Rex v. Pelegrin CA2/3 ( 2021 )

Filed 2/3/21 Rex v. Pelegrin CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
ANNE REX, B297291
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. BC615555
v.
LAURA ANN PELEGRIN,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Anthony Mohr, Judge. Affirmed.
Cliff Dean Schneider for Plaintiff and Appellant.
Slaughter, Reagan & Cole, William M. Slaughter,
Jonathan D. Marshall and Gabriele M. Lashly for Defendant
and Respondent.
_________________________
Plaintiff Anne Rex sued defendant Laura Ann Pelegrin,
asserting contract and malicious prosecution claims stemming
from economic disputes that arose after the parties ended their
romantic relationship. The claims were tried to the court, which
rendered a judgment in favor of Pelegrin under Code of Civil
Procedure section 631.8.1 Rex appeals the judgment. She argues
the trial court erroneously excluded a witness’s testimony and
made excessive sua sponte objections. Rex fails to demonstrate
prejudicial error. We affirm.
FACTS AND PROCEDURAL BACKGROUND
Consistent with our standard of review, we state the
facts in the light most favorable to the judgment, indulging all
presumptions and drawing all reasonable inferences in its favor.
(Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 140 (Tusher).)2
Rex and Pelegrin began a romantic relationship in 1987,
interrupted by several separations.
1 Statutory references are to the Code of Civil Procedure,
unless otherwise designated. Section 631.8 authorizes the trial
court, as trier of the facts in a bench trial, to weigh the evidence
and render a judgment for the moving party after the other party
has completed its presentation of the evidence.
2 Rex did not request a statement of decision as required
under sections 631.8 and 632. We are therefore bound by the
doctrine of implied findings to presume the trial court made all
factual findings necessary to support the judgment. The only
issue, as relates to the facts, is whether substantial evidence
supports those findings. (Tusher, supra, 68 Cal.App.4th at
p. 140; Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th
229, 267.)
2
In 1995, Pelegrin purchased a house on Hillcroft Road
in Glendale, California (the Hillcroft House).
On December 20, 1995, Rex and Pelegrin executed
a Cohabitation Agreement for “the following reasons and
with reference to the following facts:
“WHEREAS, the parties to this
Agreement are now persuaded to enter into the
relationship of life partners by their love and
affection for one another and their desire to live
together in a state of mutual harmony; and
“WHEREAS, the parties to this
Agreement, in the interests of mutual
understanding, intend and desire to define
their respective rights in the property of the
other, and to avoid such interests which, except
for the operation of this agreement, they might
acquire in the property of the other as incidents
of their relationship; and
“WHEREAS, the parties desire that
all property owned by either of them and
additional property of whatsoever nature and
wheresoever located which comes to either of
them from any source during their relationship
shall be and remain their respective separate
property; and
“WHEREAS, the parties are purchasing
together a single family residence located at
[the Hillcroft House’s address].”
Regarding the Hillcroft House, the Cohabitation Agreement
provides “the parties shall own [it] together as joint tenants” and
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establish a “joint bank account” for household expenses and
mortgage payments. Apart from this joint account, the parties
agreed they would “each maintain separate individual accounts.”
The Cohabitation Agreement contains reciprocal covenants
protecting the parties’ separate property interests. The covenant
protecting Pelegrin’s property, which is mirrored in a separate
covenant protecting Rex’s property, states: “Rex covenants and
agrees that all property now owned by Pelegrin of whatsoever
nature and wheresoever located and any property which she
may hereafter acquire, whether real, personal or mixed, and
all earnings, salaries, commissions or income resulting from
her personal services, skills and efforts shall be and remain her
sole and separate property to use and dispose of as she sees fit.”
In April 2002, Pelegrin purchased a house on Caleb Street
in Glendale, California (the Caleb House). Pelegrin took title
to the property in her name alone, as reflected in a recorded deed
listing sole ownership by “LAURA PELEGRIN, a Single Woman.”
The same year, Rex and Pelegrin ended their romantic
relationship and sold the Hillcroft House.
In 2005, Rex and Pelegrin rekindled their relationship, and
decided Rex would sell her home and move into the Caleb House
with Pelegrin. Before selling her home, Rex emailed an attorney
whose office had prepared the Cohabitation Agreement to consult
the attorney about “necessary documents that a simple marriage
certificate would cover.” In her email, Rex noted “we never
altered any of the original documents you filed for us in 1995.”
The attorney replied, “I expect that the cohabitation agreement
I did for you in ’95 is still good, since you never revoked it.”
In September 2014, Rex and Pelegrin met with a therapist
to discuss their deteriorating relationship. At the therapist’s
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suggestion, the parties agreed Rex would pay a “small amount
of rent” to Pelegrin in October, November, and December 2014
for her tenancy in the Caleb House, and, at the end of the year,
Rex would move out. Rex made the rent payments, but when she
did not vacate the property in December 2014, Pelegrin raised
her rent to $1,200 per month. Rex paid the January 2015 rent,
but failed to make any further rent payments.
In May 2015, Pelegrin served Rex with a three-day notice
to quit or pay rent. When Rex refused to pay or to move out,
Pelegrin initiated unlawful detainer proceedings. In July 2015,
the unlawful detainer court ruled against Pelegrin, finding there
was “weak or inconsistent testimony on the existence of a lease
or rental agreement between the parties,” including whether
“there was an agreement to lease only a portion of the premises
or the entire home.” Thus, the court held Pelegrin could not
prevail on a three-day notice to pay rent or quit, but observed
she could “proceed on a 60-day notice to quit without necessarily
addressing whether it is based on an invitee tenant or other
status.”
Pelegrin filed a second unlawful detainer action based on a
60-day notice. In August 2015, before the action could go to trial,
Rex moved out.
On March 30, 2016, Rex filed this action against Pelegrin.
Her operative complaint asserts claims for (1) breach of pooling
agreement; (2) breach of express contract; (3) breach of implied
in fact contract; (4) quiet title; and (5) wrongful use of civil
proceedings. The first and second causes of action were based
on an alleged “oral agreement” between Rex and Pelegrin to treat
their earnings and all acquired property as “joint property”
following the rekindling of their relationship in March 2005.
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The third cause of action was based on an alleged “implied
understanding” that Rex would devote her skills and efforts to
“maintaining REX and PELEGRIN’s relationship,” in exchange
for which Pelegrin would “provide financial security, aid and
assistance to REX and divide the financial estate owned by
the parties.” The fourth cause of action alleged “the parties
considered themselves to be equal owners of the Caleb Street
property, regardless of how title was held, as a result of the
labor and monetary contributions made to the property by REX.”
And the fifth cause of action alleged Pelegrin filed the first
unlawful detainer action without “reasonable grounds” and “for
a purpose other than succeeding on the merits of the claim.”
In March 2019, Rex, representing herself in propria
persona, tried her claims to the court. After Rex concluded
her presentation of evidence, Pelegrin moved for judgment
under section 631.8.
The trial court granted judgment for Pelegrin. With
respect to the contract claims, the court found there was little
or no evidence of a pooling agreement, express oral contract, or
an implied contract. And the court concluded the Cohabitation
Agreement proved, contrary to Rex’s claims, the parties had
agreed to keep their respective assets separate, including all
property acquired after execution of the agreement. The court
also found title to the property was solely held in Pelegrin’s name
and there was no clear and convincing evidence that Rex had any
interest in the property. As for the wrongful use of civil process
claim, the court found evidence of Rex writing Pelegrin rent
checks disproved the allegation that Pelegrin initiated the
unlawful detainer action without probable cause, and, in any
event, there was no evidence of malice “at all.”
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On March 27, 2019, the court entered judgment in favor
of Pelegrin. Rex did not request a statement of decision. She
filed a timely notice of appeal from the judgment.
DISCUSSION
Rex challenges the judgment on two grounds. First, she
contends the trial court erred when it excluded the testimony
of one of Rex’s witnesses, Kelli Benson, as cumulative under
Evidence Code section 352. Second, she argues the court
“excessively sustained its own sua sponte objections” to Rex’s
examination of witnesses. Rex has not established prejudicial
error on either ground.
1. Rex Fails to Establish Benson’s Testimony Would
Have Produced a More Favorable Outcome
Evidence Code section 352 grants the trial court discretion
to exclude evidence if its probative value is substantially
outweighed by the probability that its admission will necessitate
undue consumption of time. This discretion extends to the
exclusion of cumulative evidence. (Horn v. General Motors Corp.
(1976) 17 Cal.3d 359, 371 (Horn), citing Evid. Code, § 352.) We
review the court’s decision to exclude cumulative evidence for
an abuse of discretion. (Nevarez v. Tonna (2014) 227 Cal.App.4th
774, 785; Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th
876, 881 [“Abuse of discretion is a deferential standard of
review.”].)
Even when a trial court errs, we may reverse its judgment
only if the error resulted in a miscarriage of justice. (Cal. Const.,
art. VI, § 13 [“No judgment shall be set aside, or new trial
granted, . . . unless, after an examination of the entire cause,
including the evidence, the court shall be of the opinion that
the error complained of has resulted in a miscarriage of justice.”];
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Code Civ. Proc., § 475; Colaco v. Cavotec SA (2018) 25
Cal.App.5th 1172, 1196–1197.) “ ‘[A] “miscarriage of justice”
should be declared only when the court, “after an examination
of the entire cause, including the evidence,” is of the “opinion”
that it is reasonably probable that a result more favorable to
the appealing party would have been reached in the absence of
the error.’ ” (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780,
800 (Cassim).)
Before trial, Rex filed a witness list with a brief description
of each witness’s proposed testimony. One of those witnesses was
Kelli Benson, a family friend whose proposed testimony included
“the work Rex performed on the Caleb home,” “Pelegrin’s
constant badgering demanding rent from Rex,” and “Pelegrin’s
egregious treatment/harassment” of Rex. The list had other
witnesses as well, such as Rex’s sister, Nancy Rex, and two
other family friends, Julie Alvarez and Michelle Bentcliff,
whose proposed testimony included the same matters.
At the end of the third day of trial, after Nancy Rex,
Alvarez, and Bentcliff had all testified, Rex indicated she
intended to call Benson the next morning. According to Rex’s
offer of proof, Benson would testify Rex and Pelegrin called each
other wife and spouse, Rex made upgrades to the Caleb House,
and Rex and Pelegrin had been cohabitating. The trial court
determined Benson’s proposed testimony was cumulative
and excluded it, subject to Rex making a written offer of proof
showing Benson could testify to other matters. Rex did not
make a written offer.
Rex argues the evidentiary ruling was an abuse of
discretion. Citing the proposed testimony described in her
witness list (not her oral offer of proof to the trial court), Rex
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emphasizes Benson was “expected to testify to ‘Pelegrin’s
constant badgering demanding rent from Rex,’ ” and Rex
maintains this testimony was relevant to her cause of action
for wrongful use of civil proceedings. Specifically, Rex argues
Benson’s testimony would have proved “Pelegrin had no probable
cause to believe there was . . . a landlord-tenant relationship
between Rex and Pelegrin[,] despite the fact that [Rex] had
written rent checks.”
Critically, Rex does not dispute that Benson’s proposed
testimony was cumulative. Indeed, in her opening brief, Rex
acknowledges she herself “testified that Pelegrin had consistently
demanded rent and that [Rex] only wrote th[o]se checks because
her family told her to.” The record shows Nancy Rex likewise
testified that Pelegrin had demanded rent checks from Rex. This
alone is sufficient to conclude the trial court reasonably exercised
its discretion under Evidence Code section 352. (Horn, supra,
17 Cal.3d at p. 371 [“ ‘[T]he exclusion of evidence which has only
a cumulative effect will not justify reversal on appeal.’ ”]; People
ex rel. Department of Public Works v. Donovan (1962) 57 Cal.2d
346, 357 [where additional evidence is “merely cumulative,”
“there is no abuse of discretion in disallowing it”]; Pauly v. King
(1955) 44 Cal.2d 649, 661 [same].)
Rex also fails to demonstrate the admission of Benson’s
proposed testimony would have produced a more favorable result.
As the trial court recognized, and Rex acknowledges in her
opening brief, Rex’s “wrongful use of civil proceedings” cause of
action was in essence a malicious prosecution claim. To prevail
on this claim, Rex had to prove Pelegrin’s unlawful detainer
action “(1) was commenced by or at the direction of [Pelegrin] and
was pursued to a legal termination in [Rex’s] favor [citations];
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(2) was brought without probable cause [citations]; and (3) was
initiated with malice [citations].” (Bertero v. National General
Corp. (1974) 13 Cal.3d 43, 50.) After examining the entire record,
we cannot say it is reasonably probable that Benson’s testimony
would have had any tangible effect on the trial court’s reasons
for rejecting this claim. (See Cassim, supra, 33 Cal.4th at p. 800.)
The trial court found Rex’s evidence—that Rex wrote rent
checks because Pelegrin demanded rent—failed to prove Pelegrin
lacked probable cause to bring the unlawful detainer action.
Rex argues Benson’s testimony would have shown Pelegrin was
“constantly badgering Rex for rent,” which, combined with “Rex’s
testimony that she only wrote rent checks because her family
told her to pay rent to ease tension,” would have proved “Pelegrin
did not have probable cause to believe there was a landlord-
tenant relationship.” We disagree.
In resolving the question of probable cause, the trial court
correctly focused on what Pelegrin—not Rex—reasonably believed
about the landlord-tenant relationship when she instituted the
unlawful detainer action. (See Sheldon Appel Co. v. Albert &
Oliker (1989) 47 Cal.3d 863, 878 [“[T]he probable cause element
calls on the trial court to make an objective determination of
the ‘reasonableness’ of the defendant’s conduct, i.e., to determine
whether, on the basis of the facts known to the defendant, the
institution of the prior action was legally tenable.”].) Regardless
of Rex’s reasons for writing the rent checks, the evidence showed
Rex stayed in Pelegrin’s home, paid Pelegrin rent, and did not
vacate the property when Pelegrin asked. Pelegrin testified Rex
agreed to pay rent in September 2014, and the evidence showed
Rex did in fact pay rent for October, November, and December
2014, as well as January 2015. Although the unlawful detainer
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court determined Pelegrin did not meet her burden of proof,
the court did not indicate she lacked reasonable grounds to
believe in the merits of her action. On the contrary, the court
suggested Pelegrin could proceed with an eviction on a 60-day
notice. After Pelegrin issued a 60-day notice and initiated a
second unlawful detainer action, Rex moved out. In view of
this record, we cannot say it is reasonably probable that Benson’s
cumulative testimony about Pelegrin “badgering” Rex for rent
would have changed the trial court’s resolution of the probable
cause issue.
2. Rex Fails to Demonstrate the Trial Court’s Sua
Sponte Objections Were Erroneous or Prejudicial
Rex contends the trial court “excessively made sua sponte
objections” during her witness examinations. However, she
does not argue any of the objections lacked merit, nor does
she demonstrate how they prejudiced the outcome of the trial.
Absent prejudicial error, no judgment may be reversed on appeal.
(See Cal. Const., art. VI, § 13; see also Code Civ. Proc., § 475.)
The trial court has broad authority and a statutory duty
to control trial proceedings, including the introduction and
exclusion of evidence. (Evid. Code, §§ 320, 352.) Evidence Code
section 765, subdivision (a) directs the trial court to “exercise
reasonable control over the mode of interrogation of a witness
so as to make interrogation as rapid, as distinct, and as effective
for the ascertainment of the truth, as may be, and to protect
the witness from undue harassment or embarrassment.”
Because the trial court has the power and the duty to exclude
inadmissible, cumulative, or unduly prejudicial evidence, “[i]t
is well established that where questions are asked which are
improper, the court acts within the scope of its duty in refusing to
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allow them to be answered, even though no objection [is] made.”
(People v. White (1954) 43 Cal.2d 740, 747; see also San Lorenzo
Valley Community Advocates for Responsible Education v. San
Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356,
1420.) It is only when the court abuses this discretion “ ‘in such
manner as to prevent a full and fair opportunity to the parties
to present all competent, relevant, and material evidence bearing
upon any issue properly presented for determination’ ” that
reversal is warranted. (Elkins v. Superior Court (2007) 41
Cal.4th 1337, 1357 (Elkins).)
Rex broadly complains the trial court made at least five
sua sponte objections during Alvarez’s examination, at least
seven objections during Karaffa’s examination, and at least 11
objections during her examination of Pelegrin. But Rex does
not argue the court’s objections were without merit, nor does
she contend they deprived her of a full and fair opportunity to
present all competent, relevant, and material evidence bearing
upon her claims. Instead, Rex maintains the court’s “sua sponte
objections, whether correct or not, abused the trial court’s
discretion by appearing biased against Rex.” The contention
has no merit.
We have independently reviewed the record and are
satisfied the trial court even-handedly enforced the rules of
evidence without depriving either party of a fair hearing. (See
Elkins, supra, 41 Cal.4th at p. 1357.) The trial court has a duty
to ensure both a fair hearing and to avoid the appearance of
being allied with one party over another. (See, e.g., People v.
Sturm (2006) 37 Cal.4th 1218, 1242.) However, a numerical
disparity between sua sponte interventions by a trial court does
not on its own constitute misconduct. (See id. at pp. 1241–1242.)
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This is especially true in a bench trial, where there is no concern
that the trial judge’s intervention will lend credibility to or cast
doubt on one side or the other. (Cf. id. at p. 1237 [“Trial judges
‘should be exceedingly discreet in what they say and do in the
presence of a jury lest they seem to lean toward or lend their
influence to one side or the other.’ ”].) When we review the trial
court’s sua sponte objections, either separately or together, we
find nothing to create the impression the court was allying itself
with Pelegrin, and “we perceive nothing that crossed the line into
improper behavior.” (People v. Carpenter (1997) 15 Cal.4th 312,
353, superseded by statute on another ground as noted in Verdin
v. Superior Court (2008) 43 Cal.4th 1096, 1106.)3
DISPOSITION
The judgment is affirmed. Defendant Laura Ann Pelegrin
is entitled to costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
LAVIN, Acting P. J. DHANIDINA, J.
3 Pelegrin invites us sua sponte to impose sanctions against
Rex and her attorney for pursuing a frivolous appeal. (§ 907.)
We decline to do so.
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