Filed 3/17/14 Franzen v. Brookfield Southland Builders CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


DONALD E. FRANZEN et al.,

     Plaintiffs and Appellants,                                        G049210

         v.                                                            (Super. Ct. No. CIVRS904268)

BROOKFIELD SOUTHLAND                                                   OPINION
BUILDERS, INC., et al.,

     Defendants and Respondents.



                   Appeal from a judgment of the Superior Court of San Bernardino County,
David A. Williams, Judge. Affirmed.
                   Donald E. Franzen and Elaine M. Franzen, in pro. per., for Plaintiffs and
Appellants.
                   Songstad Randall Coffee & Humphrey, William D. Coffee and Garrett R.
Rogers, for Defendants and Respondents.
              Donald E. Franzen and Elaine M. Franzen bought a new residence in a
housing development called Edenglen (the Development) located in the City of Ontario
(the City). Within a year of moving into their new home, the Franzens sued the
builder/developer, Brookfield Southland Builders, Inc. (Brookfield) and
Edenglen Ontario LLC (Edenglen Ontario), and two real estate agents, Nguyet Minh Le
and Francis Holmes Matthews III (collectively referred to as the Defendants), for
rescission of the purchase and sale agreement. They claimed the Defendants
misrepresented and/or concealed the proximity of the Ontario International Airport and
did not disclose that their new home was in the flight path of overnight cargo flights from
Ontario International Airport, which subjected them to extreme noise. In a bench trial,
the trial court granted the Defendants’ motion for judgment under Code of Civil
Procedure section 631.8. The Franzens appeal raising numerous issues, none of which
have merit. Accordingly, we affirm the judgment.
                                 FACTS & PROCEDURE
The Pleadings
              The Franzens’ original four-page complaint, filed by an attorney on
April 30, 2009, named only Brookfield and Edenglen Ontario as defendants. It contained
a single cause of action for rescission of contract due to fraud under Civil Code
section 1689, subdivision (b)(1). The complaint alleged the Franzens purchased a new
home in the Development from Brookfield and Edenglen Ontario for $469,900, closed
escrow on April 30, 2008, and moved into the house on May 3, 2008. As soon as they
began sleeping in the house, they became aware of noise from Ontario International
Airport and learned for the first time their new house was in the nighttime flight path for
United Parcel Service (UPS) air cargo commercial aircraft flying in and out of
Ontario International Airport. The complaint alleged Brookfield and Edenglen Ontario
had a duty to disclose the house was in the nighttime flight path from
Ontario International Airport and breached this duty. In February 2009, the Franzens

                                             2
sent Brookfield and Edenglen Ontario a notice rescinding the purchase and sale
agreement (the Purchase Agreement), but they refused to make restitution. The trial
court denied Brookfield and Edenglen Ontario’s motion for summary judgment.
              Trial was set for October 24, 2011. On May 16, 2011, the trial court
permitted the Franzens, now representing themselves in propria persona, to file a first
amended complaint (FAC), which is the operative pleading. The FAC—comprised of
24 pages of allegations and approximately 300 pages of exhibits—contained 10 causes of
action. Each cause of action was for rescission of the Purchase Agreement due to
fraudulent concealment or misrepresentation of material facts concerning the
Ontario International Airport’s proximity to the Development and the nighttime cargo
plane flight path. Le and Matthews, the real estate agents working in the Development’s
sales office with whom Franzens interacted when deciding to buy their house, were added
as defendants.
              The FAC alleged the Defendants did not disclose the property was in the
direct nighttime flight path of Ontario International Airport air cargo operations and was
within an “‘Airport Influence Area.’”1 Additionally, it alleged the Defendants did not
disclose the Development was two miles from Ontario International Airport. Rather, the
disclosures forms stated the Development was within five miles of the
Ontario International Airport, which a reasonable person would think meant it was
“closer to [five miles away] than to [one, two, three, or four] miles.” The FAC alleged
that although the Initial Study and Environmental Impact Report (EIR) prepared for the
Development by the City under the California Environmental Quality Act (CEQA)
(Pub. Resources Code, § 21000 et seq.), stated the Development was not in an

1              “[A]n ‘airport influence area,’ also known as an ‘airport referral area,’ is
the area in which current or future airport-related noise, overflight, safety, or airspace
protection factors may significantly affect land uses or necessitate restrictions on those
uses as determined by an airport land use commission.” (Civ. Code, § 4255,
subd. (a)(2).)

                                              3
Airport Influence Area and not directly under the airport flight path, the Defendants
should have known that was incorrect because the City’s 1992 General Plan showed the
property to be within airport flight path noise contours. The FAC alleged the Defendants
failed to disclose Ontario International Airport had obtained a prescriptive nighttime
avigation (air flight) easement2 over the property.
              The FAC alleged that although the Franzens received an “Airport Proximity
Notice,” it only warned that residents “may . . . notice noise and vibration at any hour
from overflying aircraft” without adequately explaining what that meant. The FAC
alleged that when the Franzens visited the Development’s sales office during daytime and
early evening hours, they only observed high-flying aircraft over the Development, and
were told by sales agent Matthews the property “would ‘experience very little airplane
noise.’” At various visits to the Development, the Franzens made comments to Matthews
and Le about being pleased there would be little airplane noise and the sales agents did
not contradict them. The FAC alleged one of the deciding factors for the Franzens in
buying their house property was their understanding Ontario International Airport shut
down and no planes flew after about 11 p.m. The FAC also alleged the Defendants did
not disclose there was cargo jet air traffic from the Ontario International Airport from
10 p.m. until 7 a.m.
              On August 5, 2011, the Franzens filed a motion for leave to file a second
amended complaint. The proposed second amended complaint would have added 16 new
defendants to the action including the City, title and escrow companies, mortgage lenders
and servicers, Brookfield and Edenglen Ontario’s predecessors in interest in the property
that eventually became the Development, Brookfield and Edenglen Ontario’s parent/or


2            “Avigation easements are private agreements that subject property to
conditions caused by aircraft noise.” (Berkeley Keep Jets Over the Bay Com. v. Board of
Port Cmrs. (2001) 91 Cal.App.4th 1344, 1374, fn. 19.)


                                             4
related companies, the Development’s homeowners’ association, and the private
disclosure company that prepared some of the real estate transfer disclosures. The
proposed second amended complaint contained allegations concerning how title was
conveyed to and from Edenglen Ontario, the history of loan obligations and
encumbrances on the property as it was developed, and would have added additional tort
causes of action against the new defendants. On September 14, 2011, the trial court
denied the motion to amend because the Franzens had not complied with California Rules
of Court, rule 3.1324.
              The trial was continued to November 7, 2011, and on October 25, the
Franzens filed a second motion to file a second amended complaint. This proposed
amendment did not include any new defendants (just the four named in the operative
FAC). The amended pleading proposed to add allegations of mutual mistake as a ground
for rescission of the Purchase Agreement. The trial court denied the motion to amend
and observed the amendment was unnecessary because mutual mistake could be brought
up during trial.
Trial Evidence: Plaintiff’s Case
              A two-day bench trial took place beginning November 8, 2011. The
Franzens represented themselves. We begin with a description of relevant sales
documents and disclosures, and environmental and land use documents that were
admitted into evidence.
Environmental and Land Use Documents
              The Development was a 160-acre project with over 500 residential units
located in a larger area known as the New Model Colony—8,200 acres of agricultural
land that was annexed to the City in 1999. The property was previously occupied by a
dairy farm and one single family residence.
              The EIR for the Development, which was required for City approval, was
prepared by the City in July 2005—Brookfield and Edenglen Ontario did not participate

                                              5
in preparing the EIR. The EIR contained information regarding the impact of
Ontario International Airport operations on the Development. When the EIR was
prepared, the City did not have an adopted airport land use plan. When the CEQA Initial
Study for the Development was prepared, it was thought Ontario International Airport
was within two miles of the Development, and thus applying CEQA Guidelines, it was
within “the area of influence for public airports . . . .” However, after further
investigation and measurement, Ontario International Airport was determined to be
approximately 2.5 miles north of the project site, and thus it was not within the airport’s
area of influence. Accordingly to the City’s 1992 General Plan, which discussed current
and future operations of Ontario International Airport, the Development did not “directly
lie within the flight path of [Ontario International Airport]. Aircraft from
[Ontario International Airport] fly over the general project area in a southeasterly
direction away from the [a]irport.”
              The EIR contained the following finding concerning impacts related to
airport noise levels: “The project site is not located near the Ontario International Airport
or the Chino Airport, and is not located within any airport comprehensive airport land use
area. Therefore, no noise-related impacts related to aircraft or airport operations would
result from implementation of the proposed project.” No airport-related noise mitigation
measures were required.
Sales Documents
              The combined sales agreement, deposit receipt and joint escrow
instructions (i.e., the Purchase Agreement) was admitted into evidence. It identified
Edenglen Ontario as the seller and the Franzens as the buyers. The Purchase Agreement
was executed by Brookfield, as Edenglen Ontario’s authorized agent, and signed by
Rocky Tracy, Brookfield’s vice president. The Purchase Agreement was executed by
Edenglen Ontario and the Franzens on March 31, 2008.



                                              6
              Several other documents associated with the sale, all signed on March 31,
2008, 30 days before escrow closed, were also admitted into evidence. They included the
following reports and disclosures that included information regarding Ontario
International Airport.
              The Edenglen Community and Contiguous Area Disclosure (the
Contiguous Area Disclosure) explained its purpose was to disclose “various matters” that
might affect a buyers’ decision to purchase a home in the Development. It stated much
of the information it included came from sources outside Edenglen Ontario’s control
(including from government agencies) and it could not guarantee the accuracy or
completeness of any of the information. The buyer was advised, “You should
independently verify the information regarding any matter of concern to you. We also
strongly recommend that you visit the [Development] and drive around the general
vicinity surrounding the [Development] on at least several occasions on different days
and at different times to familiarize yourself with physical and other conditions to
determine whether there are material factors that might affect your decision to purchase a
home in the [Development]. Since we cannot predict every circumstance that may be
material to you, you must satisfy yourself about the decision to purchase a home by
independently investigating all matters of concern to you.”
              The Contiguous Area Disclosure contained an “Airport Proximity Notice”
that stated the Development was located “within the below estimated distance” of various
airports, including that it was within five miles of Ontario International Airport. It stated,
“Residents of [Edenglen] may notice noise and vibration at any hour from” Ontario
International Airport.
              The final section of the Contiguous Area Disclosure was titled “No
Additional Representations.” Its first paragraph stated in bold print that no promise or
representation by any salesperson would be binding on Brookfield and Edenglen Ontario
unless provided in writing by an authorized officer of Brookfield and Edenglen Ontario.

                                              7
It additionally stated the buyer acknowledged, “[n]o representation or promise has been
made to you by any salesperson . . . upon which you are relying in connection with the
purchase of your [home].” The second, and final paragraph of the Contiguous Area
Disclosure stated the Franzens “represent that [we] have read and understand the matters
set forth in this [d]isclosure and have received a copy for [our] records. [We]
acknowledge and agree that [we] are solely responsible to make certain that [we]
understand the contents of this [d]isclosure and will take whatever steps are necessary to
do so, including, without limitation, consulting an attorney, interpreter, engineer, or any
other person whose advice or assistance may be necessary to fully understand the matters
set forth herein. [We] acknowledge and agree that [we] have considered the possible
effect of such matters in [our] decision to purchase [our] new home . . . .” The Franzens’
initials were on each page of the Contiguous Area Disclosure, and their full signatures
and the date March 31, 2008, were on the last page.
              A California Department of Real Estate Public Report (the Public Report)
was also provided to the Franzens. Their signatures, dated March 31, 2008, appear on a
receipt for the Public Report below the words appearing in all capital letters, “do not sign
this receipt until you have received a copy of the public report and have read it.” In the
section describing “significant land uses located in the vicinity of the [Development],”
the Public Report states “the Ontario International is located approximately 2-1/2 miles
[n]orthwest of this [c]ommunity.” Under the heading “Airport,” the Public Report states
“[t]his [c]ommunity is subject to noise from the Ontario International Airport and may be
severely impacted in the future.”
              The Franzens also signed on March 31, 2008, an acknowledgment of
receipt of additional disclosures prepared by a third party company called
Disclosure Source (the Additional Disclosures). The Additional Disclosures contained an
“Airport Proximity Disclosure,” stating Civil Code section 1102.17 requires, “‘The seller
of residential real property subject to this article who has actual knowledge that the

                                             8
property is affected by or zoned to allow an industrial use described in [Code of Civil
Procedure section 731a] shall give written notice of that knowledge as soon as practicable
before transfer of title. [¶] Industrial use identified in [Code of Civil Procedure]
[s]ection 731a includes but is not limited to airport uses. [¶] . . . [¶] According to the
information available from the United States Department of Transportation (Bureau of
Statistics) . . . the following aircraft landing facilities [are] within the estimated distance
of the subject property. [¶] . . . [¶] Ontario International Airport
. . . Commercial/Civilian/MI . . . 4.8 Miles.” The Additional Disclosures document
advised that “[f]or further information regarding any of the public aircraft landing
facilities identified within this disclosure, please contact the following agency:
[¶] Western Pacific Region Airports Division . . .” and that agency’s address and
telephone number were provided.
Donald Franzen’s Testimony
              Donald Franzen’s testimony was presented via direct examination by his
wife. He testified that when he and his wife purchased their house there was no mention
of any nighttime air traffic over the Development. Donald Franzen testified that when he
and his wife were at the Development during the daytime, they only saw high flying
aircraft. When he commented on this to salesperson Matthews, Matthews said “‘that’s
basically as loud as you’re ever going to hear around here.’” Donald Franzen and his
wife never went to the Development at night to check out the airport noise because as far
as they knew, Ontario International Airport was closed by about 10 p.m. He testified
they could not access their house while it was under construction without a salesperson,
and thus could not get into it at night. He conceded there was a public street 100 to 200
feet away, and he and his wife could have accessed their street before close of escrow
because there were already neighbors who had moved into their new homes.
              Donald Franzen testified he was unaware when he bought his house that the
Ontario International Airport flight path changes at night for UPS and FedEx cargo

                                               9
flights into Ontario International Airport. Upon moving in, the Franzens discovered that
at night, the cargo planes land and take off going west to east and then as soon as they
clear the runway, they make a turn and fly directly over the Franzens’ house. There are
up to 10 such departures throughout each night. He would not have purchased the house
had he been aware of the nighttime flight activity. After being in the house for a couple
weeks, Donald Franzen saw salesperson Matthews and complained about the nighttime
flight noise and said he felt it was unfair he and his wife had not been told about it before
they bought the house. Matthews replied he was unaware of the nighttime flights but
would “pass it along to corporate.” A few weeks later, Matthews told Donald Franzen
that when he told “the guy from corporate” about the nighttime flights, and that Matthews
had never been aware of nighttime flights, “the guy” replied, “‘Yes, but you’ve never
spent the night out there.”
              Donald Franzen agreed he signed receipts for the disclosure documents
before closing escrow. Before close of escrow he received the Contiguous Area
Disclosure stating Ontario International Airport was within five miles of the
Development, and could be subject to noise and vibration from the airport, but he
understood “within five miles” to mean it was about five miles away. Donald Franzen
testified he signed an acknowledgment of receipt of the Public Report, which stated
Ontario International Airport was located about 2.5 miles from the Development and the
Development was subject to noise from the Ontario International Airport. But he claimed
he did not actually receive a copy of the Public Report until after escrow closed. He
received the Additional Disclosures (stating the Ontario International Airport was within
4.8 miles) “at some point. Exactly what day I can’t recall.” He agreed the property was
not in an Airport Influence Area when he bought it.
              Donald Franzen testified he and his wife listed their house in the
Development for sale in March 2009, but because the real estate market was dropping,
they took it off the market. They moved out of the house about one month before trial

                                             10
began in November 2011, because they “couldn’t take listening to the airplanes flying
overhead every night any longer.” He had not yet decided if they would rent the house or
try to sell it.
Elaine Franzen’s Testimony
                  Elaine Franzen’s testimony was presented via direct examination by her
husband. Elaine Franzen testified she would not have bought the house had she known it
was under the nighttime cargo flight path from Ontario International Airport. She
testified similarly to her husband that when they visited the Development during the day,
they did not notice any airport issues. The only disclosure she received was that the
Ontario International Airport was within five miles of the Development, and she had no
concerns about an airport five miles away. There was no disclosure the Development
was in an Airport Influence Area. She considered the disclosure’s statement the property
could be subject to noise and vibration from the Ontario International Airport to be an
opinion, not a fact.
                  Elaine Franzen testified it was her understanding flights from
Ontario International Airport took off and landed going east to west. Additionally, she
understood all flights out of Ontario International Airport stopped at 10 p.m. She had no
notice there was any nighttime flight activity from Ontario International Airport. On
cross-examination, however, Elaine Franzen conceded she was aware before she bought
her house that UPS had a very large and extensive facility at Ontario International Airport
because her son had worked there unloading UPS cargo planes at night. She did not
attempt to measure the distance from the airport to her house before closing escrow.
After she moved in, she drove the route and measured it at about 3.5 miles. She testified
they did not receive the Public Report until after escrow closed.
                  Elaine Franzen testified the noise from the nighttime cargo flights was so
overwhelming that she could not sleep and could no longer live in the house. The sleep
disruption began immediately upon moving in. On direct examination by her husband,

                                                11
Elaine Franzen testified about a promotional video for the Development in which she had
appeared a few months after moving into her house. In the video, which was filmed
during a neighborhood celebration, she commented on how wonderful the neighborhood
was and she made no mention of the airplane noise at night. She testified she said
nothing on the video about the nighttime noise because she did not want to dampen the
celebration and was not thinking about the nighttime noise when the video was made.
She testified that prior to being filmed, she had told the videographer that except for the
airplane noise, the Development was wonderful.
Scott Murphy’s Testimony
              Scott Murphy was a City employee in its planning department who had
been the City’s project manager for the Development. He was responsible for overseeing
preparation of the environmental review documents. The documents were prepared by
consultants retained by the City. Brookfield and Edenglen Ontario did not prepare the
EIR.
              When Murphy originally prepared the CEQA Initial Study for the
Development, he believed the Development was within two miles of Ontario
International Airport so he considered it part of what CEQA Guidelines set as the Airport
Influence Area. But, in preparing the EIR, the distance measured from the east end of the
runway to the closest portion of the Development, was 2.5 miles, taking it out of the
Airport Influence Area under CEQA Guidelines. Murphy estimated the distance from the
west end of the runway to the Development would be about 3.5 miles.
              Murphy testified that when the EIR was prepared, and the Development
approved, the City’s 1992 General Plan was the controlling airport land use plan.
However, the area in which the Development lies had not yet been annexed to the City in
1992. Thus, the airport noise contours shown in the 1992 General Plan did not extend out
to the Development. However, the farthest noise contour shown on the 1992 General
Plan noise contour map was 65 decibels CNEL (community noise equivalent level), and

                                             12
thus because the Development lay beyond that contour, Murphy and the EIR consultants
determined the Development was at most at the 65 CNEL contour. The contour was
based on measurements taken during the day and night—a weighted average with
penalties added on for noise sources between 7 p.m. and 7 a.m. Under CEQA, only noise
levels exceeding 65 CNEL would require any mitigation measures, thus the City did not
require any airport-related noise mitigation for the Development.
              Murphy testified the Development was not under the direct flight path of
nighttime cargo flights from Ontario International Airport. Rather it was in the overfly
zone when aircraft bank to the right after taking off from Ontario International Airport.
              Murphy testified that in January 2010, the City adopted a new
General Plan. In 2011, the City approved an airport land use compatibility plan, which
significantly extends the area included within the Airport Influence Area beyond the prior
two-mile radius, so the Airport Influence Area now includes the Development.
Motion for Judgment/Ruling/Judgment
              At the close of the Franzens’ case, the Defendants moved for judgment
under Code of Civil Procedure section 631.8. They asserted no cause of action for
rescission had been proven against Brookfield, Le, and Matthews because they were not
parties to the Purchase Agreement—the contracting party was Edenglen Ontario. They
asserted the Franzens had failed to prove any of the Defendants concealed or
misrepresented any material facts or made any misrepresentations to them.
              The trial court granted the motion for judgment. Neither party requested a
statement of decision. In its oral ruling, the court explained the Franzens were asserting a
single cause of action for rescission of the Purchase Agreement. Thus, the Defendants
who were not parties to the contract—Brookfield, Le, and Matthews—were entitled to
judgment in their favor. The court explained the necessary elements for rescission based
on fraud or misrepresentation are a misrepresentation of a material fact; knowledge of the
falsity; intent to deceive; justifiable reliance; and resulting damages. The court stated

                                             13
damages were established by the Franzens’ testimony that because of the noise from
overflying aircraft at night they are unable to stay living in the house. But the court
found there was no misrepresentation or concealment of a material fact, no intent to
deceive, and no justifiable reliance.
              The trial court observed that “from [the Franzens’] standpoint in this case,
it was extremely unfair not to be told that at night they are within not necessarily the
flight path of the airport but within an area where planes fly over anywhere from 2,500 to
3,500 feet. They felt it wasn’t fair. You know, to a large extent it probably wasn’t fair
that they would have to check into all this. But from a legal standpoint, the evidence has
to be presented in a certain way to prove that the defendant in this case actually made
misrepresentations or concealed or nondisclosed.” It found the Defendants used the best
information they had—the information prepared by the City in the EIR—in the various
disclosures given to the Franzens. The Contiguous Area Disclosure clearly laid out that
the Development was within five miles of an airport, and there could be noise and
vibration. The court essentially found Elaine Franzen’s testimony she was unaware of
nighttime activity at the airport, and that she relied on the real estate agents statements’
that they had not heard noise from the airport, lacked credibility. Her son had worked at
Ontario International Airport for UPS on the night shift unloading cargo planes. “It
certainly should have occurred to you what time do these planes fly in? She had direct
knowledge that [UPS] had that facility there. Anybody who’s driven down [there] knows
they have that facility there. You know, the regular person may not put two and two
together. And it may lead to what certainly appears to be from the regular person’s
standpoint a completely unfair situation. And I have no doubt that it was probably an
unfair situation, but I have to look at it legally.” The court observed it was not clear
exactly how far the Ontario International Airport was from the Development. Different
agencies had different estimates, and as Murphy explained, the distance varied depending
on where at the airport you measured from. The court found the uncontroverted evidence

                                              14
was that the Development was not in an Airport Influence Area when approved (and
when the Franzens bought their house) and the fact it was now in an Airport Influence
Area had nothing to do with how close the Development was to the airport, but with how
far out the new plan defined airport influence. The court subsequently entered a
judgment in favor of all the Defendants and awarded them costs in the amount of
$3,411.50.
                                       DISCUSSION
              The Franzens’ appellants’ opening brief contains 17 separately numbered
“issues” in the appeal. Most are repetitive and contain little or no legal analysis or
citation to relevant legal authority. The arguments may be reasonably characterized as
the following: (1) the judgment entered for the Defendants pursuant to Code of Civil
Procedure section 631.8 is not supported by substantial evidence; (2) the failure to issue a
statement of decision requires reversal; (3) the trial court abused its discretion by denying
leave to file a second amended complaint; (4) the court abused its discretion in certain
discovery rulings; and (5) the trial judge was biased.
              Prior to addressing the Franzens’ specific arguments, we repeat some
familiar appellate rules. “A judgment or order of the lower court is presumed correct.”
(Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham).) It is the appellants’
burden to demonstrate the existence of reversible error. (San Joaquin Raptor/Wildlife
Rescue Center v. County of Stanislaus (1996) 42 Cal.App.4th 608, 626.) An appellant
acting in propria persona has the same burden to affirmatively demonstrate reversible
error as one represented by counsel and is not entitled to special treatment. (McComber
v. Wells (1999) 72 Cal.App.4th 512, 523.) “When an appellant fails to raise a point, or
asserts it but fails to support it with reasoned argument and citations to authority, we treat
the point as waived. [Citations.]” (Badie v. Bank of America (1998) 67 Cal.App.4th 779,
784-785 (Badie); see also Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 (Kim)
[same].)

                                             15
A. Mootness
              The Defendants argue the Franzens’ appeal is moot because on June 25,
2012, they sold the property and, thus, rescission of the Purchase Agreement is no longer
possible. On October 17, 2012, we denied the Defendants’ motion to dismiss the appeal
that raised the same mootness issue. The appeal is not moot. Although the status quo
cannot be restored if the judgment is reversed and rescission ordered, the trial court has
the authority to fashion a full and fair remedy including consequential damages for real
estate commissions, escrow expenses, and interest on the money paid to purchase the
property. (Civ. Code, § 692; Sharabianlou v. Karp (2010) 181 Cal.App.4th 1133, 1145.)
B. Pending Motions
              While this appeal has been pending, the Franzens have filed numerous
motions to augment the record and/or to take judicial notice. Two remain pending:
(1) a request to take judicial notice filed November 16, 2012, which is a consolidation of
three earlier requests; and (2) the Franzens’ fifth request for judicial notice filed
February 19, 2013.
              The Franzens’ November 16, 2012, request for judicial notice seeks to put
before this court 30 documents that were not before the trial court when this matter was
tried in November 2011. The vast majority of the documents (exhibits 1 through 19,
24 through 26, and 29 and 30) were in existence well before the trial in this matter and
the Franzens offer no coherent explanation as to why these documents were not presented
below. Exhibits 27 and 28 are two undated documents containing biographical
information on the trial judge who presided over this matter. Exhibits 20 through 23 are
various documents recorded in 2012 (after the trial in this matter) pertaining to the
Franzens’ sale of the subject property via a “short-sale.”
              We deny the Franzens’ November 16, 2012, request for judicial notice in its
entirety because none of the proffered evidence was before the trial court when it issued
the rulings that are the subject of this appeal. “Reviewing courts generally do not take

                                              16
judicial notice of evidence not presented to the trial court. Rather, normally ‘when
reviewing the correctness of a trial court’s judgment, an appellate court will consider only
matters which were part of the record at the time the judgment was entered.’ [Citation.]
No exceptional circumstances exist that would justify deviating from that rule, either by
taking judicial notice or exercising the power to take evidence under Code of Civil
Procedure section 909. [Citations.]” (Vons Companies, Inc. v. Seabest Foods, Inc.
(1996) 14 Cal.4th 434, 444, fn. 3 (Vons).)
              The Franzens’ February 19, 2013, request for judicial notice seeks to put
before this court a photocopy of the Edenglen homeowners’ association’s monthly
newsletter from the month August 2008. We deny the request for judicial notice for the
reasons stated above—the proffered evidence was not before the trial court when it issued
the rulings that are the subject of this appeal. (Vons, supra, 14 Cal.4th at p. 444, fn. 3.)
C. The Evidence Does Not Compel Finding as a Matter of Law in Favor of the Franzens
              The Franzens contend the trial court erred by granting the Defendants’
motion for judgment under Code of Civil Procedure section 631.8. We find no error.
               Code of Civil Procedure section 631.8 provides, in pertinent part:
“(a) After a party has completed his presentation of evidence in a trial by the court, the
other party . . . may move for a judgment. The court as trier of the facts shall weigh the
evidence and may render a judgment in favor of the moving party, in which case the
court shall make a statement of decision as provided in [Code of Civil Procedure]
[s]ections 632 and 634, or may decline to render any judgment until the close of all the
evidence. The court may consider all evidence received, provided, however, that the
party against whom the motion for judgment has been made shall have had an
opportunity to present additional evidence to rebut evidence received during the
presentation of evidence deemed by the presenting party to have been adverse to him, and
to rehabilitate the testimony of a witness whose credibility has been attacked by the
moving party.”

                                              17
              “‘“The purpose of Code of Civil Procedure section 631.8 is ‘to enable the
court, when it finds at the completion of plaintiff’s case that the evidence does not justify
requiring the defense to produce evidence, to weigh evidence and make findings of fact.’
[Citation.] Under the statute, a court acting as trier of fact may enter judgment in favor of
the defendant if the court concludes that the plaintiff failed to sustain its burden of proof.
[Citation.] In making the ruling, the trial court assesses witness credibility and resolves
conflicts in the evidence. [Citations.]”’ [Citation.] [¶] ‘“The standard of review of a
judgment and its underlying findings entered pursuant to [Code of Civil Procedure]
section 631.8 is the same as a judgment granted after a trial in which evidence was
produced by both sides. In other words, the findings supporting such a judgment ‘are
entitled to the same respect on appeal as are any other findings of a trial court, and are not
erroneous if supported by substantial evidence.’”’ [Citations.] ‘“[W]hen the decisive
facts are undisputed, [however,] the reviewing court is confronted with a question of law
and is not bound by the findings of the trial court. [Citation.] In other words, the
appellate court is not bound by a trial court’s interpretation of the law based on
undisputed facts, but rather is free to draw its own conclusion of law.”’ [Citations.]”
(Plaza Home Mortgage, Inc. v. North American Title Co., Inc. (2010)
184 Cal.App.4th 130, 135.)
              Here, no party requested a statement of decision and none was prepared.
The Franzens contend this alone requires reversal. But because “a statement of decision
was not timely requested as required by [Code of Civil Procedure] sections 631.8 and 632
[it] was therefore waived. [Citation.]” (Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131,
140, fns. omitted (Tusher).) Although Code of Civil Procedure section 631.8 provides
that when granting a motion for judgment, “the court shall make a statement of decision
as provided in [Code of Civil Procedure] [s]ections 632 and 634,” Code of Civil
Procedure section 632, requires a statement of decision only upon request. Accordingly,
on “a motion for judgment under [Code of Civil Procedure] section 631.8[, i]t is

                                              18
clear . . . that no statement is required unless timely requested by a party. [Citations.]”
(Tusher, supra, 68 Cal.App.4th at p. 140, fn. 10; see also Newby v. Alto Riviera
Apartments (1976) 60 Cal.App.3d 288, 304 [trial court required to make findings “when
requested”] disapproved on another ground in Marina Point Ltd. v. Wolfson (1982)
30 Cal.3d 721, 740, fn. 9.) Because there was no statement of decision, under the
doctrine of implied findings, we infer the trial court made any and all findings necessary
to support the judgment, and review the implied findings under the substantial evidence
standard. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134; Fladeboe v.
American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 61-62.)
              Although the Franzens’ FAC purported to allege 10 separate causes of
action, as they repeatedly represented below, and as the trial court observed in granting
the motion for judgment, they were asserting but a single cause of action for rescission of
the Purchase Agreement due to fraud. The Franzens generally contended the Defendants
intentionally misrepresented the proximity of Ontario International Airport to the
Development, and they concealed the Development was in an Airport Influence Area and
under the nighttime flight path of cargo flights. The Franzens claimed that had they
known the true facts, they would not have purchased the home.
              The grounds for rescinding a contract are set forth in Civil Code
section 1689. It provides in relevant part that a contract may be rescinded, “If the consent
of the party rescinding . . . was given by mistake, or obtained through . . . fraud, or undue
influence, exercised by . . . the party as to whom he rescinds . . . .” (Civ. Code, § 1689,
subd. (b)(1).) The elements of a claim based on fraud are: (1) a misrepresentation,
(2) knowledge of the falsity, (3) intent to defraud or induce reliance, (4) justifiable
reliance, and (5) resulting damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)
In its oral ruling, the trial court stated many of the elements were lacking in proof. The
court stated Franzens failed to prove the Defendants misrepresented or concealed a
material fact or had an intent to deceive, and they failed to prove justifiable reliance.

                                              19
              Although the standard of review is substantial evidence, “In the case where
the trier of fact has expressly or implicitly concluded that the party with the burden of
proof did not carry the burden and that party appeals, it is misleading to characterize the
failure-of-proof issue as whether substantial evidence supports the judgment. This
follows because such a characterization is conceptually one that allows an attack on
(1) the evidence supporting the party who had no burden of proof, and (2) the trier of
fact’s unassailable conclusion that the party with the burden did not prove one or more
elements of the case. [Citations.] [¶] ‘Thus, where the issue on appeal turns on a failure
of proof at trial, the question for a reviewing court becomes whether the evidence
compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically,
the question becomes whether the appellant’s evidence was (1) “uncontradicted and
unimpeached” and (2) “of such a character and weight as to leave no room for a judicial
determination that it was insufficient to support a finding.” [Citation.]’ [Citation.]”
(Valero v. Board of Retirement of Tulare County Employees’ Assn. (2012)
205 Cal.App.4th 960, 965-966 (Valero); see also Roesch v. De Mota (1944) 24 Cal.2d
563, 570-571; Caron v. Andrew (1955) 133 Cal.App.2d 402, 409.)
              Rescission based on fraud or mistake requires justifiable reliance.
(Lawrence v. Doty (1950) 96 Cal.App.2d 937, 942.) The Franzens bore the burden to
prove they justifiably relied on the disclosures they received to constitute representations
by the Defendants that the Ontario International Airport could have no negative impact
on their enjoyment of property. The evidence presented did not compel a finding in their
favor on this point, and in fact strongly suggested just the opposite.
              “‘If the conduct of the plaintiff in the light of his [or her] own intelligence
and information was manifestly unreasonable . . . he [or she] will be denied a recovery.’
[Citation.]” (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1240.)
A buyer’s failure to ascertain the precise nature and scope of a disclosed property
condition can defeat the claim that there was actual and justifiable reliance. (Civ. Code,

                                             20
§§ 2079; 2079.5; Pagano v. Krohn (1997) 60 Cal.App.4th 1, 12 (Pagano).) When a
buyer is apprised of information potentially affecting the value and desirability of the
property, the burden is on the buyer to investigate the problem and assess its severity.
(Assilzadeh v. California Federal Bank (2000) 82 Cal.App.4th 399, 412 [disclosure of
construction defect litigation that was settled]; Pagano, supra, 60 Cal.App.4th. at pp. 8-9
[water intrusion problems].) “[N]eglect of a legal duty” precludes rescission based on
mistake. (Civ. Code, § 1577; Lawrence v. Shutt (1969) 269 Cal.App.2d 749, 765-766.)
              Furthermore, “A seller’s duty of disclosure is limited to material facts; once
the essential facts are disclosed a seller is not under a duty to provide details that would
merely serve to elaborate on the disclosed facts. [Citation.]” (Calemine v. Samuelson
(2009) 171 Cal.App.4th 153, 161; Pagano, supra, 60 Cal.App.4th at pp. 8-9.) Merely
“because a buyer has a right to rely on the representations of a seller or a seller’s agent
does not mean that the buyer has no duty to inspect the property to be purchased. When
there is a duty, a failure to inspect the property may be below the standard of care and
negligence and, in some cases, may preclude a finding of justifiable reliance on the other
party’s misrepresentation or failure to disclose.” (1 Miller & Starr, Cal. Real Estate
(3rd ed. 2013) § 1:149, pp. 607-608.) “The test is not only whether the [buyer] acted in
reliance upon a misrepresentation, but whether he was justified in his reliance.
[Citation.]” (Kahn v. Lischner (1954) 128 Cal.App.2d 480, 489.)
              The Franzens visited the Development several times before the close of
escrow and were provided with various disclosures about the Ontario International
Airport. The Defendants had no basis for disclosing the Development was directly under
the Ontario International Airport overnight flight path—the EIR prepared by the City,
specifically stated the Development “does not directly lie within the flight path of
[Ontario International Airport]” and found “no noise related impacts related to aircraft or
airport operations would result from implementation of the proposed project.” Murphy
testified the Development was not in the direct flight path, but rather in the overfly area

                                              21
when aircraft banked to the right after taking off from the Ontario International Airport.
At the time the Development was built, it was not within an Airport Influence Area.
               That aircraft from the Ontario International Airport would fly over the area
and could disrupt them was disclosed to the Franzens. The Contiguous Area Disclosure
stated the Ontario International Airport was within five miles of the Development and
“[r]esidents of the [c]ommunity may notice noise and vibration at any hour from
overflying aircraft traveling to or from” Ontario International Airport. (Italics added.)
The Public Report stated the Ontario International Airport was approximately two and
one-half miles northwest of the Development and “this [c]ommunity is subject to noise
from the Ontario International Airport and may be severely impacted in the future.” The
Additional Disclosures advised the Development was affected by the Ontario
International Airport, which pursuant to information available from the United States
Department of Transportation was within 4.8 miles of the Development. The disclosure
documents warned the Franzens they should independently verify the information, should
visit the Development on different days and at different times of day to familiarize
themselves with conditions that might materially affect their purchase decision, and gave
them specific contact information for the governmental agency that could give more
information.
               The Franzens testified they did not undertake any investigation to
determine whether the Ontario International Airport operated during nighttime hours or
to verify its distance from their house. Both testified that although they could not access
their specific house at night (because it was still under construction), they could have
accessed the street their house was on (neighbors had already moved in) and there was a
public street within 100 to 200 feet. Both testified they had no reason to suspect there
was any nighttime activity because they believed the airport shutdown at night. But the
court found that claim to lack credibility particularly in view of Elaine Franzen’s
testimony she knew UPS had a very large cargo facility at Ontario International Airport

                                             22
and her son worked there in the nighttime unloading UPS cargo planes. The trial court
could also reasonably find the Franzens did not justifiably rely on alleged verbal
representations made by Matthews and Le, in view of the numerous documents they
signed specifically acknowledging the sales associates had no authority to make
representations and they did not rely on any representations made by the sales associates.
              Justifiable reliance is a question of fact and, in this case, for the trial court’s
determination. (Guido v. Koopman (1991) 1 Cal.App.4th 837, 843; Gray v. Don Miller
& Associates, Inc. (1984) 35 Cal.3d 498, 503 (Gray).) “[T]he issue is whether the person
who claims reliance was justified in believing the representation in the light of his own
knowledge and experience. [Citations.]” (Gray, supra, 35 Cal.3d at p. 503.) On review,
we are precluded from reweighing the evidence or determining witness credibility. The
Franzens make no showing the evidence is so “‘“uncontradicted and unimpeached”’” that
it compels a finding of justifiable reliance or reasonable mistake. (Valero, supra,
205 Cal.App.4th at pp. 965-966.) Because the justifiable reliance element was lacking,
the trial court properly entered judgment for the Defendants.3
D. Denial of Leave to Amend
              The Franzens contend the trial court erred by denying their request for
leave to file a second amended complaint. The Franzens made two such motions, but
their arguments on appeal appear to pertain to the first. The Franzens’ first request to file
a second amended complaint was filed on August 5, 2011. The trial was set to begin on
October 24, 2011, and discovery had been completed. The Franzens proposed to add
16 new defendants to the action including the City, title and escrow companies, mortgage
lenders and servicers, Brookfield’s parent company and/or a Brookfield-related company

3             A separate reason for affirming the judgment in favor of Brookfield,
Matthews, and Le is that they were not contracting parties and thus not the proper object
of the Franzens’ rescission claim. Civil Code section 1689 limits rescission to the
contracting parties. (See Schauer v. Mandarin Gems of California, Inc. (2005)
125 Cal.App.4th 949, 959-960.)

                                              23
(Brookfield Residential and Brookfield Homes Southern California), Brookfield and
Edenglen Ontario’s predecessors in interest in the property that eventually became the
Development, the Development’s homeowner’s association, and the private disclosure
company that prepared some of the real estate transfer disclosures. They sought to add
allegations concerning how title was conveyed to and from Edenglen Ontario, the history
of loan obligations and encumbrances on the property as it was developed, and would
have added additional tort causes of action against the various new defendants. The trial
court denied the motion to amend because the Franzens had not complied with California
Rules of Court, rule 3.1324.
              On appeal, the Franzens raise numerous arguments pertaining to the
validity of their claims against some of the additional defendants they aimed to bring into
this lawsuit. For example, they argue they had valid causes of action against the City as a
third party beneficiary of the Purchase Agreement because the Development’s master
declaration covenants, conditions, and restrictions (CC&Rs) state they are for the benefit
of the City (among others) and may be enforced by the City. They argue that because the
Purchase Agreement and other sales-related documents bear the logo “Brookfield
Homes” on top, the other Brookfield entities (e.g., Brookfield Residential and Brookfield
Homes Southern California) are “indispensible parties.” What they do not argue is that
the trial court’s reasons for denying leave to amend were in error.
              “‘Leave to amend a complaint is . . . entrusted to the sound discretion of the
trial court. “ . . . The exercise of that discretion will not be disturbed on appeal absent a
clear showing of abuse. More importantly, the discretion to be exercised is that of the
trial court, not that of the reviewing court. Thus, even if the reviewing court might have
ruled otherwise in the first instance, the trial court’s order will yet not be reversed unless,
as a matter of law, it is not supported by the record.”’ [Citations.]” (Branick v. Downey
Savings & Loan Assn. (2006) 39 Cal.4th 235, 242.)



                                              24
              California Rules of Court, rule 3.1324 sets forth the procedural
requirements of a motion to amend a pleading before trial. The motion must state what
allegations are to be deleted or added and demonstrate “where, by page, paragraph, and
line number, the deleted [or added] allegations are located.” (Cal. Rules of Court,
rule 3.1324(a)(2), (3).) The motion must be accompanied by a declaration specifying,
“(1) The effect of the amendment; [¶] (2) Why the amendment is necessary and proper;
[¶] (3) When the facts giving rise to the amended allegations were discovered; and
[¶] (4) The reasons why the request for amendment was not made earlier.” (Cal. Rules of
Court, rule 3.1324(b)(1)-(4).) The Franzens have not demonstrated their motion to
amend the complaint complied with the Rules of Court. We observe the record supports
the trial court’s conclusion it did not. In particular the motion did not explain by
reference to page, paragraph, and line number what allegations were being added or
deleted, there was no showing as to when the facts underlying the amendment were
discovered or why the Franzens waited until two months before trial to amend the
complaint. In short, they have failed to carry their appellate burden to demonstrate the
court’s decision “exceeds the bounds of reason.” (Denham, supra, 2 Cal.3d at p. 566.)
E. Discovery Ruling
              Within one of their arguments concerning denial of leave to file a second
amended complaint, argument number 8, we discern an attempt by the Franzens at
challenging a particular discovery ruling by the trial court. They assert in passing the
trial court should have granted their motion to compel discovery of documents relating to
the documents the Defendants relied upon in creating the various disclosure statements.
The argument is devoid of any legal analysis, citation to relevant legal authority, or any
attempt to demonstrate the trial court abused its discretion in any of its discovery rulings.
Accordingly, we decline to consider the point further. (Badie, supra, 67 Cal.App.4th at
pp. 784-785; Kim, supra, 17 Cal.App.4th at p. 979.)



                                             25
F. Judicial Bias
              The Franzens argue the trial judge was inherently prejudiced against them
because before his appointment to the bench as a private attorney: (1) he once
represented a title insurance company that was somehow affiliated with the company that
prepared the Additional Disclosures document and that title insurance company was once
a client of the Defendants’ attorneys’ law firm; and (2) he represented developers and
governmental agencies. The Franzens cite to nothing in the record on appeal to support
their factual assertions. At no time did they move to disqualify the trial judge, which was
their remedy for perceived judicial bias (Code Civ. Proc., § 170.3), and their failure to do
so precludes them from raising this issue on appeal (Tri Counties Bank v. Superior Court
(2008) 167 Cal.App.4th 1332, 1337-1338; see also People v. Scott (1997)
15 Cal.4th 1188, 1207). Furthermore, the Franzens’ argument is devoid of any legal
analysis or citation to legal authority and we need not consider the point further. (Badie,
supra, 67 Cal.App.4th at pp. 784-785; Kim, supra, 17 Cal.App.4th at p. 979.)
                                      DISPOSITION
              The judgment is affirmed. Appellants’ requests for judicial notice filed
November 16, 2012, and February 19, 2013, are denied. Respondents are awarded their
costs on appeal.


                                                  O’LEARY, P. J.

WE CONCUR:



FYBEL, J.



IKOLA, J.



                                             26
