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Roy George et al v. Doug Tirri

January 23, 2013

ROY GEORGE ET AL., PLAINTIFFS AND RESPONDENTS,
v.
DOUG TIRRI, DEFENDANT AND APPELLANT.



(Super. Ct. No. 163993)

The opinion of the court was delivered by: Nicholson , Acting P. J.

George v. Tirri

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

The trial court found defendants Doug Tirri and his former spouse, Joann Tirri, liable for fraud in failing to disclose to plaintiffs Roy and Jennifer George that the home they sold to them was not constructed with required permits and was defective. Only Mr. Tirri appeals from the judgment. He claims the trial court committed evidentiary errors, errors in awarding damages, and that it was biased. Plaintiffs request we impose sanctions for a frivolous appeal. We conclude none of defendant's arguments have merit and we affirm the judgment. We also deny plaintiffs' request for sanctions.

FACTS

This appeal is prosecuted on a settled statement written by the trial court. Plaintiffs purchased a home in Shasta County from defendants for $180,000. Defendants disclosed to plaintiffs that the construction of a back porch was not done with permits. However, defendants did not disclose that the entire home was built without permits or that there were defects in the home's foundation.

After escrow had closed, plaintiffs learned from a county building inspector that the only permit issued for the site was for construction of a garage. The home was deemed uninhabitable, and plaintiffs and their children had to live in a travel trailer on the property and store their belongings while the home was reconstructed and brought up to code.

Plaintiffs filed a complaint for fraud and other causes of action against defendants and the real estate agency and agents who handled the sale. The realtor defendants settled for payment of $1,800. Plaintiffs also received $23,200 from their title insurance agency.

Following a court trial, the court found in favor of plaintiffs. It awarded plaintiffs $180,000 in damages: $72,000 in out-of-pocket damages and an additional $108,000 in general damages.

Defendant contends the court erred by:

(1) Admitting oral testimony by plaintiffs that contradicted their earlier responses to a request for admissions;

(2) Admitting testimony of real property valuation from plaintiffs' expert witnesses who had not been adequately disclosed before trial, and from plaintiff Roy George;

(3) Awarding damages under the wrong standards and without substantial evidence; and

(4) Harboring bias due to the fact that plaintiff Jennifer George is a Shasta County Superior Court employee.

DISCUSSION

I Testimony that Contradicted Admissions

Defendant claims the trial court erred when it did not exclude portions of plaintiffs' testimony that contradicted earlier admissions. In response to a request for admissions, plaintiffs admitted defendants told them they had obtained a permit to construct only a garage, and that defendants told them they (defendants) knew at all times they had built the residence without obtaining any required permits.

At trial, however, plaintiffs testified they had no knowledge the residence was constructed without permits until a county inspector told them after they had purchased the property. Plaintiffs also testified defendants never disclosed to them that all of the work performed on the residence, except for construction of a porch, was done without permits. Defendant contends the trial court erred in admitting plaintiffs' testimony.

Defendant's argument, that the court erred in admitting testimony that contradicted earlier admissions, as a general legal matter is correct, but the record does not contain sufficient evidence on which we can determine the trial court actually erred. This point exposes the risks inherent when proceeding on a settled statement.

An admission made in response to a request for admission "is conclusively established against the party making the admission in the pending action, unless the court has permitted withdrawal or amendment of that admission under [Code of Civil Procedure] Section 2033.300." (Code Civ. Pro., § 2033.410, subd. (a).)

The record includes plaintiffs' admissions, but it is silent regarding how they and the conflicting testimony were addressed in court. The record does not indicate whether defendants objected to the plaintiffs' contradictory testimony, or whether the court permitted plaintiffs to withdraw or amend their admissions. Because we must assume all intendments necessary to affirm the judgment unless the short record contradicts them (Dumas v. Stark (1961) 56 Cal.2d 673, 674), we ...


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