructions. It had not prepared documents to comply with the requirements of local rule 317 for jury trials. It had not prepared the case to be tried to a jury.

We therefore affirm the order denying Universal’s request for a jury trial.

II. Attorney-Client Privileged Testimony

Evidence Code section 954 provides that confidential communications between lawyer and client may be protected from disclosure. Evidence Code section 952 defines “confidential communication between client and lawyer” as “information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.”

Universal hired Glaser, whom Reynolds recommended, for a specific purpose. In the ordinary course, Reynolds or Universal might be required to report to the appropriate authorities if various kinds of contamination were discovered on the property during Reynolds’ testing. Glaser was supposed to shield these disclosures. Reynolds would report them to Glaser, and Glaser would report them to Universal. If anybody asked, Universal could claim that the attorney-client privilege protected the information, because it had been transmitted from a lawyer to his client in the course of that relationship. Reynolds could also claim that its disclosures were protected because they had gone to a client’s lawyer. They figured it was worth a shot. (But see People ex rel. Department of Public Works v. Donovan (1962) 57 Cal.2d 346, 354-355.)

Things became rather awkward for Glaser when Reynolds and Universal sued each other. People began muttering about conflict of interest and representing two clients who were adversaries.

At the end of trial, Baione testified that he thought Glaser was Reynolds’ attorney. He stated Glaser was retained only with respect to the groundwater issue, not soil remediation. Covering all bases, he also testified he had never authorized the disclosure of attorney-client-privileged information exchanged between himself and Glaser regarding soil remediation.

We review the trial court’s decision to admit or exclude evidence for abuse of discretion. (Christ v. Schwartz (2016) 2 Cal.App.5th 440, 446-447.)

At trial, Universal contended that Glaser’s mere presence in the courtroom violated the attorney-client privilege and that anything he said would disclose privileged information.[9] This is incorrect. As a percipient witness, Glaser could answer questions about non-privileged matters: information not transmitted between him and Universal in the course of their relationship and in confidence.[10] (See, e.g., Fireman’s Fund Ins. Co. v. Superior Court (1977) 72 Cal.App.3d 786, 788-790 [attorney can testify regarding non-privileged matters]; Romeo v. Jumbo Market (1967) 247 Cal.App.2d 817, 280-281 [attorney with relevant, non-privileged information may be compelled to testify].) For example, Glaser could testify about communications with the seller and its representatives regarding the sale of the property or about communications with the government agencies involved in environmental remediation. In light of Baione’s later testimony regarding Glaser’s limited role (groundwater only), communications regarding soil contamination and remediation would also appear to be outside “the purpose for which the lawyer is consulted.” (Evid. Code, § 952.) The court could not tell whether a question was likely to call for privileged information until it heard the question. (See People v. Morris (1991) 53 Cal.3d 152, 190, overruled on other grounds in People v. Stansbury (1995) 9 Cal.4th 824.)

Universal also contends that the trial court was required to formally rule on the motion in limine to exclude Glaser’s testimony before allowing him to testify, citing Titmas v. Superior Court (2001) 87 Cal.App.4th 738 (Titmas). Titmas is inapposite. The case concerned a deposition and document production subpoena served on a party’s lawyers. The party filed a motion to quash, which was denied without a hearing. Instead, the court clerk informed the parties by telephone that the motion was denied. (Id. at pp. 740-741.) The appellate court reversed, holding that there should have been a hearing on the discovery motion. (Id. at pp. 742-745.) The discovery statutes, the court held, “require the real-time presence of a judge in a courtroom, rather than the surprise call from a clerk and a signature on a minute order.” (Id. at p. 743.)

In this case, unlike Titmas, there was a real-time judge in the courtroom, listening to every question and evaluating it for a possible answer that would infringe on the attorney-client privilege. In addition, Universal had counsel in place to object to any improper question. The procedure adopted by the trial court – take each question as it comes – was permissible in the context of a trial.

On appeal, Universal has identified only one specific question and answer it claims violated the attorney-client privilege.

“[Reynolds’ counsel]: Did you perform any other general legal services with respect to the property besides that [i.e., negotiating the discounted purchase price]?

“[Universal’s counsel]: Objection. Calls for attorney-client privilege.

“The Court: Read the question back, please, Karen.

“(Read back.)

“The objection is overruled. [¶] You can answer ‘yes’ or ‘no.’

“The Witness: No.”

Universal does not explain what confidential information transmitted between lawyer and client the witness’ answer revealed, and we cannot discern any. We also cannot see how the admission of this testimony resulted in a miscarriage of justice, as we must if we are to reverse on the basis of improper admission of evidence. (Evid. Code, § 353.)

This is the only specific ruling to which our attention has been directed. “When appellants fail to point out alleged erroneous rulings on the admissibility of evidence the appellate court will not search the record to discover them.” (Metzenbaum v. Metzenbaum (1950) 96 Cal.App.2d 197, 201.) There is no error in the admission of this part of Glaser’s testimony, let alone error that would warrant a reversal for a miscarriage of justice.

III. Judicial Bias

Universal pulls no punches in its disparagement of the trial judge. “The Trial Court had prejudged the issues present in this case from the outset of trial and its decisions, ruling, comments and administration of the proceedings all underscore the fact that the outcome was predetermined and the Trial Court’s mind was made up before having heard all the evidence. The Trial Court’s bias and prejudgment of the case resulted in several rulings which exceeded the bounds of reason and demonstrated a clear abuse of judicial discretion. . . . The Trial Court committed reversible error by demonstrating that a fair and impartial trial could not be had before him by reason of his bias against [Universal] and [its] counsel.”

We disagree. Universal lists seven instances it claims show the trial court’s bias against it. Two of these instances – denying a jury trial and allowing Glaser to testify – have been dealt with above. Since we have determined the court ruled correctly on both issues, they cannot serve as evidence of bias. The other five are: comments regarding a mistrial and appeal; restricting Universal’s trial time; instructing Reynolds regarding amending the complaint to conform to proof; requiring Universal to make a formal motion to amend its cross-complaint; and refusing to allow Universal to amend its cross-complaint. None of them demonstrate bias.

A. Comments regarding Appeal and Mistrial

Before discussing the specific comments, we observe that Universal’s counsel had a practice of arguing with the judge after his rulings. This practice began at the outset of trial and continued throughout, even after admonitions from the bench. The court’s remarks regarding the Court of Appeal must be understood in this context.

1. Comments regarding appeal

Universal has identified nine references to the Court of Appeal as evidence of bias or of prejudging the outcome of the trial. Two occurred after the judge had issued his tentative ruling. Of course, by that time the judge had decided who was going to win, so these references cannot be read as suggesting prejudgment. In another instance cited to show the court’s bias against Universal, the remark about the Court of Appeal was addressed to Reynolds’ attorney and reflected an equal opportunity approach to wrangling with counsel.

In the remaining six instances, some followed a pattern: the court ruled, Universal’s counsel disputed the ruling, and the court referred him to the Court of Appeal. For example, from the third day of trial,

“[Universal’s counsel]: Objection. Attorney/client privilege as to any discussion from Mr. Glaser.

“The Court: Objection is overruled.

“[Counsel]: Your Honor –

“The Court]: He’s testifying as to exhibits 130 and 131 which –

“[Counsel]: And he’s talking about a conversation.

“The Court: You know, it’s my practice when I make a ruling that counsel refrain from further argument, and if you don’t like it then you can file a writ with the Court of Appeal.”

Or another, more revealing, example from the fourth day of trial, after the court sustained an objection to a question by Universal’s counsel:

“The Court: I’ve made my ruling and you know your recourse. [¶] Go ahead with your next question.

“[Universal’s counsel]: I don’t know what the court means by my recourse.

“The Court: Oh, the Court of Appeals [sic].

“[Counsel]: So is what the court –

“The Court: One thing –

“[Counsel]: Is that the court’s thought –

“The Court: I know what the court does not tolerate, and that is counsel continuing to argue with the court after a ruling is made.

“[Counsel]: Is that going to be the court’s process throughout this, just tell me my only recourse is the Court of Appeals [sic]?

“The Court: No. I made a ruling. And if you don’t like the ruling, I don’t know what other recourse you have.

“[Counsel]: But is it the court’s opinion –

“The Court: [Counsel], I have had enough of your interruptions and your arguing after rulings are made.

“[Counsel]: I –

“The Court: Conduct yourself the way I expect you to conduct yourself since it’s my courtroom.

“[Counsel]: I’m just trying to understand so I can do that.

“The Court: Ask your next question. [¶] Do you understand what that means?

“[Counsel]: I need to understand whether it’s the court’s position that I can’t argue a ruling with the court, because if I can’t do that, then the court is telling me I can’t make a record. So how can I go to the Court of Appeal?

“The Court: Your record is your question and my ruling. And you’ll have plenty of material and transcripts and exhibits to present the matter fully to the three justices.”

Other comments Universal has singled out as evidence of bias refer to the trial court’s experience with the Court of Appeal: “[T]hat’s the way I’ve been doing business all these years. And so far the Court of Appeal hasn’t turned on me.” “[Counsel], obviously, we disagree. . . . And so far the Court of Appeals [sic] has not slapped my wrists over that.” One comment was the unremarkable observation that whoever lost in the trial court would probably appeal. Another comment recounted the judge’s conclusions after sitting by assignment as an appellate court justice: “I sat six months over on the Court of Appeal, and they give a very thorough review of trials when they’re taken up on appeal. But that’s the recourse.”

We cannot see any evidence of bias or prejudging in these remarks. Some clearly reflect the court’s frustration with counsel’s continuing to argue after a ruling – thereby prolonging a trial already threatening to extend beyond its allotted six days. And its observations on this subject were certainly proven correct. What’s more, we agree with the court that counsel makes a record by objecting and stating the grounds for objection or by making an offer of proof, as appropriate. (See Evid. Code, §§ 353, 354.) Arguing with the judge after he or she has ruled is not making a record; it is being disrespectful and obstructive.

2. Comments regarding mistrial

It is not entirely clear from Universal’s opening brief whether the issue on appeal is that the trial court erred in denying its motion for mistrial or that the remarks the trial court made on the subject of mistrial demonstrated judicial bias. If it is the first alternative, “[w]e review a motion for mistrial for abuse of discretion. ‘“A trial court should grant a mistrial only when a party’s chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial.” [Citations.] [Fn. omitted.]’ [Citation.] ‘[T]he trial judge, present on the scene, is obviously the best judge of whether any error was so prejudicial to one of the parties as to warrant scrapping proceedings up to that point.’ [Citation.]” (Pope v. Babick (2014) 229 Cal.App.4th 1238, 1248.) “The fundamental idea of a mistrial is that some error has occurred which is too serious to be corrected, and therefore the trial must be terminated, so that proceedings can begin again. [Citations.]” (Blumenthal v. Superior Court (2006) 137 Cal.App.4th 672, 678.)

Universal’s opening brief cites two references to a mistrial in the record. The first was merely a question from the trial court, after Universal’s counsel wanted to set aside a pretrial stipulation regarding the admission of exhibits. After listening to argument on this matter, the court stated, “[Counsel], obviously, we disagree. I’ve been doing this for decades now, and the Court of Appeals [sic] has not slapped my wrists over that. So your motion to set aside the stipulation and start all over, is your motion actually for a mistrial? Think about it.”

Universal moved for a mistrial on the afternoon of the third day. The grounds were (1) allowing Glaser to testify, (2) the court’s purported personal hostility toward Universal and its counsel, and (3) the anticipated inadequate time to present the defense case. Counsel also objected that Glaser had been testifying as an expert, although not designated as such. The court denied the motion. The court noted that Glaser had been testifying as a percipient witness and explained that it had recessed prematurely during the morning session because Universal’s counsel kept interrupting the court. Counsel continued to argue.

The court denied the motion again, explaining that it had no idea how the case was going to come out, chiefly because it had not seen the statement of controverted issues required by local rule 317. “If I thought that [Universal] wasn’t receiving a fair trial, then I would feel differently.”

We cannot say the court abused its discretion in determining that no error had occurred that was too serious to be corrected or that Universal’s chances of receiving a fair trial had been irreparably damaged. And we certainly see no evidence of bias or prejudging in these two remarks.

B. Allocation of Trial Time

“A trial court has the inherent authority and responsibility to fairly and efficiently administer the judicial proceedings before it. [Citation.] This authority includes the power to supervise proceedings for the orderly conduct of the court’s business and to guard against inept procedures and unnecessary indulgences that tend to delay the conduct of its proceedings. [Citation.] In this vein, the court has the power to expedite proceedings which, in the court’s view, are dragging on too long without significantly aiding the trier of fact. [Citation.]” (California Crane School, Inc. v. National Com. for Certification of Crane Operators (2014) 226 Cal.App.4th 12, 22.) In addition to his or her other duties, a judge has an obligation to protect the court’s resources so that other litigants waiting in line can have their cases heard. (Id. at p. 19.)

The trial in this case was scheduled to take six days and the court expressed its concern about the effect of inadequate pretrial preparation on the time estimate after the first day of testimony. As the first few days went by, the court became increasingly concerned that the trial was going to take a good deal longer than six days. As it turned out, the trial consumed 12 days, not counting the pretrial hearing and the posttrial closing arguments, submitted as briefs.

The record before us indicates the court became increasingly time-conscious as the days went by and perhaps came close to the end of the judicial tether as it perceived time being wasted. But the record does not, so far as we can see, demonstrate bias. The court addressed admonitions to be more efficient to both counsel, not just Universal’s, and deplored wasted time regardless of who wasted it. The court’s efforts to curtail repetitive testimony and to “lower the curtain” after 12 days of testimony do not reflect bias or prejudgment.

Summing up Universal’s arguments regarding bias and prejudgment so far, we do not see evidence of either one in the court’s references to the Court of Appeal, only a refusal to allow counsel to continue arguing after a ruling. The two comments about mistrial identified in Universal’s opening brief are also innocuous. As of the third day of testimony, Universal’s assertion that it would not have sufficient time to put on its case – as a basis for a mistrial – was pure speculation. As it turned out, testimony went for 12 days instead of the six allotted to it, so Universal’s complaint was at best premature, and at worst wildly inaccurate. So far as we can tell from the record, the court was equally severe to both sides when it perceived time being wasted. None of this adds up to bias.

C. Amending the Complaint and the Cross-Complaint

Reynolds applied ex parte on January 27, 2014, over seven months before trial, for an order shortening time on a motion to file a second amended complaint.[11] Reynolds wanted to reallege an oral agreement between itself and Universal to pay for environmental services. Universal opposed the application. The court denied the ex parte application without prejudice the next day, stating that Reynolds could amend to conform to proof at trial or ask the trial judge for leave to amend.

Thus Reynolds’ trial brief, filed September 8, 2014, included a section on its intention to move to amend the complaint to conform to proof. During trial, Reynolds several times referred to amending the first amended complaint to conform to proof regarding the nature of the contract between it and Universal. The court said it would rule on the motion after hearing all the evidence and invited Universal to file a written opposition. Just before the end of trial both parties filed briefs on the subject of oral and written contracts. Reynolds’ brief discussed partly oral and partly written contracts and cited to BAJI No. 10.57, the former jury instruction on these contracts.

At the end of trial, the court took up Reynolds’ request to amend the complaint to assert a contract that was partly oral and partly written.[12] As Reynolds had stated in its end-of-trial brief, the new allegation would be that the contract was partly oral and partly written, replacing the current allegation of breach of a written contract.

Contrary to Universal’s contention, the court did not instruct Reynolds how to amend its complaint or “direct Reynolds’ counsel to a BAJI instruction.” By the end of trial, Reynolds had already asked to amend to assert a cause of action for breach of a partly oral and partly written contract. Its trial brief on the subject cited the BAJI instruction the court mentioned later. [13] Clearly, the court was not telling Reynolds anything it did not already know. It was simply repeating what Reynolds had already asked leave to allege several times, both orally and in writing. There is no evidence of bias or prejudgment here.

By contrast, Universal made an oral motion to amend its cross-complaint to conform to proof at the end of trial. It filed a written motion on the penultimate day of trial. This request was based on the testimony of its expert, Odencrantz, who stated that Reynolds had not met the standards of the California Board of Professional Engineers with respect to the items that must be included in a contract. He also testified at various other times that the Reynolds’ handling of the remediation did not meet “professional standards,” without articulating the source of these standards. Based on this testimony, Universal wanted to add a cause of action for negligence to the cross-complaint. When the court asked its counsel to explain why this issue had not been raised before, he first asserted that the cross-complaint did contain a cause of action for professional negligence, then argued that the existing cause of action for negligent misrepresentation encompassed a negligence cause of action. The court denied Universal’s motion for leave to amend for untimeliness.

Unlike Reynolds’ request to amend the breach of contract cause of action to conform to proof – which had been known by Universal at least as of January 2014 – the request to amend the cross-complaint to assert an entirely new cause of action came out of nowhere at the eleventh-and-a-half hour. The deposition of Universal’s expert was taken on December 24, 2013. According to the record before us, he purportedly mentioned something about professional standards at that time.[14] But nothing was done about amending the cross-complaint until the end of trial, nine months later. The expert was the next-to-last witness in a 12-day trial. Up to that point, there was, so far as this record shows, no intimation that a cause of action for professional negligence was in the works. Refusing permission to Universal to amend its cross-complaint it not evidence of judicial bias.[15]

IV. Statement of Decision[16]

“The purpose of a statement of decision is to explain the factual and legal basis for the decision. [Citations.] The court is required only to state the ultimate rather than evidentiary facts. [Citations.] The statement of decision ‘need do no more than state the grounds upon which the judgment rests, without necessarily specifying the particular evidence considered by the trial court in reaching its decision.’ [Citation.]” (In re Marriage of Williamson (2014) 226 Cal.App.4th 1303, 1318.)

“‘Only where a trial court fails to make findings as to a material issue which would fairly disclose the determination by the trial court would reversible error result. [Citation.] Even though a court fails to make a finding on a particular matter, if the judgment is otherwise supported, the omission to make such finding is harmless error unless the evidence is sufficient to sustain a finding in favor of the complaining party which would have the effect of countervailing or destroying other findings. [Citation.] A failure to find on an immaterial issue is not error. [Citation.]’” (In re Marriage of Garrity & Bishton (1986) 181 Cal.App.3d 675, 686-687.)

The main material issues in this case were whether Universal owed Reynolds money for its services in addition to the amounts already paid and whether Reynolds breached a contract with Universal or deceived it either intentionally or negligently. The statement of decision addressed all of these issues, in addition to some subsidiary issues such as whether McFadden was Universal’s agent and whether Glaser was Universal’s lawyer.

Universal’s criticisms of the statement of decision are either too general to allow for appellate review or unsupported by the record. Universal complains that the court allowed Reynolds’ counsel to prepare the statement of decision. The California Rules of Court specifically authorize this practice. (Cal. Rules of Court rule 3.1590 (c) (f).) “The preparation of a statement of decision should place no extra burden on the trial courts. A party may be, and often should be, required to prepare the statement.” (Whittington v. McKinney (1991) 234 Cal.App.3d 123, 129, fn. 5.) The court is not obligated to prepare a statement of decision from scratch. (J. H. McKnight Ranch, Inc. v. Franchise Tax Bd. (2003) 110 Cal.App.4th 978, 984.)

The record shows the court did not simply rubber-stamp Reynolds’ proposed statement of decision. The court held a hearing on this subject, among others, 10 days before issuing the final statement of decision and judgment. The court asked Universal’s counsel several times what changes he wanted made to the proposed statement of decision. As it turned out, what counsel wanted was a statement of decision that went the other way. He suggested no changes to the proposed statement other than crediting Universal’s evidence instead of Reynolds’. Finally the court stated, “The court’s tentative decision is to take [the proposed statement of decision] under submission, go through the proposed statement of decision submitted by [Reynolds’ counsel], delete anything that is contrary to what conclusions I reached in evaluating the evidence, and sign . . . the proposed statement of decision as amended by myself.” We have no reason to believe the court did not do exactly this.

While arguing that the statement of decision “failed to address a number of principal controverted issues,” Universal does not identify any missing controverted issues. It also complains that the statement of decision “fails to explain the factual and legal basis for the Trial Court’s decision on any cause of action.” The statement of decision in the record addresses each cause of action separately and presents the factual and legal basis for the court’s decision for each one. It gives ample explanations of the factual and legal basis for each decision on each cause of action. The fact Universal disagrees with these findings does not render the statement of decision insufficient. Neither does the fact the court used a format in its tentative decision that differed from that of the statement of decision.

“The main purpose of an objection to a proposed statement of decision is not to reargue the merits, but to bring to the court’s attention inconsistencies between the court’s ruling and the document that is supposed to embody and explain that ruling. . . . [A] subsidiary purpose of the objections to a statement of decision is also to identify issues presented during the trial which are not addressed in the decision.” (Heaps v. Heaps (2004) 124 Cal.App.4th 286, 292-293.) There were no material issues presented at trial in this case that the statement of decision did not address. And nothing about the statement of decision was inconsistent with the court’s ruling on these issues.

DISPOSITION

The judgment is affirmed. Respondent is to recover its costs on appeal.

BEDSWORTH, ACTING P. J.

WE CONCUR:

FYBEL, J.

IKOLA, J.