Renda v. Romero Gen. Construction CA4/1 ( 2013 )

Filed 6/28/13 Renda v. Romero Gen. Construction CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MARIO RENDA, D061321
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2007-00075627-
CU-NP-CTL)
ROMERO GENERAL CONSTRUCTION
CORP. et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Randa Trapp, Judge. Affirmed.
John J. Freni for Plaintiff and Appellant.
Stuart D. Hirsch for Defendants and Respondents.
Mario Renda sued Romero General Construction Corp. (Romero), Blue Rock
Development, LLC (Blue Rock) and Desarrollos Roca Azul, S. de R.L. de C.V. (Roca
Azul, collectively, the Romero Defendants) for conspiring with or aiding and abetting
Ana Luisa Nevarez in committing fraudulent transfers to hinder, delay or defraud
Renda in his efforts to collect a judgment he secured against Nevarez in a prior action.
A jury rejected Renda's claims against the Romero Defendants. Renda appeals,
asserting the trial court committed reversible error by admitting or excluding certain
evidence. We reject Renda's claims and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Renda does not challenge the sufficiency of the evidence supporting the verdict
and the parties are well aware of the facts of this dispute. Accordingly, we merely
summarize some of the facts presented to provide background for our later discussion.
A. The Prior Action
Renda entered into a joint venture agreement with Nevarez to develop a 2,640-
hectare piece of real property that Nevarez owned in Tijuana, Mexico. That property
included a mining operation, called Rancho Ontiveros. A dispute arose, resulting in
Renda suing Nevarez, and Nevarez filing a cross-complaint (the prior action). In
February 2004, Renda and Nevarez settled the prior action. The written settlement
agreement required that Nevarez make monthly payments to Renda and a balloon
payment in August 2006. After Nevarez failed to make the balloon payment, the trial
judge in the prior action, the Honorable Joan M. Lewis, entered judgment in favor of
Renda in the total amount of $817,429.55.
In the meantime, Keith Reilly, Romero's president and sole shareholder, learned
of the mining operation on Rancho Ontiveros and concluded that entering into a
mining agreement with the property owner, Nevarez, presented an excellent business
opportunity. Blue Rock Development, Inc. was formed to enter into the mining
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agreement with Nevarez. In 2003, Blue Rock Development, Inc. entered into the
mining agreement with Nevarez through her company Loponti Holdings, Inc.
Eventually, Blue Rock Development, Inc. became respondent Blue Rock. Reilly is
Blue Rock's manager.
In October 2003, Reilly formed Roca Azul, a Mexican entity, to take advantage
of NAFTA regulations. Blue Rock owns 99.9 percent of Roca Azul, and Romero
owns .1 percent. Reilly is also the manager of Roca Azul. Roca Azul mined the
material and exported it to the United States, and Blue Rock imported the material and
sold it in the United States. Roca Azul and Blue Rock have no employees and no
assets, and Blue Rock operates out of the same office as Romero in Escondido,
California. Jordan Buswell, a Romero employee, ran Roca Azul's day-to-day
operations.
Nevarez formed Grupo Loponti in 2006. Thereafter, Nevarez had Roca Azul
start making payments under the mining agreement to Grupo Loponti. In May 2006,
Roca Azul and Nevarez entered into a second mining agreement that replaced the first
mining agreement and any prior agreements between the parties.
In August 2007, Judge Lewis denied Nevarez's motion to set aside the judgment
in the prior action. Thereafter, Renda began his efforts to collect on his judgment
against Nevarez. In February 2008, Judge Lewis granted Renda's motion to compel a
third-party examination of Blue Rock through Bushwell. About this time, Renda
began to discover details of the relationship between Nevarez and the Romero
Defendants. In March 2008, Judge Lewis issued an order directing that Blue Rock pay
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any monies owed by Blue Rock's Mexican subsidiary, Roca Azul, under the second
mining agreement to Renda's counsel to be held in trust pending further order of the
court.
In April 2008, Judge Lewis held a hearing to address Roca Azul's contention
that the court lacked jurisdiction to issue a turnover order against it because it was a
Mexican company (the April Hearing). The court, however, never addressed this
matter because an issue arose as to whether Nevarez or the estate of her late father
owned Rancho Ontiveros. The court held a further hearing in May (the May Hearing).
Eventually, Nevarez admitted that she held possessory title in Rancho Ontiveros. In
July 2009, Judge Lewis issued turnover orders against both Roca Azul and Nevarez
that all payments in relation to the second mining agreement be delivered to Renda to
be applied toward satisfaction of the outstanding judgment. However, Nevarez nor the
Romero Defendants have made any payments to Renda.
B. The Instant Action
In September 2007, Renda filed this action against Nevarez and her multiple
entities. Renda later added the Romero Defendants, Grupo Loponti and others. He
alleged a single cause of action for fraudulent transfer in violation of Civil Code
section 3439, et seq. against all defendants. Renda claimed that Nevarez wrongfully
acted to hinder or defraud him in collecting his judgment by fraudulently transferring
assets to other defendants and that the other defendants conspired with and aided and
abetted Nevarez's wrongful conduct.
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The matter proceeded to trial against Nevarez and the Romero Defendants.
Renda filed a number of in limine motions, including motion number three which
sought "to exclude claim that" the Romero Defendants' actions were sanctioned by the
court. The trial court denied the motion. Motion number four sought "to exclude
evidence of unrelated lawsuits" involving Renda. The trial court tentatively granted
number four. After hearing oral argument, it allowed evidence of a "sanitized version"
of a particular lien.
The jury rendered a verdict against Nevarez finding that she transferred monies
to Loponti Holdings and Grupo Loponti with the intent to defraud Renda. The jury
awarded Renda $450,000 in damages. The jury, however, found in favor of the
Romero Defendants after concluding that they did not conspire with Nevarez or aid
and abet her fraudulent transfer of property to Loponti Holdings and Grupo Loponti.
The court entered a judgment in favor of the Romero Defendants and Renda timely
appealed.
DISCUSSION
I. In Limine Rulings
A. General Legal Principles
On a motion in limine to exclude evidence, the trial court must weigh the
probative value of the evidence against the likelihood that its admission will
"necessitate undue consumption of time or . . . create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352;
undesignated statutory references are to this code.) We review rulings on motions in
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limine for an abuse of discretion. (Hernandez v. Paicius (2003) 109 Cal.App.4th 452,
456.) A party challenging discretionary rulings on motions in limine must
demonstrate the court's " 'discretion was so abused that it resulted in a manifest
miscarriage of justice.' " (Ibid.; § 354.) Moreover, even where evidence is improperly
excluded, the error is not reversible unless " 'it is reasonably probable a result more
favorable to the appellant would have been reached absent the error. [Citations.]'
[Citation.]" (Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1013.)
It is the appellant's burden to make an affirmative showing of error by an
adequate record. (Buckhart v. San Francisco Residential Rent Etc., Bd. (1988) 197
Cal.App.3d 1032, 1036.) Because in limine rulings are by their nature tentative
(Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1430),
such a ruling "made without fully knowing what the trial evidence would show, will
not preserve the issue for appeal if the appellant could have, but did not, . . . [make an]
offer of proof and press for a final ruling in the changed context of the trial evidence
itself." (People v. Holloway (2004) 33 Cal.4th 96, 133; § 353, subd. (a).)
B. In Limine Number Three: State of Mind Evidence
1. Facts
In his third motion in limine, Renda asserted that the Romero Defendants
intended to argue that their actions in this case were "sanctioned or supervised" by
Judge Lewis during the judgment enforcement proceedings in the prior action. Renda
argued that Judge Lewis did not sanction, approve or supervise the conduct of the
Romero Defendants; accordingly, the Romero Defendants should be precluded from
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making this argument. Renda argued that the evidence was irrelevant and prejudicial
under sections 350 and 352. Within the motion, Renda noted that he conducted a
third-party examination of Reilly and Buswell and that Judge Lewis issued a turnover
order. Renda, however, did not contend this evidence needed to be excluded, nor did
he specify any particular evidence that required exclusion. The trial court denied the
motion. The court explained, "I believe the [Romero Defendants] should be able to
make an argument as to their interpretation of what happened in previous court
proceedings. So my tentative stands."
2. Analysis
Renda contends the trial court committed reversible error when it denied his
third motion in limine and allowed the Romero Defendants to falsely contend that
Judge Lewis supervised and approved of their conduct. He asserts that the trial court
erred in allowing the introduction of certain comments made by the court at the April
and May Hearings. Specifically, he notes that (1) during opening statement, counsel
for the Romero Defendants discussed Judge Lewis's comments at the April and May
hearings, (2) Buswell testified regarding his understanding of the court's April ruling
regarding who owned the property, and (3) during closing argument, counsel for the
Romero Defendants again referred to Judge Lewis's comments.
Renda did not object during the Romero Defendants' opening statement and
closing argument. Thus, Renda forfeited any objection unless his motion in limine
preserved the objection. (§ 353, subd. (a); People v. Morris (1991) 53 Cal.3d 152,
188–190 (Morris).) A motion in limine to exclude evidence is not a sufficient
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objection unless it was directed to a particular, identifiable body of evidence and was
made at a time when the trial court could determine the evidentiary question in its
appropriate context. (Morris, supra, 53 Cal.3d at p. 190.) If a motion in limine fails to
satisfy any of these requirements, a proper objection is required to preserve an
evidentiary issue for appeal. (Ibid.) Here, Renda's motion in limine did not seek to
exclude any specific portions of the reporter's transcript from the April and May
Hearings. Thus, Renda's motion in limine did not preserve the issue for appeal.
Renda next complains that the trial court erroneously allowed Buswell to testify
regarding exhibits 140 and 145, which were portions of the reporter's transcript from
the April Hearing in front of Judge Lewis. As a threshold matter, Renda did not object
to the admission of exhibits 140 and 145 at trial as being irrelevant or prejudicial.
Thus, Renda forfeited these objections as his motion in limine failed to preserve the
objection. (§ 353, subd. (a); Morris, supra, 53 Cal.3d at p. 188–190.)
Renda also complains that the trial court improperly overruled hearsay, lack of
foundation and speculation objections to Buswell's testimony regarding exhibits 140
and 145. We examine each contention in turn.
Counsel for the Romero Defendants asked Buswell to read exhibit 140 and
asked whether what transpired at the April Hearing affected his conduct. Renda,
however, never objected to this testimony. Renda thus forfeited any objection on
appeal. (§ 353, subd. (a).)
Counsel for the Romero Defendants next asked Buswell to look at exhibit 145;
Renda objected on the ground of hearsay and "out of context." The trial court
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overruled the objection, stating the witness could look at the document. Thereafter,
counsel for the Romero Defendants asked Buswell if he recalled the statement made
by the court at this portion of the April Hearing and whether the comment had an
impact on him. Buswell testified to the impact the statement had on him without
objection. Counsel for the Romero Defendants then asked the trial court to take
judicial notice of particular lines in the transcript. The court took the request under
submission. We conclude the trial court properly overruled the hearsay objection to
exhibit 145 because it was offered for some purpose other than to prove the truth of the
matter asserted, i.e., what effect the statement had on Buswell. (§ 1200, subd. (a).)
Moreover, to the extent the subject matter was taken out of context, this is something
that could have been addressed during cross-examination. In any event, the following
day, Renda's counsel referred to exhibit 145 and moved to put the exhibit into
evidence. The trial court granted the unopposed request.
Finally, Renda complains about another portion of Buswell's testimony where
Buswell testified to his understanding of what was going on at the April Hearing. The
trial court overruled Renda's hearsay, lack of foundation and speculation objections.
Again, the trial court properly overruled the hearsay objection because the testimony
was offered for some purpose other than to prove the truth of the matter asserted. As
to the lack of foundation and speculation objections, Renda has not provided any
argument on appeal explaining how the trial court erred in overruling these objections.
We deem these issues forfeited. (Badie v. Bank of America (1998) 67 Cal.App.4th
779, 784–785.)
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C. Notice of Lien Evidence
1. Facts
Renda's fourth in limine motion sought to exclude evidence of unrelated
lawsuits involving him. The trial court tentatively granted the motion, stating that the
lawsuits were unrelated or had voided judgments; however, it wanted to hear argument
as to how a lien served on the defendants had impacted them. The Romero Defendants
explained that around March 2008, they decided to stop paying Nevarez because of the
court proceedings in the prior action. Nevarez then threatened to close down the
mining operation and lock up millions of dollars worth of the Romero Defendants'
equipment. While this was happening, the Romero Defendants claimed that they were
served with a judgment lien in another action against Renda for $2.5 million. The
Romero Defendants argued that their knowledge of the judgment lien impacted their
conduct, explaining that they understood the judgment lien against Renda meant that
they should not pay him. They asserted that the lien constituted a defense against
Renda's claim that they had conspired with Nevarez to not pay him.
Renda argued the judgment lien had been improperly filed and was voluntarily
withdrawn. When the court questioned how the Romero Defendants knew about the
withdrawal of the lien, Renda explained that the Romero Defendants' state-of-mind
defense was illusory because their dilemma of who to pay could have been resolved by
interpleading the funds. The Romero Defendants then explained that because Roca
Azul was a Mexican company, it was not subject to a turnover order in the prior
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action. Nonetheless, it had the contractual obligation to pay Nevarez and that its
knowledge of the lien impacted its conduct.
While the court considered the lien prejudicial, and was not "convinced" of the
Romero Defendants' state-of-mind argument, it allowed "a sanitized version" of the
lien stating that the jury could be told that the Romero Defendants were served with a
notice of judgment against Renda in an unrelated case for an undisclosed amount.
During opening statements, the Romero Defendants briefly referred to a lien
they had received against Renda. Buswell later testified that March 24, 2008 was a
very significant day because Blue Rock was served with a "lien . . . stipulating that any
monies that Blue Rock might pay to [Renda] needed to be paid to somebody else."
Thereafter, the Romero Defendants asked that a copy of the lien be admitted into
evidence after the parties agreed upon its form. The court took the request under
submission. The reporter's index of exhibits received into evidence does not include
the lien. Finally, the Romero Defendants briefly referred to their receipt of a lien
during closing argument.
2. Analysis
Renda asserts the lien was irrelevant and inadmissible because (1) the proof of
service for the lien shows that the Romero Defendants were never served with the lien,
(2) the default judgment that was the basis for the lien was vacated, (3) the Romero
Defendants' wrongful actions took place months and years before the lien was ever
issued, and (4) even if the lien was valid, it did not provide a defense or excuse for the
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Romero Defendants conspiring with or aiding and abetting Nevarez in committing
fraudulent transfers.
On this record, we cannot conclude that Buswell's testimony regarding the
Romero Defendants' knowledge of the lien and understanding that monies needed to
be paid elsewhere was unduly prejudicial to Renda. Buswell's testimony regarding the
lien was very brief and counsel merely mentioned the existence of the lien in passing
during closing argument. Moreover, the trial court did not allow the lien to be placed
into evidence and the jury never learned about the amount of the lien. Assuming
without deciding that evidence of the existence of the lien was irrelevant, on this
record, we cannot conclude that Buswell's brief testimony resulted in a miscarriage of
justice. Absent a showing of prejudicial error, we cannot set aside the judgment.
II. Preclusion of "Smell Test" Comment
A. Facts
At the April Hearing, an issue arose as to who owned the property that
contained the mining operation. Counsel for Nevarez suggested to Judge Lewis that
the matter be continued so that he could provide translations of Spanish documents
regarding this issue. The court noted that Nevarez had done nothing to pay her debt
and it expressed concern that Nevarez was "thumbing her nose at the California
judicial system." After Nevarez's counsel indicated it would get the court certified
translations of the documents, the court replied:
"I want evidence. I want competent evidence who owns this
piece of property. I want competent evidence as to the checks
and the monies that have been paid, where that money is
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going. I know that there was a change in the direction of the
check writing by everyone's own admission when Mr. Hirsch's
client got thrown in this judgment debtor's exam and all of a
sudden the payments went through some other source. It does
have a concern and it doesn't pass the smell test, Mr. Bebi."
At trial, Renda requested that the above portion of the April Hearing be
admitted into evidence because the Romero Defendants had taken the position that
Judge Lewis supervised and approved their actions in the underlying case. The court
denied the request as unduly prejudicial.
B. Analysis
Renda asserts the trial court erred in excluding this portion of the April Hearing
as unduly prejudicial. We disagree.
A trial court may, in its discretion, exclude evidence if its probative value is
substantially outweighed by the probability that its admission will create a substantial
danger of undue prejudice. (§ 352.) The court's exercise of its discretion under
section 352 will not be reversed on appeal absent a showing that the exercise of
discretion was arbitrary, capricious or patently absurd, resulting in a manifest
miscarriage of justice. (Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640,
1685.)
As a preliminary matter, looking at the comment in context, it appears that
Judge Lewis made the "smell test" comment regarding Nevarez's actions in not paying
her debt to Renda and not providing evidence regarding who owned the property.
Assuming without deciding that the comment was directed at the conduct of the
Romero Defendants, Renda has failed to explain how excluding this comment was
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arbitrary, capricious or patently absurd, nor has he explained how the exclusion of this
comment resulted in a manifest miscarriage of justice. While Renda appears to claim
that the Romero Defendants defended this action by asserting Judge Lewis sanctioned
or approved their conduct, our review of closing argument does not support this
assertion. Rather, the Romero Defendants argued to the jury that they had no
relationship with Renda, did nothing to conspire with Nevarez or aid and abet her
conduct.
DISPOSITION
The judgment is affirmed. Respondent is entitled to recover its costs on appeal.
MCINTYRE, Acting P. J.
WE CONCUR:
O'ROURKE, J.
AARON, J.
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