Filed 2/25/22 Kaur v. Heer CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Kern County. Stephen Schuett, Judge. Reversed.

Frederick C. Kumpel for Plaintiff and Appellant.

Hodges Law Group, Nathan M. Hodges for Defendants and Respondents.

______________________________

Niranjan Kaur sued her son and daughter-in-law for financial elder abuse. After Kaur stipulated to facts at trial but before she called her first witness the trial court granted defendants’ motion for nonsuit on the ground that a discovery sanction precluded Kaur from proving facts sufficient to support her claim. Kaur argues the motion was procedurally improper because she had no opportunity to make an opening statement, and failed on its merits because it is uncertain whether the discovery sanction precluded evidence sufficient to support her claim. We agree with both contentions, and therefore reverse.

BACKGROUND

We recite the facts from allegations in Kaur’s first amended complaint, making no assumptions as to their truth.

Kaur, who is over 65 years old, received more than $200,000 from a life insurance company after one of her sons died in 2012. The money was deposited at Chase Bank in Bakersfield in an account on which she and her son Heer were signatories. Heer and his wife, Sukdeep Kaur (sometimes collectively Heer), took $200,00 from the account without Kaur’s knowledge, and refused to return it.

In 2016, Kaur sued defendants and JP Morgan Chase Bank for conversion, fraud, negligence, breach of fiduciary duty, and intentional infliction of emotional distress (IIED). (The bank was later dismissed, and is not a party to this appeal.) Kaur alleged she was 72 years old and did not speak or read English. Heer assisted her in opening a checking account at Chase Bank with the proceeds from an insurance policy on her recently deceased son. Heer convinced her to place his name as well as hers on the account and promised to help her with her financial affairs. For a period of years thereafter Kaur relied on Heer to advise her on and facilitate financial transactions, and he handled all banking transactions at her request.

Kaur alleged that in 2016, Heer and his wife conspired to defraud Kaur, misrepresenting to her that Chase Bank required that she sign documents relating to her account for tax purposes. Kaur accompanied Heer and his wife to the bank and at Heer’s behest signed documents she could not read, removing her name from the account and adding Heer’s wife’s name. Heer and his wife then withdrew approximately $213,000 from the account for their own use.

As against Chase Bank, Kaur’s fifth and sixth causes of action alleged breach of fiduciary duty and fraudulent concealment, respectively.

Heer answered Kaur’s first amended complaint, and on June 14, 2017, propounded his first set of special interrogatories on Kaur, asking her to identify persons having knowledge of facts supporting her contentions. Kaur responded, “Plaintiff’s daughter-in-law Dilvir Kaur Purewal dropped her off at JP Morgan Chase Bank to meet defendant Gurinder Singh Heer. Plaintiff . . . along with her son . . . were assisted by an employee [of the bank].” (Capitalization standardized.) Kaur also responded, “Plaintiff’s daughter Harinjinder Kaur, plaintiff’s daughter-in-law Dilvir Kaur Purewal, and defendant Sukdeep Kaur [were] present when defendant [Heer] verbally agreed that he would help [and] take care of all plaintiff’s financial needs to open the bank account and help with her financial needs for her benefit and use only.” (Spelling and capitalization standardized.)

Heer also asked Kaur to identify documents supporting her contentions. Kaur responded, “Deposit of insurance checks and all deposit records, application to open new account, ledgers and receipts on behalf of plaintiff[’]s account is in [Heer’s possession]. All bank receipts were provided and are in [the] possession of . . . Heer and records are also with JP Morgan Chase Bank. . . . [Heer] has possession of all deposit records which he maintains at his residence located at 9512 Dusty Wheat Drive, Bakersfield, CA 93313.” (Capitalization standardized.)

In June 2017, Chase Bank demurred to the first amended complaint. The court sustained Chase’s demurrer without leave to amend as to the sixth cause of action and sustained it with leave to amend as to the fifth cause of action.

On September 18, 2017, Kaur filed a second amended complaint, dropping Chase Bank as a defendant. The second amended complaint alleged the same facts as had been alleged in the first amended complaint but added two editorial clauses concerning defendants’ conduct;[1] added the words “elder abuse” to the headings on her causes of action for fraud and IIED; and expanded the prayer for relief to include requests for attorney fees and damages pursuant to Welfare and Institutions Code sections 15610.30 and 15657.6.

On November 17, 2017, the court granted Heer’s motion to strike the new allegations.

On January 9, 2018, Heer moved to compel further responses to his interrogatories, arguing Kaur’s responses identifying individuals were deficient because she failed to identify any bank employee by name or to provide anyone’s address or telephone number. Heer argued the responses to his requests for identification of documents was deficient because Kaur failed to identify specifically which bank receipts or records supported her contentions and failed to summarize the content of those documents.

The trial court granted Heer’s motion, and on February 26, 2018, issued an order directing Kaur to provide further responses. The order, which defendants’ counsel prepared, stated that “Any Further Response to any Special Interrogatory contained within Special Interrogatories, Set One, which Plaintiff fails to properly respond to shall be deemed ‘No Further Response,’ and Plaintiff shall be precluded from introducing any evidence to the contrary in future proceedings or filings.”

On May 30, 2018, Kaur sought leave to file and filed a third amended complaint, in which she added a cause of action for elder abuse and replaced her factual allegations with greatly expanded allegations that included details about account numbers, property transactions, and a police investigation. Despite this prolixity the thrust of the complaint remained the same: Kaur alleged that Heer and his wife took Kaur’s money from her Chase Bank checking account.

Heer moved to strike the new allegations (but not the cause of action for elder abuse), arguing they were added without leave of court. On January 28, 2019, the court granted Heer’s motion and ordered the new allegations stricken, the cause of action for elder abuse remaining.

On February 1, 2019, Kaur filed her fourth amended complaint, in which she simply rendered the stricken factual allegations in strikethrough typeface. The essential factual allegations from Kaur’s first amended complaint, which she removed in her third amended complaint and then rendered in strikethrough typeface in her fourth amended complaint, persevered in individual causes of action, in which Kaur alleged that Heer and his wife violated her trust and misappropriated money from her bank account.

Before trial, Heer moved to exclude Kaur from presenting evidence or argument that should have been produced in discovery. The court granted the motion.

On January 6, 2020, Heer moved for nonsuit on the ground that pursuant to the court’s discovery order of February 26, 2018, plaintiff would be unable to introduce any documents or witnesses to support her claims. For example, Heer argued, Kaur’s claim for financial elder abuse requires her to present evidence and prove that Heer took her property for a wrongful use or with an intent to defraud, and knew or should have known that this was likely to harm an elder. (Welf. & Inst. Code,

§ 15610.30, subds. (a) & (b).) Heer argued that because of the court’s discovery sanction, Kaur would be unable to “present evidence that she had any right to possess money at issue in this matter, that Defendants took the money at issue in this matter, that Defendants taking, if any, was for a wrongful purpose, with an intent to defraud, . . . or that Defendants knew that their conduct, if any was likely to be harmful to Plaintiff.”

On the day of trial, the parties stipulated to some facts (which stipulation is not in the record) and the court heard argument on Heer’s motion to exclude evidence that was “subject to the discovery order entered by the Court” on February 26, 2018. Kaur argued the February 26 order was ambiguous as to exactly what evidence was excluded. The court granted the order.

The following colloquy then occurred:

The Court: “Mr. Kumpel? You want to call your first witness?”

Kumpel (Kaur’s counsel): “Yes, Your Honor. The Court has stipulated facts. I assume you don’t want them read into the record. They are not that many.”

Court: “I don’t need those read.”

Mr. Kumpel: “Thank you, Your Honor. Calling Niranjan Kaur please.”

Hodges (Heer’s counsel): “Your Honor, prior to calling any witnesses, Defendants have a motion for non-suit. Can I present that to the Court?”

The court then suspended proceedings, held an unreported conference in chambers, then came back on the record. Kumpel argued he had filed a motion to clarify the scope of the February 26, 2018 discovery order but withdrew it when Heer served him with a notice of intent to seek sanctions pursuant to Code of Civil Procedure section 128.5. Kumpel argued: “Other than that, we’ve gone over the facts, and I have expressed repeatedly today and other times the fact that the discovery order is impermissibly vague and confusing . . . . [¶] And other than that, Plaintiff[] submit[s].”

The court granted Heer’s motion for nonsuit.

DISCUSSION

Kaur contends the court erred in granting Heer’s motion for nonsuit. We agree.

A. Legal Principles and Standard of Review

A motion for nonsuit tests the legal sufficiency of a plaintiff’s evidence, operating, in effect, as a demurrer to the evidence. The motion lies when the plaintiff’s evidence, taken as true and construed most strongly in favor of the plaintiff, entitles the plaintiff to no relief under any theory. (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1214-1215.) In a proper case the court has the duty to forestall the cost and delay of a meritless lawsuit by granting nonsuit. (O’Keefe v. South End Rowing Club (1966) 64 Cal.2d 729, 746.)

A nonsuit motion may be made “[o]nly after, and not before, the plaintiff has completed his or her opening statement, or after the presentation of his or her evidence in a trial by jury.” (Code Civ. Proc., § 581c, subd. (a).) The motion may be granted as to “some but not all of the issues involved in the action.” (Code Civ. Proc., § 581c, subd. (b).)

Because a nonsuit deprives the plaintiff of the right to have a claim determined by a jury, California courts take a restrictive view of the circumstances under which it may be granted. (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838.)

In reviewing a judgment of nonsuit, we are “guided by the same rule requiring evaluation of the evidence in the light most favorable to the plaintiff. ‘The judgment of the trial court cannot be sustained unless interpreting the [proposed] evidence most favorably to plaintiff’s case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.’ ” (Carson v. Facilities Development Co., supra, 36 Cal.3d at p. 839.)

“ ‘Financial abuse’ of an elder or dependent adult occurs when a person or entity . . . [¶] . . . Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.” (Welf. & Inst. Code, § 15610.30, subd. (a)(1).)

B. Application

Kaur initially argues the order granting Heer’s nonsuit motion was procedurally improper because it came before she made any opening statement or presented any evidence. We agree.

In considering an opening statement nonsuit, “ ‘[e]very fact which counsel has stated as among the matters to be proved, together with all favorable inferences reasonably to be drawn therefrom, must be accepted by the court as facts which would have been proved if the case had been allowed to be tried.’ ” (Moffitt v. Ford Motor Co. (1931) 117 Cal.App. 247, 251.) Such a nonsuit should be granted “only where it is clear that counsel has undertaken to state all of the facts which he expects to prove, and it is plainly evident that the facts thus to be proved will not constitute a cause of action or a defense, as the case may be. . . . ‘t would be much better not to nonsuit on an opening statement unless it is clearly made, and it is evident therefrom that no case can be made out.’ Where, however, these conditions are complied with, the court is authorized to accept the statements and admissions of counsel and to direct a verdict required by such statements or admissions.” ([i]Bias v. Reed (1914) 169 Cal. 33, 37; accord Paul v. Layne & Bowler Corp. (1937) 9 Cal.2d 561, 564; Russell v. Soldinger (1976) 59 Cal.App.3d 633, 640.)

Here, Kaur made no opening statement. After the court granted Heer’s motion to exclude evidence, it asked Kumpel, “You want to call your first witness?” Whereupon Kumpel indicated he would call Kaur. Kumpel never stated the facts he expected to prove, nor the evidence he expected would prove them (other than implying that at least that Kaur’s testimony would be probative). A motion for nonsuit may not be granted before an opening statement is made.

Heer argues that Kumpel did in fact make an opening statement, in that his reference to stipulated facts set forth “the facts [Kaur] would be seeking to provide evidence to support to prove [her] causes of action.” We disagree. Kumpel said only, “The Court has stipulated facts. . . . They are not that many.” An opening statement sets forth the facts a party intends to prove. A stipulation to facts, on the other hand, generally sets forth only facts that are undisputed, and therefore require no proof at trial. A bare reference to the existence of a set of stipulated facts is not an opening statement.

It may be that by “stipulation” the parties meant something other than undisputed facts, perhaps referring to a “stipulation” as to which facts, disputed and undisputed, put at issue by Kaur’s claims. But if that was the nature of the stipulation, a simple reference to its existence could not purport to set forth all facts Kaur intended to prove, as a nonsuit requires.

Heer argues, without citation to the record, that the court was warranted to conclude from all the facts and inferences in Kumpel’s statement, as well as a review of the stipulated facts, that there would be no evidence of sufficient substantiality to support a judgment in favor of Kaur. Nothing in the record supports the argument, and obvious implications refute it. We presume, for example, that Heer would have declined to stipulate to having misappropriated Kaur’s money.

Heer argues that because Kaur failed to include the stipulated facts in the record, it must be conclusively presumed that the record contains evidence supporting the judgment of nonsuit. For reasons discussed above, we disagree. A nonsuit tests the facts a plaintiff intends to prove. As generally understood, a stipulation sets forth the facts that require no proof.

The court should have waited at least until after Kumpel made an opening statement before granting nonsuit.

Heer argues Kumpel was not denied an opportunity to make an opening statement. The point is irrelevant. Code of Civil Procedure section 581c provides that a nonsuit motion may be made “[o]nly after, and not before, the plaintiff has completed his or her opening statement.” Heer offers no authority supporting his implied point that the rule does not apply when a plaintiff was afforded an opportunity to make an opening statement but chose not to do so.

Heer argues it was incumbent upon Kumpel to request to reopen, augment, or supplement his opening statement through an offer of proof that included more than the stipulated facts, and Kumpel invited any error by failing to object to the trial court’s proceeding without an opening statement. We disagree. The court had already granted Heer’s motion to exclude evidence pertaining to anything other than the stipulated facts. It would therefore have been futile in an opening statement to adduce evidence that the trial court had preemptively excluded. The court created the error by declining to clarify sua sponte the scope of its February 26, 2018 order.

The motion should have been denied on the merits as well. At trial and on appeal, Heer treated and continues to treat the February 26, 2018 order as precluding Kaur from presenting any evidence. He argues the order prevented Kaur from, in Heer’s words, “Introducing documents Appellant claimed supported her claims; [¶] . . . Referring to, or calling as a witness, persons Appellant claimed may provide testimony to support her claims; or [¶] Referencing the factual allegations that were stricken from Appellant’s third amended complaint on February 13, 2019, as evidenced by the interlineations of the operative fourth amended complaint.” The trial court effectuated this interpretation by granting nonsuit even as Kaur herself was about to take the stand.

But this mischaracterizes the order, which stated, “Any Further Response to any Special Interrogatory contained within Special Interrogatories, Set One, which Plaintiff fails to properly respond to shall be deemed ‘No Further Response,’ and Plaintiff shall be precluded from introducing any evidence to the contrary in future proceedings or filings.” (Italics added.) The order thus precluded only evidence derived from documents and witnesses that Kaur failed to identify in any further discovery responses, not those identified in her original response.

In her original response Kaur identified herself, her daughter, Heer, and his wife as individuals having knowledge of pertinent facts. Heer has never explained—other than baldly asserting—how Kaur would be unable to support her elder abuse claims with the testimony of these individuals. Presumably Kaur alone could testify to all pertinent facts: She is an elder; she entrusted Heer with her money; and Heer misappropriated it. If credited, this testimony would have established that Heer appropriated an elder’s personal property for a wrongful use or with intent to defraud, or both. Interpreting such evidence most favorably to Kaur’s case and most strongly against Heer, and resolving all presumptions, inferences and doubts in favor of Kaur, we cannot say a judgment for Heer is required as a matter of law. Nonsuit was therefore improper.

DISPOSITION

The judgment is reversed. Plaintiff is to recover her costs on appeal.

NOT TO BE PUBLISHED

CHANEY, J.

We concur:

BENDIX, Acting P. J.

CRANDALL, J. *

[1] The new allegations were as follows (represented by italics): Kaur relied on defendants “with respect to the relevant bank accounts and as participants and caretakers of the accounts”; “defendants Heer and [his wife] engaged in acts of deceit and fraud and breach of trust owed to plaintiff and . . . came into possession of money that belongs to plaintiff.”

* Judge of the San Luis Obispo County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.