Marriage of Lietz
CERTIFIED FOR PUBLICATION
O P I N I O N
Christensen Law and Robert J. Christensen for Appellant.
*
*
*
INTRODUCTION
In 2019, Diana Lietz petitioned for dissolution of her marriage to Andreas Lietz. Diana and Andreas disputed the value of the family home.1 At trial, Diana presented a report appraising the home at $1.1 million, while Andreas presented a report appraising the home at $1,020,000. Both reports stated the home was on a lot with an area of 9,000 square feet. Both appraisers testified. The trial court found Andreas‘s appraiser to be more credible and found the home to be valued at $1,020,000.
In this appeal, Diana contends the trial court erred by precluding her from eliciting testimony from her appraiser that the home‘s lot size exceeded 9,000 square feet and from cross-examining Andreas‘s appraiser with evidence which, she claims, showed the appraisers used an incorrect lot size. We affirm. The trial court did not err because Diana failed to present competent evidence independently proving her assertion that the lot size exceeded 9,000 square feet. Without such evidence, testimony from her appraiser on that topic was inadmissible hearsay.
FACTS AND PROCEDURAL HISTORY
I. Appraisals of the Family Home
Andreas and Diana wed in September 1997. In May 2019, Diana petitioned for dissolution of the marriage. Andreas responded to the petition in July 2019.
Andreas and Diana disputed the value of the family home. Each obtained an appraiser, and appraisals were conducted on November 16, 2021. Andreas‘s appraiser, Neal Johnson, appraised the value of the home at $1,020,000. Diana‘s appraiser, Kristina L. Burke, appraised the value of the home at $1.1 million. Both appraisals recite the area of the property as 9,000 square feet and describe the shape of the lot as “irregular.” Johnson‘s
II. Testimony and Cross-examination of Diana‘s Appraiser
Trial, which commenced on November 19, 2021, addressed the value of the home, among other issues. Burke testified first. She testified from her car and did not have either appraisal report in front of her. She testified the appraised value of the home was $1.1 million and that she had only glanced at Johnson‘s appraisal.
During cross-examination, Andreas‘s counsel moved to exclude or strike Burke‘s testimony and appraisal report “due to lack of preparation and lack of ability to testify in this matter.” In response, the court stated, “Essentially, you‘re dоing it from a phone in a car, and you can‘t use your phone to look at documents and appear in a hearing.” The court declared that Burke‘s manner of testifying created a problem in an evidentiary hearing. The court continued the trial to November 22, with the admonition, “Ms. Burke, I‘m hoping that you will be in a different situation, not on a phone.” Burke said she would be at her desk.
When cross-examination of Burke resumed on November 22, Diana‘s counsel asked to reopen direct examination because counsel had not had the chance to “discuss anything with Ms. Burke.” The court told counsel she could ask further questions on redirect examination.
On November 22, Andreas‘s counsel completed her cross-examination of Burke. Before starting redirect examination, Diana‘s counsel announced, “There were some things that were discovered over the weekend regarding the property.” Those “things” had to do with the lot size. During redirect examination, Burke testified that both appraisal reports used a lot size of 9,000 square feet, a figure which she had obtained from a county reсords portal. After writing her appraisal report, Burke had conducted another investigation into the size of the lot.
Diana‘s counsel asked Burke if the lot size was larger than 9,000 square feet. Andreas‘s counsel objected. The court asked Diana‘s counsel if there was an amended report. Counsel responded, “No. We didn‘t amend it. [Burke is] just going to comment only [on] the fact that they—it‘s basically my client did some investigation, and they concurred that the—the information contained in the county portal is incorrect, and I could have her speak to that.” The court stated, “That‘s going to be hearsay.” Diana‘s counsel responded, “It‘s in public records.”
Andreas‘s counsel objected on the grounds of hearsay and the information was outside the scope of prior testimony and оf Burke‘s appraisal report. Counsel stated, “My expert hasn‘t had a chance to review any new information.”
The court sustained the objection on the ground that Diana had not produced the public record that Burke had reviewed and was going to testify about. The court stated, “I‘m going to sustain the objection. Either present the record or some—it doesn‘t sound like it‘s even Ms. Burke talking to a county official; it sounds like it‘s your client.”
Diana‘s counsel stated that she was “just trying to clarify” and asked, “I‘m not allowed to ask her if she reviewed the recоrds?” The trial court stated in response, “If you‘re saying that it‘s now not 9,000 square feet as placed in the report that your client presented to the court based upon some work this weekend, I want to see a document.” The court explained, “I don‘t think this is fair for [Andreas‘s counsel] that I‘m going to hear just hearsay testimony that there is a new record in the county portal or there is someone who provided a different statement about the lot size. [¶] I‘m presuming that both of these experts, when they put in the dimensions, they pulled up records when they wrotе that, saying it was an irregular lot; it was R1; it was 9,000 square feet. [¶] I‘m going to need a little bit more. . . .” The court emphasized, “I want a record then if this is going to be disputed.”
Diana‘s counsel stated that she could present “the record from the City,” to which Andreas‘s counsel posed an objection pursuant to People v. Sanchez (2016) 63 Cal.4th 665. After a break Diana‘s counsel asked Burke whether a 9,000 square foot or 10,425 square foot lot is considered “a larger lot.” The trial court told counsel she could proceed with numbers from Burke‘s appraisal report, but she could not “introduce a number thаt isn‘t supported by any evidence before the court.”
III. Testimony and Cross-examination of Andreas‘s Appraiser
After Burke finished her testimony, Andreas‘s appraiser, Johnson, testified. Johnson confirmed he had reached an appraised value of $1,020,000 for the home. During cross-examination, he testified he had not measured the “plat size” of the lot and there was no means of doing so with the online resources available.
Diana‘s counsel stated she had just sent Andreas‘s attorney a measurement based on the plat map that Johnson had provided. Andreas‘s attorney objected on the grоund the questioning exceeded the scope of direct examination. The trial court sustained the objection. On redirect Andreas‘s counsel asked Johnson whether Burke used the same plat map that Johnson had used in determining the lot size. The court interjected, “I can compare the two maps. They are the same.”
IV. The Trial Court‘s Decision
The parties stipulated to receive both appraisal reports into evidence. The remaining contested issues were tried on November 23 and 29, 2001. Diana‘s counsel did not produce or attempt to admit intо evidence the public record which she asserted supported a lot size of over 10,000 square feet for the home.
The trial court issued a decision at the conclusion of the trial on November 29, 2021. The court found Johnson to be more credible than Burke and accepted Johnson‘s valuation of the home. The court stated it “had quite a few issues with Ms. Burke‘s credibility.” Neither party requested a statement of decision.
The judgment of dissolution, which was entered on August 5, 2022, stated, in relevant part, “After hearing testimony from both parties’ experts, the Court finds [Andreas‘s] expert, Mr. Johnson, to be more credible than [Diana‘s] expert, Ms. Burke, and will use Mr. Johnson‘s valuation of the property ($1,020,000).”
After the trial court recited its oral statement of decision on November 29, 2021, Diana retained a licensed land surveyor, Bruce Hall, to survey the home. Hall concluded the home was on a lot that was 10,445.29 square feet in size. To his report, Hall attached copies of the assessor‘s parcel map that was included in both Burke‘s and Johnson‘s appraisal report and the original subdivision map for the tract in whiсh the home was situated. Diana later obtained a certified copy of the subdivision map that was included in Hall‘s survey documents. Diana commissioned two appraisals of the home. Both appraisals were based on a lot size of 10,445.29 and both appraisals reached values exceeding those of the appraisal reports received into evidence at trial.
On August 19, 2022, Diana filed a notice of intention to move for a new trial and motion for new trial, along with a memorandum of points and authorities and a declaration from Diana.2 The register of actions does not reflect that a motion for new trial had been filed; the register of actions reflects a “NOTICE—Other” was filed by Diana on August 19, 2022. That notice was pointed out by Andreas in his responding declaration.
Diana filed her notice of appeal on October 3, 2022. The motion for new trial was never heard and was deemed to have been denied by operation of law on October 18, 2022. (
DISCUSSION
Diana contends the trial court erred by prеcluding her from eliciting testimony from Burke to show that the home‘s lot size exceeded 9,000 square feet and from cross-examining Johnson with evidence purporting to show the lot size exceeded 9,000 square feet. She parses her claim into five arguments3 addressing several evidentiary rulings made by the trial court. A trial court‘s decision to exclude evidence is reviewed for an abuse of discretion. (Litinsky v. Kaplan (2019) 40 Cal.App.5th 970, 988.) The first
I. Sanchez
In Sanchez, supra, 63 Cal.4th 665, the California Supreme Court explained—and limited—the situations in which an expert witness may relate hearsay evidence. The court confirmed that an expert may rely on hearsay in forming an opinion but concluded an expert may not relate case-specific facts asserted in hearsay statements “unless they are independently provеn by competent evidence or are covered by a hearsay exception.” (Id. at p. 686.) The court explained that the hearsay rule traditionally had not barred an expert from testifying about the expert‘s general knowledge in the expert‘s field of expertise. (Id. at p. 676.) “As such, an expert‘s testimony concerning his general knowledge, even if technically hearsay, has not been subject to exclusion on hearsay grounds.” (Ibid.) “By contrast, an expert has traditionally been precluded from relating case-specific facts about which the expert
The Sanchez court rejected the premise that expert testimony on case-specific information does not relate hearsay. (Sanchez, supra, 63 Cal.4th at p. 683.) “If an expert testifies to case-specific out-of-court statements to explain the bases for his opinion, those statements are necessarily considered by the jury for their truth, thus rendering them hearsay. Like any other hearsay evidencе, it must be properly admitted through an applicable hearsay exception. Alternatively, the evidence can be admitted through an appropriate witness and the expert may assume its truth in a properly worded hypothetical question in the traditional manner.” (Id. at p. 684, fn. omitted.) “What an expert cannot do,” the court concluded, “is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay еxception.” (Id. at p. 686.)
The court adopted this rule: “When any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true and accurate to support the expert‘s opinion, the statements are hearsay. It cannot logically be maintained that the statements are not being admitted for their truth. If the case is one in which a prosecution expert seeks to relate testimonial hearsay, there is a confrontation clause violation unless (1) there is a showing of unavailability and (2) the defendant had a prior opportunity for cross-examination, or forfeited that right by wrongdoing.” (Sanchez, supra, 63 Cal.4th at p. 686, fn. omitted.)
Although Sanchez was a criminal case, its intention was to “clarify the proper application of
The square footage of the lot on which the home is situated was without doubt a case-specific fact. Thus, during redirect examination when Diana‘s counsel asked Burke if the lot size was larger than 9,000 square feet, counsel was eliciting case-specific facts. The trial court pointed out that Burke‘s testimony would relate to hearsay statements. Counsel did not disagree, but claimed the information was in public records. Under Sanchez, Burke could not be permitted to testify that the lot size was larger than 9,000 square feet unless counsel produced and was able to admit into evidence the public record or other evidence that would have independently proven that fact.
Cоunsel did not identify or produce the public record. Counsel argued she should be able to ask Burke if she had reviewed the public record. That question would have violated Sanchez. The trial court correctly applied Sanchez by sustaining an objection on the ground Diana had not produced the public record.
After the court sustained that objection, Diana‘s counsel asked, “I‘m not allowed to ask her if she reviewed the records?” The trial court responded by again telling counsel that if she wanted to prove the lot size was not 9,000 square feet (the number set forth in Burke‘s appraisal report) the court wanted to see the document proving that fact and was not going to permit hearsay testimony. The court‘s response was a correct application of Sanchez. Counsel stated she could present “the record from the City.” But counsel did not identify that record or produce a copy of it. The court told counsel she could proceed with redirect examination of Burke using the lot size from her appraisal report. It was Diana‘s responsibility, not the trial court‘s, to present competent evidence suppоrting her claim that the lot exceeded 9,000 square feet in size.
III. The Plat Map Does Not Reveal the Lot Size as a Matter of Simple Geometry
Diana contends the plat map, which was attached to both appraisal reports, demonstrates based on “basic arithmetic” and “[s]imple geometry” that the home is on a lot that is greater than 9,000 square feet in size. At trial, Diana‘s counsel announced, during cross-examination of Johnson, that she had “just sent your attorney a measurement based on the plat map that you‘ve provided.” The trial court sustained an objection. The court did not err in
On appeal, Diana includes, in both her opening brief and reply brief, a depiction of the lot on the plat map with calculations purporting to show the lot‘s square footage. Those calculations are based on the area of a parallelogram and thе size of the triangle constituting the lot.
Although the area of the lot might be greater than 9,000 square feet, Diana‘s calculations do not show that because she used incorrect equations for calculating the areas of those shapes. She calculated the area of the parallelogram as base multiplied by side (base x side), and the area of the triangle as one side multiplied by another side times one-half (one-half (base x side)). We issued an order notifying the parties of our intent to take judicial notice of the proрosition that the equation for calculating the area of a parallelogram is base multiplied by height (A = (base x height)) and the equation for calculating the area of triangle is one-half base multiplied by height (A = one-half (base x height)). We take judicial notice of those propositions. (
Andreas submitted a response to our notice of intent to take judicial notice in which he asserts the equation A = one-half (base x height) is accurate only for determining the area of an equilateral triangle or a right triangle. The equation of A = one-half (base x height) can be used to determine the area of any triangle. (See <https://www.mathematicalway.com/mathematics/geometry/area-triangle/> [as of Jan. 31, 2024], archived at: <https://perma.cc/HW48-MZW4>.)
In her response to our notice of intent to take judicial notice, Diana identified other formulas for measuring the area of a parallelogram which she claimed demonstrated the area of the lot exceeds 9,000 square feet.5 Her claim merely proves our point. Measuring the area of the lot based on the plat map alone is not a matter of simple geometry, as Diana asserted in her appellate briefs. Testimony—probably expert testimony—would have been necessary to explain and substantiate calculations of the lot size using the equations that Diana presented in her response. Diana did not present or offer to present such testimony at trial.
response to our notice of intent to take judicial notice, we do not know whether the diagram presented in Diana‘s appellate briefs was to scale or otherwise reliable. “The probative value of maps and plats in establishing facts relating to common-law dedications depends on the circumstances surrounding their preparation, recording, or use.” (26 Cal.Jur.3d (2024) Maps and Plats, § 74, citing City of Manhattan Beach v. Cortelyou (1938) 10 Cal.2d 653.) Further, as Andreas points out, the parallelogram overlaps the triangle, meaning the overlapping area was double-counted.
The best way to measure the area of the lot would be to hire a surveyor, which is what Diana did after the trial court rendered a decision. Diаna moved for a new trial based on the surveyor‘s report and new appraisals; however, as we shall explain, Diana does not challenge the denial of her new trial motion, which was accomplished by operation of law.
IV. Diana‘s Motion for a New Trial
In Diana‘s appellate opening brief, Diana describes her motion for new trial and explains how it was denied by operation of law after she filed her notice of appeal. In her reply brief, she responds to what she characterizes as “inaccuracies” in the respondent‘s briеf regarding her motion for new trial. Despite the many references to the motion for new trial, in neither her opening brief nor her reply brief does Diana argue the denial of her motion for new trial by operation of law should be reversed and the new trial motion set for hearing. The issues presented, argument headings, legal authorities, and arguments made in Diana‘s appellate briefs all concern the trial court‘s evidentiary rulings made during trial.
We conclude Diana is not challenging the denial of her motion for new trial by operation of law or, if she is, the challenge is forfeited. (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179 [argument forfeited because it was neither presented in a separate heading nor developed with reasoned argument and citation to authority]; Sweetwater Union High School Dist. v. Julian Union Elementary School Dist. (2019) 36 Cal.App.5th 970, 987 [arguments raised for the first time in a reply brief usually are deemed forfeited].)
The judgment is affirmed. Andreas shall recover costs on appeal.
SANCHEZ, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
MOTOIKE, J.
Notes
Diana‘s five arguments are:
1. “The trial court abused its discretion on the second day of trial when it refused to allow testimony that the Family Residence‘s lot exceeded 9,000 square feet.” The trial court‘s ruling being challenged is at reporter‘s transcript 57:19-58:3.
2. “The trial court abused its discretion in preventing appellant‘s expert from offering testimony that thе square footage of the family residence‘s lot exceeded the amount listed in her report.” The trial court‘s ruling being challenged is at reporter‘s transcript 59:2-60:5.
3. “The trial court failed to conduct a circumscribed inquiry into the basis for Appellant‘s Expert‘s conclusion that the Family Residence‘s lot exceeded 9,000 square feet and wrongfully prevented Appellant from presenting evidence that [the] basis for the conclusion of Appellant‘s expert was reasonable. ” The trial court‘s ruling being challenged is at reporter‘s transcript 59:2-6 (partly the same as issue 2).
4. “The trial court erred by excluding evidence . . . regard[ing] the size of the Family Residence lot that showed an error in the data relied upon by Respondent‘s Expert and by preventing Appellant from using such evidence to challenge the opinion of Respondent‘s Expert.” The trial court‘s ruling being challenged is at reporter‘s transcript 98:19-21.
5. “Whether the exclusion of evidence that the Family Residence‘s lot exceeded 9,000 square feet prejudiced [Diana].”