Filed 5/6/22 KG Investment, LLC v. Chen CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
KG INVESTMENT, LLC,
Plaintiff and Appellant, E075951
v. (Super.Ct.No. CIVDS1725255)
ANDY CHEN et al., OPINION
Defendants and Respondents.
APPEAL from the Superior Court of San Bernardino County. John M. Pacheco,
Judge. Affirmed.
Lew Law Firm and Bill W. Lew for Plaintiff and Appellant.
Tundis & Lester and Mark John Tundis for Defendants and Respondents.
1 I. INTRODUCTION
In 2017, plaintiff and appellant KG Investment, LLC (plaintiff) discovered that
one of its residential properties (the property) was used by a tenant to illicitly grow
marijuana, causing damage to the property. As a result, plaintiff filed suit against the
tenant,1 as well as several real estate professionals and business entities. Plaintiff
alleged: (1) its real estate agent and broker, defendant and respondent Andy Chen
(defendant Chen), failed to properly screen the tenant’s application to lease the property;
(2) defendant Chen and his property management company, defendant and respondent
Sunny Hills Property Management Group (SHPMG), failed to conduct an inspection of
the property during the tenancy; and (3) defendant and respondent Chino Capital, Inc.
d.b.a. Coldwell Banker Top Team was vicariously liable for the conduct of defendant
Chen.2 Based upon these allegations, plaintiff alleged causes of action for (1) breach of
contract, (2) “concealment,” (3) breach of fiduciary duty, and (4) professional negligence
against these defendants.3
The parties tried the matter in a bench trial, and the trial court issued a judgment in
defendants’ favor. As relevant to this appeal, the trial court made findings of fact in its
1 The tenant never appeared in the action and is not a party to this appeal.
2Plaintiff also named two individuals, Ramona Rodriguez Mendez and Diego Mendez, as vicariously liable defendants. However, these individuals were eventually dismissed prior to trial and are not parties to this appeal.
3 While the titles for the causes of action for breach of contract, “concealment” and breach of fiduciary duty state such claims were only alleged against defendant Chen, plaintiff included a purported seventh cause of action for “vicarious liability” alleging [footnote continued on next page]
2 statement of decision that (1) defendant Chen’s actions were reasonable and met the
applicable standard of care, and that (2) plaintiff failed to establish that any act or
omission by defendant Chen was the proximate cause of damage to the property. On
appeal, plaintiff argues: (1) the trial court erred because it “failed to adjudicate” the
cause of action for breach of contract; (2) the trial court erred in finding that defendants
acted reasonably with respect to management of the property; (3) the trial court erred in
failing to award nominal damages; and (4) the trial court erred in failing to enforce a
purported postdispute oral promise to pay for repairs made by defendant Chen.
We conclude that (1) the trial court’s statement of decision was sufficient with
respect to the breach of contract cause of action; (2) plaintiff has forfeited any claims of
error with respect to the trial court’s factual findings and that, even in the absence of
forfeiture, the record does not disclose error or prejudice warranting reversal; (3) plaintiff
forfeited the issue of nominal damages and that, even in the absence of forfeiture, the
record does not disclose error warranting reversal; and (4) the trial court did not err in
refusing to consider plaintiff’s claim of a postdispute promise to pay where such claim
was never pleaded and not properly placed at issue during the trial. As such, we affirm
the judgment.
II. PROCEDURAL HISTORY
According to the first amended complaint, plaintiff retained defendant Chen to
assist with the leasing and management of the property. After the property was leased to
that the remaining realtor defendants were vicariously liable for defendant Chen’s acts or omissions.
3 a tenant in February 2016, the tenant used the property to illicitly grow marijuana,
causing damage to the property. Plaintiff alleged that defendant Chen was liable for this
damage because he should have conducted a background check and credit check of the
tenant; should have verified whether the tenant obtained renter’s insurance; and failed to
conduct interior inspections of the property during the course of the tenancy. Plaintiff
also alleged that the remaining defendants were vicariously liable for defendant Chen’s
acts or omissions. Based upon these factual allegations, the first amended complaint
purported to state causes of action for (1) breach of contract, (2) “concealment,”
(3) breach of fiduciary duty, and (4) professional negligence.
Following a court trial, the trial court issued a proposed statement of decision.
The trial court’s findings included the following: (1) defendants acted reasonably and did
not breach the standard of care with respect to their involvement in the lease transaction
between plaintiff and the tenant; (2) the standard of care did not require forcible entry
onto the property to conduct an inspection under the circumstances; and (3) plaintiff
failed to show that any act or omission by defendants was a proximate cause of injury to
plaintiff.4 Plaintiff objected to the proposed statement of decision; defendants filed a
response to the objection; and the trial court held a hearing to permit oral argument on the
4 The trial court also made findings that: (1) plaintiff was bound by the express disclosures in the lease listing and lease agreement, stating that defendant Chen “cannot verify representations made by others”; (2) the direct cause of any alleged damage to the property were the acts and omissions of the tenant; and (3) Ramona Rodriguez Mendez, Diego Mendez, and Chino Capital, Inc. d.b.a. Coldwell Banker Top Team were not vicariously liable for any act or omission of defendant Chen. However, these findings are not challenged on appeal.
4 objections. Ultimately, the trial court adopted its proposed statement of decision as the
final statement and entered judgment in favor of defendants.
Plaintiff filed a notice of intent to move for a new trial on multiple grounds.
However, the only argument presented in support of the motion was that plaintiff’s
counsel committed misconduct by failing to make a request to amend the first amended
complaint to include a claim for relief based upon a purported postdispute oral promise
by defendant Chen to help pay for repairs to the property. The trial court denied the
motion. Plaintiff appeals from the judgment.5
III. DISCUSSION
A. The Statement of Decision Was Sufficient To Resolve the Breach of Contract Claim
Plaintiff’s first argument on appeal is that the trial court’s statement of decision
“failed to adjudicate” the second cause of action for breach of contract. We disagree.
1. General Legal Principles and Standard of Review
Generally, when properly requested by a party, the trial court has a duty to issue a
statement of decision explaining the factual and legal basis for its decision as to each of
the principal controverted issues at trial. (Code Civ. Proc., § 632.) A trial court’s failure
to comply with its statutory obligation may result in a reversal of the judgment and a
remand with directions to prepare a statement of decision if the failure to address a
5 Plaintiff’s notice of appeal also purports to appeal from a postjudgment order denying a new trial. However, an order denying a motion for new trial is not independently appealable (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 19), and plaintiff’s opening brief has not identified any claims of error related to the order denying its motion for new trial.
5 material issue is prejudicial. (F.P. v. Monier (2017) 3 Cal.5th 1099, 1116; Wallis v. PHL
Associates, Inc. (2013) 220 Cal.App.4th 814, 827; Espinoza v. Calva (2008)
169 Cal.App.4th 1393, 1398.)
However, “ ‘ “[a] trial court rendering a statement of decision under Code of Civil
Procedure section 632 . . . is not required to make findings with regard to detailed
evidentiary facts or to make minute findings as to individual items of evidence. . . . A
failure to find on an immaterial issue is not error. [Citation.] In issuing a statement of
decision, the trial court need not address each question listed in a party’s request.” ’ ”
(Ribakoff v. City of Long Beach (2018) 27 Cal.App.5th 150, 163.) Instead, “[t]o comply
with a request for a statement of decision, a court need only fairly disclose its
determinations as to the ultimate facts and material issues in the case,” and “ ‘the term
“ultimate fact” generally refers to a core fact, such as an essential element of a claim.’ ”
(Metis Development LLC v. Bohacek (2011) 200 Cal.App.4th 679, 689; Almanor
Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761, 770 [“[I]t is
sufficient that it set forth its ultimate findings, such as on an element of a claim or
defense.”].)
2. Application
Here, the trial court made an express finding that plaintiff failed to establish that
the acts or omissions of defendant Chen were the proximate cause of any injury “whether
it be the lease transaction or the property management of the . . . real property.”
Causation is an essential element of a cause of action for breach of contract. (Tribeca
Companies, LLC v. First American Title Ins. Co. (2015) 239 Cal.App.4th 1088, 1102-
6 1103 [An essential element of a breach of contract claim is “that a defendant’s alleged
misconduct was the cause in fact of the plaintiff’s damage.”]; US Ecology, Inc. v. State of
California (2005) 129 Cal.App.4th 887, 909 [“ ‘Causation of damages in contract cases,
as in tort cases, requires that the damages be proximately caused by the defendant’s
breach . . . .’ ”].) Thus, the trial court’s express finding that plaintiff failed to establish
proximate cause negated an essential element of plaintiff’s claim for breach of contract.
Given the trial court’s finding on the element of causation, the alleged failure to
make findings on other issues would not render the statement of decision deficient. “If
findings are made upon issues which determine a cause, other issues become immaterial
and a failure to find thereon does not constitute prejudicial error.” (Bealmear v. Smith
(1949) 91 Cal.App.2d 179, 181-182; see Division of Labor Law Enforcement v.
Transpacific Transportation Co. (1977) 69 Cal.App.3d 268, 278 [same]; see also
Pacesetter Homes, Inc. v. Brodkin (1970) 5 Cal.App.3d 206, 214 [Where the findings
made by the trial court are sufficient to “defeat appellant’s claim,” other issues become
“immaterial” and “any error as to other findings is not prejudicial”].) Because the trial
court’s finding on the issue of causation negated an essential element of plaintiff’s cause
of action, such a finding alone was sufficient to support the judgment in favor of
defendants.
On appeal, plaintiff suggests that the trial court could not have relied solely on a
finding regarding proximate causation to dispose of the cause of action because it is
possible to recover nominal damages for a breach of contract. However, plaintiff made
no request for nominal damages at any time during the relevant trial court proceedings.
7 The first amended complaint makes no mention of nominal damages in the breach of
contract allegations or the prayer for relief. Nor did plaintiff’s trial brief, written closing
argument, or objections to the proposed statement of decision request an award of
nominal damages. “A statement of decision . . . covers only issues litigated in the case.”
(Colony Ins. Co. v. Crusader Ins. Co. (2010) 188 Cal.App.4th 743, 750.) Where the
plaintiff sought only compensatory damages for breach of contract, the trial court’s
finding regarding proximate causation adequately resolved the theory of liability alleged
by plaintiff. The statement of decision was not defective simply because it did not
consider a form of relief that was never requested based upon a theory of liability that
was never argued.
B. Plaintiff Forfeited Any Claim That It Was Entitled To Nominal Damages and, Even
Absent Forfeiture, the Failure To Award Nominal Damages Does Not Require Reversal
Plaintiff also claims the trial court erred because it “should have awarded nominal
damages” pursuant to its causes of action for breach of contract and breach of fiduciary
duty. We conclude that plaintiff has forfeited the issue for failure to raise it in the trial
court proceedings and further conclude that, even in the absence of forfeiture, plaintiff
has not established error warranting reversal.
1. Plaintiff Forfeited the Issue of Nominal Damages
“ ‘ “As a general rule, theories not raised in the trial court cannot be asserted for
the first time on appeal; appealing parties must adhere to the theory (or theories) on
which their cases were tried. This rule is based on fairness—it would be unfair, both to
the trial court and the opposing litigants, to permit a change of theory on appeal.”
8 [Citation.]’ . . . ‘Appellate courts are loath to reverse a judgment on grounds that the
opposing party did not have an opportunity to argue and the trial court did not have an
opportunity to consider. . . . Bait and switch on appeal not only subjects the parties to
avoidable expense, but also wreaks havoc on a judicial system too burdened to retry cases
on theories that could have been raised earlier.’ ” (Green v. Healthcare Services, Inc.
(2021) 68 Cal.App.5th 407, 418-419; see Nellie Gail Ranch Owners Assn. v. McMullin
(2016) 4 Cal.App.5th 982, 997.) “If a party fails to raise an issue or theory in the trial
court, we may deem consideration of that issue or theory forfeited on appeal.” (Cabatit v.
Sunnova Energy Corp. (2020) 60 Cal.App.5th 317, 322.)
As we have already pointed out, plaintiff made no request for nominal damages at
any time during the relevant trial court proceedings. The first amended complaint makes
no mention of nominal damages in the breach of contract allegations or the prayer for
relief. Nor did plaintiff’s trial brief, written closing argument, or objections to the
proposed statement of decision request an award of nominal damages. Even when
moving for a new trial, plaintiff did not identify the absence of nominal damages as an
error warranting a new trial. Thus, plaintiff has clearly forfeited any claim that the failure
to award nominal damages constitutes error warranting reversal.
2. No Error Even in the Absence of Forfeiture
Additionally, even in the absence of forfeiture, we would find no error warranting
reversal on this issue. First, plaintiff has not provided, and we are not aware of, any
authority that suggests an award of nominal damages is appropriate for breach of
fiduciary duty. “Recovery for damages based upon breach of fiduciary duty is controlled
9 by Civil Code section 3333, the traditional tort recovery” (Michelson v. Hamada (1994)
29 Cal.App.4th 1566, 1582), and it is a “fundamental proposition that damages are an
essential element of a tort cause of action” (Star Pacific Investments, Inc. v. Oro Hills
Ranch, Inc. (1981) 121 Cal.App.3d 447, 457; Civ. Code, § 3333 [The measure of
damages “is the amount which will compensate for all the detriment proximately caused
thereby . . . .”]). Thus, even in the absence of forfeiture, we find no merit in plaintiff’s
claim that the trial court should have awarded nominal damages pursuant to its breach of
fiduciary duty cause of action.
Second, while nominal damages may be awarded for breach of contract, “the
general rule is that the failure to award nominal damages is not alone ground for reversal
of a judgment or for a new trial . . . .” (Sweet v. Johnson (1959) 169 Cal.App.2d 630,
633.) “ ‘[W]here a judgment is erroneous only because it fails to give nominal damages
it will not be reversed unless nominal damages in the given case would carry costs’ ” or
“ ‘the object of the action is to determine some question of permanent right . . . .’ ”
(Ibid.; see Staples v. Hoefke (1987) 189 Cal.App.3d 1397, 1406 [“[W]here there is no
absolute entitlement to costs, the failure to award nominal damages is not reversible
error.”].)
Here, plaintiff asserted multiple causes of action against defendants.6 Thus, even
if plaintiff had prevailed on the single cause of action for breach of contract, that would
6 On appeal, plaintiff has not challenged the entry of judgment on the cause of action for fraudulent concealment and has not challenged the trial court’s determination that Ramona Rodriguez Mendez, Diego Mendez, and Chino Capital, Inc. d.b.a. Coldwell [footnote continued on next page]
10 not necessarily entitle plaintiff to an award of costs. Instead, any award of costs would
have been subject to the trial court’s discretion because defendants would still be
considered prevailing parties with respect to the remaining causes of action. (Code Civ.
Proc., § 1032, subd. (a)(4).) Where an award of costs is fully within the trial court’s
discretion, the failure to award nominal damages is not ground for reversal. (Sweet v.
Johnson, supra, 169 Cal.App.2d. at p. 633.)
Thus, we decline to reverse the judgment for any purported failure to award
nominal damages. Plaintiff forfeited the claim by failing to request an award of nominal
damages in the trial court proceedings and, even in the absence of forfeiture, plaintiff has
not shown error warranting reversal.
C. Plaintiff Has Not Shown Error or Prejudice Regarding the Trial Court’s Finding on
the Standard of Care
Plaintiff also claims the trial court erred when it concluded that the applicable
standard of care7 did not require defendant Chen to forcibly enter the property to conduct
Banker Top Team were not vicariously liable for the acts or omissions of defendant Chen. “An appellant abandons an issue by failing to raise it in the opening brief.” (H.N. & Frances C. Berger Foundation v. City of Escondido (2005) 127 Cal.App.4th 1, 15.) Thus, at the very least, the judgment in favor of all defendants on the cause of action for fraudulent concealment and the judgment in favor of Chino Capital, Inc. d.b.a. Coldwell Banker Top Team would stand regardless of the merits of plaintiff’s claims on appeal.
7 Plaintiff appears to suggest that this finding was directed to the breach of contract cause of action, arguing that a finding in its favor on this issue would establish that defendants “breached the oral and written agreement.” This position is entirely inconsistent with plaintiff’s argument that the trial court “failed to adjudicate” the breach of contract action, since the trial court’s adverse finding on the issue would have constituted a finding that defendants did not breach the alleged contract. However, the [footnote continued on next page]
11 an inspection without the tenant’s permission. We conclude that this argument has been
forfeited for failure to fairly summarize the evidence on this issue; and we further
conclude that, even in the absence of forfeiture, plaintiff has failed to establish error or
prejudice warranting reversal.
1. Relevant Evidence at Trial
K. H. testified that he is an owner and officer of plaintiff. Plaintiff owns the
property and retained defendant Chen to assist with the leasing and management of the
property. The agreement to manage the property was initially an oral agreement but was
later reduced to writing. In 2016, K.H. executed a lease agreement to lease the property
to a tenant. The lease agreement and property management agreement were both
admitted into evidence. The lease agreement provided that the landlord could enter the
property without notice to the tenant in case of an emergency.
F. T. testified that she worked for SHPMG as an assistant to defendant Chen. She
sent e-mail correspondence to the tenant on August 2016, January 2017, and May 2017,
requesting access to the property to conduct an inspection; but she did not receive any
response. In addition to e-mail correspondence, she and another employee at SHPMG
also attempted to contact the tenant by telephone on, at least, ten occasions in order to
request an inspection.
trial court relied almost exclusively on expert testimony in making this finding, and plaintiff relies primarily on competing expert testimony in challenging this finding on appeal. Thus, when viewed in context, it appears that the finding actually addressed the standard of care relevant to plaintiff’s causes of action for breach of fiduciary duty and professional negligence.
12 Eventually, F.T. posted a written notice on the property regarding the landlord’s
intent to enter and conduct an inspection. In response, she was contacted by a purported
occupant of the property and arranged to meet that individual to conduct an inspection of
the property. However, when she went to conduct the inspection, the individual would
only let her inspect the exterior of the property, and physically pushed her out of the
residence when she tried to enter through the front door. F.T. contacted law enforcement
officers but was eventually informed they could not assist her in getting access to the
property.
Both sides called expert witnesses to opine on the standard of care related to
property management. Plaintiff’s expert opined that defendants breached the standard of
care by failing to conduct an interior inspection of the property and that the tenant’s lack
of responsiveness warranted forcible entry into the property to inspect its condition.
Defendants’ expert opined that the actions taken by defendants in this case to arrange for
a voluntary inspection of the property were reasonable under the circumstances, and the
standard of care did not require taking any additional steps to forcibly enter the property.
2. Standard of Review
“ ‘ “The substantial evidence standard applies to both express and implied findings
of fact made by the superior court in its statement of decision rendered after a nonjury
trial.” ’ ” (Gomez v. Smith (2020) 54 Cal.App.5th 1016, 1026-1027.) “ ‘ “In a substantial
evidence challenge to a judgment, the appellate court will ‘consider all of the evidence in
the light most favorable to the prevailing party, giving it the benefit of every reasonable
inference, and resolving conflicts in support of the [findings].’ . . . We may not reweigh
13 the evidence and are bound by the trial court’s credibility determinations. Moreover,
findings of fact are liberally construed to support the judgment.” ’ ” (Ibid.; see Espinoza
v. Hepta Run, Inc. (2022) 74 Cal.App.5th 44, 52.)
Additionally, even if the trial court erred in making a finding, such error must be
prejudicial to warrant reversal. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 801-
802 [“ ‘No form of civil trial error justifies reversal and retrial, . . . where in light of the
entire record, there was no actual prejudice to the appealing party.’ ”]; Cal. Const.,
art. VI, § 13.) This includes any errors with respect to the trial court’s findings in a
statement of decision. (F.P. v. Monier (2017) 3 Cal.5th 1099, 1116 [error in making
relevant findings subject to harmless error review].)
3. Plaintiff Has Forfeited Any Claim by Failing to Fairly Summarize the Record
“ ‘ “ ‘A party who challenges the sufficiency of the evidence to support a
particular finding must summarize the evidence on that point, favorable and unfavorable,
and show how and why it is insufficient.’ . . . ‘[W]hen an appellant urges the
insufficiency of the evidence to support the findings it is his duty to set forth a fair and
adequate statement of the evidence which is claimed to be insufficient. He cannot shift
this burden onto respondent, nor is a reviewing court required to undertake an
independent examination of the record when appellant has shirked his responsibility in
this respect.’ ” ’ ” (Ashby v. Ashby (2021) 68 Cal.App.5th 491, 512.) When “an
appellant fails to fulfill this duty[,] the claim is forfeited.” (Oak Valley Hospital Dist. v.
State Dept. of Health Care Services (2020) 53 Cal.App.5th 212, 237; see Estes v. Eaton
Corp. (2020) 51 Cal.App.5th 636, 650-651 [“ ‘[I]f one is going to make a “the-facts-
14 compel-that-I-win-as-a-matter-of-law” argument, one’s brief must fairly state all the
evidence.’ ”].)
Here, the trial court found the standard of care did not require defendants to take
any additional steps to forcibly enter the property in order to conduct an inspection under
the circumstances. In doing so, it expressly relied upon the testimony of defendants’
expert. However, in arguing that the trial court erred in making this finding, plaintiff
makes no effort to summarize the evidence unfavorable to it, referencing only the
testimony of its own expert. Plaintiff’s opening brief contains no summary and no
discussion of the testimony of defendants’ expert, either in the general statement of facts
and procedural history or in the specific discussion related to the claim of insufficiency of
the evidence.8 In making a claim of insufficiency of the evidence, it was plaintiff’s duty
to fairly summarize the evidence—both favorable and unfavorable. The failure to do so
forfeits the issue on appeal.
4. Even Absent Forfeiture, We Would Find No Error and No Prejudice
Even in the absence of forfeiture, we would conclude that plaintiff has not shown
error or prejudice warranting reversal. Defendants’ expert opined that the efforts taken
by defendants to secure an inspection of the property constituted reasonable efforts to
comply with defendants’ obligations under the circumstances. Defendant’s expert further
opined that the standard of reasonable care for a property manager did not require
additional efforts to enter the property without the tenant’s consent under the
8 Plaintiff briefly mentions the testimony of defendants’ expert, but only in reference to an issue in which plaintiff claims the experts did not disagree.
15 circumstances. This constitutes substantial evidence in support of the trial court’s finding
that the standard of care did not require defendants’ to enter the property in the manner
claimed by plaintiff. The fact that plaintiff presented a competing expert opinion at trial
does not establish error warranting reversal. (Wheat v. Morse (1961) 197 Cal.App.2d
203, 205 [“[I]f findings are supported by substantial evidence an appellate court cannot
reassess the weight of conflicting evidence or presume to pass upon the credibility of
witnesses.”].)
Additionally, even if we were to assume the trial court erred in making this
finding, plaintiff has not shown prejudice warranting reversal. As we have already
observed, the trial court made an independent finding that plaintiff failed to establish that
defendants’ acts or omissions were a proximate cause of injury to plaintiff. Like a claim
for breach of contract, proximate cause is an essential element of a claim for professional
negligence. (Galanek v. Wismar (1999) 68 Cal.App.4th 1417, 1424 [“ ‘ “ ‘The elements
of a cause of action in tort for professional negligence” include “ ‘ “ ‘proximate causal
connection between the negligent conduct and the resulting injury . . . .’ ” ’ ”].) Plaintiff
has not challenged the sufficiency of the evidence to support this finding on appeal, and
this finding alone would support judgment in defendants’ favor. Thus, plaintiff has not
shown prejudice warranting reversal. (Bealmear v. Smith (1949) 91 Cal.App.2d 179,
181-182 [“If findings are made upon issues which determine a cause, other issues become
immaterial and a failure to find thereon does not constitute prejudicial error.”].)
16 D. The Trial Court Was Not Required To Consider a New Claim Raised for the First
Time After Trial
Finally, plaintiff claims the trial court “erroneously denied” a request to enforce an
oral promise made by defendant Chen to pay for the costs of repairs caused by the tenant.
We disagree.
“One of the functions of pleadings is to limit the issues and narrow the proofs. . . .
Evidence which is not pertinent to the issues raised by the pleadings is immaterial, and it
is error to allow the introduction of such evidence.” (Fuentes v. Tucker (1947) 31 Cal.2d
1, 4.) Thus, a plaintiff’s failure to properly plead an issue “bars recovery on that ground”
(Pierce v. Pac. Gas & Elec. Co. (1985) 166 Cal.App.3d 68, 86), and a trial court is not
required to make findings on such issues, even if requested to do so (Colony Ins. Co. v.
Crusader Ins. Co. (2010) 188 Cal.App.4th 743, 750-752 [party was not entitled to raise
unpleaded claim “under the guise of an objection to the court’s failure to resolve a
controverted issue”]; Hewko v. G.I. Trucking Co. (1966) 242 Cal.App.2d 738, 744 [trial
court not required to make findings in response to the plaintiff’s request where issue was
not pleaded in complaint, not mentioned in pretrial statements and the “plaintiff first
referred to another theory in the closing argument”]).
Here, the first amended complaint alleges the breach of the property management
agreement and breach of the standard of care owed by a real estate professional as the
basis of plaintiff’s claims. Plaintiff’s trial brief adhered to these theories of liability and
made no mention of a postdispute promise to pay for repairs as the basis of any recovery.
The first time plaintiff ever suggested that a postdispute promise to pay for repairs should
17 be considered a separate basis for liability was in its written closing argument, which was
submitted only after defendants had already submitted their closing statement.9
In fact, the record discloses that plaintiff admitted that it never tendered the issue
of a postdispute promise to pay for repairs. In moving for a new trial based upon
purported attorney misconduct, plaintiff acknowledged that the claim was “not stated as a
cause of action in the [first amended complaint],” and its attorney “could have and should
have made a motion to amend the pleadings” to seek recovery on this basis.
Where plaintiff failed to plead a claim for recovery based upon a postdispute oral
promise; failed to request leave to amend the pleading during trial to conform to
purported evidence in support of such a claim; and failed to afford defendants any
opportunity to address this theory of liability at any time during the trial; it was not error
for the trial court to refuse to consider the issue as a basis for recovery in its statement of
decision.10
9 Plaintiff’s characterization of the evidence on this point as “uncontradicted” is misleading. Because the issue was never alleged as a basis for liability, defendants had no reason to present evidence to contest the matter or even reference the matter in any of their arguments at the time of trial.
10 Nor would it be appropriate for us to entertain this new theory for the first time on appeal. “ ‘ “As a general rule, theories not raised in the trial court cannot be asserted for the first time on appeal; appealing parties must adhere to the theory (or theories) on which their cases were tried.” ’ ” (Green v. Healthcare Services, Inc., supra, 68 Cal.App.5th at pp. 418-419.) A party is not “entitled to sit on its rights and only assert [a] claim in a motion for new trial and on appeal.” (Ibid.)
18 IV. DISPOSITION
The judgment is affirmed. Defendants to recover their costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J. We concur:
McKINSTER Acting P. J.
RAPHAEL J.