Filed 9/1/22 David S. Karton v. Musick, Peeler, Garrett CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

DAVID S. KARTON, A LAW 

CORPORATION,

Plaintiff and Appellant,

v.

MUSICK, PEELER, GARRETT 

LLP,

Defendant and Respondent;

DAVID S. KARTON,

Third Party Claimant and 

Appellant.

 B322250

 (Los Angeles County

 Super. Ct. No. BC206243)

APPEAL from an order of the Superior Court of 

Los Angeles County, Edward B. Moreton, Jr., Judge. Affirmed.

Benedon & Serlin, Gerald M. Serlin and Melinda W.

Ebelhar for Plaintiff and Appellant David S. Karton, a Law 

Corporation and Third Party Claimant and Appellant David S. 

Karton.
2

Musick Peeler & Garrett, Cheryl A. Orr; Joshua P. 

Friedman and Associates, and Joshua P. Friedman for 

Defendant and Respondent Musick, Peeler & Garrett LLP.

___________________________

In 2015 and 2017, William Russell Dougherty obtained 

judgments against David S. Karton, A Law Corporation 

(the Law Corporation). In July 2019, Dougherty assigned the 

judgments to Musick Peeler & Garrett LLC (Musick Peeler).

In August 2019, Musick Peeler obtained a writ of execution 

against bank accounts in the Law Corporation’s name. David 

S. Karton (the Individual), in his individual capacity and as

president of the Law Corporation, filed third party claims as to

two of the levied bank accounts.1 The court denied both claims, 

and the Individual, as “President of [the Law Corporation],”

appealed.

2 For the reasons given below, we affirm the order

denying the claims.

1 In prior appeals between the Law Corporation and 

Dougherty, we used the single word, Karton, to refer to the Law 

Corporation. (See David S. Karton, A Law Corp. v. Dougherty

(2009) 171 Cal.App.4th 133, 135 (Karton I), David S. Karton, 

A Law Corp. v. Dougherty (2014) 231 Cal.App.4th 600, 603

(Karton II). In this case, we use the phrase, “the Law

Corporation,” to avoid confusing it with the Individual, with 

whom it shares the Karton name. 

2 In addition to responding to the appeal on the merits, 

Musick Peeler filed a motion for sanctions against the Individual, 

the Law Corporation, and the law firm representing them on 

appeal on the ground that the appeal is frivolous. We deny the 

motion.
3

FACTUAL SUMMARY AND PROCEDURAL HISTORY

Musick Peeler is the assignee of two judgments against 

the Law Corporation with a cumulative principal amount of 

$688,538.10. In August 2019, Musick Peeler obtained a writ 

of execution of the judgments and instructed the Los Angeles 

County Sheriff’s Department to levy the accounts held in the 

name of the Law Corporation located at City National Bank 

(the bank). Musick Peeler’s counsel instructed the sheriff’s 

department to levy on all accounts at a certain branch of the 

bank held in the name of “David S. Karton, a Law Corporation.”

On October 30, 2019, the sheriff’s department levied upon 

three accounts held at the bank. This appeal concerns two of 

these accounts, one with a number ending in 9403 (the 9403 

account) and the other with a number ending in 5249 (the 5249 

account). The amounts in these accounts are $146,306.49 and 

$102,025.60, respectively.

The bank informed the Law Corporation of the levies by 

letter dated October 30, 2019.

The Individual filed with the sheriff’s department two third

party claims concerning the levies. One—the 9403 claim—states 

it is filed by the Individual “solely as an individual, and not as 

an officer, shareholder or employee of [the Law Corporation].” 

This claim addressed the funds in the 9403 account, which the 

Individual described as a “retirement account,” a “retirement 

plan,” and “a profit sharing plan.” (Capitalization omitted.) 

According to the Individual, “the funds in this account belong to 

the third party claimant and other third parties” and “are not the 

property of the Law Corporation.” The claim did not provide an 

estimate of the value of the Individual’s claim and did not include 
4

or attach any documents evidencing the Individual’s or any third 

party’s interest in the account. 

The Individual filed the second third party claim—the 5249

claim—“as President of David S. Karton, A Law Corporation

(‘the Law Corporation’), . . . on behalf of all clients of the Law

Corporation whose funds are held in account [5249].” The 5249 

claim is supported by the Individual’s declaration stating that 

the 5249 account is a client trust account titled, “Law Offices 

of David S. Karton Client’s Trust Account,” and that the funds

in the account “are not property of the Law Corporation.”

The Individual stated that the value of the client trust account 

cannot be disclosed because the amount “is privileged under 

the attorney-client privilege.” The Individual further stated 

that “[c]opies of all writings upon which this claim is based are 

attached hereto.” Attached to the claim form are documents 

reflecting the assignment of the underlying judgments to Musick 

Peeler. No other documents are attached.3

On November 22, 2019, Musick Peeler filed a notice 

of hearing to determine the validity of the third party claims. 

Counsel for Musick Peeler subsequently filed a declaration, 

described as a “supplemental opposition” to the third party 

claims. Counsel notes that the claims failed to include any 

bank statements regarding the accounts or evidence of “tracing,”

which the claimant “easily could have produced,” or other 

evidence whatsoever.

The Individual, as “an individual,” filed a 

“Response/Rebuttal” regarding the 9403 account. The 

3 Although the Individual also claimed a “superior right” to 

funds in a third account that was a subject of the levies, he does 

not pursue this claim on appeal.
5

Individual, “as President” of the Law Corporation, filed 

a “Response/Rebuttal” regarding the 5249 account and a 

“Response/Rebuttal” to Musick Peeler’s supplemental opposition. 

These documents refer to the 5249 claim as being made “by the 

Law Corporation.” In none of these filings did the claimants 

offer any documentary evidence to support the claims.

On January 24, 2020, the court held a hearing on the 

third party claims. The Individual stated that he was appearing 

for himself in propria persona and as counsel for the Law 

Corporation. He argued that he filed one of the claims and the 

Law Corporation filed the other.

At the outset of the hearing, the court indicated that 

it would deny the third party claims because “the claimants 

haven’t met their burden of proof.” The Individual argued 

that “the testimony of one witness is permissible” to support 

the claims. The court explained that, although such testimony 

is “permissible,” the court could “also take into account the 

absence of . . . evidence that would have been available to the 

claimant, . . . such as bank statements and tracing,” which had 

not been submitted. The Individual’s declaration testimony, 

the court added, is “less credible when it could readily have been 

supported by . . . documentary evidence” that the claimants failed 

to present. The Individual then requested a continuance to allow 

him to submit bank statements as evidence to support the claims, 

which the court denied.

On January 24, 2020, the court issued its order denying 

the third party claims because “[t]he third party claimant 

has not met his burden of proof.” The order states that “David S. 

Karton’s third party claim of ownership is denied” because 

“[t]here is no showing made that the funds located in [the bank] 
6

is separate property belonging to [the] third party claimant.” 

(Boldface and capitalization omitted.) The order further states 

that the bank “and/or levying officer is hereby authorized to 

and shall immediately promptly disburse all such funds to 

judgment creditor.” 4 (Capitalization omitted.)

On May 21, 2020, a notice of appeal from the order denying 

the third party claims was filed by “Third Party Claimant, David 

S. Karton, President of David S. Karton, A Law Corporation.” 

The notice of appeal is signed by “David S. Karton, President 

of Plaintiff David S. Karton, A Law Corporation.” (Full 

capitalization omitted.) No other notice of appeal was filed 

concerning the third party claims.

DISCUSSION

A. Appellants’ Requests for Judicial Notice and 

Motion to Take Evidence on Appeal and for 

Findings of Fact

Appellants request that we take judicial notice of:

(1) an order issued in the superior court denying Musick Peeler’s 

motion to amend one of the Musick Peeler judgments to include 

the Individual as a judgment debtor on alter ego grounds,

(2) a document described as “Short Form Annual Return/Report 

of Small Employee Benefit Plan” for “David S. Karton, A Law 

Corporation Retirement Plan,” dated Mar. 15, 2021, (3) a 

document titled, “Standard Prototype Adoption Agreement for 

4 Although the court’s minute order and its formal written 

order denying the claims refer to the singular, “third party 

claimant” and “Third Party Claim of Ownership,” there is no 

dispute that the court’s order applies to both the 9403 claim and 

the 5249 claim.
7

the DATAIR Profit Sharing Plan,” dated July 4, 2015 (full 

capitalization omitted), (4) a bank statement regarding the 5249 

account for the period ending October 31, 2019, and (5) a bank 

statement regarding the 9403 account for the period ending 

November 8, 2019.

Appellants also filed a motion to have this court take 

additional evidence on appeal and make factual findings under 

Code of Civil Procedure section 909.5 In particular, appellants 

requested that we make the following findings of fact: (1) The 

funds levied in account 5249 “were not and are not owned by the 

Law Corporation. The funds are trust funds which belong to the 

beneficiaries of the account, who are the Law Corporation’s 

clients”; and (2) The funds levied in account 9403 “were not and 

are not owned by the Law Corporation. The funds are trust 

funds which belong to the beneficiaries of the account, who are 

some of the Law Corporation’s current and former employees.”

We grant the request for judicial notice of the order 

denying Musick Peeler’s motion to amend the judgment. (Evid. 

Code, §§ 452, subd. (d), 459, subd. (a).) We deny the requests 

to take judicial notice of the remaining documents and deny the 

motion to take additional evidence on appeal and make factual 

findings. As our Supreme Court has explained, “Reviewing 

courts generally do not take judicial notice of evidence not 

presented to the trial court.” (Vons Companies, Inc. v. Seabest 

Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) Appellants provide 

no reason for failing to present to the trial court the requested 

items in this case and do not refer us to any exceptional 

5 Subsequent unspecified statutory references are to the 

Code of Civil Procedure.
8

circumstances that would justify departing from this rule. (See 

ibid.; Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325.)

We deny the request to take additional evidence under 

section 909. The authority granted by that section “should be 

exercised sparingly” and only when “exceptional circumstances” 

are present. (In re Zeth S. (2003) 31 Cal.4th 396, 405.) The 

appellants have failed to establish such exceptional 

circumstances.

B. Identifying the Appellant and the Subjects 

of Our Review

A threshold issue concerning the appeal is the 

identification of the appellant or appellants. According to

Musick Peeler, the notice of appeal was filed by the Law 

Corporation, and the Individual did not appeal. Therefore, 

Musick Peeler argues, we should not consider the Individual’s 

arguments on appeal with respect to the 9403 claim, which was 

filed by the Individual “solely as an individual, and not as an 

officer, shareholder or employee of [the Law Corporation].” The 

Individual and the Law Corporation disagree and contend that 

the notice of appeal should be liberally construed to include each 

of them as appellants. We agree.

Notices of appeal “are to be liberally construed.” (K.J. v. 

Los Angeles Unified School Dist. (2020) 8 Cal.5th 875, 888 (K.J.); 

see Cal. Rules of Court, rule 8.100(a)(2).) This rule of liberal 

construction “is intended to ‘implement the strong public policy 

favoring the hearing of appeals on the merits’ ” (K.J., supra, at 

p. 882) and “compels a reviewing court to evaluate whether the 

notice, despite any technical defect, nonetheless served its basic 

function—to provide notice of who is seeking review of what order 

or judgment—so as to properly invoke appellate jurisdiction.” 
9

(Id. at p. 883.) The rule “applies to defects in the designations 

of the parties, including errors involving the omission of an 

intended appellant” (id. at p. 888) if the “respondent was not 

misled or prejudiced by the omission” (id. at p. 885).

According to the notice of appeal from the order 

denying the third party claims, the appellant is “Third Party 

Claimant, David S. Karton, President of David S. Karton, A 

Law Corporation.” (Full capitalization omitted.) The 

notice appears to identify only a single appellant; namely, the 

Individual, “David S. Karton.” Because the notice indicates 

the appellant is an individual—albeit an individual who is the 

president of the Law Corporation—we will construe the notice of 

appeal as being filed by the Individual. Although the appositive, 

“President of David S. Karton, A Law Corporation,” is different 

from the appositive the Individual used in his 9403 claim (filed 

by the Individual “solely as an individual, and not as an officer, 

shareholder or employee of [the Law Corporation]”), in light of

the rule of liberal construction, we do not construe the difference 

as a basis for denying the Individual from challenging the denial 

of his 9403 claim. 

We also construe the notice of appeal as being filed by the 

Law Corporation with respect to the 5249 claim. Although the 

notice appears to identify a single appellant—the Individual—the 

notice proceeds to describe the appellant as president of the Law 

Corporation. That phrase corresponds to the identical phrase 

used by the claimant in the 5249 claim and reasonably implies 

that the denial of that claim is a subject of the appeal. 

Arguably, the description of the appellant—David 

S. Karton, President of David S. Karton, A Law Corporation”—

does not identify the Law Corporation at all, but rather only 
10

the Individual, who happens to be the president of the Law 

Corporation. Both sides agree, however, that this language 

in the 5249 claim and the notice of appeal refer to the Law 

Corporation. This interpretation is supported by statements in 

the “Response/Rebuttal” documents filed in support of the 5249 

claim that that claim is being asserted by the Law Corporation

and the Individual’s representation at the hearing that the 5249 

claim “was filed by David S. Karton[,] A Law Corporation.” The 

phrase “David S. Karton, as President of David S. Karton, A Law 

Corporation” may also be explained as an awkward effort to abide 

by the general rule that corporations can act only through their 

directors, officers, and agents. (1 Fletcher, Cyclopedia of the 

Law of Corporations (2021) § 30.) Moreover, Musick Peeler does 

not assert that it would be prejudiced by construing the notice 

of appeal and the underlying 5249 claim as being filed by the 

Law Corporation. Therefore, in light of the “ ‘strong public policy 

favoring the hearing of appeals on the merits’ ” and the absence 

of prejudice to Musick Peeler, we construe the notice of appeal 

as being filed by the Law Corporation with respect to the 5249 

claim, as well as being filed by the Individual with respect to the 

9403 claim. (See K.J., supra, 8 Cal.5th at p. 882.) 

C. Third Party Claim Procedures

When personal property has been levied under a writ of 

execution, a “third person claiming ownership” (§ 720.110) of the 

property may make a claim for the property under division 4 of

the Enforcement of Judgments Law. (§ 720.010 et seq.) The 

claim shall be executed under oath and include: (1) the name 

of the third person, (2) a description of the property in which 

an interest is claimed, (3) a description of the interest, including 

a statement of facts upon which the claim is based, and 
11

(4) an estimate of the market value of the interest. (§ 720.130, 

subd. (a).) The claimant must also attach to the claim a “copy 

of any writing upon which the claim is based.” (§ 720.130, 

subd. (b).) Within 15 days after a third party claim is filed, 

the judgment creditor may petition the court for a hearing to 

determine the validity of the third party claim and the proper 

disposition of the subject property. (§ 720.310, subd. (a).) 

Hearings on third party claims are “summary proceedings” 

(Cassel v. Kolb (1999) 72 Cal.App.4th 568, 579 (Cassel)) that 

“provide a quick and effective way to determine such claims.”

(Ahart, Cal. Practice Guide: Enforcing Judgments & Debts (The

Rutter Group 2022) ¶ 6:1601.) The third party claim “constitutes 

the pleading of the third person.” (§ 720.350, subd. (a)(1).) The

judgment creditor need not file any pleading to oppose the 

claim as the third party’s claim is “deemed controverted by the 

creditor.” (§ 720.350, subd. (b); see Ahart, Cal. Practice Guide: 

Enforcing Judgments & Debts, supra, ¶ 6:1685.)

The claimant has the burden of proof to establish the 

validity of the claim (§ 720.360) and “is required to introduce 

evidence that [the claimant] owns the . . . property” that is 

the subject of the claim. (Whitehouse v. Six Corp. (1995) 40 

Cal.App.4th 527, 535.) The court has discretion to “exclude 

from evidence any writing a copy of which was not attached 

to the third-party claim.” (§ 720.130, subd. (b).) 

At a hearing on the validity of the third party claims, the 

court determines the credibility of the witnesses and the weight 

to be given to the evidence presented (Lawler v. Solus (1951) 101 

Cal.App.2d 816, 818), and is not required to accept the testimony

of the claimant, even if uncontradicted (Maguire v. Corbett (1953) 

119 Cal.App.2d 244, 250). The court shall determine the validity 
12

of the third party claim “[a]t the conclusion of the hearing.” 

(§ 720.390.) 

D. Standards of Review

When, as here, the trial court finds that the party with 

the burden of proof failed to carry that burden, “the question 

for a reviewing court becomes whether the evidence compels a 

finding in favor of the appellant as a matter of law. [Citations.] 

Specifically, the question becomes whether the appellant’s 

evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of 

such a character and weight as to leave no room for a judicial 

determination that it was insufficient to support a finding.’ ” 

(In re I.W. (2009) 180 Cal.App.4th 1517, 1528; accord, Fabian v. 

Renovate America, Inc. (2019) 42 Cal.App.5th 1062, 1067; Juen v. 

Alain Pinel Realtors, Inc. (2019) 32 Cal.App.5th 972, 978–979; 

Dreyer’s Grand Ice Cream, Inc. v. County of Kern (2013) 218 

Cal.App.4th 828, 838.) We review a ruling denying a continuance 

for abuse of discretion. (People v. Beames (2007) 40 Cal.4th 907, 

920−921.)

E. The 9403 Account

There are numerous defects in the Individual’s claim 

concerning the 9403 account. In support of his claim to that 

account, the Individual stated in his declaration that the account 

is a “retirement account,” a “retirement plan,” and “a profit 

sharing plan” (capitalization omitted), and that the funds in 

that account belong to the “third party claimant and other third 

parties.” The “other third parties” are not identified, and an 

estimate of the value of the Individual’s alleged interest is not 

stated, as the statutes governing third party claims require. 

(§ 720.130, subd. (a)(1) & (4).) In addition, although the 
13

Individual asserts that the retirement plan is a qualified 

retirement plan for purposes of the Employee Retirement Income 

Security Act (ERISA) (29 U.S.C. § 1001 et seq.), which requires 

that such plans be “established and maintained pursuant to a 

written instrument” (29 U.S.C. § 1102(a)(1)), he attached no 

writings to support his claim despite the statutory requirement 

that he do so. (See § 720.130, subd. (b) [claimant must attach to 

the claim a “copy of any writing upon which the claim is based”].)

Aside from the foregoing defects in the Individual’s claim, 

which are sufficient by themselves to justify the court’s finding 

that he failed to satisfy his burden of proof, there is another

fundamental problem with the claim. Under ERISA, the 

assets of a retirement plan shall ordinarily “be held in trust 

by one or more trustees,” who “shall have exclusive authority 

and discretion to manage and control the assets of the plan.”

(29 U.S.C. § 1103(a); see Barboza v. California Assn. of 

Professional Firefighters (9th Cir. 2015) 799 F.3d 1257, 1265

[a trustee under ERISA is “a person (legal or natural) [who] 

must hold legal title to the assets of an employee benefit plan 

with the intent to deal with these assets solely for the benefit 

of the members of that plan”]; Hannon Engineering, Inc. v. Reim

(1981) 126 Cal.App.3d 415, 425 [“[p]ension plans create a trust 

relationship between pensioner-beneficiaries and the trustees of 

pension funds who administer retirement benefits”].)6 ERISA 

plan trustees must “be either named in the trust instrument or in 

the plan instrument . . . or appointed by a person who is a named 

fiduciary.” (29 U.S.C. § 1103(a).) 

6 Although there are exceptions to this requirement 

(29 U.S.C. § 1103(a) & (b)), the Individual does not assert that 

any exception applies.
14

California’s third party claim procedure is available to 

persons “claiming ownership or the right to possession” of levied 

assets. (§ 720.110.) Because the assets of a retirement plan are 

held and controlled by a trustee, any claim challenging a levy 

on the plan’s assets must be brought by the plan’s trustee in that 

capacity. (Cf. Saks v. Damon Raike & Co. (1992) 7 Cal.App.4th 

419, 427; Botsford v. Haskins & Sells (1978) 81 Cal.App.3d 

780, 784; Powers v. Ashton (1975) 45 Cal.App.3d 783, 787−788.) 

The beneficiaries of a trust—in this case, the employees of 

the Law Corporation for whom the alleged retirement plan is 

established—lack standing to assert a claim concerning trust 

assets. (Cf. Estate of Bowles (2008) 169 Cal.App.4th 684, 691

[“a trust beneficiary cannot sue in the name of the trust”]; City of 

Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 

68 Cal.App.4th 445, 462 [“generally a trust beneficiary is not the 

real party in interest and therefore may not sue in the name of 

or for the benefit of the trust”]; see generally Weil & Brown, Cal.

Practice Guide: Civil Procedure Before Trial (The Rutter Group 

2022) ¶ 2:6.5.)

Here, the Individual offered no evidence in the trial court 

proceeding that he is a trustee of the alleged retirement funds 

held in the 9403 account. Therefore, even if we credit the 

Individual’s declaration testimony that the 9403 account is 

a retirement plan account, he failed to show that he “own[s]” 

or has the “right to possession” of the funds in that account. 

(§ 720.110.)

For all of the foregoing reasons, the Individual has failed to 

satisfy his burden on appeal of demonstrating that the evidence 

compels a finding that he is entitled as a matter of law to the 
15

relief he sought. (See In re I.W., supra, 180 Cal.App.4th at 

p. 1528.)

F. The 5249 Account

The Law Corporation has failed to satisfy its burden of 

establishing its right to relief as to the 5249 claim. Initially, we 

note that although the Law Corporation argues on appeal that it 

is the trustee of the 5249 account, and thus “had both the power 

and the fiduciary obligation to present a third-party claim to 

protect its clients’ funds” in the account, it did not identify itself 

as such in its claim. Nor did the Law Corporation claim to be 

the trustee of the account in its “Response/Rebuttal” filings with 

the court. Indeed, in the declaration supporting the 5249 claim, 

the Individual provides no indication of the Law Corporation’s 

legal relationship to the funds in the account except to note 

that the funds “are not [the] property of the Law Corporation.” 

(Italics added.) The failure to assert in the trial court that the

Law Corporation is the trustee of the 5249 account forfeits the 

argument on appeal. (See Los Angeles Police Protective League v. 

City of Los Angeles (2022) 78 Cal.App.5th 1081, 1100−1101.)

Even if the argument had been asserted below, there was 

no evidence presented to the trial court that the Law Corporation 

is the trustee of the 5249 account. And although the Individual, 

while acting as the Law Corporation’s counsel during the hearing 

on the claim, had ample opportunity to assert or make an offer of 

proof that he or the Law Corporation was the trustee of the 5249 

account, he failed to do so.

The Law Corporation points to the Individual’s statements 

that the 5249 account is titled, “ ‘Law Offices of David S. Karton 

Client’s Trust Account,’ ” and that “the funds in [the 5249

account] are not property of the Law Corporation.” Even if we 
16

assume that the account’s title is as the Individual represents it 

to be and we infer from the title that the account is the Law 

Corporation’s client trust account, these facts do not prove that 

the Law Corporation is the trustee of that account. Nothing in 

the statutes and related rules of professional conduct governing 

client trust accounts require that a law corporation be the trustee 

of such accounts. (See Bus. & Prof. Code, §§ 6211, 6212; Rules 

Prof. Conduct of State Bar, rule 1.15.) The Individual’s further 

statement that the funds in the 5249 account are not the property 

of the Law Corporation does not prove that the Law Corporation 

is the trustee of that account. 

Further, although lawyers and law firms are required 

to maintain “complete records” concerning client trust accounts 

(Rules Prof. Conduct of State Bar, rule 1.15(d)(3) & Stds. (eff. 

Nov. 18, 2018)) and the third party claim procedures require the 

claimant attach to the claim a “copy of any writing upon which 

the claim is based” (§ 720.130, subd. (b)), the claimant did not 

attach any records to establish that the 5249 account is a client 

trust account or that the Law Corporation is the trustee of the 

account. Because the Law Corporation is required to maintain 

extensive records concerning its client trust account, it 

presumably could have produced such records to support its 

claim. The Law Corporation, however, failed to do so. The trial 

court could, as it did, reasonably rely on the evidentiary rule that, 

“[i]f weaker and less satisfactory evidence is offered when it 

was within the power of the party to produce stronger and more

satisfactory evidence, the evidence offered should be viewed with 

distrust.” (Evid. Code, § 412.) Even if the evidence offered in 

support of the claim arguably suggests that the Law Corporation 

is the trustee of the 5249 account, it is patently weaker and less 
17

satisfactory than what could have been shown by the records 

of the account.

The Law Corporation argues that the testimony of 

one knowledgeable witness—in this case, the Individual—is 

superior to any documentary evidence it could have produced

and constitutes substantial evidence of the facts to which the 

Individual testified. For this point, the Law Corporation relies 

on Bank of Costa Mesa v. Losack (1977) 74 Cal.App.3d 287

(Bank of Costa Mesa). In that case, a bank sued a depositor for 

damages caused by the depositor’s dishonoring of certain checks 

he had deposited with the bank. The bank did not introduce 

documentary evidence of the transactions at trial, relying instead 

on the testimony of the bank’s president. (Id. at p. 290.) After a 

bench trial, the court found in favor of the bank. 

The issue on appeal in Bank of Costa Mesa was “whether 

there is substantial evidence in favor of the judgment.” (Bank 

of Costa Mesa, supra 74 Cal.App.3d at p. 291.) Based on the 

principle that “the direct evidence of one witness who is entitled 

to full credit is sufficient for proof of any fact,” the court held 

that the testimony of the bank president was sufficient to support 

the judgment. (Ibid., citing Evid. Code, § 411.) The court further

stated that “books of account are only secondary evidence and

secondary proof of the items therein. Oral testimony of persons 

having personal knowledge of transactions involved in items 

of accounts is best evidence of such items, if they do not 

result from written contract, and is primary evidence thereof, 

notwithstanding existence of books of account showing them.” 

(Ibid.)

Bank of Costa Mesa does not help the Law Corporation. 

The court’s holding that the bank president’s testimony was 
18

sufficient to support the judgment in favor of the bank does not 

mean that the testimony of the bank president would have 

compelled reversal if the judgment had been for the defendant. 

Nor does that case alter the well-settled rule that, “[p]rovided 

the trier of the facts does not act arbitrarily, he [or she] may 

reject in toto the testimony of a witness, even though the witness 

is uncontradicted.” (Hicks v. Reis (1943) 21 Cal.2d 654, 659–660, 

italics omitted; accord, Foreman & Clark Corp. v. Fallon (1971) 

3 Cal.3d 875, 890; G & W Warren’s, Inc. v. Dabney (2017) 11 

Cal.App.5th 565, 581.) Here, given that the Law Corporation

(and the Individual acting as the Law Corporation’s counsel)

failed to offer any evidence as to the identity of the trustee of the 

alleged client trust account and the Law Corporation failed to 

comply with the statutory requirement to produce writings upon 

which it based its claim, the court did not act arbitrarily in 

finding that the Individual’s testimony was insufficient to prove

the claim.

For all of the foregoing reasons, the Law Corporation has 

failed to demonstrate that the evidence compels a finding in its 

favor on the 5249 claim as a matter of law.

G. The Court’s Refusal to Grant a Continuance

The appellants contend that the court erred in denying a 

request for a continuance to provide bank statements showing 

that the 9403 account is a retirement account and the 5249 

account is a client trust account. We find no error.

A trial court has “wide discretion” in ruling on a motion for 

a continuance (Cohen v. Herbert (1960) 186 Cal.App.2d 488, 493), 

and we review the trial court’s denial of such a motion for an 

abuse of discretion. (Schlothan v. Rusalem (1953) 41 Cal.2d 414,

417; Tarin v. Lind (2020) 47 Cal.App.5th 395, 404.) The trial 
19

court’s discretion in this instance is informed by the summary 

nature of third party claim proceedings (Cassel, supra, 72

Cal.App.4th at p. 579) and the statutory requirement that third 

party claimants must attach to their claim “[a] copy of any 

writing upon which the claim is based” (§ 720.130, subd. (b)). The 

point of this requirement is to avoid precisely the kind of request 

for a continuance the Individual sought here. 

The breadth of the court’s discretion to deny a continuance 

to produce additional evidence in third party claim proceedings 

is further informed by the discretion expressly given to the courts 

hearing third party claims to “exclude from evidence any writing 

a copy of which was not attached to the third-party claim.” 

(§ 720.130, subd. (b).) If the courts have the power to exclude 

evidence a claimant offers at the hearing on the claim, even if 

otherwise admissible, merely because the claimant did not attach

it to the claim, it follows that the court acts well within its 

discretion in denying a continuance that is sought solely to offer 

evidence that was neither attached to the claim nor brought to 

the initial hearing. 

Moreover, the appellants failed to make an offer of proof 

to show how the account statements would cure the various 

defects in the third party claims. Although the account 

statements, if produced, might, for example, have established

that the 9403 account is an ERISA-qualified retirement account 

and that the 5249 account is the Law Corporation’s client trust 

account, the Individual did not contend that the documents would 

establish the amount of the claims or that the Individual or the 

Law Corporation is the trustee of either account or cure the other 

defects in the claims. 
20

For all these reasons, the court did not abuse its discretion 

in denying the request for a continuance. 

DISPOSITION

The January 24, 2020 order denying the third party 

claims is affirmed.

Respondent is awarded its costs on appeal.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur.

CHANEY, J.

KELLEY, J.*

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.