Nathan v. Mira CA2/5

Filed 5/5/23 Nathan v. Mira CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FIVE
ERICK NATHAN, B307440
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC637371)
v.
JORGE MIRA,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of the
County of Los Angeles, Stuart M. Rice, Judge. Affirmed.
Erick Nathan, self-represented litigant, for Plaintiff and
Appellant.
Law Office of Martin L. Horowitz, Martin L. Horowitz, for
Defendant and Respondent.
I. INTRODUCTION
Plaintiff Erick Nathan sued defendant Jorge Mira alleging
breach of an oral agreement to acquire two commercial properties
on behalf of their joint venture. Following a bench trial, the court
granted judgment in favor of defendant. On appeal, plaintiff
contends the court abused its discretion when it denied his
request to call an available rebuttal witness and his subsequent
request to continue the trial based on the unavailability of two
witnesses. We affirm.
II. BACKGROUND
A. The Action
Plaintiff commenced this action against defendant in
October 2016 and filed the operative second amended complaint
on August 17, 2017, asserting six causes of action for: (1) breach
of oral contract; (2) fraud; (3) breach of the implied covenant of
good faith and fair dealing; (4) tortious breach of the implied
covenant of good faith and fair dealing; (5) conversion; and
(6) constructive trust.
The action proceeded to a bench trial in December 2019.
Plaintiff’s initial trial estimate for his case was two to three days
and defendant estimated his case would take one day. Trial
began on December 10, 2019, with the presentation of plaintiff’s
case1 and continued on December 11, 12, 17, and 18. On
1 Plaintiff called defendant, Yuval Bar-Zemer, and Gina
Labellarti to testify on December 10, 2019. There is, however, no
reporter’s transcript or suitable substitute, such as a settled or
2
December 18, 2019, the trial court granted defendant’s motion for
nonsuit under Code of Civil Procedure section 631.8 (section
631.8) as to the second, fourth, and fifth causes of action.
Defendant then presented his case on December 18 and 23, 2019.
B. Trial Evidence2
Plaintiff was a hardwood flooring contractor and defendant
owned a glass glazing company. Prior to the dispute that gave
rise to this action, they shared commercial space located on
Imperial Street.
When defendant learned that his lease at the Imperial
Steet location was ending, he approached plaintiff about
purchasing a property together as equal-share partners. Because
plaintiff could not afford to be an equal-share partner, he
proposed to take a 25 percent share in the property. He drafted a
agreed upon statement, of the testimony from that date. The
record does include a reporter’s transcript of the remaining trial
proceedings.
2 In his opening brief, plaintiff does not challenge the
sufficiency of the evidence in support of the trial court’s factual
findings on the formation of and performance under the alleged
joint venture agreement. In his reply brief, plaintiff seems to
challenge the court’s finding that the parties did not have a
meeting of the minds sufficient to form a contract. We do not,
however, consider arguments raised for the first time in a reply
brief. (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295,
fn. 11.) Except where necessary for our analysis, we recite the
facts as found by the court’s statement of decision and supported
by the record. (Rael v. Davis (2008) 166 Cal.App.4th 1608, 1617.)
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writing that summarized the proposal, but defendant never
signed it.
In August 2012, defendant purchased two adjoining
commercial properties (the properties) in Los Angeles for
$700,000. Defendant had prequalified for a $1,000,000 loan
based on his company’s financial documentation and tax returns.
Defendant also had sufficient available cash for the $5,000
deposit and the $70,000 down payment. And, he paid all of the
necessary costs for the loan, including the environmental
assessment, appraisal, and escrow fees. The documents for the
purchase money mortgage were in defendant’s name only, and, at
the close of escrow, he took title to the property in his name
alone. Defendant therefore maintained that he did not enter into
a partnership with plaintiff to purchase the properties. Instead,
he leased a portion of the properties to plaintiff.
According to plaintiff, prior to the purchase of the
properties, he and defendant entered into an oral agreement to
acquire the properties and grant plaintiff a 25 percent ownership
interest. Plaintiff did not take title to the properties or
participate in the escrow because he “had a federal tax lien
against [his] name, and if [he would have been] on title, the IRS
would have liened the propert[ies].”
Plaintiff claimed, within three months of moving into the
properties, his ownership interest in the partnership changed
after he discovered that he was “utilizing” only 13 percent of the
properties. He therefore told defendant that his ownership
interest, and corresponding responsibilities toward the
partnership, would be reduced from 25 to 13 percent. Defendant
agreed. But no writing reflecting that change was prepared or
signed.
4
As evidence of his ownership interest in the properties,
plaintiff claimed that he made a $20,000 monetary contribution
to the down payment on the properties in the form of a payment
made by a third-party—LC 2121 LLC (LC 2121)—to defendant’s
company—Altered Glass—on July 12, 2012.3 Plaintiff also paid
the seller of the properties $5,000 above the selling price in order
“to make the deal continue.”
Plaintiff called Bar-Zemer, the owner of LC 2121,4 to
corroborate his $20,000 contribution to the venture. Bar-Zemer
testified that he hired both plaintiff and defendant to work on a
construction project and that, at plaintiff’s request, he sent
$20,000 that he owed to plaintiff directly to defendant’s company,
Altered Glass.5 But there was no documentation, such as
invoices for work performed, IRS 1099 forms, or lien releases, to
corroborate the nature and purpose of the transaction.
Defendant assumed the $20,000 check from Bar-Zemer was
for work Altered Glass performed on behalf of LC 2121.
Therefore he did not place the $20,000 directly into the escrow for
3 A copy of the check was introduced as an exhibit at trial
but it is not included in the record on appeal.
4 As noted, there is no reporter’s transcript or suitable
substitute of Bar-Zemer’s direct testimony and a portion of his
cross-examination. Our recitation of the trial evidence therefore
includes only the latter part of his cross-examination that was
transcribed.
5 Plaintiff testified that LC 2121 owed him $20,000 for
flooring work his company performed and he asked Bar-Zemer to
send that amount directly to Altered Glass to expedite his
contribution into the purchase escrow for the properties.
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the properties, but instead deposited that sum in his corporate
account and paid taxes on it.
The parties agreed that when defendant decided to sell the
properties in 2014, he offered plaintiff $75,000. Plaintiff claimed
it was for his joint venture interest in the properties, but
defendant explained that it was offered as an incentive payment
to ensure that plaintiff would timely vacate the premises at close
of escrow. Plaintiff rejected the offer and moved from the
properties, at which point defendant lost track of his
whereabouts. Defendant sold the properties that year for $1.5
million.
C. Request to Call Rebuttal Witness and for Continuance
When defendant rested on the afternoon of
December 23, 2019, plaintiff requested leave to call a rebuttal
witness, Lino Nadora, who, according to plaintiff’s counsel, was
the current accountant for LC 2121. As an offer of proof, counsel
stated that although the witness did not work at LC 2121 in 2011
or 2012, he could provide evidence of “the payments made on [LC
2121’s] contract [with defendant] in addition to the extra
$20,000.” Defense counsel objected on the grounds that the
proffered testimony was not proper rebuttal.
The trial court overruled the objection, stating, “it seems to
me that it is rebuttal; not sure it’s—the extent of its probative
value, which is something you gentlemen would both have to
address, but I’m not going to let him testify until [defense
counsel] has a chance to review the documents [Nadora] has with
him. [¶] It’s a surprise witness. It’s a rebuttal of records that
are defendant’s records.” The court then stated it would recess
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and return “to deal with this testimony.” When the court
explained that it was available for the remainder of the week,
plaintiff’s counsel volunteered, “I’m available on the 27th.”
Although defendant’s counsel initially stated that he was
unavailable on December 27, he eventually agreed to appear on
that date.
After the trial court scheduled the trial to continue on
December 27, 2019, at 10:00 a.m., plaintiff’s counsel stated, “Your
Honor, I just want to double check with my witness on the 27th
as well.” The court responded, “Well, if he is not here, he is not
testifying.” Counsel replied, “I understand.”
At the beginning of the proceedings on December 27, 2019,
the trial court noted that plaintiff’s counsel had called the clerk
and requested a continuance due to the unavailability of Nadora
to testify that day. When defense counsel objected, the court and
counsel engaged in an exchange during which plaintiff’s counsel
confirmed that both Nadora and Bar-Zemer could be available
after January 7, 2020, to testify about the documentation for LC
2121’s $20,000 payment.
The trial court then ruled as follows: “This trial has greatly
exceeded its time estimate, and although there is an argument to
be made that this is a rebuttal witness, frankly, one of the
essential components of plaintiff’s case is . . . that [plaintiff] paid
[$20,000] towards the down payment on the property. Without
that . . . payment, at most what you have is [$]5,000 handed to
the seller so that he wouldn’t get angry and walk away from the
deal. [¶] So it is certainly an essential component of plaintiff’s
case, and plaintiff has put on the testimony of both the plaintiff
and Mr. Bar-Zemer as to what that $20,000 check was, even
though it was made out to the defendant. There was no written
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record to go along with it, but that [$]20,000 was plaintiff’s money
sent to defendant on his behalf. That is the state of the record. [¶]
And so—we’re here on a trial that should have been over quite a
while ago, and we’re going to finish it up today briefly, and the
fact that the witness isn’t here makes my decision easier. I’m
concluding testimony this morning, so in the absence of Mr.
Nadora or Mr. Bar-Zemer here to attempt to put on rebuttal
testimony, the plaintiff is denied that opportunity. I’m not
continuing the trial. The trial is going to end right now if there
are no further rebuttal witnesses.” (Emphasis added.) The court
asked plaintiff’s counsel whether he had “any other rebuttal
witnesses” and counsel responded, “No, Your Honor.”
On July 9, 2020, the trial court issued its statement of
decision. The court found that “[p]laintiff ha[d] failed to satisfy
his burden of proof that he entered into a joint venture
agreement because he ha[d] not proven by a preponderance of the
evidence that there was a meeting of the minds with respect to
the material terms of a contract.” (Emphasis omitted.)
Alternatively, the court found that even if plaintiff had
established the existence of an oral agreement, he could not
overcome the statute of frauds defense because he failed to show
that he had fully performed under that alleged agreement.
The trial court also addressed plaintiff’s factual contention
that he had contributed $20,000 toward the purchase price by
directing Bar-Zemer to pay $20,000 that he owed plaintiff to
defendant. It found the testimony on this issue to be “convoluted”
but continued, “even if defendant was given the $20,000 check
from LC 2021 on plaintiff’s behalf, this was not adequately
communicated to defendant.” The court therefore ruled that
defendant was entitled to judgment on the three remaining
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causes of action for breach of oral agreement, breach of the
implied covenant, and constructive trust.
On September 4, 2020, plaintiff timely filed his notice of
appeal.
III. DISCUSSION
A. Denial of Rebuttal Witness
Plaintiff contends that the trial court erred by denying his
request to call Nadora as a rebuttal witness. The record,
however, belies plaintiff’s factual contention. As explained, the
court overruled defendant’s objection to Nadora’s testimony and
allowed plaintiff an opportunity to present him as a rebuttal
witness on December 27, 2019, a date specifically set by
agreement for that purpose and the conclusion of the trial. As
plaintiff seems to concede, he was only unable to call Nadora as a
witness because the court declined to further continue the trial to
accommodate Nadora’s schedule. We therefore reject as meritless
plaintiff’s initial contention that the court erred by refusing to
allow plaintiff to present a rebuttal witness.
B. Denial of Motion to Continue
Plaintiff next contends that the trial court abused its
discretion when it denied his oral request on December 27, 2019,
to continue the trial proceedings to allow him to call Nadora or
Bar-Zemer. According to plaintiff, it was unreasonable for the
court not to grant a short continuance to allow his witnesses to
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testify and provide documentary evidence concerning the purpose
of the $20,000 payment.
Whether we characterize the trial court’s ruling as an
exercise of its authority to place time limits on trial proceedings
or as the denial of a request for a continuance, we review that
ruling for an abuse of discretion. (California Crane School, Inc. v.
National Com. for Certification of Crane Operators (2014) 226
Cal.App.4th 12, 22 [placement of time limits]; Reales Investment,
LLC v. Johnson (2020) 55 Cal.App.5th 463, 468 [denial of request
for continuance].)
The trial court here did not abuse its discretion by refusing
plaintiff’s request to continue trial, that is, to go dark from
December 27, 2019, until January 7, 2020. At the time the court
initially continued trial proceedings from December 23, 2019, to
December 27, 2019, to accommodate plaintiff’s request for
rebuttal testimony, plaintiff’s counsel had agreed to that date
after being given time to consider alternative dates. By that
point, trial had well exceeded the initial three to four day time
estimate. Moreover, in making his request for a continuance,
plaintiff cited the unavailability of Nadora and Bar-Zemer on
December 27 as good cause, but he provided no explanation for
why he had not introduced the proffered documents during Bar-
Zemer’s testimony or why he had not served Nadora with a
subpoena to appear at trial.6 The court therefore did not abuse
6 When the trial court twice asked counsel whether he had
issued a subpoena for the records that he sought to introduce,
counsel stated, “No, I didn’t—Well, I don’t know if my subpoena
included that, to be honest with you. I would have to take a
look.”
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its discretion by denying plaintiff’s request to continue trial until
January 7, 2020. (See e.g., Jensen v. Superior Court (2008) 160
Cal.App.4th 266, 271 [“When a witness is not under subpoena,
his or her absence generally does not constitute good cause for
the continuance of a trial”].)
Even if we were to conclude that the trial court abused its
discretion by refusing to continue trial proceedings on
December 27, 2019, plaintiff has failed to show that he suffered
prejudice as a result of that ruling. In support of its decision on
the three remaining contract-based causes of action, the court
found that plaintiff failed to prove a meeting of the minds on a
material term of the alleged oral agreement. Neither Nadora nor
Bar-Zemer could have provided information about the
communications between the parties in 2012 concerning
formation. Therefore, the court’s finding regarding the lack of a
meeting of the minds would be sufficient to uphold the judgment,
regardless of whether plaintiff showed an abuse of discretion
concerning rebuttal testimony on an issue relating to
performance under the agreement. Further, Nadora and Bar-
Zemer would have, at best, provided additional testimony that
the $20,000 payment that Bar-Zemer sent to defendant was for
services performed by plaintiff, not defendant. But the court
already assumed that the $20,000 payment from Bar-Zemer
belonged to plaintiff and nonetheless found that the actual origin
and purpose of the payment had not been communicated to
And when asked directly by the court, “Well, how is it that
[Nadora] is here today?”, counsel responded, “He’s a . . . rebuttal
witness to what [defendant] was testifying to that that $20,000
was for compensation.” There is no subpoena included in the
record on appeal.
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defendant. Thus, plaintiff failed to demonstrate that the
proffered evidence would have resulted in a finding in his favor
on either the formation or performance issues.
IV. DISPOSITION
The judgment is affirmed. Defendant is entitled to recover
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.
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