Filed 3/12/20 Cline v. Estep 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

WALTER CLINE et al.,

Plaintiffs, Cross-defendants and Appellants,

v.

CHERYL ESTEP et al.,

Defendants, Cross-complainants and Respondents.

G056439

(Super. Ct. No. 30-2016-00874028)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Gregory H. Lewis, Judge. Affirmed.

Walter N. Cline, in pro. per., for Plaintiff, Cross-defendant and Appellant.

Law Office of Gregory L. Bartone, Gregory L. Bartone; and David R. Gallagher for Plaintiff, Cross-defendant and Appellant Hummingbird Data Systems, LLC.

Higgs Fletcher & Mack, John M. Morris and Rachel Moffitt Garrard for Defendants, Cross-complainants and Respondents.

Plaintiffs, cross-defendants, and appellants Walter Cline (Cline) and Hummingbird Data Systems, LLC (Hummingbird) appeal from the court’s judgment awarding $150,000 in favor of defendants, cross-complainants, and respondents Cheryl Estep (Estep) and Precision Pharmacy Center, LLC (Precision). Cline’s primary argument is that he cannot be liable for intentional interference with contract because there was insufficient evidence of a contract between the relevant parties identified in the judgment. Hummingbird also contends the court erred by entering a judgment against it because it was not identified as a liable party in the jury verdict. For the reasons below, we affirm the judgment.

FACTS

In February 2015, Precision and Heritage Compounding Pharmacy, LLC entered into an asset purchase agreement—the relevant contract at issue in this appeal. Cline, Hummingbird, and another party who is not involved in this appeal, later filed a complaint against Estep. Estep filed a cross-complaint and Precision filed a complaint in intervention.

The case proceeded to trial, and the jury returned a verdict in favor of Estep and Precision. Among other things, the jury awarded $150,000 to Precision for its intentional interference with contract claim against Cline. Although the asset purchase agreement identified the relevant contracting parties as Precision and Heritage Compounding Pharmacy, LLC, the jury verdict included the following question: “Was there a contract between [Precision] and Innovative Compounding Solution?” (Italics added.) The jury responded, “Yes.” The captions of the jury verdict and jury instructions also appear to refer to the same entity, which was a cross-defendant in the case—“Innovative Compounding Solutions, LLC dba Heritage Compounding Pharmacy” (Innovative). The jury ultimately found that Cline intentionally “prevent[ed] performance or [made] performance of the contract more expensive or difficult.” This portion of the verdict only referred to Cline and did not mention Hummingbird.

The court later entered judgment. The judgment noted that Cline appeared at trial in propria persona and Hummingbird “did not appear.” With respect to the intentional interference with contract claim, the judgment added the following language to the verdict: “It appearing by reason of the verdict that . . . Estep . . . and [Precision] are entitled to judgment against . . . Walter N. Cline, and Hummingbird Data Systems, LLC, a Virginia limited liability company.” The judgment further added that Precision would recover $150,000 from both Cline and Hummingbird for intentional interference with contract.

DISCUSSION

Cline contends he cannot be liable for intentional interference with contract because there was “no substantial evidence” of a contract between Precision and Innovative. Cline appears to rely on the asset purchase agreement, which stated the agreement was with “Heritage Compounding Pharmacy, LLC.” Given this language, he suggests the jury erred by finding the agreement was with Innovative. He claims Innovative was dissolved in 2010 so it could not have entered into the asset purchase agreement in 2015. He also points to another entity—“Innovative Compounding Solutions”—which he claims “did not have standing at the time of trial.” He likewise contends “Heritage Compounding Pharmacy” “was not in good standing or even recognized by the State of California.”

But no error is apparent on the face of the existing record. The record does not include a reporter’s transcript or any documents detailing the relationship between the various entities that Cline identifies. Instead, Cline attaches documents to his opening brief, including portions of the reporter’s transcript and two “Certificates” from the Secretary of State that are not part of the appellate record. He also attaches additional documents to his reply brief. We do not consider these documents. (Cal. Rules of Court, rule 8.204(d) [“A party filing a brief may attach copies of exhibits or other materials in the appellate record or copies of relevant local, state, or federal regulations or rules, out-of-state statutes, or other similar citable materials that are not readily accessible”].)

While Cline suggests “the Clerk of Court” stated that “a full copy of the transcripts did not need to be submitted” given the record in a related case, he defined the parameters of the appellate record by filing a designation of record. There also is nothing on this court’s docket referencing the record in another case.

The documents in the available record establish that the jury found there was a contract with Innovative, and the court accordingly entered judgment. Although the asset purchase agreement did not identify Innovative and instead identified Heritage Compounding Pharmacy, LLC, the record suggests they are the same entity. The caption pages of the jury verdict and jury instructions all identify Innovative Compounding Solutions, LLC doing business as Heritage Compounding Pharmacy. The register of actions from the trial court proceedings also identifies Innovative Compounding Solutions, LLC doing business as Heritage Compounding Pharmacy as a defendant and cross-complainant. A document attached to Cline’s reply brief, a seller’s certificate, also indicates that “Innovative Compounding Solutions, DBA: Heritage Compounding Pharmacy” was a party to the asset purchase agreement. Based on the minimal record on review, we find no error.

Cline also argues that he, Innovative, and Hummingbird “had no legal standing to pursue the case.” Given his own lack of standing, he claims “Estep and Precision had no cross-complaint, thus no jury findings would have been possible.” But one plaintiff’s purported lack of standing has no bearing on another party’s standing.

Finally, Hummingbird claims the judgment should be reversed because the court entered judgment against Hummingbird when it was not identified as a party in the jury verdict and did not appear at trial. According to Hummingbird, the court erred by modifying the verdict and entering a judgment allowing Precision to recover $150,000 from both Cline and Hummingbird for intentional interference with contract. In its reply brief, Hummingbird further notes that one of the jury instructions identified “two defendants in th[e] trial,” which were Cline and another party who is not involved in this appeal, but it did not identify Hummingbird.

Here, the record is clear that the court entered judgment against Hummingbird even though the jury’s verdict made no reference to Hummingbird and Hummingbird did not appear at trial. “When trial by jury has been had, judgment must be entered by the clerk, in conformity to the verdict within 24 hours after the rendition of the verdict.” (Code Civ. Proc., § 664, italics added.) While the court could not modify the judgment to include a party that the jury exonerated, the record on appeal is inadequate to undertake a full analysis of whether the court erred. Without a reporter’s transcript or additional information as to whether default was entered against Hummingbird or there was a finding that Cline and Hummingbird were alter egos, we are unable to determine on what grounds the court included Hummingbird in the judgment. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295 [burden is on party challenging order to provide adequate record so court can assess error].)

DISPOSITION

The judgment is affirmed. Estep and Precision shall bear their costs incurred on appeal.

IKOLA, J.

WE CONCUR:

O’LEARY, P. J.

THOMPSON, J.