Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC346879. Malcolm H. Mackey, Judge.
Calvin E. Burton, in pro. per., for Plaintiff and Appellant.
Kevin J. Frank for Defendants and Respondents.
CHAVEZ, J.
Calvin E. Burton (appellant) appeals from a judgment entered after the trial court granted directed verdicts in favor of Kathryn Icenhower (Icenhower) and Danielle Lowe erroneously sued as Danielle Icenhower (Danielle) (collectively respondents) on six of appellant’s causes of action, and a jury found in favor of Icenhower on the remaining cause of action. We affirm.
CONTENTIONS
Appellant contends that the trial court abused its discretion in making several pretrial rulings. The rulings were: (1) the denial of appellant’s motion for an order imposing issue, evidence, and/or terminating sanctions, filed on June 2, 2006; (2) the denial of appellant’s motion for an order imposing terminating sanctions, filed on June 29, 2006, and a subsequent motion for reconsideration of the order denying the motion for terminating sanctions, filed on September 5, 2006; (3) the denial of appellant’s motion to strike respondents’ verified answer, filed on June 29, 2006, and a subsequent motion for reconsideration of the court’s order denying appellant’s motion to strike respondents’ verified answer, filed on September 5, 2006; and (4) the denial of appellant’s motion for continuance of trial, filed on August 4, 2006.
Appellant further contends that the trial court erred in accepting into evidence at trial, documents that were listed on respondents’ trial exhibit list but were not referred to in respondents’ discovery response to Form Interrogatory No. 15.1.
Finally, appellant contends that comments made by the trial judge amounted to misconduct requiring reversal. Appellant argues that his motions for reconsideration of the trial court’s denial of appellant’s motions for recusal and mistrial should have been granted.
BACKGROUND
1. Factual Background
Neither party’s statement of facts contains citations to the record. Therefore we summarize the underlying facts of this case based on our own review of the trial transcript.
Icenhower testified that on January 6, 2006, three packages addressed to appellant were left on her doorstep by DHL. According to appellant, the packages contained information concerning appellant’s proposal for the development of a retirement resort for the National Football League Players Association. Icenhower testified that she was aware that appellant lived in her home before she purchased it. She stated that she had been receiving mail addressed to appellant for the past seven years. She returned most of it, and she did not sign for items that were certified.
Icenhower further testified that she was “irritated” when she learned from her daughter that these packages, addressed to appellant, had been delivered. As she had previously explained, she had been receiving appellant’s mail for seven years. She claimed that she “tried to stop his mail in every way that I knew how, including calling to the post office, the police, calling I.R.S., calling everybody that I could think of in order to get the mail stopped.” Icenhower informed the jury that she had received numerous letters from the I.R.S. addressed to appellant. Icenhower clarified that none of these letters were opened, they were all returned, but that “my concern was this man appeared to be illegally using my address.” Icenhower described an incident in which she received a letter addressed to appellant’s “campaign headquarters.” After calling Inglewood City Hall, she was informed that appellant had used her address to run for city council.
Because none of her efforts had succeeded in stopping the mail, when she received the DHL packages for appellant she “decided to call and let [the sender] know that [appellant] did not live at this address and to not send any further packages to me.” When the sender, Century 21 Gateway Realty (Century 21), suggested that she deliver the packages back to DHL, Icenhower became upset and indicated that she would not do anything to help appellant.
According to appellant, Icenhower informed Century 21 that appellant had once lived at her property, had been evicted, and had broken every pipe and cut every wire in the home before he left. Appellant further accused Icenhower of telling Century 21 that FBI agents had come to her home looking for him, and that he was a crook and a tax evader.
Icenhower denied telling Century 21 that the FBI had come looking for appellant or that he was a “low-life,” but she did admit that she informed Century 21 that she had received numerous letters addressed to appellant from the I.R.S. She also admitted that she had informed Century 21 that the previous owner of her home had told her that after appellant was evicted from the residence, he had “cut all the phone lines, cut all the lines to the security system, cut all the lines to the heating system, and stuffed the pipes full of menstrual pads.”
Appellant testified that he received a phone call from a Mr. Smothers at Century 21. Smothers informed appellant that he should immediately retrieve the DHL packages from respondents’ residence, because they contained important information such as a “write-up about the program, what we were going to do, how we were going to do it.”
Danielle, Icenhower’s daughter, testified that she was at home when appellant approached respondents’ home on January 9, 2006. He identified himself as someone who worked for appellant, but after seeing him at trial, Danielle confirmed that the individual who came to the door was indeed appellant. Appellant asked Danielle for the packages, and she informed him that her mother had thrown the packages in the trash.
2. The Pleadings
On February 2, 2006, appellant filed a verified complaint against respondents for conspiracy; tortious interference with business relationship; negligent infliction of emotional distress; intentional infliction of emotional distress; defamation; injunctive relief; and invasion of privacy. On March 6, 2006, respondents filed an answer which consisted of a general denial and 19 affirmative defenses. On March 23, 2006, appellant filed a motion for judgment on the pleadings on the ground that, under Code of Civil Procedure section 446, respondents’ answer was required to be verified. On the same date, and on the same ground, appellant filed a motion to strike the entire answer. Neither respondents nor their counsel appeared at the May 4, 2006 hearing on the motion. The trial court granted the motion to strike respondents’ answer with leave to file a verified answer within 30 days. On May 11, 2006, appellant filed and served respondents with notice of the court’s ruling.
Appellant prosecuted his case in propria persona until Attorney James T. Biesty substituted in as his attorney on November 13, 2006. On February 1, 2007, appellant substituted himself back into the case in place of attorney Biesty, and is self-represented in this appeal.
On June 6, 2006, respondents filed a verified answer to appellant’s complaint. A verification was signed by each of the respondents. On June 29, 2006, appellant filed a motion to strike the entire verified answer. After a hearing on August 25, 2006, the trial court denied the motion. On September 5, 2006, appellant filed a motion for reconsideration of the court’s order denying appellant’s motion to strike the verified answer. The trial court denied appellant’s motion for reconsideration at the November 2, 2006 hearing.
3. Discovery
On February 8, 2006, appellant served respondents with requests for admissions, set one; a demand for production, inspection, and copying of records, set one; and special interrogatories, set one. On March 9, 2006, appellant sent respondents a meet and confer letter. Respondents did not respond to the letter, therefore on March 23, 2006, appellant filed a motion for an order that the unanswered requests for admission be deemed admitted; a motion to compel responses to the inspection demand; and a motion to compel responses to the special interrogatories. The hearing on all three motions was held on May 4, 2006, but neither respondents nor respondents’ counsel appeared at the hearing. The court granted appellant’s motion that the requests for admission be deemed admitted, and ordered respondents to pay sanctions of $270.00. The court also granted appellant’s motions to compel the inspection demand and special interrogatories, and ordered respondents to pay additional sanctions totaling $500.00.
A letter dated May 4, 2006 from respondents’ attorney, Ronald White, to appellant stated: “Enclosed you will find additional copies of discovery items you have requested which were previously sent out on March 4, 2006. These items were brought to Dept 55 on April 26, 2006. My office was informed on that day that the matter had been taken off calendar by you without notice to my office. In the future please provide my office with written notice of any changes in court dates.”
On May 18, 2006, appellant wrote back to respondents’ counsel, disputing that he ever received the discovery responses that respondents’ counsel claimed were sent on March 4, 2006. Appellant asserted that because the discovery responses included with respondents’ counsel’s letter of May 4, 2006, were not signed, respondents were still not in compliance with the court’s orders of May 4, 2006. Appellant also reminded respondents of the sanctions imposed by the court and indicated that if appellant did not receive compliance with all court orders by 5:00 p.m. on May 23, 2006, appellant would proceed with a motion “to protect my interests, advance my case, and obtain a judgment against your clients.”
On June 2, 2006, appellant filed a motion for an order imposing issue, evidence, and/or terminating sanctions against respondents based on their purported failure to obey court orders compelling responses to appellant’s inspection demand. In his motion, appellant argued that respondents’ responses to his inspection demand did not comply with court orders because they were served late, contained objections that had been waived, were not verified, and did not contain a privilege log. After a hearing on June 30, 2006, the court denied the motion in its entirety.
On June 29, 2006, appellant filed another motion for an order imposing terminating and monetary sanctions against respondents and their attorney on the grounds that respondents had failed to obey the court’s orders of May 4, 2006. After an August 25, 2006 hearing, the trial court denied the motion.
On June 2, 2006, appellant served his second set of special interrogatories and first set of form interrogatories on respondents. On August 4, 2007, appellant filed motions compelling further responses to his second set of requests for production, second set of special interrogatories, and first set of form interrogatories. The hearing was set for October 12, 2006. At the hearing, the court ordered sanctions against respondents’ attorney and respondents in the amount of $315.00. The court also ordered that all outstanding discovery responses be served upon appellant within 20 days.
On September 5, 2006, appellant filed a motion for reconsideration of the trial court’s denial of his motion for terminating sanctions. At a November 2, 2006 hearing, the trial court denied appellant’s motion for reconsideration, noting that the sanction requested was “a drastic measure.”
4. Motions for Continuance of Trial
The trial date was set for November 13, 2006. On August 4, 2006, appellant filed a motion for continuance of trial. He argued that he needed the continuance because respondents’ delay in responding to his discovery was making it difficult for him to prepare for trial. Appellant’s motion was heard on October 12, 2006. The court denied appellant’s motion for continuance.
On November 13, 2006, attorney Biesty appeared in court and announced that he was substituting into the case as counsel for appellant. Appellant and his new counsel sought a continuance of the trial date. Appellant also informed the court that he did not receive respondents’ responses to his special interrogatories, set two, form interrogatories, set one, and requests for production of documents, set two, until November 9, 2006. The court granted appellant’s request for a continuance, postponing trial for one week.
5. Trial
Jury trial commenced on November 20, 2006. After allowing testimony on all causes of action, the court granted a motion for directed verdict of the entire action as to Danielle, and granted Icenhower’s motion for directed verdict as to all causes of action except defamation. Thus, the case went to the jury only as to the defamation cause of action against Icenhower.
The trial concluded on November 27, 2006. The jury issued a special verdict which found that, while Icenhower did make some of the statements appellant accused her of making, such statements were “substantially true.” On November 27, 2006, the court signed and filed its “Judgment on Special Verdict” wherein it was ordered, adjudged and decreed that appellant recover nothing from respondents and that respondents recover from appellant costs and disbursements amounting to the sum of $1,693.
DISCUSSION
I. Standard of Review
All of the rulings at issue were discretionary rulings on the part of the trial court. Thus, the applicable standard of review is the abuse of discretion standard. A trial court’s exercise of discretion will not be disturbed on appeal unless the court exercised it in an arbitrary, capricious, or patently absurd manner resulting in a manifest miscarriage of justice. (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1434.) “It is often said that a trial court’s exercise of discretion will be reversed only if its decision is ‘beyond the bounds of reason.’ [Citation.]” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 393.) “Action that transgresses the confines of the applicable principles of law is outside the scope of discretion” and constitutes an abuse of discretion. (Ibid.) Thus, judicial discretion is measured against the general rules of law, requiring “absence of arbitrary determination, capricious disposition, or whimsical thinking.” (Todd v. Thrifty Corp. (1995) 34 Cal.App.4th 986, 990.) We give “abundant deference to the trial court’s rulings.” (People v. Jackson (2005) 128 Cal.App.4th 1009, 1018.) Rulings within the trial court’s discretion will not be disturbed unless “‘“a manifest and unmistakable abuse of discretion clearly appears.”’ [Citation.]” (People v. Davis (1995) 10 Cal.4th 463, 524.)
With these principles in mind, we turn to appellant’s specific claims of error.
II. The Pretrial Rulings
A. Motions for Discovery Sanctions
Appellant argues that the trial court abused its discretion in declining to impose more stringent sanctions on respondents for their discovery violations. Specifically, on at least three occasions during the discovery process, appellant sought terminating sanctions against respondents.
We begin with an acknowledgement that the appellate court is generally “loath to interfere with the discovery process” because it is a function of the trial court. (Kaplan v. Eldorado Ins. Co. (1976) 55 Cal.App.3d 587, 591.) In addition, we note that an imposition of terminating sanctions for a delay in responding to discovery is generally disfavored. “When a court’s order goes beyond imposing a sanction which will accomplish the purpose of discovery and ‘denies a party any right to defend the action or to present evidence upon issues of fact which are entirely unaffected by the discovery procedure before it, it not only abuses its discretion but deprives the recalcitrant party of due process of law.’ [Citation.]” (Midwife v. Bernal (1988) 203 Cal.App.3d 57, 64-65.)
Appellant relies on Jerry’s Shell v. Equilon Enterprises, LLC (2005) 134 Cal.App.4th 1058 (Equilon) in support of his claim that terminating sanctions would have been appropriate here. Equilon is factually distinguishable. In Equilon, the dilatory party “failed to respond to discovery requests propounded on December 6, 2002, until October 21, 2003. In the interim, two court orders were disregarded, including a July 2003 order warning that terminating sanctions would be the next step.” (Id. at p. 1069.) In this matter, appellant’s first round of discovery was served on February 8, 2006. Respondents’ responses were served on appellant on May 4, 2006 – the same date that the court entered an order compelling those responses. On June 2, 2006, appellant served his second round of discovery. On August 4, 2006, appellant filed motions compelling further responses to this second round of discovery. On October 12, 2006, the court ordered sanctions against respondents’ attorney and respondents in the amount of $315.00 and further ordered that all outstanding discovery responses be served upon appellant within 20 days. The responses were filed in court on November 3, 2006.
While we acknowledge that respondents’ conduct during the discovery process was not ideal, it was not nearly as egregious as the conduct described in Equilon. Despite their delay, respondents here did not disregard the court’s orders compelling their responses. Therefore, Equilon does not convince us that the court’s failure to impose terminating sanctions was an abuse of its discretion.
The record shows that the trial court properly imposed sanctions designed to accomplish the purpose of discovery. It ordered respondents to comply with appellant’s discovery requests within specific time limits and to pay monetary sanctions for their dilatory actions. Given the severity of “the ultimate sanction of dismissal” (Kaplan v. Eldorado Ins. Co., supra, 55 Cal.App.3d at p. 591), we decline to find that the trial court’s failure to impose terminating sanctions was arbitrary, capricious, or whimsical. Instead, we find that it was well within the bounds of reason.
B. Motion to Strike Verified Answer
Appellant next argues that the trial court abused its discretion by denying appellant’s motion to strike respondents’ verified answer and denying his motion for reconsideration of that ruling. In the motion to strike, appellant argued that respondents’ verified answer violated Code of Civil Procedure section 128.7 because respondents and their attorney “falsely certified” to the court that “(1) the claims, defenses, and other legal contentions of the verified answer were warranted by existing law (2) the allegations, factual contentions, and affirmative defenses have evidentiary support and (3) the denials of factual contentions are warranted on the evidence.”
Generally, a claim that a verified pleading is false does not support a motion to strike the pleading or a motion for judgment on the pleadings. “If an answer is not sufficiently verified . . ., it may be stricken out . . ., or judgment on the pleadings may be ordered. [Citations.] This rule has been applied where there was no verification of the answer at all [citations], and also where the verification showed on its face that it was not made by a proper person [citation], but it should not be extended to cases where it is necessary to inquire into the truth of the verifying affidavit in order to show the insufficiency of the verification. If a verification appears to be made by a person authorized by law to do so and complies in form and substance with the statutory provisions, it must be regarded as sufficient to install and support the answer as a pleading.” (French v. Smith Booth Usher Co. (1942) 56 Cal.App.2d 23, 29; see also Garcia v. Sterling (1985) 176 Cal.App.3d 17, 20-21 [motion to strike portions of verified answer was without merit because it required the judge to determine “what is true and untrue”].)
The law supports the trial court’s decision to deny appellant’s motion to strike respondents’ verified answer. Appellant has provided no law suggesting that a different outcome was warranted. We therefore find that the decision was not an abuse of discretion.
C. Motions for Continuance
Appellant’s next claim is that the trial court erred in denying his motion for a continuance of the trial date, brought on August 4, 2006. Appellant complained that his failure to obtain discovery interfered with his ability to prepare for trial. Specifically, appellant claimed that he needed “information such as what phone was used to make the defamatory phone call to the real estate brokerage office” as well as “the names of the phone companies that provided the service to the cell phones and landline phones so that I can subpoena their phone records.” On October 12, 2006, appellant’s motion was denied.
We find it useful to reiterate that we are considering an order that is well within the province of the trial court. “Our Supreme Court has long pointed out that ‘“[i]t is a settled rule of practice that an application for a continuance is addressed to the sound discretion of the trial court.”’ [Citation].” (People v. Sandoval (1977) 70 Cal.App.3d 73, 82.) The trial court’s “determination as to whether a defendant has affirmatively demonstrated that justice requires granting the motion ‘will not be disturbed on appeal in the absence of a clear abuse of that discretion.’ [Citations].” (Ibid.)
No such abuse of discretion has been demonstrated here. On the same date that the trial court denied the continuance, it granted appellant’s motions to compel discovery and ordered respondents to respond within 20 days. In addition, on the day that trial was set to begin, the trial court granted appellant a week’s continuance so that appellant’s new counsel could prepare for trial. The trial court showed due consideration of the issues before it, and its orders do not reflect any action that was beyond the bounds of reason.
III. The Evidentiary Rulings
Appellant next contends that the trial court’s decision to allow respondents to present documents at trial that were not revealed in discovery constituted reversible error. Appellant claims that on November 3, 2006, respondents filed and served their responses to form interrogatories, including Form Interrogatory No. 15.1, which asks for “all documents . . . that support your denial or special or affirmative defense.” Respondents responded that no such documents existed.
On November 7, 2006, respondents filed a trial exhibit list which listed among other things certain internet search results which apparently showed that appellant’s background includes an eviction, tax problems, and numerous other lawsuits in which appellant has been involved. Appellant’s position is that the trial court should not have accepted those documents into evidence knowing that respondents had not identified them in response to Form Interrogatory No. 15.1. Further, appellant contends that the trial court should not have allowed respondents to present the defense of “truth” based on documents which he claims were “deliberately” withheld during discovery. Appellant puts great emphasis on the case Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 376-377, in which it was expressed that the purpose of the discovery act was to “take the ‘game’ element out of trial preparation . . . [and] do away ‘with the sporting theory of litigation -- namely, surprise at the trial.’ [Citations.]”
Appellant also suggests that it was improper for the court to allow respondents to present the defense of “truth” at all since it was not specifically alleged as an affirmative defense in the verified answer. Respondents’ counsel argued that the defense of “truth” was “generally incorporated” in respondents’ answers. We agree that respondents’ answer sufficiently put appellant on notice that respondents would be defending on the grounds of “truth.” For example, respondents did allege “freedom of speech” as an affirmative defense. Thus, appellant cannot claim to have been prejudiced by respondents’ presentation of the defense of “truth.” The trial court accepted respondents’ position that the defense of “truth” was generally pled in the answer, and the trial court stated that “Subject to proof, the court will allow truth as a defense.” We find no prejudice to appellant, particularly because, at the time of the court’s ruling, appellant had received respondents’ exhibit list and had the opportunity to view the documents concerning appellant’s eviction and tax problems. In addition, the ruling came at the beginning of trial, giving appellant the opportunity to present a contrary position to the jury.
In conformity with this purpose, Code of Civil Procedure section 2023.030, subdivision (c), provides that a court “may impose an evidence sanction” for any abuse of the discovery process, such as failing to provide responses or providing evasive responses to discovery. (See § 2023.010, subds. (d) & (f).) However, as is the case with the other orders at issue in this appeal, a trial court’s decision to impose such a sanction is highly discretionary. In this case, we find that the trial court did not abuse its discretion. First, respondents did identify the documents several weeks before trial began on their trial exhibit list. This gave appellant time to prepare to address them at trial. In addition, the documents consisted of public information -- photographs of the exterior of respondents’ home and public records concerning appellant -- which was equally accessible to appellant. Therefore, we decline to find that the trial court’s decision in this matter constituted an abuse of its discretion.
IV. Comments by the Trial Court
Appellant’s final contention concerns comments made by the trial judge during the proceedings. The specific statements at issue are:
1. A comment during the morning session on the first day of trial, November 20, 2006, at which time the court stated: “[Appellant] has, from what I understand, some 30 cases filed. I don’t know. Quite a number of cases that he has filed. Maybe certain cases he won, certain cases are dismissed. I don’t know. Maybe he is a vexatious litigant. I don’t know. I don’t think that is before me.”
2. Later, during the trial, appellant’s attorney objected to the admission of certain noncertified copies of appellant’s previous civil court cases. The court overruled appellant’s objections to admission of the documents, and in the process of doing so made the following comment: “Well, it goes to what he is doing. He is -- he likes to file lawsuits, and that is one of the things that came up.”
3. During argument about punitive damages related to the purportedly defamatory comments made by Icenhower, appellant claims that the trial court “exposed his contempt for [appellant]” by referring to damages as follows: “Damages? Yes is it speculative, this Lake Tamarisk thing?” Appellant also claims that the court joked about the Lake Tamarisk project and referred to it as “Pie in the Sky.”
It appears that the court’s reference to “Lake Tamarisk” was a reference to appellant’s proposed project with Century 21.
Appellant relies on Hernandez v. Paicius (2003) 109 Cal.App.4th 452 (Hernandez), as support for his position that these comments were prejudicial to appellant. In Hernandez, the trial judge made comments which gave “the appearance the court held preconceived ideas based on stereotypes of undocumented aliens.” (Id. at 455.) Those comments raised “doubts about the fairness and impartiality of the proceeding and cast the judicial system itself in a bad light in the eyes of the litigants and the public at large.” (Ibid.) The court’s comments were made in connection with the plaintiff’s motion in limine to exclude any reference to plaintiff’s immigration status. In support of the defendant’s position that plaintiff’s status as an undocumented alien spoke to the issue of plaintiff’s credibility, the court stated: “[W]hen you cross the border and hug the tree and then get injured or have a baby and want to go through our system and have U.S. taxpayers pay for it, and then it’s done poorly, then you sue them and document some paperwork so you can maintain an action to get money, I think a juror has to know all the facts to find out is this person credible[?]” (Id. at p. 458.) The trial court denied the motion in limine and defense counsel was permitted to refer to the plaintiff’s status as an undocumented alien.
In discussing the trial court’s denial of the plaintiff’s motion in limine, the Hernandez court noted that the general rule of appellate review would require the plaintiff to make an affirmative showing of prejudice. However, the court stated that “Where, as here, the appearance of judicial bias and unfairness colors the entire record, we depart from the general rule requiring plaintiff to make an affirmative showing of prejudice. The test is not whether the plaintiff has proved harm, but whether the court’s comments would cause a reasonable person to doubt the impartiality of the judge or would cause us to lack confidence in the fairness of the proceedings such as would necessitate reversal. The record here inspires no confidence in either case.” (Hernandez, supra, 109 Cal.App.4th at p. 461.)
Unlike the comments at issue in Hernandez, the comments at issue here do not create the appearance of judicial bias such that a reasonable person would doubt the impartiality of the judge or lack confidence in the fairness of the proceedings.
The first comment came at the beginning of trial. The court was considering appellant’s motion to exclude reference to any other lawsuits that appellant has been involved with. In response, respondents argued that (1) in bringing the defamation charge, appellant had put his character and reputation at issue, and the other lawsuits spoke to those characteristics; and (2) information contained in those lawsuits showed that appellant had misused respondents’ address after he moved out. After engaging in extensive discussion with counsel on this issue, outside of the presence of the jury, the trial court overruled appellant’s objection “subject to . . . objection.” The court specified that, while some information regarding the other lawsuits might come in, “certain stuff may be excluded.” He then warned respondents’ counsel: “I want to use extreme caution on it.”
This dialogue, taken as a whole, does not reveal prejudice. Instead, it reveals a reasoned decision. Under the circumstances, we do not find that appellant suffered prejudice or the specific comments at issue showed any judicial bias.
The second comment came during a discussion on the admissibility of certain specific documents. Respondents moved to enter into evidence five documents concerning other lawsuits filed by appellant. Appellant objected on the grounds of hearsay, lack of foundation, and relevance. During the court’s dialogue with counsel regarding the relevance of the documents, outside of the presence of the jury, the court commented, “it goes to what he is doing. He . . . likes to file lawsuits.” The court apparently found it relevant that appellant had filed numerous lawsuits and consistently alleged similar causes of action throughout those lawsuits. Again, taken in the context of the entire discussion, and because the comments were made away from the jury, we find that they do not amount to expressions of bias which “color[ed] the entire record.” (Hernandez, supra, 109 Cal.App.4th at p. 461.)
Finally, appellant points to the court’s comments regarding the speculative nature of any damages that appellant might have been entitled to had he won on any of his claims. Addressing appellant’s attorney outside of the presence of the jury, the court inquired as to whether the contractual damages that appellant sought were speculative. The court and appellant’s attorney then entered into the exchange in which the court commented that the deal was “speculative.” While the court found that appellant was entitled to “general damages, if his reputation has been tarred,” it further found that “as to speculative damages regarding the Lake Tamarisk and other money supposedly incurred in that regard, . . . in giving every legitimate inference to [appellant], the court finds no evidence sufficient to support a verdict on those items of damages.” Thus, the court’s comments as to the speculative nature of the deal that appellant was negotiating with Century 21 were a result of the court’s analysis of the evidence presented at trial, and did not amount to an expression of bias.
Having considered the comments made by the trial court in context, we find that reversal of the judgment is not warranted.
In his reply brief, appellant repeatedly notes respondents’ failure to specifically address each argument in appellant’s opening brief and cites California Ins. Guarantee Assn. v. Workers’ Comp. Appeals Bd. (2005) 128 Cal.App.4th 307, 316, footnote 2, for the proposition that each point raised by appellant should be addressed by respondents. First, we note that respondents responded generally to all of appellant’s claims in their discussion of the principle that error must be prejudicial, or result in a miscarriage of justice, in order to constitute reversible error. (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069.) In addition, neither the cited footnote, nor the relevant law, requires that we find in favor of appellant on the issues not specifically addressed by respondents. Instead, such issues are “deemed submitted on appellant’s brief” (California Ins. Guarantee Assn., supra, at p. 316, fn. 2), and the appellate court may consider the issues for decision on the record and on the appellant’s opening brief. (Cal. Rules of Court, rule 8.220(a)(2).)
DISPOSITION
The judgment is affirmed. Appellant shall pay the costs of appeal.
We concur: DOI TODD, Acting P.J., ASHMANN-GERST, J.