gno.law

Reyenga v. Goyal CA4/1

California Court of Appeal · D059433 · 2013-05-29 · Unpublished

Proceeding
appeal from a judgment
Trial court
Superior Court of Imperial County · No. ECU03860
Trial judge
Juan Ulloa
Outcome
affirmed — Affirmed.
Area
civil
Panel
Alex C. McDonald (author), McINTYRE, Cynthia Aaron

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:54Z · confidence high

The trial court granted summary judgment on the plaintiffs' claims, awarded defendants $40,000 in damages and attorney fees based on the defendants' cross-complaint and Code of Civil Procedure section 2033.420, and the Court of Appeal affirmed the judgment, finding the plaintiffs' arguments forfeited or legally meritless.

Ruling reviewedStandardThe courtThe model
Validity of the First Amended Cross-Complaint
“Plaintiffs cite nothing to suggest this argument was raised below... and under well settled law it therefore may not be interposed for the first time on appeal.”
unclearerroragree with court
The appellate court correctly applied the law of the case doctrine, which prevents a party from raising on appeal an argument that was not raised in the trial court. The opinion cites Witkin to support the principle that parties cannot change their theory of trial on appeal. Since the plaintiffs did not move to strike the cross-complaint below, the issue is forfeited.
Damages Award (Legal Basis)
“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... and nuisance.”
de novocorrectagree with court
The court correctly identified that the plaintiffs' argument that damages are not recoverable for trespass or nuisance is legally incorrect. It cited Civil Code section 3334 and case law (Natural Soda Products Co. and Ingram v. City of Gridley) to confirm that damages are a standard remedy for these torts.
Damages Award (Sufficiency of Evidence)
“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'”
unclearerroragree with court
The court correctly held that the challenge to the sufficiency of the evidence for the damages award was forfeited. The plaintiffs failed to move for a new trial on this ground in the trial court, which is a prerequisite for raising such a challenge on appeal. Additionally, the plaintiffs failed to provide a fair summary of the evidence in their appellate brief as required by Foreman & Clark Corp. v. Fallon.
Attorney Fees Award
“Under the facts here, the order awarding attorney fees was authorized under section 2033.420.”
abuse of discretioncorrectagree with court
The court found that the trial court did not abuse its discretion in awarding attorney fees under Code of Civil Procedure section 2033.420. The plaintiffs denied requests for admission regarding their false claims of adverse possession, and the defendants were required to prove the truth of those matters. The court cited Laabs v. City of Victorville and Brooks v. American Broadcasting Co. to support the proposition that fees are recoverable to reimburse expenses incurred in proving matters that should have been admitted.

Authorities

  • relied: Loney v. Superior Court (1984) 160 Cal.App.3d 719 — Supports the requirement that a motion to strike must be made in the trial court to preserve the issue for appeal.
  • relied: Natural Soda Products Co. v. City of Los Angeles (1943) 23 Cal.2d 193 — Establishes that lost profits are recoverable in actions for trespass.
  • relied: Ingram v. City of Gridley (1950) 100 Cal.App.2d 815 — Establishes that damages are recoverable in actions for nuisance.
  • relied: Jamison v. Jamison (2008) 164 Cal.App.4th 714 — Holds that a party must move for a new trial to preserve a challenge to the excessiveness or inadequacy of a damages award for appeal.
  • relied: Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875 — Requires an appellant challenging a finding for insufficiency of evidence to set forth all material evidence in the opening brief.
  • relied: Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640 — Reinforces the duty of an appellant to fairly summarize all facts in the light most favorable to the judgment when challenging sufficiency of evidence.
  • relied: In re Marriage of Fink (1979) 25 Cal.3d 877 — Requires an appellant to state fully, with transcript citations, the evidence claimed to be insufficient to support the trial court's findings.
  • relied: Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400 — States that an appellate court will consider sufficiency of evidence only after a party tenders the issue with a fair summary of the evidence.
  • relied: Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209 — Holds that a party challenging sufficiency of evidence must set forth, discuss, and analyze all evidence, both favorable and unfavorable.
  • relied: Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242 — Supports the proposition that a party denying a request for admission may be ordered to pay costs and fees incurred in proving that matter under section 2033.420.
  • relied: Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500 — Explains that the purpose of awarding expenses under section 2033.420 is to reimburse reasonable expenses incurred in proving the truth of a requested admission, not as a penalty.

The appellate opinion: sound — The opinion is sound because it correctly applies established procedural rules regarding forfeiture of issues not raised below and the requirements for appellate briefing on sufficiency of evidence. It also correctly interprets the substantive law regarding damages for trespass/nuisance and the statutory basis for attorney fees under section 2033.420.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence medium

After granting defendants summary judgment on plaintiffs' complaint, the Imperial County Superior Court tried defendants' first amended cross-complaint, found for defendants, awarded $40,000 in damages, and in posttrial motions awarded costs and attorney fees under Code of Civil Procedure section 2033.420 as costs of proof for plaintiffs' denials of requests for admission. The Court of Appeal affirmed, holding the challenge to the cross-complaint forfeited for not being raised below, the damages challenge both legally mistaken and forfeited (no new trial motion and no fair summary of the evidence), and the fee award authorized by section 2033.420.

Ruling reviewedStandardThe courtThe model
Acceptance of and judgment on defendants' first amended cross-complaint, which plaintiffs claimed was filed without leave of court in violation of section 428.50
“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.”
unclearnot reachedagree with court
The court did not reach the merits but applied the theory-of-trial forfeiture doctrine because plaintiffs cited nothing showing they moved to strike (section 436, subd. (b); Loney) or otherwise objected below. That doctrine is well settled and its application here is straightforward on the record described.
Award of $40,000 in damages to defendants on the cross-complaint's trespass and nuisance theories
“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.”
substantial evidencecorrectagree with court
The court correctly stated that damages are recoverable for trespass (Civ. Code, § 3334; Natural Soda) and nuisance (Ingram). On excessiveness, it relied on two independent forfeiture grounds that are well supported: failure to move for a new trial (Jamison) and failure to set forth all material evidence on the finding (Foreman & Clark; Fink; Huong Que; Doe). Both grounds are consistent with the cited authority.
Posttrial award of attorney fees to defendants under Code of Civil Procedure section 2033.420 as costs of proving matters plaintiffs denied in requests for admission
“Under the facts here, the order awarding attorney fees was authorized under section 2033.420.”
unclearcorrectagree with court
The court correctly rejected the premise that fees require a fee-shifting substantive claim, since section 2033.420 independently authorizes cost-of-proof expenses (Laabs; Brooks), and the record (two pre-suit letters explaining why the claims were meritless, bare denials, and Reyenga's admission she knew there was no adverse possession right) supports a finding that plaintiffs lacked reasonable ground to deny. The court did not articulate the abuse-of-discretion standard or walk through the subdivision (b) exceptions, and did not address that part of the proof occurred by summary judgment rather than trial, but the result is defensible.

Authorities

  • relied: Loney v. Superior Court (1984) 160 Cal.App.3d 719 — A pleading filed without leave of court may be challenged by motion to strike in the trial court.
  • relied: Natural Soda Products Co. v. City of Los Angeles (1943) 23 Cal.2d 193 — Damages, including lost profits, are recoverable in an action for trespass.
  • relied: Ingram v. City of Gridley (1950) 100 Cal.App.2d 815 — Damages are recoverable in an action for nuisance.
  • relied: Jamison v. Jamison (2008) 164 Cal.App.4th 714 — Failure to timely move for a new trial precludes a party from arguing on appeal that damages were excessive or inadequate, in jury and court trials alike.
  • relied: Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875 — An appellant challenging the sufficiency of the evidence must set forth all material evidence on the point, not merely favorable evidence, or the claim is waived.
  • relied: Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640 — An appellant must fairly summarize all the facts in the light most favorable to the judgment, a burden that grows with the complexity of the record.
  • relied: In re Marriage of Fink (1979) 25 Cal.3d 877 — An appellant must state fully, with transcript citations, the evidence claimed to be insufficient to support the trial court's findings.
  • relied: Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400 — An appellate court considers a sufficiency-of-the-evidence challenge only after the party tenders a fair summary of the evidence, including evidence that arguably supports the finding.
  • relied: Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209 — A party challenging sufficiency of the evidence must set forth, discuss, and analyze all the evidence, favorable and unfavorable, or the contention may be deemed waived.
  • relied: Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242 — 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 the matter.
  • relied: Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500 — Cost-of-proof expenses are not a penalty but reimbursement for expenses incurred proving matters that should have been admitted, serving the purpose of expediting trial.
  • missed: Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618 — Cost-of-proof awards are reviewed for abuse of discretion, and the 'reasonable ground to believe' exception requires that the denying party have held a reasonable, good faith belief it would prevail, judged on the information available when the denial was made.
  • missed: Barnett v. Penske Truck Leasing Co. (2001) 90 Cal.App.4th 494 — Cost-of-proof sanctions are available when the truth of the denied matter is established by summary judgment rather than at trial.

The appellate opinion: sound with gaps — The opinion disposes of the pleading and damages arguments on well-established forfeiture doctrines backed by the correct authorities, and correctly identifies section 2033.420 as an independent statutory basis for fees. It does not, however, state the standard of review for the fee award, does not expressly analyze the subdivision (b) exceptions (substantial importance, reasonable ground to believe plaintiffs would prevail), and does not address that defendants proved part of the denied matters through summary judgment rather than trial, points on which published authority exists.

How this analysis was made · dispute it

Opinion

Filed 5/29/13 Reyenga v. Goyal CA4/1 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.

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. 2 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 3 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 4 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 5 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 6 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:

7 "(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.

8 DISPOSITION

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

McDONALD, Acting P. J.

WE CONCUR:

McINTYRE, J.

AARON, J.

Cites, in this corpus