Filed 5/29/13 Reyenga v. Goyal CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



ALIDA REYENGA et al.,                                               D059433

         Plaintiffs and Appellants,

         v.                                                         (Super. Ct. No. ECU03860)

JITENDRA GOYAL et al.,

         Defendants and Respondents.


         APPEAL from a judgment of the Superior Court of Imperial County, Juan Ulloa,

Judge. Affirmed.

         Janis L. Turner for Plaintiffs and Appellants.

         Horton, Knox, Carter & Foote, Orlando B. Foote, Melissa Blackburn and

Margarita Haugaard for Defendants and Respondents.

         A court entered a judgment on defendants' cross-complaint awarding damages and

attorney fees against plaintiffs Alida Reyenga and David Vernon (Plaintiffs) in favor of

defendants Jitendra and Hemendra Goyal (Defendants). Plaintiffs appeal.
                   FACTUAL AND PROCEDURAL BACKGROUND1

       Defendants acquired land in Holtville, California, from a railroad, and

immediately began efforts to develop the property, including seeking and obtaining

zoning approvals from the City of Holtville. Plaintiffs, who owned a parcel adjoining

Defendants' land, tried to block the development by opposing the zoning changes. When

Plaintiffs were unsuccessful, they began a campaign of harassment that included an

assertion that Defendants' property was encumbered by a prescriptive easement

benefitting Plaintiffs' property.

       Defendants pursued informal efforts to resolve the dispute but were unsuccessful.

Instead, Plaintiffs commenced the present action by filing a complaint alleging claims for

nuisance, to quiet title based on the alleged prescriptive easement, and for damages.

Defendants answered and, by a first amended cross-complaint, sought declaratory relief

and quiet title, and also sought damages under various theories.

       The court granted Defendants' motion for summary judgment on the claims raised

in Plaintiffs' complaint, and the matter proceeded to trial on the issues raised in

Defendants' cross-complaint. The court found in Defendants' favor, and awarded

damages of $40,000. In posttrial motions, the court also awarded them costs and attorney

fees pursuant to Code of Civil Procedure2 section 2033.420. Plaintiffs timely appealed.


1      Our factual background is truncated and we mention only those facts that may be
relevant to the issues properly before us.

2      All statutory references are to the Code of Civil Procedure unless otherwise
specified.
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                                         ANALYSIS

       A. The Propriety of the First Amended Cross-complaint

       Plaintiffs first assert Defendants' first amended cross-complaint, on which the

judgment was partially based, must be deemed "nonexistent" because it was filed without

leave of court in alleged violation of section 428.50. However, Plaintiffs cite nothing to

suggest this argument was raised below, either by a motion to strike (see, e.g., Loney v.

Superior Court (1984) 160 Cal.App.3d 719, 724; § 436, subd. (b)) or otherwise, and

under well settled law it therefore may not be interposed for the first time on appeal.

"Where the parties try the case on the assumption that a cause of action is stated, that

certain issues are raised by the pleadings, that a particular issue is controlling, or that

other steps affecting the course of the trial are correct, neither party can change this

theory for purposes of review on appeal." (9 Witkin, Cal. Procedure (5th ed. 2008)

Appeal, § 407, p. 466.) This doctrine is a well established rule of appellate practice,

based on the notion that a change of position on appeal from the "theory of trial" is unfair

to the trial court and unjust to the opposing party. (Id. at §§ 407-408, pp. 466-468.)

Plaintiffs may not assert on appeal that the causes of action included in Defendants' first

amended cross-complaint were not properly at issue in the trial court.

       B. The Damages Award

       Plaintiffs assert the damages award to Defendants was erroneous. However, the

precise nature of Plaintiffs' appellate claim is opaque, because it is unclear whether they




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argue damages cannot be awarded for claims of trespass or nuisance, or instead assert the

amount awarded in this case was excessive considering the evidence at trial.

       To the extent Plaintiffs argue damages cannot be awarded for claims of trespass or

nuisance, they are mistaken: damages are recoverable in actions for trespass (Civ. Code,

§ 3334; Natural Soda Products Co. v. City of Los Angeles (1943) 23 Cal.2d 193, 199 [lost

profits]) and nuisance (Ingram v. City of Gridley (1950) 100 Cal.App.2d 815, 820). To

the extent Plaintiffs argue the amount awarded in this case was excessive considering the

evidence at trial, we are not persuaded by their claim for two independent reasons. First,

the record contains no suggestion Plaintiffs moved for a new trial asserting the damage

award was excessive, and not timely moving for a new trial "precludes a party from

complaining on appeal that the damages awarded were either excessive or inadequate,

whether the case was tried by a jury or by the court." (Jamison v. Jamison (2008) 164

Cal.App.4th 714, 719 [damage award may not be challenged for inadequacy or

excessiveness for the first time on appeal].) Second, even had Plaintiffs preserved the

issue by moving for a new trial below, their claim as to the insufficiency of the evidence

to support the damage award would be deemed forfeited on appeal because they have not

on appeal set forth the evidence supporting the damages award.

       When an appellant challenges a finding for insufficiency of the evidence to

support it, he or she is required to set forth in the appellant's opening brief all the material

evidence on that issue or finding and not merely evidence favorable to his or her position.

(Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) "In furtherance of its


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burden, the appellant has the duty to fairly summarize all of the facts in the light most

favorable to the judgment. [Citation.] Further, the burden to provide a fair summary of

the evidence 'grows with the complexity of the record. [Citation.]' " (Boeken v. Philip

Morris, Inc. (2005) 127 Cal.App.4th 1640, 1658.) An appellant must state fully, with

transcript citations, the evidence claimed to be insufficient to support the trial court's

findings. (In re Marriage of Fink (1979) 25 Cal.3d 877, 887.) Unless this is done, the

asserted error is deemed waived. (Foreman & Clark, at p. 881.) "An appellate court will

consider the sufficiency of the evidence to support a given finding only after a party

tenders such an issue together with a fair summary of the evidence bearing on the

challenged finding, particularly including evidence that arguably supports it." (Huong

Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409-410.) Furthermore, "[a] party who

challenges the sufficiency of the evidence to support a finding must set forth, discuss, and

analyze all the evidence on that point, both favorable and unfavorable" (Doe v. Roman

Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 218), and not doing

so permits a reviewing court to deem waived any substantial evidence contention. (Ibid.)

Based on our review of the record on appeal, Plaintiffs have not set forth a sufficient

statement of facts stating all of the material evidence, both favorable and unfavorable, on

the damages award, and therefore this issue is deemed forfeited.

       C. The Attorney Fees Award

       Plaintiffs contend there was no legal basis on which to predicate an award of

attorney fees to Defendants. Plaintiffs appear also to suggest the attorney fees were


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awarded without a motion or notice to them. However, both Defendants' motion seeking

attorney fees pursuant to section 2033.420 and Plaintiffs' opposition are contained in the

record on appeal, and therefore this claim is not well taken. Plaintiffs do not challenge

the amount of the attorney fee award.

       Factual Background

       After their efforts to block Defendants' development through the zoning process

were unsuccessful, Plaintiffs began a campaign of harassment that included hiring an

attorney who asserted Plaintiffs had acquired a prescriptive easement over Defendants'

property by adverse possession and who threatened legal action to enjoin Defendants

from interfering with Plaintiffs' alleged prescriptive easement. Defendants' attorney

replied to Plaintiffs' attorney outlining the factual and legal reasons why Plaintiffs' claims

regarding adverse possession were meritless and also outlining why their claims for a

prescriptive easement were meritless. Plaintiffs, after apparently changing to a new

attorney, thereafter again threatened to file an action to quiet title based on adverse

possession, and to file a lis pendens that would cloud Defendants' title. Defendants'

attorney again replied to Plaintiffs' new attorney, reiterating the factual and legal reasons

why their claims regarding adverse possession and for a prescriptive easement were

meritless.

       Plaintiffs nevertheless filed this action, and a principal thrust of their claims was

that they had obtained a protectable interest in Defendants' property "by virtue of adverse

possession." Less than three months after Plaintiffs' action was filed, Defendants


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propounded requests for admissions requesting that Plaintiffs admit, among other things,

that they made verbal statements claiming an interest in the property that disparaged

Defendants' title by claiming a right to use and occupy the property, and Plaintiffs'

statements were false when made. Plaintiffs' response to those requests simply stated

"denied." Defendants then conducted additional discovery, and were ultimately required

to proceed, by way of a summary judgment motion directed at the claims asserted by

Plaintiffs in their complaint, to defeat Plaintiffs' claims.

       Defendants thereafter attempted to obtain a negotiated settlement on the remaining

claims raised by their cross-complaint but, when that avenue was exhausted without

success, were required to proceed to trial. At trial, Plaintiff Alida Reyenga admitted that

"[s]ometime prior to actually filing the lawsuit" she "knew that we didn't have a right to

adverse possession."

       Analysis

       Although Plaintiffs correctly note that none of the substantive claims on which

Defendants prevailed provide for the recovery of attorney fees, the record is clear that

Defendants' motion for attorney fees was premised on section 2033.420, which provides:

           "(a) If a party fails to admit . . . the truth of any matter when
           requested to do so under this chapter, and if the party requesting that
           admission thereafter proves . . . the truth of that matter, the party
           requesting the admission may move the court for an order requiring
           the party to whom the request was directed to pay the reasonable
           expenses incurred in making that proof, including reasonable
           attorney's fees."

           "(b) The court shall make this order unless it finds any of the
           following:

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          "(1) An objection to the request was sustained or a response to it was
          waived under Section 2033.290.

          "(2) The admission sought was of no substantial importance.

          "(3) The party failing to make the admission had reasonable ground
          to believe that that party would prevail on the matter.

          "(4) There was other good reason for the failure to admit."

       "Under . . . section 2033.420, a party that denies a request for admission may be

ordered to pay the costs and fees incurred by the requesting party in proving that matter."

(Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1276.) Allowing recovery of

expenses "is directly related" to the purpose underlying requests for admissions--to

expedite trial. (Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 509.)

"Unlike other discovery sanctions, an award of expenses pursuant to section [2033.420]

is not a penalty. Instead, it is designed to reimburse reasonable expenses incurred by a

party in proving the truth of a requested admission . . . [citations] such that trial would

have been expedited or shortened if the request had been admitted." (Ibid. [discussing

predecessor provision].)

       A trial court could conclude Defendants incurred substantial attorney fees proving

Plaintiffs' claims to the property disparaged Defendants' title by claiming a right to use

and occupy the property, and thereby injured Defendants, and Plaintiffs knew the

statements were false when they made them. Under the facts here, the order awarding

attorney fees was authorized under section 2033.420.



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                                   DISPOSITION

     The judgment is affirmed. Defendants are entitled to costs on appeal.




                                                            McDONALD, Acting P. J.

WE CONCUR:


McINTYRE, J.


AARON, J.




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