Sohn v. Oriental Mission Church CA2/3

Filed 6/26/23 Sohn v. Oriental Mission Church 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION THREE
CARL JAMES SOHN, B315150
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC617429)
v.
ORIENTAL MISSION CHURCH et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Kevin C. Brazile, Judge. Affirmed.
Carl J. Sohn, in pro. per., for Plaintiff and Appellant.
The Morrison Law Group and Edward F. Morrison, for
Defendants and Respondents Oriental Mission Church and
Hyung Jim Bob Park.
Law Offices of Alex Cha & Associates and Alex Cha, for
Defendants and Respondents Hong In Chai, Kwang Suk An,
James Park, Young Se Lee, Young Song Lee, Soo Nam Choi,
Chang Woong Um, and Seoung Lae Lee.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Carl James Sohn brought an action against Oriental
Mission Church (Church), its pastor Hyung Jim Bob Park (Pastor
Park), and various Church elders (Elder defendants),1 alleging
that they failed to pay him for his legal services to the Church.
Sohn’s causes of actions were all resolved against him, and the
trial court entered judgment in favor of all defendants.
On appeal, Sohn claims the trial court erred in various
respects. We conclude that Sohn has waived or forfeited several
of his arguments. Regarding the arguments we reach on the
merits, we reject them. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. The complaint
In an earlier appeal from an order sustaining a demurrer
without leave to amend, we summarized Sohn’s complaint as
follows:
“On April 19, 2016, Sohn, doing business as Law Offices of
Carl James Sohn, filed suit against various defendants, including
1 In addition to Pastor Park, the original complaint named
fourteen individual defendants, all described as current and
former Church elders. Although the reason is unclear from the
record, some of these individual defendants were no longer in the
action during the proceedings at issue here. The Elder
defendants who remained defendants during the proceedings at
issue here filed a joinder in the appellate brief of the Church and
Pastor Park.
2
the Church and [its senior pastor, Hyung Jim Bob] Park, for
(1) breach of written contract, (2) breach of oral contract,
(3) negligent misrepresentation, (4) breach of the implied
covenant of good faith and fair dealing, and (5) quantum meruit.
In the action, Sohn sought to recover $768,358.95 for legal
services rendered. A copy of the operative February 2011
retainer agreement, which superseded a prior retainer
agreement, was appended to the complaint as an exhibit. Sohn’s
complaint detailed the extensive work he had done on
Defendants’ behalf. Sohn alleged in relevant part:
“The Church is a nonprofit religious corporation. Its
governing body is the Church Session (Session), which is also its
board of directors. On November 5, 2006, Reverend Choon Min
Kang (Kang), then senior pastor, dissolved the Session and
established a ‘steering committee/operations committee’ to govern
the Church. On January 5, 2007, the elders who had been ousted
from the Session requested that Sohn represent them; they
further asked that he wait to be paid until they could access the
Church’s funds. Sohn agreed, on the condition that they pay his
out-of-pocket expenses and make monthly payments of $3,000.
“On February 15, 2007, Sohn filed suit in the superior court
on behalf of the nine ousted elders. The matter proceeded to
trial, and on July 17, 2009, the trial court entered a judgment for
the elders and restored the Session, finding it was dissolved
improperly and that it was the governing body of the Church.
“On April 6, 2007, Sohn filed another lawsuit at the request
of the ousted elders, which alleged that Kang had purchased real
property for the Church without the consent of the Session.
“On November 8, 2009, Kang resigned and the ousted
elders became the recognized governing body of the Church.
3
After the ousted elders regained control of the Church, Sohn
requested payment of his attorney fees. He was told that there
was continuing litigation over control of Church property, and
that he would be paid when the lawsuits were resolved.
“At the Session’s request, Sohn filed another lawsuit on
April 14, 2010, which sought declaratory relief to determine the
rightful members of the Session, as well as a permanent
injunction.
“In January 2011, the Session asked Sohn to substitute in
on two cases being defended by another attorney. Sohn did so,
the cases proceeded to trial, and the Church prevailed in both
cases.
“On January 6, 2011, an employee sued the Church for
overtime and related violations, seeking $250,000. The Session
again asked Sohn to represent it, and he achieved a settlement in
the summer of 2012 for $30,000.
“In July 2011, the Session asked Sohn to represent it in
another labor dispute. Trial in that case was continued to enable
the parties to engage in settlement negotiations.
“On July 13, 2011, a church member, Kwi Dong Cha, filed
suit against the Church and Park, its senior pastor. Sohn
represented the Church and Park in that suit at their request.
Sohn ultimately obtained a dismissal of that action.
“On September 8, 2011, Sohn sent a letter informing the
Session that he was withdrawing from representing the Church
due to nonpayment of his fees. (A copy of the withdrawal letter
was appended to the complaint as an exhibit.) Following the
withdrawal letter, in late September 2011, Sohn was asked by
Session elders to continue representing the Church in numerous
pending cases, and Sohn agreed, on condition that the Church
4
make periodic payments to him. Sohn continued to render legal
services to Defendants until November 1, 2012.
“Sohn pled that as of the time he filed the present action,
Defendants owed him $768,358.95, plus accrued interest, for
legal services he rendered between 2007 and 2012.” (Sohn v.
Oriental Mission Church, et al. (Mar. 19, 2018, B279950)
[nonpub. opn.].)
II. The demurrers
The Church and Pastor Park demurred to the complaint on
various grounds, including that all the causes of action were
barred by the applicable statutes of limitations. The trial court
sustained the demurrer on statutes of limitations grounds and
dismissed the complaint without leave to amend, but in March
2018 we reversed the dismissal. (Sohn v. Oriental Mission
Church, supra, B279950.)
On remand, the trial court addressed the remaining
grounds in the demurrer of the Church and Pastor Park. In
December 2018, the trial court sustained their demurrer to the
negligent misrepresentation cause of action with leave to amend
and sustained their demurrer to the breach of implied covenant
of good faith and fair dealing cause of action without leave to
amend. Sohn did not file an amended complaint. The Church
and Pastor Park thereafter filed an answer generally denying the
complaint’s allegations.
The Elder defendants also demurred to the complaint. In
August 2019, the trial court sustained their demurrer to the
negligent misrepresentation cause of action with leave to amend
and sustained their demurrer to the breach of implied covenant
of good faith and fair dealing cause of action without leave to
5
amend. Again, Sohn did not file an amended complaint. The
Elder defendants’ answer is not in the record.
Following the trial court’s orders sustaining the demurrers,
the causes of action remaining were those for breach of written
contract, breach of oral contract, and quantum meruit.
III. Trial
A jury trial was held from July 12 to July 20, 2021. Sohn
represented himself at trial.
Although Sohn included the reporter’s transcripts from the
trial in his record on appeal, his opening brief fails whatsoever to
cite to the record of the testimony he presented at trial and cites
only two pages of trial testimony presented by the defendants.
The few other citations in his brief to the reporter’s transcript
from the trial concern colloquies between counsel and the trial
court.
Notwithstanding the lack of record citations in Sohn’s
opening brief, it is evident from the parties’ briefs on appeal that
one of the issues at trial was Sohn’s failure to provide a copy of
his retainer agreements2 to his clients translated into Korean.
Sohn negotiated his retainer agreements with the Elder
defendants (or some subgroup of them) in both Korean and
English but did not provide them with the agreements translated
into Korean. A defense expert, Michael LeBoff, testified that
2 There were apparently two retainer agreements at issue in
the case—a 2007 retainer agreement, which Sohn lost, and a
2011 retainer agreement.
6
Civil Code3 section 16324 provides that when an attorney retainer
agreement is negotiated in Korean, the attorney is required to
provide his clients a copy of the agreement translated into
Korean. LeBoff also emphasized that a reasonably prudent
attorney in these circumstances would provide a translated
retainer agreement to his clients to ensure they understood the
terms of the agreement.
Sohn does not dispute that he failed to provide the Elder
defendants with a copy of his retainer agreements translated into
Korean. In fact, during a colloquy with the trial court, Sohn
acknowledged that it was not his practice to provide translated
copies of his retainer agreements to his clients and that he was
3 All subsequent undesignated statutory references are to
the Civil Code.
4 Civil Code section 1632, subdivision (b), provides that
“[a]ny person engaged in a trade or business who negotiates
primarily in Spanish, Chinese, Tagalog, Vietnamese, or Korean,
orally or in writing, in the course of entering into any of the
following, shall deliver to the other party to the contract or
agreement, and any other person who will be signing the contract
or agreement, and before the execution thereof, a translation of
the contract or agreement in the language in which the contract
or agreement was negotiated, that includes a translation of every
term and condition in that contract or agreement: . . . .” Among
the types of contracts covered by the statute is a “contract or
agreement, containing a statement of fees or charges, entered
into for the purpose of obtaining legal services . . . .” (§ 1632,
subd. (b)(6).) The statute further provides that “[u]pon a failure
to comply with the provisions of this section, the person aggrieved
may rescind the contract or agreement in the manner provided by
this chapter.” (Id., subd. (k).)
7
unaware of the requirements of section 1632 until LeBoff’s
testimony.
On July 15, 2021, after the close of Sohn’s evidence, all the
defendants moved for nonsuit. The court granted nonsuit in
favor of the Church on the cause of action for breach of oral
contract. The court also granted nonsuit in favor of Pastor Park
and the Elder defendants on all remaining causes of action
against them. Because Sohn’s equitable cause of action against
the Church for quantum meruit was for the trial court to resolve,
the only cause of action against the Church remaining for the
jury’s consideration was Sohn’s breach of contract claim.
At the request of the trial court, on July 19, 2021, the
parties submitted briefs regarding the application of section
1632. The Church asserted the statute applied and allowed the
Church to rescind the retainer agreements, and it sought leave to
amend its answer to raise the statute as an affirmative defense.
The Church further argued that Sohn would not be prejudiced by
its proposed amendment, pointing to an excerpt from Sohn’s prior
deposition testimony. Specifically, when asked during his
deposition whether he provided a copy of the 2011 retainer
agreement to the Elder defendants translated into Korean, Sohn
admitted he did not.
Sohn’s brief opposed the Church’s effort to raise section
1632 as a defense, arguing that the defense was time-barred
pursuant to Code of Civil Procedure section 340.6. That statute
governs “[a]n action against an attorney for a wrongful act or
omission, other than for actual fraud, arising in the performance
of professional services” and provides for either a one-year or
four-year statute of limitations. (Code Civ. Proc., § 340.6, subd.
(a).) According to Sohn, the latest the Church could have raised
8
section 1632 as a defense was four years from November 2012,
when he ceased representing defendants.
On July 19, 2021, the trial court granted the Church’s
motion to amend its answer to include an affirmative defense
based on section 1632. The court rejected Sohn’s argument that
Code of Civil Procedure section 340.6 applied, noting the Church
raised section 1632 as an affirmative defense, not as a cause of
action. It further found no prejudice to Sohn, citing both his
deposition testimony and trial testimony acknowledging that he
did not provide a translated retainer agreement to his clients.
The court further cited Sohn’s failure to depose LeBoff, which
likely would have revealed the basis for LeBoff’s expert opinion
prior to trial.
The next day, the jury returned a verdict in favor of the
Church. The special verdict form first asked, “Did Plaintiff Sohn
and Defendant [Church] enter into a contract.” The jury
answered, “Yes.” The special verdict form next asked, “Did
Plaintiff Sohn do all, or substantially all, of the significant things
that the contract and applicable law required him to do?” The
jury answered, “No.”
Following the jury verdict, the trial court dismissed the
remaining quantum meruit cause of action against the Church.
The subsequently entered judgment states that as to Sohn’s
quantum meruit cause of action, “based on the verdict of the jury
of July 20, 2021, the Court ruled that the Fifth Cause of Action
for Quantum Meruit shall be dismissed as well.” The record does
not otherwise appear to disclose the basis for the trial court’s
dismissal of Sohn’s quantum meruit cause of action.
On August 16, 2021, Sohn moved for judgment
notwithstanding the verdict.
9
On August 18, 2021, the trial court entered a judgment on
the complaint in favor of the Church. On the same date, the trial
court entered a separate judgment on the complaint in favor of
Pastor Park and the Elder defendants.
Sohn filed his notice of appeal on September 10, 2021. In
his notice of appeal, Sohn checked boxes indicating he appealed
from “[j]udgment after jury trial” and “[j]udgment of dismissal
after an order sustaining a demurrer.” The notice of appeal
further states Sohn appealed from the “[g]ranting of [n]on-suit
based on sustaining of demurrers.”
On November 1, 2021, the trial court denied Sohn’s motion
for judgment notwithstanding the verdict. Sohn did not
separately appeal from that order.
DISCUSSION
Sohn raises the following contentions on appeal: (1) the
judgment should be reversed because the trial court erred by
allowing LeBoff’s testimony concerning the application of section
1632; (2) defendants waived their ability to raise section 1632 as
a defense; (3) the trial court erred by allowing defendants’ special
jury instructions; (4) the trial court erred by disallowing Sohn’s
special jury instructions; (5) the trial court erred by denying
Sohn’s motion for judgment notwithstanding the verdict; (6) the
trial court erred by sustaining defendants’ demurrers to the
causes of action for negligent misrepresentation and breach of the
covenant of good faith and fair dealing; (7) Sohn is entitled to
judgment in his favor on his causes of action for breach of oral
contract and quantum meruit; and (8) the trial court erred by
granting nonsuit to Pastor Park and the Elder defendants.
We address each contention in turn.
10
I. Expert testimony regarding section 1632
Sohn first contends that judgment against him should be
reversed because the trial court erroneously admitted LeBoff’s
expert testimony regarding section 1632. We disagree for several
reasons.
First, neither Sohn’s opening nor reply brief indicates that
he raised a timely objection to the admission of LeBoff’s
testimony or moved to strike it. Sohn has therefore forfeited his
argument that LeBoff’s testimony was erroneously admitted.
(See Evid. Code, § 353, subd. (a) [judgment shall not be reversed
based on erroneous admission of evidence unless there “appears
of record an objection to or motion to exclude or strike the
evidence that was timely made”]; People v. Perez (2020) 9 Cal.5th
1, 7 [“ ‘the failure to object to the admission of expert
testimony . . . at trial forfeits an appellate claim that such
evidence was improperly admitted.’ ”]; Heiner v. Kmart Corp.
(2000) 84 Cal.App.4th 335, 346–347.)
Second, even if we reach the merits of Sohn’s argument, we
conclude it lacks merit. According to Sohn, Code of Civil
Procedure section 340.6, subdivision (a), barred the Church from
raising a defense of rescission based on section 1632 (and
presumably, barred it from presenting LeBoff’s testimony
regarding section 1632).5 But Code of Civil Procedure section
5 Although Sohn contends the Church was procedurally
barred from raising a rescission defense based on section 1632, he
does not appear to challenge the conclusion that rescission
pursuant to section 1632 was a complete defense to his cause of
action for breach of contract. (See DuBeck v. California
Physicians’ Service (2015) 234 Cal.App.4th 1254, 1264
11
340.6 establishes a statute of limitations for a cause of action, not
an affirmative defense. (See Code Civ. Proc., § 340.6, subd. (a).)
Where rescission is raised as an affirmative defense, there is no
applicable statute of limitations. (See Ferguson v. Yaspan (2014)
233 Cal.App.4th 676, 682; French v. Construction Laborers
Pension Trust (1975) 44 Cal.App.3d 479, 485–486.) None of the
cases cited in Sohn’s brief is to the contrary.6
Third, even assuming the trial court erred by admitting
LeBoff’s testimony about section 1632, Sohn fails to establish
that the error was prejudicial and requires reversal of the
judgment. (See Grail Semiconductor, Inc. v. Mitsubishi Electric
[“Rescission extinguishes a contract, rendering it void ab initio,
as if it never existed.”].)
6 Sohn’s reliance on the unpublished decision in Kipperman
v. Wells Fargo Bank, N.A. (Apr. 15, 2019, D073665) [nonpub.
opn.] is misplaced. (See Cal. Rules of Court, rule 8.1115(a)
[subject to exception not applicable here, “an opinion of a
California Court of Appeal . . . that is not certified for publication
or ordered published must not be cited or relied on by a court or a
party in any other action.”].) Because the Church raised section
1632 as a defense, not a cause of action, Sohn’s reliance on Lugo
v. Bank of America, N.A. (E.D. Cal. Mar. 15, 2012) 2012 WL
893878, *8 [applying one-year statute of limitations to cause of
action under section 1632], Esoimeme v. Wells Fargo Bank (E.D.
Cal. Sep. 1, 2011) 2011 WL 3875881, *7 [same], Ausano v. BAC
Home Loan Servicing, LP (S.D. Cal. Aug. 31, 2010) 2010 WL
3463647, *3 [same], Lucero v. Diversified Investments Inc. (S.D.
Cal. Aug. 31, 2010) 2010 WL 3463607, *6 [same], and Ortega v.
Wells Fargo Bank (S.D. Cal. May 11, 2010) 2010 WL 1904878[addressing whether equitable tolling applied to statute of
limitations], is also misplaced.
12
& Electronics USA, Inc. (2014) 225 Cal.App.4th 786, 799 [“A
judgment of the trial court may not be reversed on the basis of
the erroneous admission of evidence, unless that error was
prejudicial.”].) For example, Sohn does not explain how LeBoff’s
testimony regarding section 1632 prejudicially impacted the
portions of the judgment based on the trial court’s order
sustaining defendants’ demurrers, granting defendants’ motions
for nonsuit, or dismissing Sohn’s cause of action for quantum
meruit.
The same is true regarding the portion of the judgment
resting on the jury’s verdict in favor of the Church on Sohn’s
cause of action for breach of contract. Sohn does not convince us
that the jury’s verdict rested exclusively on section 1632 and not
another independent basis. (See, e.g., Gombiner v. Swartz (2008)
167 Cal.App.4th 1365, 1376 [“When two independent bases exist
to support a jury’s verdict, one of which is lawful and the other
not, a reviewing court presumes the jury’s verdict rested on a
lawful basis unless the record affirmatively shows otherwise.”].)
As noted, the special verdict form stated that the jury concluded
Sohn failed to do “all, or substantially all, of the significant things
that the contract and applicable law required him to do.”
Although Sohn’s brief suggests that a juror interviewed after trial
indicated the jury verdict rested on Sohn’s failure to provide a
translated copy of the retainer agreement to his clients, Sohn
does not direct us to any evidence in the record supporting that
claim.7 Nor does he make any effort to show—with citations to
7 Were there such evidence, it would likely have been
inadmissible anyway. (See Evid. Code, § 1150; Ford v. Bennacka
(1990) 226 Cal.App.3d 330, 333 [evidence of the “mental
13
the record describing the testimony and evidence presented at
trial—that section 1632 was the only possible ground for the
jury’s verdict.
In short, we reject Sohn’s claim that judgment should be
reversed due to the trial court’s admission of LeBoff’s expert
testimony.
II. Amendment of answer
Sohn next argues that the trial court erred by allowing the
Church to amend its answer after the close of evidence to assert
section 1632 as an affirmative defense. We disagree.
“Any judge, at any time before or after commencement of
trial, in the furtherance of justice, and upon such terms as may
be proper, may allow the amendment of any pleading . . . .” (Code
Civ. Proc., § 576; see also id., § 469 [authorizing amendment of
pleadings to address “[v]ariance between the allegation in a
pleading and the proof”].)
“[T]he allowance of amendments to conform to the proof
rests largely in the discretion of the trial court and its
determination will not be disturbed on appeal unless it clearly
appears that such discretion has been abused. [Citations.] Such
amendments have been allowed with great liberality ‘and no
abuse of discretion is shown unless by permitting the amendment
new and substantially different issues are introduced in the case
or the rights of the adverse party prejudiced.’ ” (Trafton v.
Youngblood (1968) 69 Cal.2d 17, 31, italics omitted; see also
South Bay Building Enterprises, Inc. v. Riviera Lend-Lease, Inc.
processes” of the jurors in reaching their verdict is inadmissible
to impeach jury’s verdict under Evid. Code section 1150].)
14
(1999) 72 Cal.App.4th 1111, 1124 [“ ‘A variance between pleading
and proof does not justify the denial of an amendment to conform
pleading to proof unless the unamended pleading “misled the
adverse party to his prejudice in maintaining his action or
defense upon the merits.” ’ ”].) Amendments at trial “to conform
to proof, ‘if not prejudicial, are favored since their purpose is to do
justice and avoid further useless litigation.’ ” (Garcia v. Roberts
(2009) 173 Cal.App.4th 900, 909.)
We are sympathetic to Sohn’s argument that he might have
considered abandoning this lawsuit, thereby saving himself
considerable time and expense, had he known earlier about the
requirements of section 1632 and the Church’s intention to raise
the statute in defense to Sohn’s claims.
Nevertheless, we find no abuse of discretion in the trial
court’s decision to grant the Church leave to amend to raise
section 1632 as a defense. In neither his opening nor reply brief
does Sohn dispute the Church’s claim that he was asked during
his deposition whether he provided a translated copy of his
retainer agreements to his clients. Thus, even if Sohn was
unaware that the Church intended to invoke section 1632, he
appears to have known there was a factual issue regarding his
failure to provide his clients with translated copies of the retainer
agreements. (See Kittridge Sports Co. v. Superior Court (1989)
213 Cal.App.3d 1045, 1048 [“it is irrelevant that new legal
theories are introduced as long as the proposed amendments
‘relate to the same general facts.’ ”]; compare Garcia v. Roberts,
supra, 173 Cal.App.4th at p. 913 [trial court abused its discretion
in granting plaintiff leave to amend complaint at trial to include
claim for breach of written contract where plaintiff testified at
deposition that there was only an oral agreement].) Nor does
15
Sohn dispute the trial court’s observation that he opted not to
take LeBoff’s deposition before trial, which likely would have
revealed that the Church intended to introduce evidence at trial
that Sohn had failed to provide his clients with translated
retainer agreements.
Finally, as noted already, Sohn fails to establish that he
objected to or moved to strike LeBoff’s trial testimony regarding
section 1632. Evidence of Sohn’s failure to provide translated
copies of his retainer agreements to his clients was therefore
already before the trial court when the Church sought to amend
its answer to conform to proof.8 (See Wegner, et al., Cal. Practice
Guide: Civil Trials and Evidence (The Rutter Group 2022),
¶ 12:394 [“If the issues raised by the proposed amendment were
8 For that reason, we are not convinced by Sohn’s effort to
liken this case to California Concrete Co. v. Beverly Hills Savings
& Loan Assn. (1989) 215 Cal.App.3d 260 (California Concrete
Co.). There, the Court of Appeal ruled that the defendant had
waived its unpled affirmative defense by raising the defense for
the first time in a motion for summary judgment, which the trial
court granted. (Id. at pp. 269–270, 273.) The Court of Appeal
stressed that the defendant never sought leave to amend its
answer and that the plaintiff never had a sufficient opportunity
to investigate the facts and law related to the defense. (See id. at
p. 273.)
By contrast, it appears that Sohn knew as early as his
deposition that there was a factual issue regarding his failure to
provide his clients with translations of his retainer agreements.
Additionally, unlike California Concrete Co., the evidence at issue
had already been admitted at trial, apparently without objection
by Sohn, by the time Sohn opposed the Church’s motion to amend
its answer to conform to proof.
16
in fact fully tried and the evidence is already before the court, it
is difficult for the opposing party to claim prejudice.”].)
While the Church’s failure to raise section 1632 as an
affirmative defense prior to trial may have supported the trial
court’s ruling had it denied the Church leave to amend (see, e.g.,
Leader v. Health Industries of America, Inc. (2001) 89
Cal.App.4th 603, 613 [“ ‘The law is well settled that a long
deferred presentation of the proposed amendment without a
showing of excuse for the delay is itself a significant factor to
uphold the trial court’s denial of the amendment.’ ”]), we cannot
say that the trial court abused its discretion by granting the
Church leave to amend its answer to raise section 1632 as a
defense.
III. Jury instructions
Sohn contends that if the Church waived its ability to raise
section 1632 as a defense, then the trial court erred by allowing
the Church’s special jury instructions regarding section 1632 and
disallowing his special jury instructions “to counter the effects of
[LeBoff’s] testimony.” This argument fails for two reasons.
For one thing, we have already concluded that the trial
court did not abuse its discretion by granting the Church leave to
amend its answer to raise a rescission defense pursuant to
section 1632. Thus, even according to Sohn’s argument, the
Church’s proffered special jury instructions were warranted
because its section 1632 defense was not waived.
In any event, it appears that Sohn’s proffered special jury
instructions were not included in the clerk’s transcript,
17
preventing us from meaningfully reviewing his contention.9 The
issue must therefore be resolved against Sohn. (See Jameson v.
Desta (2018) 5 Cal.5th 594, 609 [appellant “ ‘has the burden of
providing an adequate record’ ” and “ ‘[f]ailure to provide an
adequate record on an issue requires that the issue be resolved
against [the appellant].’ ”]; Ballard v. Uribe (1986) 41 Cal.3d 564,
574 [“a party challenging a judgment has the burden of showing
reversible error by an adequate record.”]; Hotels Nevada, LLC v.
L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 348 [“By
failing to provide an adequate record, appellant cannot meet his
burden to show error and we must resolve any challenge to the
order against him.”].)
9 The only record citations in Sohn’s opening brief regarding
the jury instruction issue are two pages from the reporter’s
transcript. The two pages of transcript merely indicate that both
the Church and Sohn offered special jury instructions regarding
section 1632. Neither page of the reporter’s transcript indicates
the substance of those instructions. Although Sohn’s notice
designating record on appeal requested that the superior court
clerk include his proffered special jury instructions in the clerk’s
transcript, the jury instructions were not part of the clerk’s
transcript and Sohn appears not to have taken any steps to
correct the record. (See McLaughlin v. Walnut Properties, Inc.
(2004) 119 Cal.App.4th 293, 299, fn. 6 [appellant’s failure to
correct clerk’s transcript may result in issue being deemed
waived].)
18
IV. Judgment notwithstanding the verdict
Sohn argues that the trial court erred in denying his
motion for judgment notwithstanding the verdict. We lack
jurisdiction to consider this argument.10
As described earlier, Sohn moved for judgment
notwithstanding the verdict on August 16, 2021. The trial court
entered judgment against Sohn on all causes of action in his
complaint on August 18, 2021. Sohn filed his notice of appeal on
September 10, 2021. The trial court issued a written order
denying Sohn’s motion for judgment notwithstanding the verdict
on November 1, 2021. Sohn did not separately appeal from that
order.11
10 We asked the parties to file supplemental letter briefs
addressing whether we have jurisdiction over Sohn’s purported
appeal from the trial court’s denial of his motion for judgment
notwithstanding the verdict. We have read and considered those
briefs.
11 In his supplemental brief, Sohn contends he made an oral
motion for judgment notwithstanding the verdict and that the
trial court denied the motion prior to entry of judgment. Thus,
according to Sohn, his appeal from the judgment encompassed
the trial court’s denial of his oral motion for judgment
notwithstanding the verdict. But Sohn fails to support his
contention with a citation to the reporter’s transcript from the
trial court proceedings. And, at least according to our review of
the record, Sohn did not make an oral motion for judgment
notwithstanding the verdict—he simply stated his intention to
file such a motion.
Furthermore, our review of the denial of a motion for
judgment notwithstanding the verdict requires us to examine
19
An order denying a motion for judgment notwithstanding
the verdict is an appealable order. (Code Civ. Proc., § 904.1,
subd. (a)(4); Berge v. International Harvester Co. (1983) 142
Cal.App.3d 152, 158.) “[W]here no appeal is taken from an
appealable order, a reviewing court has no discretion to review its
merits; the court must disregard all issues concerning the order
on its own motion even if no objection has been made.” (Ibid.)
Thus, Sohn’s failure to appeal from the trial court’s order
denying his motion for judgment notwithstanding the verdict
means that we lack jurisdiction to consider his appeal of the
denial of that motion. (Berge v. International Harvester Co.,
supra, 142 Cal.App.3d at p. 158; see also Sole Energy Co. v.
Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239 [“A notice of
appeal from a judgment alone does not encompass other
judgments and separately appealable orders.”].)
V. Demurrers
Sohn contends the trial court erred by sustaining
defendants’ demurrers to his causes of action for negligent
misrepresentation and breach of the implied covenant of good
whether there is substantial evidence to support the verdict. (See
Johnson & Johnson Talcum Powder Cases (2019) 37 Cal.App.5th
292, 313–314.) Sohn’s briefs, however, failed to adequately
describe the evidence at trial with supporting citations to the
reporter’s transcript. Thus, even if the matter were properly
before us, it was likely forfeited. (See Alki Partners, LP v. DB
Fund Services, LLC (2016) 4 Cal.App.5th 574, 589 [“An appellant
who fails to cite accurately to the record forfeits the issue or
argument on appeal that is presented without the record
reference.”].)
20
faith and fair dealing. Sohn fails to carry his burden of
demonstrating error.
First, Sohn failed to provide us with an adequate record to
evaluate the trial court’s decision to sustain defendants’
demurrers. The appellate record does not include defendants’
demurrers, Sohn’s oppositions, or defendants’ replies in support
of their demurrers. Nor does it include a reporter’s transcript of
the hearing before the trial court regarding the demurrers or the
trial court’s order sustaining the demurrers.12 We therefore have
no understanding of the arguments raised in connection with
defendants’ demurrers or the reasons for the trial court’s decision
to sustain the demurrers. Because Sohn has failed to provide an
adequate record for us to meaningfully review his contentions, he
has failed to carry his burden of establishing error. (See Jameson
v. Desta, supra, 5 Cal.5th at p. 609; Ballard v. Uribe, supra, 41
Cal.3d at p. 574; Hotels Nevada, LLC v. L.A. Pacific Center, Inc.,
supra, 203 Cal.App.4th at p. 348.)
Moreover, even if we were to overlook Sohn’s failure to
provide us with an adequate record regarding the demurrers, he
still fails to carry his burden of demonstrating error. His opening
brief contains only conclusory arguments, without citation to
pertinent legal authority, regarding the trial court’s alleged
errors in sustaining defendants’ demurrers. (See City of Santa
Maria v. Adam (2012) 211 Cal.App.4th 266, 287 [“[W]e may
disregard conclusory arguments that are not supported by
12 The Church and Pastor Park provided the notice of ruling
on their demurrer with their motion to augment the clerk’s
transcript, but the notice of ruling does not describe the grounds
for the trial court’s decision sustaining defendants’ demurrers.
21
pertinent legal authority or fail to disclose the reasoning by
which the appellant reached the conclusions he wants us to
adopt.”]; In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th
814, 830 [“The absence of cogent legal argument or citation to
authority allows this court to treat the contentions as waived.”].)
For example, Sohn does not identify the elements of the causes of
action at issue or the specific complaint allegations that
purportedly established each element of those causes of action.
(See Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th
1481, 1502 [appellants challenging order sustaining demurrer
“bore the burden to show how the alleged facts are sufficient to
establish every element” of cause of action]; Sui v. Price (2011)
196 Cal.App.4th 933, 938 [“The plaintiff ‘bears the burden of
demonstrating that the trial court erroneously sustained the
demurrer as a matter of law’ and ‘must show the complaint
alleges facts sufficient to establish every element of [the] cause of
action.’ ”].)
As a result of these shortcomings, Sohn fails to carry his
burden of demonstrating the trial court erred by sustaining
defendants’ demurrers to his causes of action for negligent
misrepresentation and breach of the implied covenant of good
faith and fair dealing.
VI. Breach of oral contract and quantum meruit
Sohn contends he is entitled to judgment in his favor on his
causes of action for breach of oral contract and quantum meruit.
Again, we reject Sohn’s arguments.13
13 Sohn contends that the “trial did not resolve any claims for
Breach of Oral Contract and for Quantum Meruit . . . .” We are
22
Sohn appears to contend the trial court erred in granting
nonsuit in favor of all defendants on his cause of action for breach
of oral contract because the evidence uniformly favored him, not
defendants. “A defendant is entitled to a nonsuit if the trial court
determines that, as a matter of law, the evidence presented by
plaintiff is insufficient to permit a jury to find in his favor.
[Citation.] ‘In determining whether plaintiff’s evidence is
sufficient, the court may not weigh the evidence or consider the
credibility of witnesses. Instead, the evidence most favorable to
plaintiff must be accepted as true and conflicting evidence must
be disregarded.” (Nally v. Grace Community Church (1988) 47
Cal.3d 278, 291.) “In reviewing a grant of nonsuit, we are ‘guided
by the same rule requiring evaluation of the evidence in the light
most favorable to the plaintiff.’ ” (Ibid.)
We conclude that Sohn has waived his argument regarding
the trial court’s grant of nonsuit in favor of defendants on his
cause of action for breach of oral contract. Even though the
applicable standard of review requires us to evaluate whether
Sohn provided sufficient evidence to permit a jury to find in his
favor, Sohn’s opening brief, with minor exceptions, fails to cite to
puzzled by this contention. The trial court’s August 18, 2021
judgment in favor of the Church clearly states that the trial court
granted nonsuit on July 15, 2021, in favor of the Church on
Sohn’s cause of action for breach of oral contract, and dismissed
Sohn’s cause of action against the Church for quantum meruit.
Likewise, the trial court’s August 18, 2021 judgment in favor of
Pastor Park and the Elder defendants clearly states that the trial
court granted nonsuit in favor of these defendants. Hence,
contrary to Sohn’s contention, the trial court did resolve his
causes of action for breach of oral contract and quantum meruit.
23
the reporter’s transcripts from the trial to support his
arguments.14 Because Sohn has failed to support his argument
with citations to the record, he has waived his contention that the
trial court erred by granting nonsuit to defendants on this cause
of action. (See Alki Partners, LP v. DB Fund Services, LLC,
supra, 4 Cal.App.5th at p. 589; see also City of Santa Maria v.
Adam, supra, 211 Cal.App.4th at p. 287 [“Rather than scour the
record unguided, we may decide that the appellant has waived a
point urged on appeal when it is not supported by accurate
citations to the record.”]; Duarte v. Chino Community Hospital
(1999) 72 Cal.App.4th 849, 856 [“If a party fails to support an
argument with the necessary citations to the record, that portion
of the brief may be stricken and the argument deemed to have
been waived.”]; see Cal. Rules of Court, rule 8.204(a)(1)(C)
[requiring that brief “[s]upport any reference to a matter in the
record by a citation to the volume and page number of the record
where the matter appears.”].)
Sohn further argues that the trial court erred in entering
judgment against him on his cause of action for quantum meruit.
According to Sohn, he fulfilled all his duties on behalf of his
clients and deserves to receive the value of his services. Where,
as here, there is no statement of decision, “ ‘it must be presumed
that every fact essential to the judgment was proved and found
by the court.’ [Citation.] Review by the appellate court is limited
to a determination as to whether there is any evidence,
14 We further note that Sohn failed to include in the appellate
record any of the more than fifty exhibits admitted at trial. This
is yet another example of Sohn’s failure to include an adequate
record on appeal.
24
contradicted or uncontradicted, to support the judgment.” (Gibbs
v. American Savings & Loan Assn. (1990) 217 Cal.App.3d 1372,
1375.)
Again, even though the applicable standard of review
requires us to evaluate the evidence at trial, Sohn’s opening brief,
with minor exceptions, fails to cite to the reporter’s transcript
from trial to support his arguments. Thus, as before, because
Sohn has failed to cite to the record in support of his arguments,
he has waived the contention that the trial court erred by
dismissing his cause of action for quantum meruit. (See Alki
Partners, LP v. DB Fund Services, LLC, supra, 4 Cal.App.5th at
p. 589; City of Santa Maria v. Adam, supra, 211 Cal.App.4th at
p. 287; Duarte v. Chino Community Hospital, supra, 72
Cal.App.4th at p. 856; Cal. Rules of Court, rule 8.204(a)(1)(C).)
VII. Nonsuit in favor of Pastor Park and Elder
defendants
Sohn’s final contention, which appears duplicative of some
of his previous arguments, is that the trial court erred by
granting nonsuit in favor of Pastor Park and the Elder
defendants on his causes of action for breach of contract, breach
of oral contract, and quantum meruit.
We conclude that Sohn has waived this argument for the
same reasons as described earlier. Sohn’s opening brief fails to
support his conclusory argument with citations to the record,
pertinent legal authority, or cogent legal analysis.
25
DISPOSITION
Judgment in favor of defendants is affirmed. Defendants
are entitled to their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
EGERTON, J.
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