Filed 8/12/20 Briggs Law Corp. v. Kay CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

BRIGGS LAW CORPORATION,

Plaintiff and Appellant,

v.

JOHN HARRISON KAY, JR., et al.,

Defendants and Respondents;

CORDOZAR CALVIN BROADUS,

Movant and Respondent.

E071564

(Super.Ct.No. CIVDS1501356)

OPINION

APPEAL from the Superior Court of San Bernardino County. John M. Pacheco, Judge. Affirmed.

Briggs Law Corporation, Cory J. Briggs and Anthony N. Kim, for Plaintiff and Appellant.

No appearance for Defendants and Respondents.

Werksman, Jackson & Quinn, Chris Campbell and Michael Freedman for Movant and Respondent.

I. INTRODUCTION

In 2015, the Briggs Law Corporation (plaintiff) obtained a default judgment in a civil action filed against John Kay, Jr., Karah Kay, and Land Engineering, Inc. (judgment debtors). In February 2017, plaintiff discovered social media postings by the judgment debtors that led plaintiff to believe the judgment debtors would soon be performing landscaping work for Cordozar Calvin Broadus (respondent). As a result, plaintiff obtained an order for third party examination of respondent pursuant to Code of Civil Procedure section 780.120, subdivision (a). After unsuccessful meet and confer efforts, respondent filed an ex parte application for protective order, arguing an examination was not necessary because he did not have money or property belonging to the judgment debtors in his possession at the time he was served with the order for third party examination. Following formal briefing and an evidentiary hearing, the trial court granted respondent’s request for protective order.

Plaintiff appeals arguing the trial court erred by granting respondent’s ex parte application for a protective order and accepting briefing and evidence in support of that motion. Plaintiff further argues that the trial court erred by relying on inadmissible evidence in granting the motion. We find plaintiff’s arguments forfeited for failure to provide accurate record citations in its appellate briefs, failure to identify or tailor arguments to the appropriate standard of review, and failure to assert the evidentiary objections argued on appeal in the proceedings below. Further, we conclude that even in the absence of forfeiture, we would find no abuse of discretion on the record before us.

II. FACTS AND PROCEDURAL HISTORY

A. Background Facts

On April 29, 2015, plaintiff obtained a default judgment in a civil action filed against the judgment debtors. In February 2017, plaintiff filed applications and obtained orders for appearance and examination of the judgment debtors to be held on April 17, 2017.

Additionally, a social media investigation led plaintiff to believe the judgment debtors had recently completed a landscaping project in respondent’s backyard and might begin a new project in respondent’s front yard. As a result, plaintiff filed an application and obtained an order for a third party examination of respondent. The order for third party examination was personally served on March 9, 2017, and required respondent to appear for examination at the same time as the judgment debtors.

Respondent failed to appear at the time required for examination and the trial court issued a bench warrant for his appearance. However, the trial court ordered the warrant held after respondent’s counsel made a late appearance to request a continuance. The parties agreed to continue respondent’s examination to November 3, 2017. Following unsuccessful meet and confer efforts, respondent filed an ex parte application for protective order preventing his examination from going forward and seeking to have the bench warrant withdrawn. The trial court set the matter for hearing on December 14, 2017, to allow formal briefing.

B. Respondent’s Request for Protective Order

Respondent’s ex parte application for protective order was brought pursuant to section 708.200, seeking to prevent his examination from going forward on multiple grounds. First, respondent argued he had no personal knowledge of any money or property owed or potentially owed to judgment debtors, as these matters were handled by his business manager. In support of this first argument, respondent requested the court take judicial notice of the fact that “a well-known recording artist does not personally handle his or her own affairs,” but also attached invoices from the judgment debtor concerning his completed backyard landscaping project showing the invoices were sent directly to a third party business manager.

Second, respondent argued that despite comments made by the judgment debtors in social media postings, the judgment debtors were ultimately not hired to perform the anticipated landscaping work in his front yard. However, the only evidence offered in support of this contention was the declaration of respondent’s attorney on information and belief.

Third, respondent argued that any money or property owed to judgment debtors for the completed backyard project was already paid in full prior to service of the order for examination and, as such, he did not have possession of any money or property of the judgment debtors to justify an examination. In support, respondent attached a copy of the final invoice from the judgment debtors and a copy of the bank records showing the funds for payment were transferred on February 21, 2017.

Finally, respondent argued that subsequent payment of subcontractor liens arising out of the landscaping project in his backyard did not evidence any money or property owed to the judgment debtors and further, that those payments were again handled by his third party business manager. He attached additional correspondence showing that subcontractors communicated directly with a third party business manager in resolution of those liens.

In opposition to the ex parte application, plaintiff objected to the request for judicial notice of the fact that recording artists do not handle their own personal financial affairs and objected to consideration of any evidence authenticated only by respondent’s attorney on information and belief. However, plaintiff did not address the propriety of a protective order and simply argued an underlying right to conduct a third party examination on the basis that social media postings by the judgment debtors could be interpreted to suggest the judgment debtors continued to perform work for respondent even after service of the order for third party examination.

In reply, respondent submitted the declaration of an employee of his business management firm. The declaration did not state any new facts or submit any new documents, but authenticated the invoices, emails, and wire payments previously submitted with the moving papers. Plaintiff immediately filed an objection to this declaration on the ground that respondent should not be permitted to “introduce new evidence on reply and thereby leave Plaintiff with no opportunity to respond.”

On December 14, 2017, the trial court held a hearing on the ex parte application and, instead of ruling on the application, set the matter for an evidentiary hearing on January 12, 2018. The evidentiary hearing was continued on multiple occasions and ultimately held on October 5, 2018. After taking the matter under submission, the trial court issued a written ruling and minute order dated October 15, 2018, granting the motion for protective order. Plaintiff appeals from this order.

III. DISCUSSION

A. Plaintiff Has Forfeited any Claim of Error by Failing to Appropriately Cite to the Record on Appeal

“It is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations. [Citations.]” (Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205.) “ ‘The appellate court is not required to search the record on its own seeking error.’ [Citation.] Thus, ‘[i]f a party fails to support an argument with the necessary citations to the record . . . the argument [will be] deemed to have been waived. [Citation.]’ ” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)

As an initial matter, we are compelled to address the fact that plaintiff has failed to comply with the most basic requirements for presenting arguments for our consideration on appeal. All of the citations to the record in plaintiff’s opening brief fail to accurately direct us to the items referenced. This problem is further compounded by the fact that plaintiff’s appendix does not comply with the California Rules of Court, in that the indexes do not correctly identify the page on which each exhibit first appears, impeding our ability to locate the exhibits by name. Nor can this error simply be attributed to a single clerical oversight, as plaintiff’s reply brief continues to incorrectly cite to the record in the same manner as the opening brief. Additionally, we note plaintiff’s opening brief also contains numerous assertions regarding the relevant factual and procedural history, which are not accompanied by any citations. Plaintiff cannot meet its burden on appeal to show error where its briefs fail to direct us to the specific items in the record supporting its arguments and at times, fails to include any citations at all. For this reason alone, we find plaintiff has forfeited any argument that the trial court’s order warrants reversal.

B. Plaintiff’s Arguments Fail to Address The Appropriate Standard of Review

We also conclude plaintiff has forfeited any argument on appeal for failure to identify or tailor its arguments to the appropriate standard of review. “ ‘ “Arguments should be tailored according to the applicable standard of appellate review” [Citation.] Failure to acknowledge the proper scope of review is a concession of lack of merit.’ [Citation.]” (Ewald v. Nationstar Mortgage, LLC (2017) 13 Cal.App.5th 947, 948; see Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465.)

Here, plaintiff’s opening brief fails to identify the applicable standard of review. When the respondent’s brief noted this deficiency, plaintiff included a footnote in reply acknowledging that the applicable standard is the abuse of discretion standard. However, this cursory attempt to address the deficiency misses the point. Plaintiff’s omission here is not simply the failure to cite to legal authority setting forth the standard of review, but the failure to appreciate the necessity of tailoring its arguments to show reversible error under that standard. Despite acknowledging the applicable standard of review in reply, none of the arguments in either the opening or reply brief address how the trial court’s grant of a protective order in this case constituted an abuse of discretion.

Instead, plaintiff simply reargues the merits of its underlying request to conduct an examination of respondent. However, “[w]here a trial court has discretionary power to decide an issue, an appellate court is not authorized to substitute its judgment of the correct result for the decision of the trial court. [Citations.]” (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 118; see Shamblin v. Brattain (1988) 44 Cal.3d 474, 479 [Absent abuse of discretion, reviewing court has no authority to substitute its decision for that of the trial court.]; Bustos v. Global P.E.T., Inc. (2017) 19 Cal.App.5th 558, 563 [Where competing inferences may be drawn, reviewing court cannot substitute its deductions for that of the trial court.].) Thus, simply re-arguing the merits of its underlying request for an examination of respondent is not sufficient to show grounds for reversal. Plaintiff cannot meet its burden to show reversible error where it fails to appreciate the applicable standard of review and its corresponding limitations on the permissible scope of relief this court can grant on appeal.

C. We Find No Abuse of Discretion in the Trial Court’s Order

Notwithstanding plaintiff’s failure to meet its burden on appeal, respondent has addressed the merits of the arguments raised in plaintiff’s brief. As such, we consider the merits of the trial court’s decision to grant a protective order in this case but find no abuse of discretion on this record.

Generally, section 708.120, subdivision (a), allows a judgment creditor to seek an order directing a nonparty witness to appear for examination to answer questions regarding money or property owed to the judgment debtor. (§ 708.120, subd. (a).) The order may be sought via ex parte application by the judgment creditor supported by a declaration on information and belief. (Ibid.) The statutory scheme also allows the trial court to place limitations on such examination, providing “[i]n any proceeding under this article, the court may, on motion of the person to be examined or on its own motion, make such protective orders as justice may require.” (§ 708.200.)

“The standard of review for a discovery order is abuse of discretion. [Citation.] We also review an order granting or denying a motion for a discovery-related protective order under the abuse of discretion standard. [Citation.]” (People ex rel. Harris v. Sarpas (2014) 225 Cal.App.4th 1539, 1552.) However, “[t]he abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court’s ruling under review. The trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.” (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712, fns. omitted.)

Here, plaintiff contends we must reverse the trial court’s decision to grant a protective order for two distinct reasons. First, plaintiff argues it made a sufficient prima facie showing to obtain an order for third party examination under section 708.210; thus had a “right to question [respondent]”; and the trial court “turned the judgment debtor statute on its head by permitting [respondent’s] counsel to submit briefing accompanied by inadmissible evidence . . . to circumvent his obligation to appear at a third party examination.” In essence, plaintiff argues the trial court committed legal error in violation of the statute by accepting evidence and allowing a request for protective order to be formally briefed. We find this argument entirely without merit. The statutory scheme for enforcement of judgments on its face permits the trial court to consider a motion for protective order made by a person to be examined. (§ 708.200.) It would be unreasonable to interpret this provision as permitting a witness to move for protective order but prohibiting that same witness from submitting briefs or evidence in support of such a motion. There is clearly a legal basis for the trial court’s decision to accept briefing and evidence on respondent’s ex parte application for protective order and the trial court’s decision to do so here cannot be considered an abuse of discretion.

Second, plaintiff argues the factual basis for the trial court’s decision to grant a protective order is not supported by admissible evidence. Specifically, plaintiff contends the invoices and documents upon which the trial court relied to conclude respondent did not have money or property owed to the judgment debtors at the time he was served with the order for third party examination lacked adequate foundation. We find that any such argument has been forfeited for failure to make a specific objection below on this ground.

“It is well settled by statute and case authority that the failure to object, even to otherwise inadmissible evidence, waives the defect. [Citations.]” (Haskell v. Carli (1987) 195 Cal.App.3d 124, 129; see Orozco v. WPV San Jose, LLC (2019) 36 Cal.App.5th 375, 397 [“It is hornbook law that a timely and specific objection is required to prevent the consideration of certain evidence.”].) While it is true that plaintiff initially filed written objections to these documents on the ground that they were accompanied only by the declaration of counsel and thus lacked foundation, respondent subsequently submitted a witness declaration purporting to authenticate the documents with his reply brief. In response, plaintiff submitted a separate written objection to the witness declaration, but asserted only that consideration of a declaration submitted in reply would violate due process. None of the foundational objections that plaintiff now argues on appeal were referenced in its written objection below. Nor has plaintiff directed us to any portion of the reporter’s transcript of hearing indicating such objections were made at the time of oral argument. Plaintiff cannot raise evidentiary objections for the first time on appeal. Absent a timely and specific objection below, any challenge to the evidence upon which the trial court relied has been waived. When presented with dated invoices from the judgment debtors and documents indicating the date of respondent’s payments, the trial court could reasonably infer that at the time respondent was served with the order for third party examination, respondent no longer had any money or property belonging to the judgment debtors. Given such, it was reasonable for the trial court to conclude the underlying statutory requirements for a third party examination of respondent were not met in this case and grant a protective order to reflect that conclusion. The trial court had statutory authority to grant a protective order and the record contains substantial evidence in support of its factual findings and reasoning. Thus, even in the absence of forfeiture, we would find no abuse of discretion.

IV. DISPOSITION

The order is affirmed.

Respondent to recover his costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

SLOUGH

Acting P. J.

RAPHAEL

J.