Keebler v. Keebler CA4/1

Filed 1/21/21 Keebler v. Keebler 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
EDWARD H. KEEBLER, SR., D075905
Individually and as Trustee, etc. et al.,
Plaintiffs and Respondents,
(Super. Ct. No. 37-2017-
v.
00010382-CU-FR-CTL)
EDWARD KEEBLER, JR.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Richard E.L. Strauss, Judge. Affirmed.
Edward Keebler, Jr., in pro. per., for Defendant and Appellant.
Michael B. Taggart for Plaintiffs and Respondents.
A jury found that Edward Keebler, Jr. (Son) engaged in elder abuse and
fraud against his 84-year-old father, Edward Keebler, Sr. (Father), by
persuading Father to enter into a long-term residential lease with Son on
terms an expert witness characterized as a “con job” and “extremely unfair
and one-sided.” The jury awarded Father $71,800 in damages, and the court
awarded him approximately $60,000 in attorney fees and costs. The trial
court also followed the jury’s advisory verdict and rescinded the lease.
Representing himself on appeal (as he did at trial), Son challenges a
variety of the trial court’s rulings on pleading, evidentiary, and discovery
matters. He also accuses the trial court of exhibiting bias against him.
As we will explain, Son has not met his burden as the appellant to
show—through coherent argument, supported by citations to an adequate
appellate record and pertinent legal authority—that the trial court
committed reversible error. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Background
Father lived in a house in Lakeside that he owned through a trust. In
about 2010, Father (then about 79) let Son (then in his 60’s) move in with
him rent-free so Son could pursue his “lifetime ambition” of writing a book.
According to Father, they “got along great” for the first five years, “[b]ut then
after that, [Son] went bananas” when Father asked him to move out.
Father asked Son to move out in 2015 after Father suffered several
hospitalizations. After the most recent one, Father moved in temporarily
with his other son, Dennis, and Dennis’s wife, Debbie. It was during this
period, when Debbie was helping Father with his bookkeeping, that Father
first learned he had signed a lease with Son. Father surmised Son had
“drugged [him] up” after one of the hospitalizations and presented the lease
for signature when Father did not have his eyeglasses and could not read
what he was signing.
Although the lease itself is not in the appellate record, Father’s expert
witness testified at trial about its terms. There were two earlier versions of
the lease, but the expert focused on the final version, which was recorded
2
with the county recorder. The lease had a 10-year term, with an automatic
10-year extension. The expert opined that although fair market rental value
for a comparable residence would be about $1,200 to $1,500 per month, the
lease provided for monthly rent of only $200, with no cost-of-living increases
during its potential 20-year term. Further, upon Father’s death or attempt to
encumber the property, the rent would decrease to $20 per month. The lease
also required Father to pay more than $300 in monthly utilities, so
“[e]ssentially, the landlord . . . is paying the tenant to stay there.” The expert
opined the lease was “extremely unfair and one-sided,” and was “essentially a
con job” by a person “attempt[ing] . . . to take gross advantage of . . . their
parent.”
Litigation1
In March 2017, Father (individually and on behalf of his trust), Dennis,
and Debbie sued Son. Father asserted causes of action for financial elder
abuse, fraud, intentional misrepresentation, false promise, concealment, and
rescission of the lease. Dennis and Debbie asserted causes of action for
negligent infliction of emotional distress. Neither Dennis nor Debbie
prevailed, and their claims are not at issue in this appeal.
Son filed a cross-complaint against Father, Dennis, and Debbie
asserting causes of action for negligence, negligent infliction of emotional
distress, intentional infliction of emotional distress, breach of the implied
covenant of good faith and fair dealing, malicious prosecution, abuse of
process, and trespass. The cross-defendants filed a demurrer, which the trial
court overruled with respect to the trespass claim, sustained without leave to
1 Although the pertinent pleadings are not in the appellate record, we
have determined from other portions of the record (e.g., verdict forms, minute
orders, etc.) the nature and scope of the parties’ claims.
3
amend as to the malicious prosecution claim, and sustained with leave to
amend as to the remaining claims. However, because Son never amended his
cross-complaint, the only claim on which he proceeded to trial was for
trespass, which he asserted against only Dennis and Debbie.
The pretrial proceedings were contentious. Each side brought various
discovery motions. The parties had difficulty cooperating on pretrial matters.
And the case was stayed temporarily when Son filed for bankruptcy
protection.
The record also shows that while this case was pending, some of the
parties engaged in other related litigation. For example, Father filed two
unlawful detainer cases against Son, but ultimately dismissed them
voluntarily and without prejudice. And Son unsuccessfully sought a domestic
violence restraining order against Dennis. The pertinent pleadings in those
case are referenced in the appellate record in this case, but the documents
themselves are not in the record.
This case ultimately went to trial on April 8-10, 2019. On the first day,
Son, Father, and Dennis testified in Father’s case-in-chief. On the second
day, Father’s expert and Debbie testified in Father’s case-in-chief; Father and
Dennis testified in Son’s trespass case-in-chief; and the trial court instructed
the jury. On the third day, the jury deliberated and returned verdicts. The
appellate record includes a reporter’s transcript only for the second day of
trial.2
2 The reporter’s transcript indicates the jury instructions were not
reported. However, they are included in the clerk’s transcript.
4
The jury found in Father’s favor on his claims for financial elder abuse
and fraud, awarding him damages of $62,400 and $9,400, respectively. The
jury found against Son on his trespass claim.
The jury also returned an advisory verdict on Father’s request for
equitable relief, stating, “We are all in agreement that the lease is invalid.”
The trial court “agree[d] with the jury,” expressly finding Son “was not a
credible witness.” Accordingly, the court rescinded the lease, issued a writ of
possession ordering Son to vacate the property, and directed the parties to
provide the county recorder any documents necessary to nullify the recorded
lease.
The court also awarded Father $48,736.50 in attorney fees and
$11,053.14 in costs. (See Welf. & Inst. Code, § 15657.5, subd. (a) [“Where it is
proven . . . that a defendant is liable for financial abuse, . . . the court shall
award to the plaintiff reasonable attorney’s fees and costs.”].)
DISCUSSION
I. Appellate Principles
“It is a fundamental rule of appellate review that a judgment is
presumed correct and the appealing party must affirmatively show error.”
(In re Marriage of Khera & Sameer (2012) 206 Cal.App.4th 1467, 1484; see
Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 (Jameson).)
To overcome the presumption of correctness, “the appellant must
identify each order that he asserts is erroneous, cite to the particular portion
of the record wherein that ruling is contained, and identify what particular
legal authorities show error with respect to each challenged order.” (County
of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1443 (Smith); Cal. Rules of
5
Court, rule 8.204(a)(1)(B)3 [appellant’s brief must “support each point by
argument”].) “One cannot simply say the [trial] court erred, and leave it up
to the appellate court to figure out why.” (Niko v. Foreman (2006) 144
Cal.App.4th 344, 368 (Niko); see Howard v. American National Fire Ins. Co.
(2010) 187 Cal.App.4th 498, 523 (Howard) [“Conclusory assertions of error
are ineffective in raising issues on appeal.”].)
The appellant must address in its opening brief each claimed error,
under a clearly identified heading. (Rule 8.204(a)(1)(B); Opdyk v. California
Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830, fn. 4 (Opdyk).) The
appellant must also provide an appellate record sufficient to establish error
as to each challenged order. (Jameson, supra, 5 Cal.5th at p. 609.) “ ‘[I]f the
record is inadequate for meaningful review, . . . the decision of the trial court
should be affirmed.’ ” (Gee v. American Realty & Construction, Inc. (2002) 99
Cal.App.4th 1412, 1416 (Gee).)
An appeal is not a second trial. We do not reweigh evidence. (Curcio
v. Pels (2020) 47 Cal.App.5th 1, 12.) We “resolve all factual conflicts and
questions of credibility” in the prevailing party’s favor. (Schild v. Rubin
(1991) 232 Cal.App.3d 755, 762.) And we will affirm the judgment if it is
correct on any theory, regardless of the trial court’s reasoning. (Estate of
Beard (1999) 71 Cal.App.4th 753, 776-777.)
These appellate principles apply with equal force to self-represented
appellants. (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th
1113, 1125-1126.)
3 Undesignated rule references are to the California Rules of Court.
6
II. Denial of Son’s Request for Entry of Default
We quickly dispose of Son’s contention that the trial court erred by
denying his request to enter default when Father filed an allegedly untimely
answer to Son’s cross-complaint. Regardless of whether Father timely filed
his answer, the record shows he did so before Son requested entry of default.
This was sufficient to preclude entering Father’s default. (See Goddard v.
Pollock (1974) 37 Cal.App.3d 137, 141.)
III. Exclusion of Son’s Documents
Son contends the trial court abused its discretion by excluding on
relevance grounds nearly all the documents necessary to defend against
Father’s case and to prosecute his own case for trespass. (See Alexander
v. Community Hospital of Long Beach (2020) 46 Cal.App.5th 238, 258
(Alexander) [“We review a trial court’s rulings on the admissibility of
evidence for abuse of discretion.”].) Son has not met his burden to show
error.
Son’s challenge fails at the outset because he has not identified in the
argument section of his opening brief a single document he contends was
erroneously excluded. (See rule 8.204(a)(1)(B); Opdyk, supra, 34 Cal.App.4th
at p. 1830, fn. 4.) Instead, Son relies on a blanket assertion of error. This is
insufficient to meet his burden on appeal. (See Morgan v. Wet Seal, Inc.
(2012) 210 Cal.App.4th 1341, 1369 [rejecting challenge to “blanket ruling” on
admissibility where the “appellants fail[ed] to identify any specific piece
of . . . evidence that was either erroneously admitted or that caused them
prejudice”]; Cristler v. Express Messenger Systems, Inc. (2009) 171
Cal.App.4th 72, 89-90 [“If the appellant fails . . . even to identify the specific
testimony that was allegedly erroneously admitted, much less craft an
7
argument intended to show why that testimony was both objectionable and
sufficiently prejudicial to warrant reversal, the challenge must fail.”].)
And even if we attempted to discern from other portions of Son’s
briefing which documents he contends the trial court erroneously excluded,
we would likewise conclude Son has not met his burden to show error.
For example, in his statement of facts, Son notes the trial court
“disallowed as . . . irrelevant” the dedication page of the book he wrote, which
“reflects tribute due to [Father] for his assistance.” But Son has not
explained how his book dedication is relevant to this case, or how its
exclusion prejudiced him. (See rule 8.204(a)(1)(B); Smith, supra, 132
Cal.App.4th at p. 1443.) Moreover, it appears from the reporter’s transcript
that the trial court actually excluded the dedication on hearsay grounds (not
relevance), which Son does not address in his briefing.
Son also asserts in his statement of facts that the trial court erred by
excluding on relevance grounds Father’s two unlawful detainer complaints
against Son, which Son maintains “were defeated.” But the record shows
these cases were not, in fact, defeated. Rather, Father voluntarily dismissed
them without prejudice. Moreover, the unlawful detainer complaints are not
in the appellate record, so we are unable to evaluate their relevance to this
case. (See Jameson, supra, 5 Cal.5th at p. 609; Gee, supra, 99 Cal.App.4th at
p. 1416.)
Again in his statement of facts, Son states, “Another document, a
complaint to the HHS for elder abuse was filed by the Keebler’s [sic] but
determined to be unfounded. This document was also considered irrelevant.”
This is the sum total of Son’s discussion of this document, which is not in the
appellate record. Without providing the document, coherent argument, or
pertinent legal authority, Son has not met his burden to show prejudicial
8
error. (See Howard, supra, 187 Cal.App.4th at p. 523; Smith, supra, 132
Cal.App.4th at p. 1443; Niko, supra, 144 Cal.App.4th at p. 368.)
IV. Motions in Limine
Son contends the trial court erred by granting Father’s two motions in
limine—one to exclude evidence of Father’s counsels’ state bar discipline
records, and the other to exclude testimony from two witnesses pertaining to
their relationship with Father and ownership of a vehicle. As we will
explain, the court did not abuse its discretion in granting either motion. (See
Alexander, supra, 46 Cal.App.5th at p. 258.)
1. Attorney Discipline
Father moved in limine to exclude any evidence or argument pertaining
to the state bar disciplinary records of either of Father’s two trial attorneys.
Father argued that because neither of the attorneys were “parties to the
litigation nor are expected to testify at trial,” any evidence regarding their
history of professional discipline would “have no probative value or
relevancy” to any of the claims in the litigation.
The appellate record includes neither a written opposition to this
motion by Son, nor a reporter’s transcript of the relevant hearing. A minute
order shows the trial court granted the motion.
The record substantiates Father’s arguments to the trial court. First,
neither of Father’s attorneys was a party to either the complaint or cross-
complaint. Second, neither attorney is listed on the parties’ joint witness list.
Based on this showing, the trial court did not abuse its discretion in
excluding evidence regarding the attorneys’ professional discipline records.
Son argues the past history of one of Father’s attorneys “was relevant
in that his criminal acts were consistent with his actions during trial and
should have been exposed to the jury.” He argues such evidence was
9
admissible as prior bad acts under Evidence Code section 1101, subdivision
(b). But Son has not shown that he ever made this argument to the trial
court, as he must have to have preserved the issue for appeal. (See Shaw v.
County of Santa Cruz (2008) 170 Cal.App.4th 229, 282 (Shaw) [“a proponent
of evidence [who] does not assert a particular ground of admissibility
below . . . is precluded from arguing on appeal that the evidence was
admissible under a particular theory”]; A.G. v. C.S. (2016) 246 Cal.App.4th
1269, 1289 (A.G.) [“ ‘ “[A] party cannot argue the court erred in failing to
conduct an analysis it was not asked to conduct” [citation.]’ ”].) Nor has Son
explained how his opposing counsel’s discipline records relate to the parties’
claims.
2. Witness Testimony
Father also moved in limine to preclude two potential witnesses,
Constanze and Benno Rayhrer, from testifying about “their relationship with
[Father] or the ownership” of a specific pickup truck. Father argued their
testimony on these topics was irrelevant, and that the truck-ownership issue
had already been resolved adversely to Son in a domestic violence restraining
order proceeding involving Son and Dennis.4
The appellate record includes neither a written opposition to this
motion by Son, nor a reporter’s transcript of the relevant hearing. A minute
order shows the trial court granted the motion.
4 Father attached to his motion in limine an excerpt from the reporter’s
transcript of the restraining order hearing at which the court found Son had
“not proven by the preponderance of the evidence that that vehicle, in fact,
was his lawfully owned vehicle.” The court also found Dennis was “much
more credible than” Son.
10
Son has not established that the trial court abused its discretion in
granting the motion. Although Son addresses the truck-ownership issue in
his briefing (essentially claiming Father stole the truck from Son), he never
explains how it is relevant to Father’s claims against Son, or Son’s trespass
claims against Dennis and Debbie. (See Smith, supra, 132 Cal.App.4th at
p. 1443; rule 8.204(a)(1)(B).) Thus, Son has not met his burden to show the
trial court erred by excluding testimony on this subject on relevance
grounds.5
Nor has Son explained how the trial court erred in excluding the
Rayhrers’ testimony about “their relationship with [Father].” Son argues
these witnesses “would have been able to offer positive character references
for [Son].” (Italics added.) But the court did not preclude these witnesses
from testifying about their relationship with Son; it precluded them only from
testifying about their relationship with Father.
Son also asserts Constanze Rayher “is a respected teaching surgeon”
who “would have been able to offer a medical opinion on the drugging
allegation which is at the core of [Father]’s complaint.” But Son has not
shown that he preserved this argument for appeal by first raising it in the
trial court. (See Shaw, supra, 170 Cal.App.4th at p. 282; A.G., supra, 246
Cal.App.4th at p. 1289.) Nor did Son designate this witness as an expert—
she is listed only as a percipient witness in both the joint trial readiness
conference report and the joint trial witness list. (See Code Civ. Proc.,
§ 2034.300 [authorizing exclusion of undisclosed expert witnesses].)
5 Based on this conclusion, we need not determine whether the trial
court also properly excluded the testimony on res judicata grounds.
11
Son raises in his reply brief several additional topics he contends the
Rayhrers could have testified about (e.g., the condition of Father’s residence,
Father’s credibility). But for “ ‘[o]bvious reasons of fairness,’ ” issues “ ‘raised
for the first time in a reply brief will ordinarily not be considered, because
such consideration would deprive the respondent of an opportunity to counter
the argument.’ ” (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.)
Additionally, the record does not indicate whether Son ever raised these
grounds in the trial court, as required. (See Shaw, supra, 170 Cal.App.4th at
p. 282; A.G., supra, 246 Cal.App.4th at p. 1289.)
V. Discovery Issues
Son contends the trial court deprived him of the opportunity to conduct
discovery by denying his motion to compel and imposing $1,500 in sanctions,
and by “den[ying] a fee waiver for the purpose of deposing witnesses.” Son
has not met his burden with respect to either claim.
Son has not met his burden with respect to the motion to compel
because he has neither included the subject motion in the appellate record,
nor explained how the trial court erred by denying the motion and imposing
sanctions. (See Jameson, supra, 5 Cal.5th at p. 609; Niko, supra, 144
Cal.App.4th at p. 368.)
In our independent review of the appellate record, we found only one
ruling regarding a motion to compel filed by Son. In it, the trial court denied
Son’s motion and ordered him to pay $1,500 in sanctions because he failed to
support his motion with “a separate statement in compliance with . . . rule
3.1345(a).”6 These rulings were “well within the trial court’s discretion.”
6 This rule requires the moving party on most discovery motions to
support the motion with a separate statement “that provides all the
information necessary to understand each discovery request and all the
responses to it that are at issue. The separate statement must be full and
12
(Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893 [when a party fails to
provide the required separate statement, the trial court is “well within its
discretion to deny the motion to compel discovery on that basis”]; see St.
Mary v. Superior Court (2014) 223 Cal.App.4th 762, 778; Code Civ. Proc.,
§ 2031.300, subd. (c) [requiring the losing party on a motion to compel to pay
sanctions unless the court finds that party “acted with substantial
justification or that other circumstances make the imposition of the sanction
unjust”].)
As for the fee-waiver issue, we are unable to determine the nature of
Son’s claim. He has failed to support the claim with citations to any evidence
in the appellate record—including to his request or the trial court’s allegedly
erroneous order—any authority, or any legal argument. Thus, he has not
met his burden of showing prejudicial error. (See Jameson, supra, 5 Cal.5th
at p. 609; Howard, supra, 187 Cal.App.4th at p. 523; Niko, supra, 144
Cal.App.4th at p. 368; Smith, supra, 132 Cal.App.4th at p. 1443; rule
8.204(a)(1)(B).)
VI. Judicial Bias
Son contends the trial court exhibited “undue bias and favor toward
plaintiffs” (capitalization omitted) by (1) giving biased jury instructions, (2)
allowing Father’s counsel to “ ‘reorganize[]’ ” the joint trial notebook so that
Son’s exhibits were “ ‘out of sorts’ ”; (3) apologizing to plaintiffs for a delay in
proceedings; and (4) interposing objections while Son was cross-examining
witnesses and giving his closing argument. We conclude Son forfeited these
claims by failing to raise them in the trial court. And even if he had not
forfeited them, we would conclude Son has not met his burden to show bias.
complete so that no person is required to review any other document . . . .”
(Rule 3.1345(c).)
13
“As a general rule, judicial misconduct claims are not preserved for
appellate review if no objections were made on those grounds at trial.”
(People v. Sturm (2006) 37 Cal.4th 1218, 1237; see Moulton Niguel Water
Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1218 [defendants “did not
preserve their claim of judicial bias for review because they did not object to
the alleged improprieties and never asked the judge to correct remarks made
or recuse himself”]; Tri Counties Bank v. Superior Court (2008) 167
Cal.App.4th 1332, 1337-1339.) “However, a [party]’s failure to object does not
preclude review ‘when an objection and an admonition could not cure the
prejudice caused by’ such misconduct, or when objecting would be futile.”
(Sturm, at p. 1237.)
Son has not preserved his claims of judicial bias for appellate review
because the record does not show that he ever objected on such grounds in
the trial court. Nor has Son argued or established that doing so would have
been futile. Thus, Son has not preserved these claims for appellate review.
But even if he had preserved these claims, we would conclude Son has
not met his burden to show bias.
Son’s claim regarding biased jury instructions would fail because Son
has not identified a single instruction he contends was biased. Indeed, it is
unlikely he could do so inasmuch as the only instructions in the appellate
record are CACI pattern instructions approved by the Judicial Council of
California.7
7 To the extent Son claims the instructions were erroneous, as opposed to
biased, the claim would fail because Son has not supported it with a
reporter’s transcript or an agreed or settled statement of the challenged
instructions, as required. (See Null v. City of Los Angeles (1988) 206
Cal.App.3d 1528, 1532 [claim of instructional error rejected where “the
14
Son’s claim that Father’s counsel improperly reorganized the trial
notebook would fail for at least two reasons. First, Son has not cited any
evidence in the appellate record indicating it actually occurred. (See Smith,
supra, 132 Cal.App.4th at p. 1443.) To the contrary, Son’s only citation to the
record in support of this claim is to an instance during trial where Son
referred to an exhibit by the wrong number.8 Second, even if it occurred, Son
has not explained how opposing counsel’s reorganization of the joint trial
notebook would constitute judicial bias.
Son’s claim that the court exhibited bias by apologizing to the plaintiffs
for a delay in proceedings would fail because no such incident appears in the
appellate record. (See Jameson, supra, 5 Cal.5th at p. 609.) And, even if it
did occur, Son has not explained how a single apology for a delay in
proceedings would constitute judicial bias. (See Howard, supra, 187
Cal.App.4th at p. 523; Niko, supra, 144 Cal.App.4th at p. 368; Smith, supra,
132 Cal.App.4th at p. 1443; rule 8.204(a)(1)(B).)
Finally, Son’s claim that the court exhibited bias by objecting during
his examination of witnesses and closing argument would fail because Son
has neither provided an appellate record showing it ever occurred (see
Jameson, supra, 5 Cal.5th at p. 609), nor explained how it would constitute
judicial bias if it had occurred (Smith, supra, 132 Cal.App.4th at p. 1443; rule
8.204(a)(1)(B); see also People v. White (1954) 43 Cal.2d 740, 747 [trial courts
reporter’s transcript fails to reflect the content of the challenged special
instructions”]; rule 8.120(b).)
8 Specifically, Son referred during trial to a rent-payment receipt as
Exhibit 3, when the receipt was listed as Exhibit 5 in the parties’ joint trial
readiness conference report (filed three months before trial) and the joint
trial exhibit list.
15
may object to improper questions]; Arave v. Merrill Lynch, Pierce, Fenner &
Smith, Inc. (2018) 19 Cal.App.5th 525, 541 [“ ‘ “[A] trial court’s numerous
rulings against a party—even when erroneous—do not establish a charge of
judicial bias, especially when they are subject to review” ’ ” on appeal].)
DISPOSITION
The judgment is affirmed. Appellant to pay Respondents’ costs on
appeal.
HALLER, J.
WE CONCUR:
BENKE, Acting P. J.
O'ROURKE, J.
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