Filed 9/25/13 Garcia v. Roberts CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIFTH APPELLATE DISTRICT

JOHNNY GARCIA,
                                                                                           F063386
         Plaintiff and Respondent,
                                                                           (Super. Ct. No. 04CECG03607)
                   v.

RONALD G. ROBERTS et al.,                                                                OPINION
         Defendants and Appellants.



         APPEAL from a judgment of the Superior Court of Fresno County. Jeffrey Y.
Hamilton, Jr., Judge.
         Yarra, Kharazi & Clason and H. Ty Kharazi for Defendants and Appellants.
         McCormick, Barstow, Sheppard, Wayte & Carruth and William H. Littlewood for
Plaintiff and Respondent.
                                                        -ooOoo-
       In a previous appeal of this same case,1 we affirmed the liability of defendant
Ronald G. Roberts to plaintiff Johnny Garcia2 for breach of contract and fraud in
connection with a real estate transaction, but we remanded the matter back to the superior
court for a new trial on the limited issue of damages. (Garcia v. Roberts (2009) 173
Cal.App.4th 900 (Garcia I).) During the retrial of damages, defendant argued that
plaintiff was not entitled to any damages since, allegedly, plaintiff could not have
obtained a bank loan to complete the real estate purchase. The trial court rejected
defendant’s argument because plaintiff’s ability to perform his part of the transaction was
an element of liability, not damages, and liability was established in the original trial and
affirmed on appeal. After hearing the expert testimony and other evidence presented in
the retrial of damages, the trial court found that plaintiff’s damages were in the amount of
$184,798, and a judgment was entered in that amount. Defendant moved for another new
trial, which was denied. Defendant appeals once again, claiming the trial court erred
because (1) plaintiff’s ability to perform was an aspect of damages, not liability and
(2) there was insufficient evidence to support the amount of damages arrived at by the
trial court. We disagree with both points and affirm the judgment below.



1      Our partially published opinion in the prior appeal was filed on May 4, 2009, as
case No. F054234, and is referred to herein as Garcia I. Since the present appeal
involves the same action, it is permissible to refer to nonpublished portions of that
opinion (see Cal. Rules of Court, rule 8.1115(b)(2)). When we refer to matters in the
published portion of the opinion, we shall provide the applicable page numbers of the
Official Reports. When referring to matters appearing in the nonpublished portions, we
describe them as such; however, it is not possible to give page number references for the
nonpublished portions.
2       Plaintiff died in 2007, several months prior to the original trial in this action.
Since then, his rights and interests in the litigation have been represented by his wife and
successor in interest, Omega Garcia, and more recently by the personal representative of
his estate, Lorena Garcia. In our discussion herein, any reference to plaintiff means
Johnny Garcia, unless the context indicates otherwise.



                                              2.
                         FACTS AND PROCEDURAL HISTORY
A.     The First Trial
       In Garcia I, we provided a summary of the facts and circumstances leading to
plaintiff’s lawsuit, as well as the proceedings that occurred in the first trial. For
convenience, we reproduce much of that summary here:3

       “Factual Background Prior to Plaintiff's Lawsuit

               “The parties’ dispute concerns a parcel of land located on Academy
       Avenue in Sanger, California (the property). Plaintiff originally rented the
       property, along with a mobilehome situated there, from an entity known as
       the Sasashima Family Trust for $500 per month. Plaintiff lived in the
       mobilehome and also ran a modest business as a backhoe operator from
       there. In 2001, plaintiff entered into negotiations with Akiko Sasashima,
       the trustee of the Sasashima Family Trust, to purchase the property. In
       October or November of 2001, an agreement was reached giving plaintiff
       an option to purchase the property for $140,000. Pursuant to that
       agreement, plaintiff paid the sum of $7,500 to the Sasashima Family Trust
       and was given two years to come up with the remaining balance of the
       purchase price ($132,500), with the $7,500 counting as a downpayment. In
       the interim, plaintiff agreed to continue paying $500 in monthly rent.

              “Plaintiff found it difficult to obtain financing to pay the $132,500
       balance to the Sasashima Family Trust. Eventually, he mentioned this fact
       to an acquaintance, defendant Ronald Roberts. Plaintiff occasionally
       performed backhoe work for Mr. Roberts, who was a plumbing contractor.
       During one such job, plaintiff asked Mr. Roberts if he would be willing to
       loan the money to plaintiff. According to plaintiff’s deposition testimony
       introduced at trial, plaintiff and Mr. Roberts entered into an oral agreement
       regarding the property. Under the terms of the oral agreement, Mr. Roberts
       agreed to pay the $132,500 balance of the purchase price to the Sasashima
       Family Trust as a loan to plaintiff, but title to the property would be put in
       Mr. Roberts’s name and plaintiff would be required to pay interest on the
       loan of 12 percent or approximately $1,325 per month for a period of two


3       This factual summary referred to defendant by name (i.e., Mr. Roberts). We leave
that intact. Although Mrs. Sherry Roberts, defendant’s wife, was mentioned as a
codefendant in the excerpt, we note that she is not a party to this appeal.



                                              3.
years. By the end of the two-year period, plaintiff was to secure financing
to pay off the loan, whereupon title would be conveyed to plaintiff.

       “In reliance on this oral agreement, plaintiff facilitated the sale of the
property from the Sasashima Family Trust to defendants. The Sasashima
Family Trust sold the property to defendants for $132,500, a price that was
apparently based on the fact that plaintiff previously paid $7,500 toward the
$140,000 purchase price. With additional closing costs, defendants
obtained title to the property for a total sum of $133,027. Escrow closed on
September 26, 2002.

        “On September 26, 2002, shortly after escrow closed, defendants
asked plaintiff and his wife to come to their home to sign paperwork
regarding the property. Defendant Sherry Roberts presented a form
contract entitled ‘LEASE WITH OPTION TO PURCHASE’ (the lease-
option agreement). After Mrs. Roberts filled out the lease-option
agreement, she read all or most of the terms out loud and provided
additional explanation of the terms as she read them. This was apparently
done because plaintiff spoke some English, but could not read it, while
plaintiff’s wife did not understand English at all. All four parties then
signed the lease-option agreement. [¶] … [¶]

        “In 2004, plaintiff began the process of seeking to qualify for and
obtain financing to purchase the property from defendants. Plaintiff started
working closely with a mortgage broker by the name of Gilbert Servin, who
was owner of Su Casa Mortgage Company. Mr. Servin helped plaintiff
‘clean up’ his credit history and improve his credit score. With
Mr. Servin’s assistance, plaintiff’s credit score improved significantly by
August of 2004. At that point, Mr. Servin ‘knew that [he] could get
[plaintiff] a loan’ to complete plaintiff's purchase of the property.
Accordingly, Mr. Servin opened an escrow regarding the property with
Stewart Title Company on August 19, 2004, a preliminary title report was
requested from the title company and plaintiff took steps to procure
homeowner’s insurance. Additionally, Mr. Servin submitted a home loan
application to Countrywide Financial Corporation on plaintiff’s behalf and
ordered an appraisal of the property.

       “In late August or early September of 2004, Mr. Servin placed a
telephone call to Mr. Roberts to discuss the status of the escrow and to
confirm the terms of the sale to plaintiff. Mr. Roberts confirmed that the
agreement was to sell the property to plaintiff and his wife for the same
amount of money that defendants had paid to purchase it. During the same
conversation, Mr. Servin informed Mr. Roberts that an escrow had been
opened at Stewart Title Company, a loan application had been submitted

                                       4.
and it appeared the loan would be approved pending receipt of the
appraisal. Mr. Servin attempted to set up a meeting with Mr. Roberts to
review and sign a written purchase agreement that the lenders would
require for the transaction. Mr. Roberts responded that he and Mrs. Roberts
were just leaving for Europe on a vacation that would last about one month
and said ‘don’t do anything until I get back.’

        “Subsequently, an appraisal of the property was completed that
showed a market value of $ 186,000. Additionally, sometime in October of
2004, Mr. Servin received word that a commercial lender had approved
plaintiff’s loan request and plaintiff was informed of this fact, whereupon
plaintiff made a deposit of approximately $10,000 into the escrow to cover
anticipated lending fees and closing costs regarding the transaction.

        “After defendants returned from their vacation, plaintiff and
Mr. Servin had a meeting with defendants at defendants’ home to discuss
the real estate purchase. Mr. Servin thought the meeting was in late
September of 2004; Mr. Roberts was certain it was on October 23, 2004.
At the meeting, Mr. Servin presented a standard form purchase agreement
to defendants that Mr. Servin had prepared in order to satisfy the lender’s
requirements. The proposed purchase agreement was backdated to
September 21, 2002, which Mr. Servin said was either a mistake or perhaps
was due to his understanding of the parties’ original agreement. The
proposed purchase agreement reflected that a $7,500 deposit was received
toward a total $140,000 purchase price, with a balance due to ‘seller’ of
$132,500. It further stated that ‘buyer’ had to obtain financing by
October 31, 2004, and would continue to pay rent in an unspecified amount
until the purchase was completed.

        “During the meeting, defendants excused themselves for a private
conversation about the proposed purchase agreement. Mr. Roberts returned
and told plaintiff and Mr. Servin that he would not sign the proposed
purchase agreement at that time, but he would go to the title company to
sign it. Defendants never asked plaintiff or Mr. Servin to make any
changes or corrections to the proposed purchase agreement. Mr. Roberts
did go to the title company the next day, but he never signed the proposed
purchase agreement. In fact, he refused to do so. Plaintiff continued to call
Mr. Roberts until October 26, 2004, demanding that Mr. Roberts sell the
property to him, but Mr. Roberts simply told plaintiff he did not like the
way the papers had been prepared. Mr. Roberts told plaintiff that he
(plaintiff) had not fulfilled his obligations and that his ‘time was over’—he
had lost his opportunity to purchase the property.



                                     5.
               “Sometime before defendants refused to sign the proposed purchase
       agreement, plaintiff told defendants that he had heard the property had
       appreciated and was worth $500,000. Mrs. Roberts thought at that time
       that plaintiff’s estimate of $ 500,000 was perhaps a good one.

       “Relevant Procedural History

               “Plaintiff filed the present action against defendants on
       December 16, 2004. On December 14, 2005, plaintiff filed a third amended
       complaint alleging causes of action for, among other things, breach of oral
       contract, breach of implied covenant of good faith and fair dealing, and
       fraud. The third amended complaint was the operative pleading at the time
       of trial on June 25, 2007. As with all prior versions of the complaint, the
       underlying contract was alleged to be an oral loan agreement. No written
       contract was alleged. [¶] … [¶]

             “On February 7, 2007, plaintiff Johnny Garcia died. Plaintiff's wife
       was then substituted into the case to continue the litigation as plaintiff's
       successor in interest and personal representative.

              “Trial commenced on June 25, 2007.… [¶] … [¶]

              “The jury found in favor of plaintiff on all causes of action.…
       Damages of $366,973 were awarded to plaintiff. Judgment was entered in
       favor of plaintiff on August 13, 2007.

              “Defendants moved for JNOV[4] and for new trial. The trial court
       granted a limited new trial on the issue of damages only, but otherwise
       denied the motions. Defendants’ appeal followed.” (Garcia I, supra, 173
       Cal.App.4th at pp. 903-908, fns. omitted.)
B.     The Prior Appeal
       In Garcia I, although we disallowed the breach of written contract claim,5 we
affirmed the jury’s finding that defendant was liable under the oral contract and fraud


4      Judgment notwithstanding the verdict.
5       The trial court’s order allowing plaintiff to amend his complaint during trial to
include a new cause of action for breach of written contract was reversed by us in the
published portion of Garcia I on the ground that such amendment was prejudicial under
the circumstances. (Garcia I, supra, 173 Cal.App.4th at pp. 908-913.) Nevertheless, we
concluded (in a nonpublished portion of Garcia I) that plaintiff’s oral contract claim was


                                            6.
causes of action. One of the grounds raised by the appeal in Garcia I was that “there was
no substantial evidence” to support plaintiff’s claim that defendant breached the oral loan
agreement in “its express terms or in any implied covenant of good faith and fair
dealing.” (Garcia I, 173 Cal.App.4th 900 [nonpub. portion].) We rejected that argument
and concluded there was sufficient evidence to support the finding of liability under the
oral contract theories. In the course of our discussion, we expressly held that “[t]he
testimony was sufficient to show that plaintiff secured the necessary financing to repay
the loan prior to, and at the end of, the relevant contract period, which was clearly
communicated to [defendant]. [Defendant] breached the agreement by his conduct that
effectively prevented or interfered with plaintiff’s ability to successfully tender funds
from his lender.” (Ibid.) We noted further that “[t]he jury concluded that [defendant’s]
conduct amounted to a breach of the implied covenant of good faith and fair dealing,”
and we expressly agreed with that conclusion. (Ibid.) We also went through a detailed
analysis showing that the evidence was sufficient to establish the fraud cause of action
against defendant. (Ibid.)
       In affirming liability under the oral contract and fraud causes of action, we stated
as follows regarding the amount of damages: “As to issues relating to the correct
measure of damages, we leave that to the trier of fact on remand, inasmuch as the trial
court granted a motion for new trial on the issue of damages.” (Garcia I, 173
Cal.App.4th 900 [nonpub. portion].) Aside from our reversal as to one nonessential issue
(i.e., the amendment during trial), we expressly affirmed, “[i]n all other respects, the
orders and judgment of the trial court .…” (Ibid., italics added.) In short, our disposition
meant that (1) liability was established and (2) there would be a limited new trial on the
issue of damages.


valid, was not barred under the parol evidence rule, was supported by substantial
evidence and the statute of frauds defense was forfeited by defendants.



                                              7.
C.     The New Trial on Limited Issue of Damages
       The retrial on the issue of damages was commenced on May 16, 2011, in Fresno
County Superior Court. At that trial, plaintiff and defendant each called retained expert
witnesses to offer opinions as to the fair market value of the subject property at the time
of defendant’s breach of contract. Plaintiff’s expert, Greg Palmer, concluded the fair
market value of the property at the time of the breach was $560,000, or $35,000 per acre.
Mr. Palmer testified that his opinion as to value was based on a range of comparable sales
in the area “from a low of $21,000 per acre to a high of $52,291 per acre.” Defendant’s
expert, Jacob Brewster, testified that in his opinion the fair market value of the property
was $208,000, or $13,000 per acre, at the time of breach. Both experts prepared written
reports which were admitted into evidence.6 Defendant also called the City Planner for
the City of Sanger, Ralph Kachadourian, to offer testimony regarding the development
plans for the City of Sanger during the relevant time period.
       Additionally, during the course of the retrial of damages, defendant’s counsel
elicited testimony from plaintiff’s wife and others relating to the issue of whether
plaintiff had the ability to obtain a loan to purchase the real property. This included
testimony indicating plaintiff was ill or out of work during that time period. According to
defendant, such evidence indicated that plaintiff “could not have obtained a loan” and,
consequently, could not have performed under the contract. Plaintiff’s counsel did not
attempt to demonstrate plaintiff’s financial ability to complete the purchase because the
question of liability had already been established in the original trial and affirmed in
Garcia I, supra, 173 Cal.App.4th 900.
       Following the retrial on damages, the trial court issued a statement of decision on
July 21, 2011. The trial court indicated it had considered the evidence relating to fair
market value of the real property and concluded that, as of October 2004, its value was
6      Defendant failed to include his own expert’s report in the record on appeal.



                                              8.
$21,000 per acre. Multiplying $21,000 by the total number of acres (16), the total value
of the real property was found to be $336,000. Applying the formula for damages
pursuant to Civil Code section 3306, the trial court stated: “Based on the foregoing, the
difference between the agreed upon price ($133,027.00) and the fair market value of the
Property at the time of the breach ($336,000.00) is $202,973.00. Thus, the Court finds
that Plaintiff has been damaged as a proximate result of Defendant’s breach in the
principal amount of $202,973.00.” Plaintiff’s damages were then offset by the trial court
in the amount of $18,175, based on the cost to clean up the property and monies
previously paid to plaintiff in connection with the County of Fresno’s “partial take”
concerning the property. After applying the offset, the trial court awarded plaintiff the
sum of $184,798 in damages.
       The trial court entered judgment in favor of plaintiff and against defendant in the
amount of $184,798, plus 10 percent interest thereon from July 21, 2011, until paid.
       Defendant moved for a new trial. The supporting memorandum of points and
authorities argued two grounds for the motion: “insufficiency of the evidence” and “error
of law.” Defendant’s motion for a new trial argued that plaintiff was not entitled to any
damages, since plaintiff failed to prove in the retrial of damages that he could have
obtained a loan to complete the purchase of the real property. In addition, defendant
claimed the fair market value of the real property arrived at by the trial court was not
supported by the evidence. At oral argument of the motion for new trial, the trial court
expressed its view that plaintiff’s ability to perform the contract was an element of
liability, not damages, and it reminded defendant that liability was found by the jury and
was not challenged on appeal. On September 1, 2011, the trial court issued its order
denying the motion for new trial. Defendant appeals from the judgment, arguing that the
trial court should have granted the motion for new trial.




                                             9.
                                       DISCUSSION
I.     Standard of Review
       It is fundamental to the appellate process that a judgment is presumed correct and
error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557,
564.) “A judgment or order of a lower court is presumed to be correct on appeal, and all
intendments and presumptions are indulged in favor of its correctness.” (In re Marriage
of Arceneaux (1990) 51 Cal.3d 1130, 1133.) The appellant carries the burden of showing
the trial court erred and that such error was prejudicial. (In re Marriage of Behrens
(1982) 137 Cal.App.3d 562, 575.) Where an appeal challenges the trial court’s resolution
of factual issues, we apply the substantial evidence rule in which “‘the power of the
appellate court begins and ends with a determination as to whether there is any
substantial evidence, contradicted or uncontradicted,’ to support the findings below.
[Citation.]” (Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1100.)
On the other hand, questions of law are reviewed de novo. (Mancuso v. Southern Cal.
Edison Co. (1991) 232 Cal.App.3d 88, 95.) Here, the issue of whether plaintiff’s ability
to perform the contract was an element of liability or of damages is a question of law that
we review de novo. On the other hand, the issue of the sufficiency of the evidence to
support the trial court’s damage award is obviously a factual question that we review
under the substantial evidence rule.
       The trial court’s determinations were challenged below in the context of a motion
for new trial. “A trial court has broad discretion in ruling on a new trial motion, and the
court’s exercise of discretion is accorded great deference on appeal. [Citation.] An abuse
of discretion occurs if, in light of the applicable law and considering all of the relevant
circumstances, the court’s decision exceeds the bounds of reason and results in a
miscarriage of justice. [Citations.]” (Fassberg Construction Co. v. Housing Authority of
City of Los Angeles (2007) 152 Cal.App.4th 720, 752.) However, in our review of an
order denying a new trial, we consider the entire record to make an independent judgment

                                             10.
as to whether the error, if any, was prejudicial. (City of Los Angeles v. Decker (1977) 18
Cal.3d 860, 872.)
II.    The Trial Court Correctly Limited the New Trial to Damage Issues
       Defendant argues that plaintiff’s performance or ability to perform under the
contract was an aspect of damages, not liability, and thus it was properly raised by
defendant in the retrial of damages. Defendant is mistaken. The essential elements of a
breach of contract claim are: “(1) the contract, (2) plaintiff’s performance or excuse for
nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.”
(Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830.) As this enumeration reflects, a
“plaintiff’s performance or excuse for nonperformance” (ibid) is not an issue subsumed
under the category of damages, but is, properly speaking, an essential and distinct
element of a plaintiff’s prima facie case necessary to show that a defendant was liable.
“It is elementary a plaintiff suing for breach of contract must prove it has performed all
conditions on its part or that it was excused from performance.” (Consolidated World
Investments, Inc. v. Lido Preferred Ltd. (1992) 9 Cal.App.4th 373, 380; see also Hamilton
v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1614 [performance an
essential element of cause of action].)
       This comports with the fact that a finding of liability in a civil case ordinarily
means that all of the elements necessary to recover damages have been proven. (See
Black’s Law Dict. (9th ed. 2009) p. 997 [“civil liability” is defined as “[t]he state of
being legally obligated for civil damages”].) As summarized in CACI No. 350, the
standard jury instruction used in breach of contract cases: “If you decide that [plaintiff]
has proved [his] claim against [defendant] for breach of contract, you also must decide
how much money will reasonably compensate [plaintiff] for the harm caused by the
breach. This compensation is called ‘damages.’ The purpose of such damages is to put
[plaintiff] in as good a position as [he] would have been if [defendant] had performed as



                                             11.
promised.” (Italics omitted.) We conclude that plaintiff’s performance or ability to
perform was a component of liability, not damages.
       Defendant appears to argue that because recovery of damages depended upon
plaintiff’s ability to perform the contract, the latter issue may be reopened at the retrial of
damages. That is not the law. “[W]hen, upon motion for a new trial, an order is made
limiting the scope of the motion to a certain specified issue, ‘it opens for examination
only the issue upon which it is ordered; that the determination of the other issues remains
in the record and that they cannot be retried.’” (J. Levin Co. v. Sherwood & Sherwood
(1921) 55 Cal.App. 308, 312.) Consequently, where a trial court granted a new trial
“‘upon the issue of damages,’” its order could not be “construed as opening for retrial
every issue upon which the plaintiff’s asserted right to recover damages depends,” for to
do so would mean the court’s limitation to the issue of damages would be rendered idle
and meaningless. (Id. at pp. 312-313; accord, Karallis v. Shenas (1950) 97 Cal.App.2d
280, 283 [where an order grants a new trial as to a single issue, “it opens for examination
all of the facts and circumstances relative to that one issue and as to other issues there
shall be no retrial or examination of the facts”].) Similarly, in Aero Spacelines, Inc. v.
Superior Court (1977) 76 Cal.App.3d 177, 179-181, where a new trial was ordered on the
limited issue of damages, the Court of Appeal held that it was error for the trial court to
allow the defendant to raise (during the retrial) the issue of plaintiff’s failure to join an
indispensible party: “In the case before us, there has been a trial and verdict which
decided that defendant was liable to plaintiffs upon the claim there litigated. The new
trial must be confined to a determination of the amount of the damages recoverable by
the present plaintiffs against the present defendant.” (Id. at pp. 179-180.) Based on these
authorities, it is clear that the trial court in the present case appropriately restricted its
consideration to the issue of damages.
       Moreover, it would have been error for the trial court to reopen an issue of
liability, since liability was determined in the original trial and affirmed on appeal in

                                               12.
Garcia I. Hence, all matters essential to contract liability—including the issue of
plaintiff’s performance or ability to perform the contract—became final and could not be
disturbed in the retrial. One of the matters we expressly affirmed in Garcia I was the
sufficiency of the evidence to “show that plaintiff secured the necessary financing to
repay the loan prior to, and at the end of, the relevant contract period, which was clearly
communicated to [defendant]. [Defendant] breached the agreement by his conduct that
effectively prevented or interfered with plaintiff’s ability to successfully tender funds
from his lender.” (Garcia I, supra, 173 Cal.App.4th 900 [nonpub. portion].) There is no
question that the issue of plaintiff’s ability to secure the loan was specifically decided at
trial, affirmed on appeal and became final prior to the retrial.
       Our case is in a similar posture to Ayyad v. Sprint Spectrum, L.P. (2012) 210
Cal.App.4th 851, 861-862, which explained: “A new trial order limited to certain issues
vacates only the portion of the judgment pertaining to those issues, while ‘the portion of
the judgment pertaining to the unaffected issues remains in place and becomes final once
the time for appeal passes.’ [Citation.] In the case before us, the parties did appeal from
the … judgment, but because we affirmed that judgment, it became final as to the issues
unaffected by the new trial order.… [¶] Consistent with our affirmance of the new trial
order, our directions on remand restricted the issues to be retried to those identified in
that order. Consequently, the trial court’s jurisdiction on remand was limited to retrying
the issue of [the defendant’s] damages and calculating any setoff. The trial court’s
jurisdiction did not extend to issues outside the scope of our directions.”
       Here, similarly, because the new trial order called for a limited retrial of the issue
of damages, the trial court properly refused to reexamine an issue of liability that had
already been decided and was final. For all of these reasons, we conclude the trial court
did not abuse its discretion in refusing to reopen the issue of plaintiff’s ability to perform
the oral contract. Defendant’s challenge on this ground fails.



                                             13.
III.   Damage Calculation Supported by Substantial Evidence
       The trial court’s award of damages to plaintiff was calculated based on a finding
that the real property in question had a fair market value of $21,000 per acre. The trial
court’s statement of decision stated: “After taking into consideration the expert reports
and testimony of the parties’ respective property valuation experts, as well as the
testimony of Ralph Kachadourian, City Planner for the City of Sanger, the Court finds
that the fair market value of the Property as of October 2004 was $21,000.00 per acre.”
Defendant argues that there was no substantial evidence presented to support the trial
court’s finding that the real property was worth $21,000 per acre.
       Defendant’s argument fails, first of all, because he has failed to present an
adequate record on appeal. As stated in its statement of decision, the trial court expressly
considered not only the testimony presented at trial but also the written reports submitted
by the parties’ two experts. The record on appeal does not include those written reports.
“Appealed judgments and orders are presumed correct, and error must be affirmatively
shown. [Citation.] Consequently, plaintiff has the burden of providing an adequate
record. [Citation.] Failure to provide an adequate record on an issue requires that the
issue be resolved against plaintiff. [Citation.]” (Hernandez v. California Hospital
Medical Center (2000) 78 Cal.App.4th 498, 502.) “To the extent the court relied on
documents not before us, our review is hampered. We cannot presume error from an
incomplete record. [Citation.]” (Christie v. Kimball (2012) 202 Cal.App.4th 1407,
1412.) “‘[I]f the record is inadequate for meaningful review, the appellant defaults and
the decision of the trial court should be affirmed.’” (Gee v. American Realty &
Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) Here, defendant failed to provide
key documents that were considered by the trial court and related to the issue of value.
Therefore, the record on appeal is inadequate and defendant’s claim that the evidence was
insufficient to support the finding of value is rejected as unsupported.



                                            14.
       Defendant’s argument fails for another reason. Despite the fact that the record on
appeal is incomplete, there is nonetheless sufficient evidence in the record to support the
trial court’s finding that the real property had a fair market value of $21,000 per acre.
Plaintiff’s expert witness, Greg Palmer, testified to a range of reasonable values of the
property, based on other comparable sales, “from a low of $21,000 per acre to a high of
$52,291 per acre.” We agree with plaintiff that the trial court, as the finder of fact, was
completely within its right to find in the context of all the evidence before it that the
lower end of the range of values testified to by plaintiff’s expert was the appropriate
value of the property. In conclusion, defendant’s argument fails because substantial
evidence supported the trial court’s finding.
                                      DISPOSITION
       The judgment of the trial court is affirmed. Costs on appeal are awarded to
plaintiff.

                                                                  _____________________
                                                                                 Kane, J.
WE CONCUR:


 _____________________
Wiseman, Acting P.J.


 _____________________
Levy, J.




                                              15.
