Filed 11/20/17 Kutsuna v. Fuller CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


EISUKE “ACE” KUTSUNA,

Plaintiff and Appellant,

v.

RUSS S. FULLER et al.,

Defendants and Respondents.


G054437

(Super. Ct. No. 30-2016-00845897)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Robert J. Moss, Judge. Affirmed.
Eisuke “Ace” Kutsuna, in pro. per., for Plaintiff and Appellant.
Douglas A. Frymer for Defendants and Respondents.





In 2016, Eisuke “Ace” Kutsuna lost his unlawful detainer action based on unpaid rent against Russ S. Fuller and his company Revolution Supply, Inc. (collectively referred to in the singular as Fuller). We upheld the trial court’s determination Fuller had an affirmative defense to the action because Fuller paid the rent to the Franchise Tax Board (FTB) pursuant to a FTB order stating the property owner owed taxes. (Kutsuna v. Fuller (Nov. __ 2017, G053428) [nonpub. opn.] (Kutsuna I).) While that appeal was pending, Kutsuna filed a second unlawful detainer action against Fuller. After a bench trial, the court again ruled in Fuller’s favor. On appeal, Kutsuna raises some of the same legal challenges discussed in Kutsuna I and several new ones. We conclude all the contentions lack merit and affirm the judgment.
FACTS
We incorporate by reference our summary of the facts in Kutsuna I. Picking up where we left off, Kutsuna hired an attorney to file a second unlawful detainer action against Fuller relating to unpaid rent (totaling $17,760) for the months January through March 2016. Kutsuna attached a copy of the lease agreement (described in detail in Kutsuna I), and the three-day notice to pay rent or quit notice (dated March 19, 2016), demanding payment of $17,760.
The following month, Fuller filed a demurrer and two requests for judicial notice. These documents were not included in the clerk’s transcript. The court scheduled a hearing for the demurrer to be heard on August 5, 2016.
In June 2016, Kutsuna filed a substitution of attorney notification, stating he wanted to be a self-represented litigant. Based on our review of a limited record, it does not appear that Kutsuna filed an opposition to the demurrer. Instead, on August 2, 2016, he filed a request for judicial notice of the complaint and a FTB order withdrawing the levy (FTB withdrawal order).
Kutsuna attached a copy of the FTB withdrawal order dated November 24, 2015. It was addressed to Fuller and stated in capital letters, “The order to withdraw tax that we sent you on the date shown above is withdrawn.” (Capitalization and bold omitted.) The date shown for the levy order was May 7, 2015. To place the FTB withdrawal order in context of other events in this case, it was sent to the parties three months before the trial court issued its ruling in the first unlawful detainer action in February 2016 (discussed in Kutsuna I). The order was not mentioned at that trial.
Our record does not contain a copy of the court’s ruling on the demurrer, but we can assume it was overruled because the court docket indicated Fuller filed an answer to the complaint on August 5, 2016. A copy of the answer was not included in our record, but we do have a copy of the amended answer dated August 22, 2016. Fuller submitted an attachment to the answer raising several affirmative defenses. Relevant to this appeal, Fuller claimed he made all rent payments pursuant to the FTB order and the complaint was barred by the doctrine of res judicata.
On October 3, 2016, the court held a bench trial. Kutsuna appeared and was represented by counsel. The minute order indicates Kutsuna filed a motion to disqualify the trial judge. The court denied the motion as being untimely. Next, the court heard testimony from Kutsuna, William Walsworth, and Fuller.
Kutsuna testified he did not receive Fuller’s rent payment for the months of January through March 2016 and he sent Fuller a three-day notice. He admitted the property’s six units were all subject to the FTB levy order. However, the other units resumed paying rent to the property manager in January 2016, after receiving the FTB withdrawal order. Fuller did not start paying rent to Kutsuna until September 2016.
On cross-examination, Kutsuna admitted he did not forward the FTB withdrawal order to Fuller until August 27, 2016. He recognized the FTB withdrawal order did not have Fuller’s correct address. It listed Fuller’s address as 14326 Hoover Street, but Fuller had rented 7421 Anaconda Avenue from Kutsuna since July 2014. Kutsuna stated he did not contact the FTB to ask if Fuller was paying the rent to them and never asked if the money collected after the FTB withdrawal order would be refunded. Kutsuna stated he had not asked the FTB to pay him money, but he was “going to.”
The property manager, Walsworth, confirmed Fuller stopped paying the rent in 2015 due to the FTB levy order. He stated there were five renters in the building, and they all were making rent payments to the FTB.
Fuller testified he received the first FTB order in the mail. The postal service forwarded his mail for six months from his prior address at 14382 Hoover Street. Fuller stated he changed his address when he moved into Kutsuna’s building. Fuller repeated the testimony he gave in Kutsuna I regarding the actions he took after receiving the first and second FTB levy orders. He confirmed that copies of the rent checks he paid for January and February 2016 to the FTB were exhibits in Kutsuna I.
Fuller stated he did not contact Kutsuna after he received the three-day notice and instead contacted his own attorney because of the ongoing litigation. Fuller asked his attorney to contact Kutsuna. Fuller stated he never received the FTB withdrawal order in the mail. Once he received a copy during this litigation, he confirmed its legitimacy with the FTB and then resumed paying rent to Kutsuna. He submitted copies of rent checks deposited from June 2015 to August 2016.
Finally, the court considered closing argument. Kutsuna’s counsel argued the FTB lien notice stated it was only valid for one year. Therefore, the second FTB order, dated May 2015 would have expired in May 2016. Counsel argued Fuller should have resumed paying Kutsuna the rent, at the latest, when the order expired regardless of the FTB withdrawal order issued in November 2015. He added the litigation could have been avoided if Fuller had communicated with Kutsuna or the property manager about the rent checks sent to the FTB. Counsel concluded Fuller should not be given credit for the payments sent to the FTB as of January 2016.
Fuller’s counsel argued he wrote a letter to Kutsuna stating the rent would be paid to the FTB until he received a withdrawal order. He added, the three-day notice concerned rent (January and February) that was decided in Fuller’s favor in the prior unlawful detainer action. Counsel argued Fuller was not responsible for Kutsuna’s tax problems or for correcting the address used by the FTB. “We can only figure out what they are doing and try to pay through the [FTB] so that we don’t get pulled into, or penalized, or sued, or audited because of what . . . Kutsuna and Wells have created. [¶] They were notified the rent was being paid. They were given copies in the underlying action of checks all the way through February, so they did know. They did have them. [¶] . . . That was the affirmative defense in the underlying action. It’s an affirmative defense now.” Frymer stated Kutsuna and Wells did not contact the FTB and say the debt was overpaid or ask for a refund. “My client can’t do it because it’s not his account [with the FTB].”
The court ruled in Fuller’s favor. “Well, I think one thing is clear. That is, [Fuller] was ready, willing and able to pay the rent on time. I don’t think it mattered much to him to whom he paid the rent. [¶] And the reason that rent was diverted was not his fault, but a problem, a tax problem that [Kutsuna], or one of his related entities had, and this caused the confusion on the part of the tenant as to where [to pay the] rent. [¶] He received a valid order from the [FTB] to pay us the rents. I don’t think that he necessarily can be expected to understand the niceties of the rules, and when it expires and all that. [¶] He demonstrated a willingness to pay the rent once he learned [it] should go to the landlord instead. So I find for [Fuller], and I think [Kutsuna’s] remedy is to collect these rents that have been paid from the FTB.”

DISCUSSION
Kutsuna maintains the FTB levy orders were for taxes owed by a third party, Lanvesco, and did not concern Kutsuna’s right to collect rent. This same argument was rejected by this court in Kutsuna I. We note that in this appeal, Kutsuna restates the argument in capital letters in what looks like a heading. While in Kutsuna I, he offered some evidentiary support and argument, here there is only the one sentence heading. We deem the issue waived due to lack of argument or discussion of relevant legal authority. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 (Badie); see also Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546 [not the proper function of appellate court to search record on behalf of appellants or serve as “backup appellate counsel”]; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 [appellate court not required to consider points not supported by citation to authorities or record].)
Kutsuna’s next two contentions fail for the same reason. In bold type capital letters he makes the following arguments: (1) The FTB levy order dated November 13, 2014, stated “on its face” it was to expire in one year; and (2) the FTB levy order dated May 7, 2015, was withdrawn by a FTB order dated November 24, 2015, and therefore Fuller was obligated to pay rent in 2016 directly to Kutsuna. These arguments are not supported by record references, legal argument, or relevant authority. Moreover, Kutsuna makes no effort to address the court’s ruling that was based on different grounds, i.e., it was not Fuller’s responsibility to fix Kutsuna’s tax problems, and it was Kutsuna’s obligation to seek relief from the FTB (rather than his tenant).
“Where there is conflicting evidence, or evidence susceptible of conflicting inferences, the general rule is not to disturb the judgment. All presumptions are in favor of the judgment. Trial judges and juries are the exclusive judges of credibility and may disbelieve any witness. Trial courts are designed and responsible for determining facts. Appellate courts are designed to review errors of law. Economy, efficiency, and practicality require recognition of those specialized roles. (Rivard v. Board of Pension Commissioners (1985) 164 Cal.App.3d 405, 412.) Because Kutsuna has not stated how the court’s ruling was an error of law, we deem these issues waived. (Badie, supra, 67 Cal.App.4th at pp. 784-785.)
Kutsuna’s next argument includes a heading plus a few lines of supporting legal argument so we will address it. He maintains Fuller’s “alleged confusion as to the FTB orders is not plausible or credible” because he was represented by counsel who definitively advised Fuller was “not obligated” to comply with the lease agreement regarding the 2016 payments. (Capitalization omitted.) In other words, Fuller was not “confused” because he was relying on advice from legal counsel. To support this contention, Kutsuna cites to a question Frymer asked during trial about the contents of a letter he wrote to Wells verifying Fuller would comply with the FTB levy order. His citation to page 1,426 of the reporter’s transcript cannot be located in our 51-page record. In any event, the argument fails because the court’s ruling was not based on a finding Fuller was confused about the FTB order. As stated, the court determined Fuller paid the rent he owed to the FTB and it was Kutsuna’s responsibility to get it from the FTB. If Fuller was required to pay the rent again to Kutsuna, he would receive a windfall (double the rent amount) when he received a refund from the FTB.
The next argument appears to be more of a factual statement. Kutsuna states in all capital letters, “The court and lessee’s counsel . . . confirmed that the issue before the court was rent payable in 2016 after the withdrawal order dated November 24, 2015.” (Capitalization omitted.) To support this fact, he cites several lines of the reporter’s transcript without providing a record reference. Aside from this problem, Kutsuna does not explain why this statement is relevant on appeal. Why does it support a reversal of the judgment? Our review of the record shows the court understood the case concerned unpaid rent in 2016. It was also undisputed Fuller did not receive the FTB withdrawal order until August 2016, after which he resumed paying Kutsuna his rent payments. Kutsuna waives this purported issue by failing to provide legal argument or authority explaining why this factual statement relates to reversible error. (Badie, supra, 67 Cal.App.4th at pp. 784-785.)
Citing a portion of the lease agreement, Kutsuna maintains Fuller had a contractual obligation to pay his rent “‘without deduction.’” (Capitalization omitted.) He argues this meant Fuller breached the lease agreement “regardless of any FTB claim.” In Kutsuna I, we highlighted some of the tax provisions giving the FTB broad authority to issue levy orders to collect delinquent taxes. (Rev. & Tax. Code, § 18662 [items of income include “interest, dividends, rents, prizes and winnings, premiums, annuities, emoluments, compensation for services, including bonuses, partnership income or gains, and other fixed or determinable annual or periodical gains, profits, and income”].) Fuller had no right to object or contest the FTB’s levy authority. (Rev. & Tax. Code, § 18674.) Failure to pay would make Fuller liable for the amount due to the FTB. (Rev. & Tax. Code, § 18672.) Kutsuna’s failure to discuss the tax code or provide any reasoned legal analysis for why the lease overrides the FTB’s authority to levy rent payments waives the issue.
In a related argument, Kutsuna asserts Fuller’s “negligence” in failing to understand the FTB order expired after one year should not be a valid excuse for not paying the rent owed in 2016. He argues Civil Code section 1714 mandates that Fuller is responsible for damage caused by his negligent failure to not pay rent.
“Civil Code section 1714, subdivision (a) provides in relevant part: ‘Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person . . . .’ Courts have interpreted this statute as establishing that individuals owe a duty of care to avoid injury to others unless public policy mandates an exception. [Citations.] Thus, whether an individual owes a duty of care to another is a question of law. [Citation.]” (Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, 1133 [landlord owed duty to tenant injured by dog attack].)
This statutory provision is a basic principle of tort law. (See Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1184, [referring to (Civ. Code, § 1714 as “a general tort statute”]; De Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 251.) Kutsuna provides no case authority suggesting this code provision applies to contract disputes. He does not explain why Fuller would owe him a duty of care to pay rent. Moreover, the court’s ruling did not mention negligence. Rather, the court decided Fuller’s contractual obligation to pay Kutsuna was excused under the circumstances of this case. In addition, Fuller paid rent to the FTB and Kutsuna does not dispute he could seek the return of these funds from the FTB.
Kutsuna asserts there is insufficient evidence to support the judgment. He restates the trial court’s ruling and focuses on the court’s comment Fuller should not be expected to understand when the FTB order expired. Kutsuna asks the question, “How is attorney Frymer exonerated as well?” He maintains there is nothing to support the court’s judgment other than “whimsical speculation.” Kutsuna claims the court ignored the fact Fuller operates a retail business and received input from an attorney. We will not overturn the judgment based on such a minimal effort. “An appellant asserting lack of substantial evidence must fairly state all the evidence, not just the evidence favorable to the appellant.” (Chicago Title Ins. Co. v. AMZ Ins. Services, Inc. (2010) 188 Cal.App.4th 401, 415; see McCauley v. Howard Jarvis Taxpayers Assn. (1998) 68 Cal.App.4th 1255, 1266 [“If one is going to make a ‘the-facts-compel-that-I-win-as-a-matter-of-law’ argument, one’s brief must fairly state all the evidence”].) More importantly, the argument misses the gravamen of the court’s ruling. It determined Fuller paid the rent each month and Kutsuna’s “remedy is to collect these rents that have been paid from the [FTB].” Kutsuna does not explain why there was insufficient evidence to support the primary factual basis for the court’s final ruling.
Finally, Kutsuna states his appeal incudes a challenge to the judgment’s award of attorney fees to Fuller in an amount subject to later proceedings. Although he cites to one case confirming he was not required to file a separate notice of appeal, he fails to present any legal argument as to why the award should be reversed. “One cannot simply say the court erred, and leave it up to the appellate court to figure out why. [Citation.]” (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368.)
We note the record contains a copy of Fuller’s motion for attorney fees but not a ruling on the motion or an amended judgment reflecting the trial court awarded a particular sum of attorney fees. Based on our limited record and lack of legal argument, this ruling cannot be reviewed.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.



O’LEARY, P. J.

WE CONCUR:



MOORE, J.



ARONSON, J.