Filed 9/30/21 Thompson v. Lujan CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

MICHAEL L. THOMPSON,

Plaintiff and Appellant,

v.

MANOLITO LUJAN et al.,

Defendants and Respondents.

F078946

(Super. Ct. No. S1500CV281151)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Thomas S. 

Clark, Judge.

Michael L. Thompson, in pro. per., for Plaintiff and Appellant.

Law Office of Brandon Martin and Brandon Martin for Defendants and 

Respondents Manolito Lujan, Mei Lujan and Lujan Enterprises, Inc.

Belden Blaine Raytis and Kaleb L. Judy for Defendants and Respondents Michael 

Dorner and Michele Dorner.

-ooOoo-
2.

Plaintiff Michael L. Thompson sued defendants Manolito and Mei Lujan (the 

Lujans)1 and Michael and Michele Dorner (the Dorners), alleging they improperly 

influenced Patricia Pavlik and caused her to transfer to them real and personal property in 

which Thompson claimed an interest. A court trial was held. At the close of 

Thompson’s evidence, defendants moved for judgment pursuant to Code of Civil 

Procedure section 631.8.2 The trial court evaluated the evidence, found in favor of 

defendants, and granted their motion for judgment. Thompson appealed.

Thompson contends the trial court erred by (1) granting the Lujans’ section 473 

motion for relief from default, (2) failing to make findings regarding Pavlik’s violations 

of the family court’s restraining orders, (3) excluding evidence of a probate order 

confirming Thompson’s rights in real property, (4) finding he was not a credible witness,

(5) abusing its discretion in denying his motion to continue the trial and reopen 

discovery, and (6) misapplying the five-year rule when setting the trial date. He also 

contends this court should grant his motion to present additional evidence on appeal and 

then make factual findings on appeal pursuant to the authority granted appellate courts by 

section 909. We disagree and affirm the judgment.

FACTS

In 1975, after Thompson was convicted on two counts of first degree murder and 

other crimes, the Orange County Superior Court sentenced Thompson to state prison for 

life with the possibility of parole. (In re Thompson (1985) 172 Cal.App.3d 256, 258.) At 

the time of trial in this case in 2015, Thompson had been incarcerated for 45 years. 

During his incarceration, Thompson and Pavlik met while both were working with the 

1 Thompson also named Lujan Enterprises, Inc. as a defendant. Lujan Enterprises, Inc. 

apparently was a company founded and operated by the Lujans as a vessel for their various 

business ventures. For purposes of this decision, “the Lujans” will refer collectively to Manolito

Lujan, Mei Lujan, and Lujan Enterprises, Inc.

2 All further statutory references are to the Code of Civil Procedure unless otherwise 

indicated.
3.

Organized Crime Unit of the Los Angeles County Sheriff’s Office. At the time of their 

meeting, Thompson was a participant in a witness protection program maintained by the

Department of Corrections and Rehabilitation, and Pavlik had been hired by that program 

to cover up various tattoos on Thompson. From 1983 to 1986, Thompson and Pavlik 

engaged in several business ventures, all related to the tattoo industry. The primary tattoo 

pigment business was called “Cleo Colors,” which Pavlik ran as a sole proprietorship.

In 1988, Thompson ostensibly married Pavlik. During the ostensible marriage, 

Pavlik acquired certain real and personal property with the proceeds of their business 

ventures, including a 22.5-acre ranch (the Tehachapi Property), as “an unmarried 

woman.”3 According to Thompson, he and Pavlik agreed that all assets co-owned by 

himself and Pavlik would become the sole assets of the surviving partner upon the death 

of either partner.

The Lujans and the Dorners apparently shared a working and personal relationship 

with Thompson and Pavlik, centered on the various tattoo-related businesses and the 

Tehachapi Property. Following Pavlik’s diagnosis of emphysema in 2000, Thompson 

agreed to allow the Lujans to live in the caretaker’s residence of the Tehachapi Property 

in exchange for caretaker services.

Pavlik filed for divorce from Thompson in 2006.4 Pavlik’s divorce petition 

asserted that the Tehachapi Property, “Ranch Equipment,” and a business called 

“Permanent Eyes” were her separate property. In response to Pavlik’s divorce petition, 

Thompson confirmed that various pieces of personal property (including the ranch 

equipment and Permanent Eyes) were Pavlik’s separate property, but he claimed a 

3 According to Thompson’s fourth amended complaint and his trial testimony, because of 

his status as a cooperating protected witness, the Los Angeles County Sheriff’s Office

recommended that Pavlik should retain all co-owned revenues and assets accrued during her 

business ventures with Thompson in her name only, in order to protect Pavlik from any 

discoverable association with Thompson.

4 Kern County Superior Court case No. M-1502-FL-2056.
4.

community property interest in the Tehachapi Property. As a result of the summons 

served in the divorce action, both Thompson and Pavlik were restrained, pursuant to 

Family Code section 2040, subdivision (a)(2), from disposing of or transferring any real 

or personal property without notice of hearing through the Kern County Superior Court.

Nevertheless, on February 7, 2007, Pavlik, via grant deed, as grantor of her living 

trust, transferred her title to and rights and interest in the Tehachapi Property, together 

with all buildings and improvements thereon, to herself, as the trustee of her living trust. 

Then, on October 6, 2008, via a deed of trust, Pavlik (individually and as trustee of her 

living trust) granted and transferred to Manolito Lujan as beneficiary of her trust the 

right, title, and interest in the Tehachapi Property, and gave to Manolito Lujan as 

beneficiary of Pavlik’s trust the right, power, and authority to collect and apply rents, 

issues, and profits originating from the Tehachapi Property (as repayment of a loan from 

Manolito Lujan to Pavlik in the amount of $350,000). In 2011, Pavlik transferred 

ownership of Cleo Colors from her trust to Michele Dorner.

Thompson later alleged that the loan agreement with Manolito Lujan was a sham 

designed to coerce Pavlik to defraud Thompson of his property rights in the Tehachapi 

Property. Thompson further alleged that the Lujans and the Dorners took advantage of 

Pavlik’s incapacitation and Thompson’s incarceration to wrongfully obtain ownership of 

Thompson and Pavlik’s jointly owned property, in particular the Tehachapi Property and 

Cleo Colors.

While the proceedings were pending in the family court, Pavlik sought to have the 

marriage annulled instead of dissolved, asserting that she had discovered Thompson was 

still married to his previous wife when he married Pavlik.

In the family court, the annulment trial was continued multiple times to allow 

Thompson to be present, and it was eventually held at the prison. Both Thompson and 

Pavlik testified at the trial and both were represented by counsel.
5.

Pavlik died on February 5, 2012. At the time of her death, the family court 

proceedings had not yet been finalized.

On February 24, 2012, the family court annulled the marriage (the 2012 nullity 

judgment) because it found that Thompson was never properly divorced from his 

previous wife. The court also assumed Thompson was aware of the invalidity of his 

marriage to Pavlik and thus he could not assert any putative spouse rights.

On July 23, 2012, Michele Dorner, as trustee of Pavlik’s trust, conveyed to the 

Lujans ownership of the Tehachapi Property, purportedly in accordance with the terms of 

Pavlik’s will. On August 17, 2012, Manolito Lujan recorded the grant deed to the 

Tehachapi Property.

On December 14, 2012, even though the marriage had been annulled, Thompson 

filed a spousal property petition with the probate court, requesting determination and 

confirmation that Pavlik’s one-half community property interest in the Tehachapi 

Property had passed to and belonged to him as Pavlik’s surviving spouse.5 The Lujans 

and the Dorners were not made parties to or given notice of the action. Nor was the 

probate court informed of the family court’s 2012 nullity judgment. On August 31, 2013, 

the probate court granted the petition, confirming in a probate order that Thompson 

owned Pavlik’s share of the Tehachapi Property (the 2013 probate order).

According to Thompson, he subsequently attempted to file a change of ownership 

of the Tehachapi Property with the county recorder but discovered that a change of 

ownership had already been filed by the Lujans.

5 Kern County Superior Court case No. S-1501-52409.

The record is not entirely clear whether this petition was filed on December 14, 2012, or 

November 26, 2012. We believe the former is more likely; nevertheless, the date is irrelevant to 

the issues.
6.

PROCEDURAL HISTORY

On January 24, 2014, Thompson filed suit against the Lujans, claiming they had 

defrauded him of the Tehachapi Property, in collusion with Pavlik. Thompson’s causes 

of action were for conversion, declaratory relief, breach of the implied covenant of good 

faith and fair dealing, and imposition of a constructive trust. Thompson sought 

$1.5 million in compensatory and punitive damages. On July 8, 2014, the Lujans 

demurred to Thompson’s complaint. On August 25, 2014, the trial court sustained the 

demurrer with leave to amend.

On September 23, 2014, Thompson filed a first amended complaint, alleging 

intentional torts, including loss of use of property and loss of earning capacity, and again 

seeking both compensatory and punitive damages.

In October 2014, more than two years after the family court’s 2012 nullity 

judgment, Thompson moved to set aside that judgment, asserting that Pavlik had 

committed fraud upon the court in securing the 2012 nullity judgment, and in transferring 

title to the Tehachapi Property to a trust.

On October 27, 2014, the Lujans demurred to Thompson’s first amended 

complaint. On December 15, 2014, the trial court sustained the demurrer with leave to 

amend.

On January 5, 2015, Thompson filed his second amended complaint. On January 

30, 2015, the Lujans demurred to the second amended complaint and filed a motion to 

strike portions of it. On March 23, 2015, the trial court sustained the Lujans’ demurrer 

without leave to amend and ruled their motion to strike moot. Thompson filed a notice of 

appeal.

On March 30, 2015, the trial court denied Thompson’s October 2014 motion to set 

aside the 2012 nullity judgment, finding that it was untimely, did not raise new facts, and 

was not properly served on Pavlik’s estate. On May 4, 2015, Thompson filed another 

notice of appeal.
7.

In 2016, this court addressed Thompson’s two appeals. In the first, on 

September 19, 2016, we reversed the trial court’s sustaining of the demurrer to 

Thompson’s second amended complaint in a nonpublished opinion.

6

In the second appeal, on October 6, 2016, we affirmed the trial court’s denial of 

Thompson’s motion to set aside the family court’s 2012 nullity judgment in a

nonpublished opinion, concluding that the evidence offered by Thompson was, at best, 

evidence of intrinsic fraud.7 We noted that a judgment may be set aside based on 

intrinsic fraud only if the motion to do so is brought within six months of the judgment. 

In this case, it was brought over two years later.

On May 9, 2017, Thompson filed a third amended complaint, this time also 

naming the Dorners as defendants. He alleged that after Pavlik became ill, the Lujans 

and the Dorners colluded to extort Thompson’s real and personal property, and that the 

Lujans misused their position as caretakers in conjunction with Pavlik’s infirmity to exert 

undue influence over Pavlik to convince her to covey to the Lujans property in which 

Thompson claimed an ownership interest, including the Tehachapi Property.

Finally, on November 2, 2017, Thompson filed a fourth amended complaint—the 

operative complaint and basis of the trial from which Thompson now appeals—based on 

legal theories of constructive trust and conversion, seeking $6 million in monetary 

damages, as well as declaratory relief as to his rights of ownership of all of the business 

and property interests, both real and personal, that he had allegedly co-owned with 

Pavlik.

On January 17, 2018, the trial court granted the Lujans’ attorney’s motion to 

withdraw as counsel. When counsel withdrew, however, he had not yet filed an answer 

6 Thompson v. Lujan et al. (Sep. 19, 2016, F071658). On November 21, 2016, a remittitur 

was filed in the trial court.

7 Pavlik v. Thompson (October 6, 2016, F071610). On December 8, 2016, a remittitur was 

filed in the trial court.
8.

to Thompson’s forth amended complaint on the Lujans’ behalf. Manolito Lujan 

informed the court that he had been very ill and unable to work, but he would retain new 

counsel. The court extended the deadline to file an answer until April 2, 2018.

On April 2, 2018, the Lujans still had not filed an answer, and Thompson obtained 

an entry of default against them for failure to do so.

At the case management conference on April 19, 2018, the Lujans still had not 

retained new counsel. The trial court informed the Lujans that they were at risk of a 

default judgment unless they took immediate action. The court urged them to retain 

counsel by the end of the day.

On July 10, 2018, Attorney James Braze, from the same firm (Borton Petrini) as 

former counsel, appeared specially to represent the Lujans. Braze stated he needed to 

assess what had to be done. The court asked if anyone was opposed to continuing the 

case management conference to September 19, 2018, as requested by Braze. There were 

no objections and the date was set.

In the months following the April 2, 2018 entry of default, Thompson repeatedly 

but unsuccessfully attempted to obtain a default judgment against the Lujans from the 

trial court.

On September 18, 2018, more than five months after the default, the Lujans, 

represented by Braze, moved for relief from the default pursuant to section 473, 

subdivision (b). The motion and the trial court’s decision to grant relief are described in 

part I.A., post. After granting relief, the court directed Braze to file an answer by 

October 1, 2018, and set a case management conference.

On October 18, 2018, at the case management conference, the trial court stated 

that “[t]he five-year statute” was “going to run about January 23, 2019,” so the court 

proposed setting trial for December 10, 2018.

8

 The Dorners then stated they would be 

8 Braze represented the Lujans at this conference and at future proceedings.
9.

out of the country on a prepaid vacation during that week. The court changed the trial 

date to January 7, 2019. Thompson did not object.

On January 4, 2019 (three days before trial was scheduled to commence), 

Thompson filed an “ex parte application for leave to complete or reopen discovery after a 

new trial date is set.” (Capitalization omitted.) The motion was based on the Lujans’ and 

the Dorners’ alleged misuse of the discovery process and their failure to respond to 

Thompson’s discovery requests.

On January 7, 2019, a bifurcated court trial began on the causes of action for 

declaratory relief and constructive trust contained in Thompson’s fourth amended 

complaint. That day, the trial court determined it would treat Thompson’s ex parte 

application for leave to complete or reopen discovery after a new trial date is set as a 

motion to continue the trial and reopen discovery.9 The court denied the motion. The 

court also denied Thompson’s request for a 30-day continuance to respond to motions in 

limine but did grant a two-day continuance of the trial (to January 9, 2019) for that 

purpose. Thompson attempted to enter into evidence the declarations of two witnesses, 

but the court stated there was no authority for it to accept declarations, and the witnesses 

would have to appear by live testimony and be subject to cross-examination.

On January 9, 2019, the trial court considered motions in limine. In one motion, 

the Lujans (joined by the Dorners) moved to exclude any evidence of any claim by 

Thompson to real or personal property based on the alleged (and nullified) marriage 

between himself and Pavlik, including Thompson’s claims based on his alleged status as 

a putative spouse. Considering the motion, the trial court explained that the family 

court’s 2012 nullity judgment was affirmed on appeal in 2016, and that, as a matter of 

law, Thompson did not have a right to assert a claim to property based on an alleged and 

9 Henceforth, we will refer to Thompson’s ex parte application as the “motion to continue 

the trial and reopen discovery.”
10.

nullified marriage to Pavlik. The court granted the motion, thereby excluding any 

evidence of a claim to property based upon an alleged marriage to Pavlik, including 

claims based on an alleged putative spouse status. The court further ruled that the 

2013 probate order granting Thompson rights in the Tehachapi Property as Pavlik’s 

surviving spouse was not valid and would not be followed by the court.

In another motion, the Dorners (joined by the Lujans) moved to exclude testimony 

by Thompson of any oral agreement he had with Pavlik that all of their assets would be 

held in her name only and, upon the death of one of them, would become the property of 

the other. The court granted the motion, excluding evidence of any such oral agreement 

between Thompson and Pavlik as being violative of the statute of frauds, as well as 

Family Code section 852 and Civil Code section 683. The court stressed that its ruling 

did not exclude evidence of a written agreement.

In a third motion, the Lujans moved to exclude evidence that they had exercised 

any undue influence over Pavlik in an attempt to convince her not to give her property to 

Thompson. The motion was made on the grounds that Thompson did not have a valid 

marital relationship with Pavlik and thus had no inheritable interest to the property, and 

that Pavlik had transferred her property to a trust and the trustee then conveyed the 

property to the Lujans. The court granted the motion, noting that the deed from the trust 

to Manolito Lujan was recorded on August 17, 2012, which was after the family court’s 

2012 nullity judgment and the termination of the effectiveness of any restraining order 

that had previously been entered by that court.

After these rulings, the trial proceeded with Thompson’s case. Thompson 

questioned himself and testified on his own behalf, and was cross-examined by both the 

Lujans and the Dorners. Thompson then informed the court he intended to call two 

witnesses, Michele Briseno, Pavlik’s sister, who allegedly was present when Thompson 

and Pavlik signed a general partnership agreement, and Jacqueline Miller, an employee of 

Pavlik and Thompson, who allegedly was aware of the partnership relationship between 
11.

Pavlik and Thompson. Miller also is Thompson’s mother. At trial the next day 

(a Thursday), Thompson explained that Briseno had been contacted, but could not appear 

until the following week, at the earliest. He asked to delay the trial because Briseno was 

a critical witness to his case. The trial court denied the request, noting that if Briseno 

“was such a key witness, [Thompson] should have anticipated that and had her 

subpoenaed.” The court allowed Thompson to reopen his case and testify further on his 

own behalf.

At the conclusion of Thompson’s case on January 10, 2019, the Lujans and the 

Dorners moved for a judgment pursuant to section 631.8. This type of motion required

the trial court, as trier of fact, to consider and weigh the evidence presented by 

Thompson.

After a recess, the court granted the motion for judgment (with respect to 

Thompson’s causes of action for declaratory relief and constructive trust). Specifically, 

the trial court found that Thompson’s claims of a community property interest in the 

Tehachapi Property (and his putative spouse status) had been previously and finally 

rejected by the courts. The trial court also rejected Thompson’s claims that he had any 

interest (partnership or otherwise) in the contested assets by virtue of an alleged oral 

agreement between himself and Pavlik, or an alleged written general partnership 

agreement signed by himself and Pavlik. The court found Thompson’s averments about 

such a general partnership agreement to be based only on Thompson’s own speculation 

and unsupported conclusions. The court also found that Thompson had adduced no 

evidence that either the Lujans or the Dorners were liable in any way for the alleged 

breaches of obligations Thompson contended Pavlik owed him. The court found that, for 

multiple reasons, Thompson was not a credible witness on his own behalf. The court also 

concluded Thompson had established no facts to support a conversion cause of action, 

and thus there was nothing left to be tried in a second phase of the bifurcated action.
12.

On January 11, 2019, the trial court filed a notice of entry of judgment in favor of 

the Lujans and the Dorners. On March 8, 2019, Thompson, still representing himself, 

filed a notice of appeal.

DISCUSSION

I. Relief from default was properly granted.

A. The trial court proceedings

On September 18, 2018, more than five months after the entry of default the 

previous April, the Lujans, represented by Braze, moved for relief pursuant to 

section 473, subdivision (b). The motion was made “on the ground that the default was 

entered as a result of mistake, inadvertence, or excusable neglect.” Braze’s supporting 

declaration stated that the Lujans’ answer to Thompson’s fourth amended complaint was 

due on April 2, 2018, but “[a]pparently [former] counsel withdrew prior to having an 

opportunity to file an answer to the fourth amended complaint.” Braze further declared 

that his search of the case file did not reveal a copy of the order relieving Borton Petrini 

as counsel for the Lujans. Nor did he find any correspondence from Borton Petrini to the 

Lujans apprising them that an answer was due on or before April 2, 2018.

Thompson opposed the motion, arguing that the Lujans’ claim that they had not 

had the opportunity to file an answer was unsupported. He stated: “We’ve put off the 

case management hearing five times on behalf of Borton Petrini for 320 days as of 

[September 19, 2018].”

The court concluded that Braze’s declaration “essentially confess[ed] to a mistake 

on the part of both the clients and the attorney.” The court said it understood 

Thompson’s frustration and noted he had made several efforts to obtain a default 

judgment, but the court stressed that the law prefers resolution on the merits and, given 

the $6 million in damages sought by Thompson, “it would be a tremendous injustice to 
13.

allow this to proceed by way of default.” Over Thompson’s objections, the court granted 

the Lujans’ motion to set aside the entry of default.

B. Thompson’s claim of trial court error

Thompson contends the trial court abused its discretion in granting the Lujans 

relief from the default. He argues the Lujans’ factual showing in support of their motion 

for relief from default was substantively insufficient because Braze’s supporting 

declaration was “conclusory” and hearsay and did not meet the “preponderance of 

evidence” standard of showing “mistake,” “inadvertence,” “surprise,” or “excusable 

neglect.” Thompson asserts that the claimed neglect by the Lujans’ former counsel in not 

filing a timely answer before withdrawing was not excusable, as required by section 473. 

He also contends relief is not available because the Lujans were not diligent in seeking 

relief from the default.

The Lujans contend the attorney errors justifying relief were the failure to file an 

answer and the failure to inform the corporate client of its need to answer, which a 

corporation can do only through an attorney. They assert that, given Mei Lujan’s 

difficulties with the English language and her unfamiliarity with the American legal 

system, it was incumbent on the withdrawing attorneys “to either file an answer before 

withdrawing or inform the client in writing of the client’s duty to do so and the potential 

implications of their failure to do so.” They contend this type of attorney error falls 

within the mandatory relief provision of section 473, subdivision (b).

C. Applicable legal principles

Section 473, subdivision (b) provides both mandatory and discretionary relief 

from judgments and dismissals when certain requirements are met. Our analysis begins 

with the mandatory relief provision, which states in part: “Notwithstanding any other 

requirements of this section, the court shall, whenever an application for relief is made no 

more than six months after entry of judgment, is in proper form, and is accompanied by 
14.

an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or 

neglect, vacate any ... resulting default entered by the clerk against his or her client, and 

which will result in entry of a default judgment, ... unless the court finds that the default 

... was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” 

(§ 473, subd. (b).) When an affidavit complying with this provision is filed, relief is 

mandatory, even if the attorney’s neglect was inexcusable. (Bailey v. Citibank, N.A.

(2021) 66 Cal.App.5th 335, 349.) Whether the mandatory relief provision has been 

satisfied is reviewed for substantial evidence where the evidence is disputed and is 

subject to de novo review where the evidence is undisputed. (Id. at p. 348.)

The purpose of this mandatory relief provision is to alleviate the hardship on 

parties who lose their day in court due to an inexcusable failure to act by their attorneys. 

(Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.) Also, 

providing clients with this protection avoids precipitating more litigation in the form of 

malpractice suits. (SJP Limited Partnership v. City of Los Angeles (2006) 

136 Cal.App.4th 511, 516.)

“ ‘It is well settled that appellate courts have always been and are favorably 

disposed toward such action upon the part of the trial courts as will permit, rather than 

prevent, the adjudication of legal controversies upon their merits.’ [Citation.] Thus, ‘the 

provisions of section 473 ... are to be liberally construed and sound policy favors the 

determination of actions on their merits.’ ” (Zamora v. Clayborn Contracting Group, 

Inc., supra, 28 Cal.4th at pp. 255–256; Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 

[“[b]ecause the law favors disposing of cases on their merits, ‘any doubts in applying 

section 473 must be resolved in favor of the party seeking relief from default’ ”].)

D. Analysis 

The Lujan’s application for relief was timely because it was “made no more than 

six months after entry of [the default].” (§ 473, subd. (b).) In addition, the application 
15.

was “accompanied by an attorney’s sworn affidavit attesting to his [firm’s] mistake, 

inadvertence, surprise, or neglect” that caused the failure to file an answer and the 

subsequent entry of default. (Ibid.)

The trial court did not find “that the default ... was not in fact caused by the 

attorney’s mistake, inadvertence, surprise, or neglect.” (§ 473, subd. (b).) The absence 

of such a finding implies the court found the mistake, inadvertence, or neglect of the law 

firm caused the entry of default. The contents of Braze’s declaration provide substantial 

evidence to support this implied finding. The mistake was the failure to file an answer 

before withdrawing, which was compounded by the failure to inform the Lujans in 

writing of the need to file an answer and the deadline for that filing. This mistake was a 

cause in fact of the default because there would have been no default if an answer had 

been timely filed.

Consequently, we conclude the application and supporting papers demonstrated 

that all of the elements required for mandatory relief from default existed in this case. 

Thompson’s reliance on Kendall v. Barker (1988) 197 Cal.App.3d 619 for the 

proposition that the default against the Lujans in this matter was not suffered through 

inadvertence, surprise, excusable neglect, or mistake is misplaced. In Kendall, the 

attorney submitted a conclusory declaration incompetent to support a motion for relief 

from default. (Id. at p. 624.) Braze’s declaration supporting the Lujans’ motion was 

qualitatively different from the declaration submitted in Kendall. Braze’s declaration 

described how the mistake occurred based on his personal review of his law firm’s files. 

Thus, he had personal knowledge of the firm’s files and actions documented in those 

files. The facts established by the files are sufficient to prove the law firm made a 

mistake. Moreover, those facts along with the record of the court’s proceedings provide a

sufficient basis for the trial court’s implied causation finding. Thus, the court properly 

determined mandatory relief was required under section 473, subdivision (b). Therefore, 
16.

we do not address whether relief also was warranted under the discretionary relief 

provision.

II. The trial court had no duty to make findings regarding Pavlik’s alleged 

violations of the family court’s restraining orders.

Turning to trial issues, Thompson first contends Pavlik’s transfers of property into 

a trust violated the family court’s temporary restraining orders prohibiting the transfer of 

property by both parties (Fam. Code, § 2040), and the trial court had a duty to make 

findings regarding those violations. He argues the trial court’s failure to make these 

findings in its judgment violated his due process rights and resulted in a miscarriage of 

justice. We disagree.

Section 631.8 provides that if the court renders a judgment in favor of the moving 

party, it “shall make a statement of decision as provided in Sections 632 and 634.” Under 

section 632, a statement of decision must explain “the factual and legal basis for [the] 

decision as to each of the principal controverted issues at trial.” To comply with this 

provision, trial courts are not required to respond point by point to the issues posed in a 

request for statement of decision. (Thompson v. Asimos (2016) 6 Cal.App.5th 970, 983.) 

A statement of decision is sufficient if it fairly discloses the court’s determination as to 

the ultimate facts and material issues in the case. (Ibid.) The term “ultimate fact” usually 

refers to a core fact, such as an essential element of a claim. (Ibid.)

Here, the trial court did not violate its duty to state the factual basis for its decision 

because whether Pavlik violated the family court’s restraining orders was immaterial to 

the resolution of Thompson’s claims that he owned the subject properties. The ultimate 

fact was whether Thompson held rights to the property allegedly transferred in violation 

of the restraining orders, not whether a violation occurred.

In his fourth amended complaint, Thompson stated causes of action for declaratory 

relief, constructive trust, and conversion, which included allegations of his ownership 

rights in the subject real and personal property. Those causes of action were resolved by 
17.

the trial court on the basis that Thompson had not established any ownership interest in 

the subject properties. Pavlik’s property transfers in violation of restraining orders would 

not create a property right where none existed. Thus, the alleged violations were 

immaterial to the trial court’s determination of whether Thompson owned any of the 

property interests he claimed.

Accordingly, the trial court had no duty under sections 631.8 and 632 to make 

findings on the alleged violations. (See Luitwieler v. Luitwieler (1925) 71 Cal.App. 50, 

58–59 [trial court is not required to find upon any immaterial issue made by the 

pleadings]; see 1 Witkin, Cal. Evidence (5th ed. 2012) Circumstantial Evidence, § 3, 

pp. 360–361 [“material” means before the court, disputed, relating to a matter in issue].)

III. The trial court did not abuse its discretion in excluding evidence of the 

2013 probate order.

Thompson contends the trial court erred, as a matter of law, when it “invalidated” 

the probate court’s 2013 probate order that granted him rights in the Tehachapi Property 

as Pavlik’s surviving spouse. Thompson argues the motion in limine was not the proper 

vehicle for the invalidation, and the trial court made factual assumptions not supported by 

the evidence. We conclude the trial court properly excluded evidence of the 

2013 probate order.

The Lujans and the Dorners’ motion in limine sought to exclude evidence of any 

claim by Thompson to real or personal property based on his alleged marriage to Pavlik. 

The court granted the motion on the ground that the 2013 probate order was void because 

of the family court’s 2012 nullity judgment. The court concluded the void probate order 

was irrelevant and excluded it from evidence.

The critical issue is whether the trial court erred in determining the 2013 probate 

order was rendered void by the family court’s 2012 nullity judgment. If the probate order 

was void, it would not have “any tendency in reason to prove or disprove any disputed
18.

fact ... of consequence to the determination of” Thompson’s lawsuit. (Evid. Code, § 210 

[definition of relevant evidence].)

“[A] judgment of nullity declares that the marriage was void from its inception” 

(In re Marriage of Seaton (2011) 200 Cal.App.4th 800, 806)—“that, for reasons existing 

at the time of the alleged creation of the marriage, ‘no valid marriage ever existed’ ” (In 

re Marriage of Garcia (2017) 13 Cal.App.5th 1334, 1347). “A void marriage is invalid 

from the onset regardless whether a judgment of nullity is obtained, because no marriage 

ever existed.” (Ibid.) Moreover, “a void marriage confers no rights upon either of the 

parties to it in respect to the property of the other such as would be conferred by a valid 

marriage.” (Schneider v. Schneider (1920) 183 Cal. 335, 337.)

Because the family court’s 2012 nullity judgment recognized that no valid 

marriage ever existed between Thompson and Pavlik, the 2013 probate order, which gave 

effect to the void marriage, was itself void. And from that void 2013 probate order, no 

rights of any kind could emanate: “ ‘ “A void judgment [or order] is, in legal effect, no 

judgment. By it no rights are divested. From it no rights can be obtained. Being 

worthless in itself, all proceedings founded upon it are equally worthless. It neither binds 

nor bars any one.” ’ ” (Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 

1228, 1240, brackets in original.)

The trial court properly applied the foregoing rules of law and correctly 

determined that the 2013 probate order had been rendered void by the family court’s 

2012 nullity judgment. The 2013 probate order, like the marriage it was based on, was 

simply a nullity and could “be neither a basis nor evidence of any right whatever.” 

(Andrews v. Superior Court (1946) 29 Cal.2d 208, 214–215.) Thus, the void 

2013 probate order is not relevant evidence that Thompson held any property rights as 

Pavlik’s spouse. (Evid. Code, § 210.) The court did not abuse its discretion in excluding 

it from evidence at trial. (Id., § 350 [“No evidence is admissible except relevant 
19.

evidence.”]; Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1132 [we review the 

trial court’s relevance determinations for an abuse of discretion].)

Thompson’s arguments suggest he may use this lawsuit to relitigate the validity of 

his alleged marriage to Pavlik. We disagree. The 2012 nullity judgment was affirmed on 

appeal and, therefore, is a final judgment on the merits of the validity or invalidity of the 

alleged marriage. The doctrine of res judicata, which protects parties in privity to Pavlik, 

bars Thompson from relitigating issues decided in Pavlik’s favor. (See Mycogen Corp. v. 

Monsanto Co. (2002) 28 Cal.4th 888, 896–897.) Therefore, Thompson may not relitigate 

the validity of his alleged marriage to Pavlik in this lawsuit.

IV. The trial court did not err in finding Thompson was not credible.

The trial court found Thompson failed to prove that he and Pavlik entered into a 

written partnership agreement and that any such agreement provided Thompson with an 

ownership interest in any of the assets owned by defendants. The court supported this 

failure of proof determination by finding that Thompson’s testimony was not credible. 

The court stated the credibility finding was based on (1) Thompson’s interest in the 

outcome of the case, which provided a motive to fabricate; (2) the timing and 

convenience of his claims to a written partnership agreement; (3) his failure to produce 

corroborating evidence; and (4) his conviction of a felony of moral turpitude.

On appeal, Thompson challenges the trial court’s finding that he was not a 

credible witness. The legal context for the court’s credibility finding is provided by 

section 631.8, which authorizes a court considering a motion for judgment to weigh the 

evidence and consider witness credibility. (Orange County Water Dist. v. MAG 

Aerospace Industries, Inc. (2017) 12 Cal.App.5th 229, 239.) Under the statute, the court, 

in its role as trier of fact, may disbelieve some witnesses while crediting the testimony of 

other witnesses. (Ibid.)
20.

Appellate decisions often state the reviewing court is bound by the trial court’s 

credibility determinations. (E.g., In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 

94.) This slight overstatement reflects the great deference appellate courts give a trier of 

fact’s credibility findings. As a result of this deference, it is very difficult for an 

appellant to successfully challenge a trial court’s finding that all or part of a witness’s 

testimony is not credible. The applicable rule of law provides that “[a] trier of fact is free 

to disbelieve a witness, even one uncontradicted, if there is any rational ground for doing 

so.” (In re Jessica C. (2001) 93 Cal.App.4th 1027, 1043.) Rational grounds for 

disbelieving a witness include the factors listed in Evidence Code section 780, which 

includes the witness’s interest in the matter. (Evid. Code, § 780, subd. (f); see Pierce v. 

Wright (1953) 117 Cal.App.2d 718, 724.)

Here, Thompson has not acknowledged the any-rational-grounds test and, thus, 

has failed to present any analysis of its application to the facts of this case. We conclude 

the grounds expressly given by the court qualify as rational grounds for disbelieving 

Thompson’s testimony about the existence of a written partnership agreement. For 

instance, Thompson’s personal interest in the subject of the litigation, standing alone, 

provides a rational ground for disbelieving his testimony. (See Evid. Code, § 780, 

subd. (f).) Therefore, under the deferential standard of appellate review, we further 

conclude that the trial court did not commit reversible error when it disbelieved some of 

Thompson’s testimony. The any-rational-grounds test is satisfied. Therefore, we defer to 

the trial court’s credibility finding. (See In re Marriage of Boswell (2014) 

225 Cal.App.4th 1172, 1175; Falahati v. Kondo (2005) 127 Cal.App.4th 823, 828.)

Next, we consider Thompson’s argument that the trial court violated Evidence 

Code sections 352 and 788 by failing to explicitly address those sections in its ruling. 

Evidence Code section 788 states that “[f]or the purpose of attacking the credibility of a 

witness, it may be shown ... that he has been convicted of a felony.” In People v. Castro

(1985) 38 Cal.3d 301, the court addressed the nature of prior convictions that may be 
21.

used for impeachment of witnesses in a criminal case. (Id. at p. 306.) The court 

concluded that felony convictions that necessarily involve moral turpitude may be used 

and convictions of felonies that do not necessarily involve moral turpitude may not be 

used. (Ibid.) Here, Thompson’s conviction for first degree murder qualifies as a crime 

denoting moral turpitude. (See People v. Hinton (2006) 37 Cal.4th 839, 888 [the

defendant’s convictions for murder and attempted murder denoted moral turpitude].) 

Therefore, the trial court did not err in reaching the legal conclusion that Thompson’s 

felony conviction involved moral turpitude. Consequently, we conclude the court 

properly considered that conviction in assessing Thompson’s credibility. (See also 

Robbins v. Wong (1994) 27 Cal.App.4th 261, 274 [moral turpitude requirement does not 

apply in civil cases].)

Thompson’s other arguments attacking the credibility finding are not addressed in 

detail because they are, in practical effect, in disagreement with the weight the trial court 

attached to the factors considered in making the credibility finding. In our role as a court 

of review, we do not reweigh the evidence when assessing a trial court’s credibility 

determinations. (Gee v. Greyhound Lines, Inc. (2016) 6 Cal.App.5th 477, 492.)

V. The trial court did not abuse its discretion in denying Thompson’s motion to 

continue the trial and reopen discovery.

Thompson asserts that the trial court improperly denied his motion to continue the 

trial and reopen discovery. The motion was filed on January 4, 2019, three days before 

trial was scheduled to commence, and stated it was made on the ground that the Lujans 

and the Dorners had misused the discovery process. As described below, we conclude 

the trial court did not abuse its discretion when it denied the motion.

Trial courts are vested with “wide discretion” to allow or prohibit discovery. 

(Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1107.) Continuance 
22.

motions are generally disfavored (see California Rules of Court, rule 3.1332(a))10 and 

should only be granted upon a showing of good cause (County of San Bernardino v. 

Doria Mining & Engineering Corp. (1977) 72 Cal.App.3d 776, 779). Pursuant to 

Rule 3.1332(c)(6), a party’s inability to obtain essential testimony, documents, or other 

material evidence despite the party’s diligent efforts in that regard may constitute good 

cause. “The grant or denial of a continuance to permit discovery is a matter within the 

sound discretion of the trial court, whose ruling will not be disturbed except upon a clear 

showing of abuse.” (Day v. Rosenthal (1985) 170 Cal.App.3d 1125, 1173.) Accordingly, 

we apply the abuse of discretion standard of review to the trial court’s denial of a request 

for continuance.

“ ‘ “An abuse of discretion occurs if, in light of the applicable law and considering 

all of the relevant circumstances, the court’s decision exceeds the bounds of reason and 

results in a miscarriage of justice. [Citations.] This standard of review affords 

considerable deference to the trial court provided that the court acted in accordance with 

the governing rules of law. We presume that the court properly applied the law and acted 

within its discretion unless the appellant affirmatively shows otherwise.” ’ ” (Espejo v. 

The Copley Press, Inc. (2017) 13 Cal.App.5th 329, 378.)

Section 2024.020 requires litigants to complete discovery proceedings at least 

30 days before trial and that discovery motions be heard at least 15 days before the date 

initially set for the trial of the action in question. Here, the discovery deadline was 

December 8, 2018, and the motion deadline was December 23, 2018. Before December 

2018, Thompson had filed motions to compel further discovery responses from both the 

Lujans and the Dorners. The trial court granted those motions and the Lujans and the 

Dorners provided supplemental discovery responses in September and December of 

2018, respectively. When Thompson filed his motion to continue the trial and reopen 

10 Subsequent references to a numbered “Rule” are to the California Rules of Court.
23.

discovery on January 4, 2019, the statutory deadlines for filing any further discovery 

motions had expired.

Trial courts are given wide discretion to manage their trial calendars. (See Gov. 

Code, § 68607 [judges have a duty to eliminate delay and manage litigation, including 

utilizing a firm policy against continuances].) Under Rule 3.1332, the discretionary 

authority to grant a continuance is predicated upon diligent efforts on the part of the 

litigant seeking such relief. In this instance, Thompson displayed no such requisite 

diligence to constitute good cause for a continuance. The fact that Thompson by his own 

admission had at least 47 months to conduct discovery and still had not completed it to 

his satisfaction supports the trial court’s implied finding that he did not act with sufficient 

diligence. This finding, in turn, supports the denial of the continuance. In terms of the 

applicable standard of review, the lack of diligence is a relevant circumstance showing 

the court did not exceed the bounds of reason. (See Espejo v. The Copley Press, Inc., 

supra, 13 Cal.App.5th at p. 378.)

VI. The trial court did not abuse its discretion in considering the five-year rule.

Thompson contends that the trial court erroneously applied a five-year rule to set 

his case for trial at the case management conference on October 18, 2018, and that the 

time constraint prejudiced him by preventing him from “obtaining critical discovery.” 

He explains that “the case was forced into trial without the completion of discovery based 

upon the court’s factual determination that time constraints applied.” He also claims that 

the time restraint should not have applied to his case because the period was tolled for 

13 months during the appeal following the demurrer to his second amended complaint, 

and during the Lujans’ default.

The five-year rule is set forth in section 583.310, which states: “An action shall be 

brought to trial within five years after the action is commenced against the defendant.” 

The failure to comply with this provision is addressed in subdivision (a) of 
24.

section 583.360, which states that an action shall be dismissed if it is not brought to trial 

within the prescribed time. The computation of the five-year period excludes the time 

during which “[t]he jurisdiction of the court to try the action was suspended.” 

(§ 583.340, subd. (a).) Under this provision, the time a case is on appeal is excluded 

from the five-year period because a trial court loses jurisdiction over a case once it is 

appealed and regains jurisdiction on the issuance of a remittitur. (E.g., Alpha Media 

Resort Investment Cases (2019) 39 Cal.App.5th 1121, 1125, fn. 3 [trial court lost 

jurisdiction over matter for 17 months while one of the parties appealed an order denying 

arbitration].)

Thompson’s complaint against the Lujans in this matter was filed on January 24, 

2014, and trial began on January 7, 2019, just within five years after the action 

commenced. At the case management conference on October 18, 2018, Thompson did 

not object to the January 7, 2019 trial date when it was proposed. The reporter’s 

transcript of that conference shows the trial court’s view of the five-year period, which 

did not exclude the time the case was on appeal, was a motivating factor in the trial 

court’s decision to schedule the trial in January 2019. However, because Thompson did 

not object to that date, he did not preserve for appeal the specific argument that the date 

was set based on a misinterpretation of the five-year rule.

The remainder of Thompson’s arguments about the five-year rule are, for practical 

purposes, a restatement of his arguments that the trial court abused its discretion by 

failing to continue the trial and reopen discovery. Here, the court acted rationally in 

considering the age of the lawsuit and the manner Thompson had conducted discovery 

over the course of the litigation, including the failure to subpoena witnesses, as part of its 

evaluation of Thompson’s request for a continuance. In light of these circumstances, we 

cannot conclude the court exceeded the bounds of reason when it denied the continuance.
25.

VII. The motion to take evidence and request to make findings of fact is denied.

In August 2019, Thompson filed a motion with this court requesting leave to 

produce additional evidence pursuant to section 909 and Rule 8.252(c). The evidence 

consisted of two declarations of Briseno (Pavlik’s sister), Thompson’s declaration, and 

the September 2018 declaration of Miller (Thompson’s mother). The declarations 

supported Thompson’s testimony at trial concerning the existence of a written general 

partnership agreement between Thompson and Pavlik. Thompson’s stated purpose was 

to obtain a reversal of the trial court’s judgment. Thompson contended his due process 

rights were violated by the trial court when it declined to consider the declarations of 

Briseno and Miller in lieu of their in-court testimony, which testimony Thompson failed 

to secure at trial.

Thompson contends the trial court’s refusal to delay the trial for two days so that 

Briseno could testify and corroborate his own testimony regarding the existence of a 

written general partnership agreement between himself and Pavlik constituted a 

miscarriage of justice. He also contends the trial court, as an alternative to granting a 

continuance, should have considered the declarations of Briseno and Miller in lieu of 

their in-court testimony, and the court’s failure to do so violated his due process rights.

This court deferred ruling on Thompson’s motion for leave to produce additional 

evidence, pending consideration of the merits of the appeal. Thompson’s subsequently 

filed opening brief referred to article VI, section 11 of the California Constitution and 

section 909 and requested this court to make certain enumerated findings of fact. 

Thompson contends his proposed findings “are contrary to and in addition to those made 

by the trial court, specifically involve a question of law, and are based on uncontroverted 

evidence addressed before the trial court.”

A. Applicable law

“The Legislature may permit courts exercising appellate jurisdiction to take 

evidence and make findings of fact when jury trial is waived or not a matter of right.” 
26.

(Cal. Const., art. VI, § 11, subd. (c).) The Legislature exercised this authority by 

enacting section 909, which provides in full:

“In all cases where trial by jury is not a matter of right or where trial by 

jury has been waived, the reviewing court may make factual determinations 

contrary to or in addition to those made by the trial court. The factual 

determinations may be based on the evidence adduced before the trial court 

either with or without the taking of evidence by the reviewing court. The 

reviewing court may for the purpose of making the factual determinations 

or for any other purpose in the interests of justice, take additional evidence 

of or concerning facts occurring at any time prior to the decision of the 

appeal, and may give or direct the entry of any judgment or order and may 

make any further or other order as the case may require. This section shall 

be liberally construed to the end among others that, where feasible, causes 

may be finally disposed of by a single appeal and without further 

proceedings in the trial court except where in the interests of justice a new 

trial is required on some or all of the issues.”

Rule 8.252(c)(1) addresses evidence on appeal by stating that “[a] party may move 

that the reviewing court take evidence.” It also specifies what an order granting the 

motion must contain and allows appellate courts to admit documentary evidence without 

a hearing. (Rule 8.252(c)(2), (3).)

Our Supreme Court has stated that the authority granted by section 909 “ ‘should 

be exercised sparingly.’ ” (In re Zeth S. (2003) 31 Cal.4th 396, 405.) “Absent 

exceptional circumstances,” an appellate court should not make findings on appeal. 

(Ibid., italics omitted.)

11

 The rationale for this requirement is the long-standing general 

rule that “ ‘an appeal reviews the correctness of a judgment as of the time of its rendition, 

upon a record of matters which were before the trial court for its consideration.’ ” (In re 

Zeth S., at p. 405.) This general rule reflects the different functions performed by trial 

11 Exceptional circumstances were deemed to exist and, thus, the appellate court took 

evidence and made factual findings in cases where the evidence (1) supported a missing factual 

finding necessary for affirmance, (2) was used to correct a clerical error in the trial court’s 

factual findings, and (3) established an event that rendered the appeal moot. (Eisenberg et al., 

Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2020) ¶¶ 5:173 to 5:176, 

pp. 5-66 to 5-67.) None of these circumstances exist in the present appeal.
27.

and appellate courts—trial courts decide questions of fact and appellate courts decide 

questions of law. (Ibid.) “The rule promotes the orderly settling of factual questions and 

disputes in the trial court, provides a meaningful record for review, and serves to avoid 

prolonged delays on appeal.” (Ibid.)

Accordingly, section 909 “is not intended to usurp the trial court’s fact-finding 

authority.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, 

¶ 5:169, p. 5-64.) “As a basic principle of appellate review, the proffered new evidence 

must enable the appellate court to affirm the judgment, not lead to a reversal; and 

appellate courts will not use [section] 909 to resolve conflicts in the evidence or to 

substitute their own factual determinations for those of the trial court.” (Id. at p. 5-65; 

see Monsan Homes, Inc. v. Pogrebneak (1989) 210 Cal.App.3d 826, 830.) In accordance

with these principles, the Sixth District Court of Appeal stated that the power of an 

appellate court to take evidence under section 909 “is never used where there is 

conflicting evidence in the record and substantial evidence supports the trial court’s 

findings.” (Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 

Cal.App.3d 1058, 1090.)

Thompson’s motion and opening brief acknowledge most of the foregoing 

principles and quote the Supreme Court’s statement that “most of the decisions limiting 

the use of this power involved attempts to introduce on appeal evidence which (1) existed 

at the time of trial, (2) was contested on appeal or was cumulative of the evidence that 

was contradicted at trial, and (3) was not conclusive on the question for which its 

admission was sought.” (In re Elise K. (1982) 33 Cal.3d 138, 149 (Elise).) Thompson is 

mistaken, however, in asserting that these factors do not apply to the evidence presented 

by his motion.
28.

B. Analysis

First, by Thompson’s own admission, the testimony he expected Briseno and 

Miller to give existed well before the January 2019 trial of this matter. Furthermore, this 

court has reviewed the declarations of Briseno and Miller to determine whether the 

matters described in the declarations occurred before the trial and, if so, whether they 

were discovered after the trial. It appears from our review that the information offered in 

the declarations existed at the time of trial. Accordingly, the first factor identified in 

Elise weighs against the exercise of our discretionary authority to take evidence and 

make findings.

Second, the expected testimony of Briseno and Miller is contested on appeal. In 

particular, defendants contest the use of the evidence to overturn the trial court’s 

credibility finding and its related determination that Thompson did not carry his burden 

of proving such an agreement existed. Thus, the second Elise factor weighs against 

exercising our discretionary authority to take evidence and make findings.

Third, the declarations of Briseno and Miller cannot be regarded as conclusively 

establishing a written partnership agreement existed. The most convincing evidence of 

the existence of a document would be the document itself or photographs or photocopies 

of the document. Miller’s declaration asserts she is “able to testify as to the details of 

their business partnership” but does not include any details about the existence of a 

written partnership agreement. Briseno’s September 2018 declaration states that 

Thompson and Pavlik “met and became business partners” but does not mention a written 

partnership agreement. In contrast, Briseno’s July 2019 declaration refers to a general 

partnership document. However, it does not describe the terms of the agreement or the 

partnership assets. Consequently, the declarations do not conclusively establish the 

existence of a written partnership agreement covering the property in which Thompson 

claims an interest.
29.

Also, the declarations do not conclusively establish that Thompson was a credible 

witness. One concern is that the statements made in the declarations were not subject to 

cross-examination, which is significant because cross-examination is an important 

mechanism in the truth-seeking function of a trial. (People v. Galan (2009) 

178 Cal.App.4th 6, 8.) Another concern is that the declarations contain hearsay—that is, 

statements that are made other than by witnesses while testifying at the hearing of the 

matter in question, which are offered to prove the truth of the matter stated therein. 

(Evid. Code, § 1200, subd. (a).) Except as provided by law, hearsay evidence is 

inadmissible. (Id., § 1200, subd. (b).) “[H]earsay evidence is less reliable than live 

testimony.” (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 608.) 

Therefore, we conclude the hearsay evidence in the declaration, untested by crossexamination, does not conclusively demonstrate Thompson was a credible witness. 

Accordingly, the third Elise factor weighs against exercising our discretionary authority 

to take evidence and make findings about the existence of a partnership agreement or 

Thompson’s credibility.

Next, we consider factors besides those listed in Elise in evaluating Thompson’s 

motion and related request to make findings of fact. Thompson’s motion states it was 

made for the purpose of reversing the trial court. Thus, granting the motion would be 

contrary to the principle that “the evidence normally must enable the Court of Appeal to 

affirm the judgment, not lead to a reversal.” (Philippine Export & Foreign Loan 

Guarantee Corp. v. Chuidian, supra, 218 Cal.App.3d at p. 1090.)

Based on the foregoing, we decline to exercise our discretionary authority to take 

evidence and make findings of fact. Accordingly, we will not grant Thompson’s motion 

for leave to produce additional evidence or make findings on the factual issues specified 

in his opening brief.
30.

DISPOSITION

The judgment is affirmed. Thompson’s motion to present additional evidence on 

appeal is denied. Each party shall bear its own costs on appeal.

HILL, P. J.

WE CONCUR:

FRANSON, J.

PEÑA, J.