POOCHIGIAN, J.
Appellant, the purchaser of a Kern County towing business, appeals from a monetary judgment after court trial in favor of respondent, the business seller, for alleged breach of contract, among other causes of action.
On October 7, 2008, appellant Richard Williford filed a complaint in Kern County Superior Court arising from his March 2008 purchase of a business known as Tehachapi Towing. Appellant named respondent Betty Seymore as defendant and alleged causes of action for breach of contract, negligent and intentional misrepresentation, fraud in the inducement, intentional interference with contractual rights, personal injury, and loss of business income and property. Appellant prayed for a reduction in the purchase price of the business, damages to business premises, and loss of business profits and usage of business property, among other things.
On November 24, 2008, respondent Seymore filed a cross-complaint for damages for breach of contract, alleging failure to make installment payments on the purchase agreement for the business and failure to assume payments on a commercial vehicle owned by the business.
On March 23, 2010, after the parties filed their respective answers, trial commenced before the Honorable Sidney P. Chapin, judge of the superior court, sitting without a jury.
On June 1, 2010, the court filed a minute order setting forth a statement of intended decision in favor of respondent on the complaint and awarding $150,000 in damages for breach of the purchase agreement on the cross-complaint.
On June 7, 2010, appellant filed a request for statement of decision (Code Civ. Proc., § 632, Cal. Rules of Court, rule 3.1590(d)) and for a briefing schedule for the parties to propose content for the statement of decision.
On June 10, 2010, the court filed a minute order noting the request for statement of decision was timely and stating: "By its statement of intended decision, the court designated counsel for defendant[/]cross-complainant to prepare proposed statement of decision. For time[line], see CRC Rule 3[.]1590(d), et seq...."
On July 7, 2010, appellant filed written objections to respondent's proposed statement of decision.
On September 15, 2010, the court conducted a contested hearing on the objections and took the matter under submission. On September 20, 2010, the court filed a final statement of decision.
On September 21, 2010, the court awarded respondent $30,751 in attorney fees and $6,576.87 in costs of suit.
On November 22, 2010, the court filed a formal judgment after court trial in respondent's favor in the total sum of $211,109.29.
On December 15, 2010, appellant filed a timely notice of appeal from the judgment.
In 2005, respondent Betty Seymore and her husband owned a business called Tehachapi Towing Service. Mr. Seymore passed away between 2006 and 2007, and respondent actively managed the enterprise after his death. Appellant Richard Williford had been engaged in the towing industry as mechanic, towing operator, and business owner for more than four decades. In 2008, he contacted respondent and asked whether she was interested in selling her business. She had not publicly advertised the business as being for sale prior to appellant's inquiry.
After contacting respondent, appellant spent three months visiting respondent's tow yard and office, reviewing accounting records, tax statements, and past invoices. He also inspected respondent's tow trucks and other business equipment. After examining the business inventory and records, appellant asked respondent whether she would be willing to sell the business and, if so, at what price. Respondent said she did not know what the business was worth quoted a figure of $150,000 as a fair price. Appellant offered to pay her $200,000 and respondent accepted.
Respondent retained an attorney to draft a contract, entitled "Purchase Agreement," which she and appellant signed on March 31, 2008. The Purchase Agreement set for a total price of $200,000 to be paid in four installments, $50,000 down at the time of the signing of the contract and three further payments of $50,000 due at six month intervals (stated as September 1, 2008, February 1, 2009, and August 1, 2009).
On April 1, 2008, appellant took ownership of Tehachapi Towing Service and made the initial down payment of $50,000. A short time later, appellant began contacting respondent and complaining about her alleged failure to fulfill certain terms of the Purchase Agreement. He claimed she had kept a business computer for herself, that she was responsible for paying for transmission repairs on a non-operational tow truck, and that she was inappropriately accepting payments on accounts receivable for the business. Respondent advised appellant that her son had disassembled the computer at her home, and that she was willing to buy a new computer for appellant. She also indicated she was willing to reduce the purchase price under their agreement by the repair cost for the non-operational tow truck. She also arranged for her bookkeeper to reimburse appellant for what she said were mistaken deposits of accounts receivable. Appellant continued to complain that the business was not worth the $200,000 purchase price and declined to make further installment payments. In October 2008, one month after the due date of the second installment payment, appellant filed suit against respondent in superior court, alleging seven causes of action arising from the alleged breach of the Purchase Agreement.
Appellant contends service of the proposed statement of decision was defective and improper.
He specifically argues:
Code of Civil Procedure section 475 states in relevant part:
An appellant has the burden to show not only that the trial court erred but also that the error was prejudicial. Error is prejudicial if it is reasonably probable that a result more favorable to the appellant would have been reached absent the error. A probability in this context means "`"merely a reasonable chance, more than an abstract possibility." [Citation.]'" (Red Mountain, LLC v. Fallbrook Public Utility Dist. (2006) 143 Cal.App.4th 333, 348, quoting Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800, original italics.) Where findings are ordered by the court, the adverse party is entitled to service of a copy before they are signed by the judge. Even then, in the absence of a showing of prejudice from such failure to serve a copy, the error will be disregarded on appeal. (In re Guardianship of Bensfield (1929) 102 Cal.App. 445, 448-449.)
Appellant has failed to demonstrate any prejudice from the alleged defective service and reversal on this ground is not warranted.
Appellant contends numerous parts of the statement of decision are erroneous. He specifically argues the evidence does not support a conclusion that respondent Seymore has no liability. He further contends the trial court and respondent are obliged to point to evidence "that supports any conclusion that issues of credibility should be resolved." Appellant also contends the statement of decision should have addressed fourteen other points set out in his request for statement of decision. These include:
The trial court has a mandatory duty to provide a statement of decision (Code Civ. Proc., § 632) when properly requested. (Espinoza v. Calva (2008) 169 Cal.App.4th 1393, 1397.) The Sixth District Court of Appeal has made the following observations with respect to appellate review and statements of decision: "California appellate courts are generally constrained by three principles of appellate review: First the trial court's judgment is presumptively correct, such that error must be affirmatively demonstrated, and where the record is silent the reviewing court will indulge all reasonable inferences in support of the judgment. [Citations.] This means that an appellant must do more than assert error and leave it to the appellate court to search the record and the law books to test his claim. The appellant must present an adequate argument including citations to supporting authorities and to relevant portions of the record...." (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556-557.)
"Second, findings must be sustained if they are supported by substantial evidence, even though the evidence could have justified contrary findings. [Citations.] When combined with the foregoing principle this means that an appellant who challenges a factual determination in the trial court — a jury verdict, or a finding by the judge in a nonjury trial — must marshal all of the record evidence relevant to the point in question and affirmatively demonstrate its insufficiency to sustain the challenged finding. [Citation.]" (Yield Dynamics, Inc. v. TEA Systems Corp., supra, 154 Cal.App.4th at p. 557, original italics.)
"Third, even if error is demonstrated it will rarely warrant reversal unless it appears `reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' (People v. Watson (1956) 46 Cal.2d 818, 836; see Cal. Const., art. VI, § 13.) This means the appellant must show not only that error occurred but that it is likely to have affected the outcome." (Yield Dynamics, Inc. v. TEA Systems Corp., supra, 154 Cal.App.4th at p. 557.)
In this case, appellant has not marshaled evidence to challenge or undermine the factual conclusions of the trial judge in the statement of decision. 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. The appellant has the duty to set forth a fair and adequate statement of the evidence which is claimed to be insufficient. The responsibility for this burden cannot be shifted onto the respondent. (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409.)
Appellant has not met his burden of identifying and establishing deficiencies in the evidence.
Appellant implicitly contends the trial court abused its discretion by failing to address his 16 objections to the proposed statement of decision prepared by respondent's counsel.
We initially note that a trial court is not required to respond point-by-point to issues raised in a request for a statement of decision. The trial court's statement of decision is sufficient if it fairly discloses the court's determination of the ultimate facts and material issues in the case. A trial court is not required to make an express finding of fact on every factual matter controverted at trial, provided the statement of decision disposes of all of the basic issues in the case. The statement of decision is required only to state ultimate rather than evidentiary facts. (In re Marriage of Burkle (2006) 139 Cal.App.4th 712, 736-737, fn. 15.)
Respondent observes in this case:
Under California law, the appellant's obligation is to include in the appellate record the portions of the reporter's transcript relevant to appellant's issues on appeal. (In re Valerie A. (2007) 152 Cal.App.4th 987, 1002.) The absence of a record concerning what actually happened at a hearing will preclude a determination that the trial court abused its discretion. When an appellant fails to provide an adequate record, he or she forfeits the abuse-of-discretion argument on appeal. (Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259.)
In this case, the trial court conducted hearings on the proposed statement of decision on August 11 and September 15, 2010. The reporter's transcript on appeal covers only the trial of the matter, held March 23-24, 2010. We have no way of ascertaining from the record on appeal what transpired at the contested hearings on the proposed statement of decision. Clearly, appellant identified alleged omissions or ambiguities in the proposed statement of decision to allow the trial court to correct the alleged defects. (Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 498.) However, appellant bears the burden on appeal of providing an adequate record affirmatively proving error. (County of Orange v. Barratt American, Inc. (2007) 150 Cal.App.4th 420, 439.)
All intendments and presumptions must be indulged in favor of correctness and appellant's assertion of an abuse of discretion in the trial court is not warranted.
The judgment is affirmed. Costs are awarded to respondent.
Wiseman, Acting P.J. and Detjen, J., concurs.
