Filed 10/19/20 Robinson v. Select Bankcard CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION THREE

JOSHUA ROBINSON,

 Cross-complainant and Appellant,

v.

SELECT BANKCARD, INC.,

 Cross-defendant and Respondent.

 G058056

 (Super. Ct. No. 30-2017-00900137)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Linda S. 

Marks, Judge. Affirmed. Motion to dismiss and request for sanctions denied.

Donald Lawson for Cross-complainant and Appellant.

Global Legal Law Firm and James C. Huber for Cross-defendant and 

Respondent.

* * *

Select Bankcard, Inc. (Select) provides services and equipment to 

merchants wishing to process electronic payments from customers. Select entered into an 

agreement with Joshua Robinson on behalf of the company Your Diabetic Supplier 
2

(YDS). Soon thereafter, Select sued Robinson, YDS, and several other individuals after 

it discovered YDS owed it over $60,000, after failing to pay for reversed customer 

transactions (“chargebacks”), processing fees, and transaction costs.1 Robinson filed a 

cross-complaint seeking relief pursuant to Civil Code section 1798.93, an action by 

which a person may prove he or she is a victim of identity theft in connection with a 

transaction that has resulted in a claim against the person.

2

 

The court determined there was insufficient evidence to support (1) Select’s 

theory Robinson was “a strawman who lent his information” to the other defendants for a 

profit or (2) Robinson’s theory he was the victim of identity theft. Accordingly, Select 

and Robinson did not prevail on their complaints against each other. In this appeal, 

Robinson asserts there was insufficient evidence to support five factual findings listed in 

the court’s statement of decision regarding his cross-complaint. He also maintains the 

court erred by concluding he failed to meet the elements of a section 1798.93 action, and 

he was entitled to $30,000 in damages, attorney fees, and costs. We disagree and affirm 

the judgment on the cross-complaint. 

FACTS

The facts in this case were highly disputed. The following is a summary of 

the trial court’s factual findings supporting the judgment, taken from its statement of 

decision. In January 2017, Select sued YDS, Robinson, and “the Adl defendants”3for 

breach of contract, fraud, negligent misrepresentation, and breach of the covenant of 

good faith and fair dealing. In October 2018, Robinson filed his cross-complaint against 

1 YDS and the other defendants are not parties to this appeal.

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

indicated.

3 The Adl defendants refer to Fardad Adl Tabatabaie and Brian Adl. The 

court entered default against YDS and the Adl defendants after they failed to appear in 

the action. 
3

Select, alleging he was a victim of identity theft as defined in section 1798.92 and 

seeking $63,000. 

The court made the following factual findings: “Select is in the business of 

processing orders for merchants online. It works with banks and credit card companies to 

facilitate sales online. Merchants who request such services are vetted by Pathway 

Payments, and if approved, placed with Select.”4

It discussed Select’s evidence as follows: “Select alleges . . . Robinson 

through his company . . . YDS[] completed a merchant account application on September 

23, 2016, (Exhibit 1) and received approval for online services. Pathway Payments 

reviewed the application and e-[s]ignatures were provided on documents submitted, 

along with a fictitious business statement which was later proved at trial to be a forgery. 

Pathway approved the account to be managed by Select. [¶] The Web site was reviewed 

and deemed reliable, the application was reviewed[,] and information was believed to be 

accurate. [¶] Testimony was received by Jon Shipley, principal for Select[, who stated] 

the account had no red flags and did not operate like a fraudulent account.” 

The trial court gave some details about the application process. It noted 

Marlon Harris, a Pathway Payments employee, testified YDS submitted two applications. 

Brian Adl submitted the first application on behalf of YDS in April 2016, but Pathway 

Payments rejected it due to lack of creditworthiness. A few months later in September 

2016, YDS submitted a second application under Robinson’s name. Pathway Payments 

approved this application because of Robinson’s record of good credit. The court made 

the following findings: “Harris testified that the Web site was detailed and complete for 

YDS. The information on the application matched the information on the credit report 

4 Pathway Payments, an independent company, brokered the electronic 

payment processing agreement between Select and YDS. Pathway Payments was not a 

party in this case.
4

for Robinson. Harris was led to believe that Robinson was the new owner when the 

second application was submitted.” 

The court described how fraudulent accounts are typically “opened and 

immediately closed with one or two payments processed.” YDS did not follow this 

pattern. The evidence established the following: “YDS was operating and delivering 

product between September and October of 2016. At the end of October and early 

November, chargebacks started to appear on the account. Customers were not receiving 

product, and the account became problematic. YDS did not respond to e-mails, and the 

primary phone number was disconnected. All contact and contact information for the 

merchant ceased.” In January 2017, Select sued YDS and Robinson to recover over 

$60,000 in chargebacks and fees. 

In early February 2017, Robinson filed an identity theft police report within 

a week of being served with Select’s complaint. A few weeks thereafter, Robinson’s 

attorney sent Select a letter stating, “I believe you already know that [my client] asserts 

that he is not the ‘Joshua Robinson’ you are seeking. As a starting point, I will provide 

the following physical description of . . . Robinson, and request that you verify whether 

or not this fits the description of your defendant.” After providing a physical description, 

Robinson’s counsel asked Select to send any pertinent contracts so he could compare the 

signatures. Approximately one month later, at the end of March 2017, Robinson’s 

counsel wrote a second letter stating he provided “sufficient information” (i.e., the 

physical description), for Select to determine if it was suing the wrong person and “this 

appears to be a circumstance of identity theft.” A few days later, Robinson filed an 

answer to the complaint raising the affirmative defense of identity theft. In April 2017, 

Robinson filed an identity theft affidavit with the Internal Revenue Service (IRS). 

In July 2017, Select asked Robinson to provide all documents supporting 

his claim, including the police report. After obtaining an extension, Robinson on 

September 7, 2017, provided a fictitious business name statement but not the police 
5

report. Select asked Robinson to bring the requested documents and police report to his 

deposition in October 2017. He failed to do so. Thereafter, Robinson provided an 

incomplete copy of the police report. Close to trial, Robinson eventually provided a full 

and final copy of the police report. The original police report had multiple supplements 

showing Robinson repeatedly amended his report over a one-year period. 

On two different occasions before trial, Select filed motions to compel the 

production of documents requested in discovery. Select wanted financial information 

related to suspected cash payments and Robinson’s decision to open a virtual office at the 

same time the YDS agreement was being processed. It also requested information about 

Robinson’s claim he owned a church, having only a few members, and the financial 

transactions related to that enterprise. Robinson produced some documents, but they 

were often heavily redacted or unreadable. Select complained Robinson’s avoidance of 

deadlines and refusal to cooperate with discovery was delaying the case. The court 

granted both motions and sanctioned Robinson. Due to Robinson’s evasive conduct and 

delay in providing a full police report, Shipley maintained at trial that Select was not fully 

aware of the identity theft claim until before the trial started in January 2019.

The trial court reached the following legal conclusions after examining all 

the evidence: “This is an unusual case in which the evidence presented preponderates in 

favor of [Robinson] and against [Select] on the complaint and against [Robinson] and in 

favor of [Select] on the [c]ross[-c]omplaint. There is insufficient evidence to make a 

finding one way or another. It is as likely that . . . Robinson was a strawman who lent his 

information to the Adl defendants so that they could procure merchant line credit for 

YDS, and that by giving his name, Robinson profited from the scheme, as Robinson 

having been a victim of identity theft. However, while not fully substantiated by the 

evidence at trial, Robinson’s credibility may be at issue based on his evasive and 

contradictory testimony at trial. While not believable, it nevertheless does not support a 

finding in favor of Plaintiff.” 
6

The trial court elaborated, “[Robinson’s] failure to promptly report his 

concerns about identity theft to [Select], failure to produce documents subjecting him to 

sanctions on two occasions, and his credibility at trial raises suspicion as to Robinsons’ 

lack of culpability. Robinson’s testimony that he did not comply with discovery requests 

or producing records at deposition because he was afraid of being a victim of future 

identity theft is not believable. A protective order could have dispensed with any 

concerns Robinson might have had in providing his personal information. [¶] The court 

wonders whether the cross-complaint was filed simply to cause diversion and avoid any 

adverse judgment.” 

Nevertheless, the trial court determined Select could not prevail on the 

breach of contract action because it failed to establish by a preponderance of the evidence 

that Robinson signed the contract or that the “individual purportedly identified in the 

application” was Robinson. It concluded, “There is insufficient evidence to hold . . . 

Robinson liable, and therefore all causes of action fail as against him.” It clarified, “After 

the [c]ourt has weighed all the evidence, it cannot determine whether an on-line merchant 

contract was entered on behalf of YDS by . . . Robinson or not. Therefore, consistent 

with CACI [No.] 200, when the existence of a fact is not more probable than its 

nonexistence, defendant shall prevail.” 

As for the cross-complaint, the trial court determined Robinson failed to 

meet the elements of section 1798.93. Specifically, it provided the following reasoning: 

“Robinson has failed to prove he was the victim of identity theft. His conduct was 

inconsistent with how a reasonable person would proceed. The failure to timely produce 

a police report, and immediately respond to the inquiries of Select raises suspicion. 

Select was not made aware of Robinson’s claim until January of 2019. His discovery 

responses were evasive and contradictory, as was his testimony at trial which was selfserving regarding his finances, virtual office[,] and business dealings during the relevant 

time frame. While the [c]ourt had ordered sanctions on two occasions against . . . 
7

Robinson for failure to comply with discovery, and limited the evidence received at trial 

by not considering the sanctions, but for the failure to timely respond to discovery as 

evidence that his behavior was inconsistent with a person making a claim of identity 

theft. The evidence received at trial to support a claim for identity theft appears to have 

been created by him after he was served with the complaint. A complete police report 

was not provided to defendant until close to trial.” For these reasons, the court ruled in 

Select’s favor on the cross-complaint.

In its statement of decision, the court noted trial lasted four days and 

concluded on February 5, 2019. The parties stipulated to a briefing schedule to submit 

closing briefs in lieu of closing argument the end of April 2019. The court stated it took 

the matter under submission, and after considering all the evidence and briefing, issued 

its tentative statement of decision on May 24, 2019. It noted “This tentative statement of 

decision shall be the [c]ourt’s statement of decision unless within ten (10) days either 

party specifies those principal controverted issues or makes proposals not covered in the 

tentative decision. See [Cal. Rules of Court, rule] 3.1590(c)(4).” Our records show that 

neither party responded nor objected to the statement of decision within the 10-day 

deadline. 

DISCUSSION

I. Applicable Legal Principles Regarding Section 1798.93 Actions

Under California’s Identity Theft Act (“CITA”), a “victim of identity theft” 

can bring an action for damages, civil penalties, and injunctive relief “against a claimant 

to establish that the person is a victim of identity theft in connection with the claimant’s 

claim against that person.” (§ 1798.93, subd. (a).) A “claimant” is defined as “a person 

who has or purports to have a claim for money or an interest in property in connection 

with a transaction procured through identity theft.” (§ 1798.92, subd. (a).) A “victim of 

identity theft” is defined as a “person who had his or her personal identifying information 

used without authorization by another to obtain credit, goods, services, money, or 
8

property, and did not use or possess the credit, goods, services, money, or property 

obtained by the identity theft, and filed a police report in this regard.” (§ 1798.92, subd. 

(d).) “A person shall establish that he or she is a victim of identity theft by a 

preponderance of the evidence.” (§ 1798.93, subd. (b).)

Section 1798.93, subdivision (c), provides multiple remedies, including 

(1) a declaratory judgment that the victim of identity theft “is not obligated to the 

claimant on that claim” and that any security interest purportedly acquired by the 

claimant against the victim’s property is void; (2) an injunction preventing the defendant 

from collecting on the claim or from enforcing a judgment against the plaintiff on the 

claim; and (3) actual damages, attorney’s fees, costs, and appropriate “equitable relief.” 

In some cases, the victim of identity theft may recover civil penalties. The 

victim must establish “by clear and convincing evidence” that the victim provided written 

notice to the claimant, “the claimant failed to diligently investigate the victim’s 

notification of a possible identity theft,” and “the claimant continued to pursue its claim 

against the victim after the claimant was presented with facts that were later held to 

entitle the victim to a judgment pursuant to this section.” (§ 1798.93, subd. (c)(6) [“civil 

penalty” of up to $30,000].) 

Relevant to this appeal, the statute permits an identity theft victim to file a 

cross-compliant “to establish that the person is a victim of identity theft in connection 

with the claimant’s” action “to recover on its claims against the victim.” (§ 1798.93, 

subd. (a).) If the person successfully proves that “he or she is a victim of identity theft, as 

defined in [s]ection 530.5 of the Penal Code, as to a particular claim” he or she shall be 

entitled to “the dismissal of any cause of action in the complaint filed by the claimant 

based on a claim which arose as a result of the identity theft.” (§ 1798.93, subd. (c)(4).)

II. Standard of Review

Robinson makes two main arguments on appeal. First, he asserts there was 

insufficient evidence to support five of the court’s findings of fact in the statement of 
9

decision. He maintains we must apply the substantial evidence standard of review to 

each of those findings. Second, Robinson argues the court erred in concluding he failed 

to satisfy all the elements required for a section 1798.93 action. He contends that 

because this issue involves mixed questions of law and fact we must apply a de novo 

standard of review. On the other hand, Select asserts we must apply an abuse of 

discretion standard in reviewing both arguments. Both parties are incorrect. 

“‘We generally apply the familiar substantial evidence test when the 

sufficiency of the evidence is at issue on appeal. Under this test, “‘we are bound by the 

established rules of appellate review that all factual matters will be viewed most 

favorably to the prevailing party [citations] and in support of the judgment . . . . “In brief, 

the appellate court ordinarily looks only at the evidence supporting the successful party, 

and disregards the contrary showing.” [Citation.] All conflicts, therefore, must be 

resolved in favor of the respondent.’” [Citation.] [¶] But this test is typically implicated 

when a defendant contends that the plaintiff succeeded at trial in spite of insufficient 

evidence. In the case where the trier of fact has expressly or implicitly concluded that the 

party with the burden of proof did not carry the burden and that party appeals, it is 

misleading to characterize the failure-of-proof issue as whether substantial evidence 

supports the judgment. This follows because such a characterization is conceptually one 

that allows an attack on (1) the evidence supporting the party who had no burden of 

proof, and (2) the trier of fact’s unassailable conclusion that the party with the burden did 

not prove one or more elements of the case (Oldenburg v. Sears, Roebuck & Co. (1957) 

152 Cal.App.2d 733, 742 . . . [trier of fact is the exclusive judge of the credibility of the 

evidence and can reject evidence as unworthy of credence]; Hicks v. Reis (1943) 

21 Cal.2d 654, 659-660 . . . [trial court is entitled to reject in toto the testimony of a 

witness, even if that testimony is uncontradicted]).’” (Sonic Manufacturing 

Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465-466 (Sonic), 

second italics added.) 
10

“‘Thus, where the issue on appeal turns on a failure of proof at trial, 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.”’ [Citation.]” (Sonic, supra, 196 Cal.App.4th at 

p. 466.) 

III. Analysis

In this case, the trial court determined Robinson failed to establish an 

essential element needed to succeed on his section 1798.93 claim. Specifically, it 

determined “Robinson has failed to prove he was the victim of identity theft” and did not 

authorize YDS to use his information in its application. The court offered several reasons 

to support this determination, which Robinson has decided to treat as distinct sufficiency 

of the evidence questions. This is incorrect. The two issues are one and the same. The 

court’s decision that Robinson failed to prove he was the victim of identity theft requires 

only our consideration of Robinson’s evidence, and whether it compels a finding in his 

favor as a matter of law. (Sonic, supra, 196 Cal.App.4th at p. 466.) We need only 

determine if Robinson’s evidence supporting his claim was uncontradicted, unimpeached, 

and “‘“of such a character and weight as to leave no room for a judicial determination 

that it was insufficient to support a finding.”’ [Citation.]” (Sonic, supra, 196 

Cal.App.4th at p. 466.)5 

As mentioned, the term “victim of identity theft” as used in section 1798.93 

means a person who has his personal identifying information “used without authorization 

5 To clarify, due to the applicable standard of review we need not separately 

consider Robinson’s multiple sufficiency of the evidence arguments challenging select 

sentences of the court’s statement of decision. Our focus is only on the weight and 

veracity of Robinson’s evidence.
11

by another to obtain credit, [or] services . . . and did not use or possess the credit, [or] 

services . . . obtained by the identity theft, and filed a police report in this regard pursuant 

to [s]ection 530.5 of the Penal Code.” (§ 1798.92, subd. (d) [defining victim of identity 

theft].) 

Penal Code section 530.5 “criminalizes the willful use of someone’s 

personal identify information for an unlawful purpose . . . .” (People v. Jimenez (2020) 

9 Cal.5th 53, 59 (Jimenez)), and designates the crime is a felony. Although section 

1798.92 suggests Penal Code section 530.5 discusses police reports prepared in identity 

theft cases, it does not mention reports. However, as explained by our Supreme Court in 

Jimenez, when the Legislature criminalized identify theft, it also enacted “a set of 

reporting and verification requirements for consumer credit agencies, a series of police 

investigation protocols for identity theft reports, and new procedures by which victims 

could clear their names and block inaccurate information from their credit files. 

[Citation.]” (Jimenez, supra, 9 Cal.5th at p. 64, citing Sen. Com. on Public Safety, 

Analysis of Assem. Bill No. 156 (1997-1998 Reg. Sess.) as amended July 3, 1997, pp. 2-

3.) 

The Legislature recognized law enforcement had only “‘considered the 

defrauded business entity . . . to be the victim of identity theft, not the person whose 

identity was stolen so that the fraud could be committed.’ (Sen. Com. on Public Safety, 

Analysis of Assem. Bill No. 245 (2001-2002 Reg. Sess.) as amended May 1, 2000, p. 6.) 

As a result, victims found it difficult to report the crime, seek damages, and clear their 

names. (Ibid.)” (Jimenez, supra, 9 Cal.5th at p. 63.) Consequently, the Legislature in 

addition to Penal Code section 530.5, enacted Penal Code section 530.6, which provides 

the following assistance to identity theft victims: “A person who has learned or 

reasonably suspects that his or her personal identifying information has been unlawfully 

used by another, as described in subdivision (a) of [s]ection 530.5, may initiate a law 

enforcement investigation by contacting the local law enforcement agency that has 
12

jurisdiction over his or her actual residence or place of business, which shall take a police 

report of the matter, provide the complainant with a copy of that report, and begin an 

investigation of the facts. If the suspected crime was committed in a different 

jurisdiction, the local law enforcement agency may refer the matter to the law 

enforcement agency where the suspected crime was committed for further investigation 

of the facts.” (Italics added.) Thus, we conclude section 1798.92’s reference to a police 

report filed “pursuant to” Penal Code section 530.5, simply notifies the purported identity 

theft victim that law enforcement is statutorily required to create a police report and 

provide him or her with a copy. Accordingly, a person filing a section 1798.93 action 

must file an identity theft police report, triggering law enforcement’s statutory duty to 

investigate the facts. The culprit can then be criminally charged under Penal Code 

section 530.5. 

Robinson asserts he satisfied all the requirements needed for a section 

1798.93 action because he filed a police report and established the Adl defendants 

improperly used his credit report and personal identifying information to enter into an 

agreement with Select for customer payment services. Robinson maintains his personal 

identifying information was used without his “authorization” because it was undisputed 

he did not sign the merchant account application with a wet or e-signature. 

To support this assertion, Robinson refers to the testimony of his witness, 

Linda Mitchell, a forensic document examiner having expertise in identifying and 

authenticating handwriting. At trial, Mitchell clarified she also received training about esignatures, and she co-authored an article about how to authenticate them. She examined 

the signature box of Select’s merchant agreements and determined the markings were 

“not an e-signature because it does not meet the criteria of the . . . California E-Sign Act.” 

However, she did not render an opinion about whether Robinson agreed to sign the 

application or authorized others to submit the application using his personal information. 
13

Robinson adds there was other evidence he was not involved in the

business, the application, or the credit card transactions. Specifically, he focuses on the 

following evidence: (1) all the income was deposited in Brian Adl’s bank accounts, 

(2) he has always denied signing the agreement or authorizing anyone to sign the 

agreement, and (3) he filed an identity theft police report. Finally, Robinson referred to 

Harris’s testimony that Pathway Payments only communicated with Brian Adl. 

Except for Robinson’s testimony, all of the other evidence he describes 

does not directly concern the essential issue of authorization. Mitchell and Harris offered 

no opinion about whether Robinson authorized the Adl defendants to open an account 

with Select. These witnesses simply supported Robinson’s claim he had no direct contact 

with Pathway Payments/Select. Evidence that YDS’s income was not deposited into 

Robinson’s account does not rule out the possibility he was compensated in cash 

beforehand or by other means. And the police report simply contained Robinson’s selfserving statements and allegations. There is nothing in the report suggesting the police 

conducted an independent investigation confirming foul play. Indeed, there is no 

evidence indicating any of the Adl defendants were criminally prosecuted for identity 

theft in the two years following Robinson’s police report, or thereafter. 

All that remains is Robinson’s own testimony that he did not authorize the 

Adl defendants to use his personal information to apply for an account with Select. As 

mentioned, “‘where the issue on appeal turns on a failure of proof at trial, the question for 

a reviewing court becomes . . . whether the appellant’s evidence was . . . “uncontradicted 

and unimpeached” . . . .’ [Citation.]” (Sonic, supra, 196 Cal.App.4th at p. 466.) Our 

review of the record shows Robinson’s testimony was both contradicted and deemed 

untrustworthy.

Despite having significant issues with Robinson’s credibility, the trial court 

determined Select failed to present enough evidence to prove Robinson was the 

“strawman who lent his information to the Adl defendants so that they could procure” the 
14

agreement with Select. Although the evidence may not have been “enough” to secure a 

favorable judgment, the records shows Select certainly presented credible evidence 

contradicting Robinson’s claim he was the victim of identity theft. Much of this evidence 

is detailed in its trial brief, which served as Select’s closing argument. Select also 

pointed out multiple times Robinson contradicted his own testimony and was impeached. 

Select asserted, “[Robinson acted] like a culpable party throughout litigation by 

concealing records and subjecting himself to sanctions for discovery violations. 

[Citation.]” 

The following are some examples of the evidence contradicting Robinson’s 

claims. Select’s president, Shipley, opined that in light of his experience and background 

in merchant accounts, he believed Robinson signed the application submitted to Select. 

He explained it was common in his industry for someone involved with a business to 

have another individual submit documents on their behalf. He stated sometimes this 

occurred when a business undergoes new ownership, or the business has sought 

“substitute owners” willing to receive compensation in exchange for the business using 

their information for the application. 

Shipley added the information on the application matched Robinson’s 

credit report and the application had none of the telling signs of fraud. He opined, 

“Usually with identity theft, the processing goes bad quickly in a dramatic fashion. 

Usually the perpetrator has a very defined plan when there’s an event . . . oftentimes over 

a weekend because they know we . . . may not have as much coverage on staff . . . .” In 

this case, Shipley stated YDS had two months of normal processing of legitimate 

customer orders. “We know that there were legitimate customers because they were 

inquiring and saying we ordered product and we didn’t receive it. And the account went 

bad slowly during” the end of October and into November 2016. He noted the 

chargebacks occurred slowly rather than in a “dramatic fashion” usually seen with 

identity theft. Another reason Shipley did not believe this was a case of identity theft was 
15

because Brian Adl “made himself available” until Select sued him. Shipley stated, 

“Usually when identity theft happens, the perpetrator does not let you know what their 

identity is . . . [a]nd so . . . it would have been odd for Brian [Adl] to give us his 

information and . . . all of his dad’s information . . . only to then commit identity theft.” 

In addition to providing contact information, Brian Adl told Harris that Robinson took 

over the business, but it was being mismanaged because he was not shipping the 

purchased goods. Shipley stated, “the processing history supports that statement.” He 

added Brian Adl communicated with Harris after there were chargeback events, which 

would be unusual in an identity theft case because usually the perpetrators disappear 

when there is a “loss event.” 

Moreover, in his briefing, Robinson ignores the trial court’s plainly stated 

conclusion his testimony was “not believable.” In the statement of decision, the court 

concluded it had good reason to question Robinson’s credibility “based on his evasive 

and contradictory testimony at trial.” The court added that it suspected Robinson may be 

culpable due to his failure to promptly report his concerns about identity theft to Select, 

his failure to produce documents subjecting him to sanctions on two occasions, and his 

credibility at trial. The court noted, “Robinson’s testimony that he did not comply with 

discovery requests or produc[e] records at deposition because he was afraid of being a 

victim of future identity theft is not believable. A protective order could have dispensed 

with any concerns . . . . The court wonders whether the cross-complaint was filed simply 

to cause diversion and avoid an adverse judgment.” We do not review credibility 

determinations. (People v. Lindberg (2008) 45 Cal.4th 1, 27 [reviewing court does not 

reevaluate witness’s credibility].)

Robinson’s failure to appreciate the high hurdle he faced in this appeal is 

demonstrated by his bold assertion “incontrovertible evidence” established his personal 

information was used without his authorization. This argument ignores both the court’s 

credibility determination and that the parties provided conflicting evidence on Robinson’s 
16

culpability. We conclude any favorable inferences to be drawn from Robinson’s 

evidence is insufficient to warrant reversal of the judgment. As Sonic holds, the evidence 

must be such that no other result is possible. (Sonic, supra, 196 Cal.App.4th at p. 466 

[reversal only if uncontradicted evidence “‘of such a character and weight as to leave no 

room for a judicial determination that it was insufficient to support a finding’” in 

appellant’s favor].) We therefore affirm the trial court on this ground.6

IV. Motion to Dismiss Appeal and Request for Sanctions

Select asserts Robinson is subject to monetary sanctions for pursuing a 

frivolous appeal, which should also be dismissed. We disagree.

“California courts have the inherent power to dismiss frivolous appeals. 

[Citations.] In addition, Code of Civil Procedure section 907 provides that ‘[w]hen it 

appears to the reviewing court that the appeal was frivolous or taken solely for delay, it 

may add to the costs on appeal such damages as may be just.’ California Rules of Court, 

rule 8.276(e)(1) allows the court to impose sanctions on a party or an attorney for the 

taking of a frivolous appeal or appealing solely to cause delay. An appeal is frivolous 

‘only when it is prosecuted for an improper motive—to harass the respondent or delay the 

effect of an adverse judgment—or when it indisputably has no merit—when any 

reasonable attorney would agree that the appeal is totally and completely without merit. 

[Citation.]’ [Citation.] The first standard is tested subjectively. The focus is on the good 

faith of appellant and counsel. The second is tested objectively. [Citation.] ‘While each 

of the above standards provides independent authority for a sanctions award, in practice 

the two standards usually are used together “with one providing evidence of the other. 

Thus, the total lack of merit of an appeal is viewed as evidence that appellant must have 

6 Having affirmed the trial court’s determination Robinson failed to prove he 

was a victim of identity theft we need not address his collateral argument he was entitled

to recover a $30,000 civil penalty.
17

intended it only for delay.” [Citations.]’ [Citation.]” (In re Marriage of Gong & Kwong

(2008) 163 Cal.App.4th 510, 516.) 

However, dismissal as a sanction is regarded as a drastic remedy, given the 

vague borderline between appeals that are truly ‘frivolous’ and those that simply have no 

merit. (People ex rel. Lockyer v. Brar (2004) 115 Cal.App.4th 1315, 1318 [dismissal “is 

a power that should not be used except in the absolutely clearest cases”].) For this 

reason, appellate courts will generally decide the appeal on its merits and then impose 

monetary sanctions in connection with affirmance if the appeal is deemed frivolous, i.e., 

any reasonable person would agree the appeal is totally and completely devoid of merit. 

(Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2020) 

¶¶ 5:36-5:37; In re Marriage of Flaherty (1982) 31 Cal.3d 637, 651 (Flaherty).) 

We conclude the merits of Robinson’s appeal on the cross-compliant were 

arguable, especially in light of the trial court’s determination in Robinson’s favor that

there was insufficient evidence Robinson was liable for the Adl defendants’ fraudulent 

scheme. This appeal did not present a clearly meritless case warranting dismissal and we 

appreciate that sanctions “should be used most sparingly to deter only the most egregious 

conduct.” (Flaherty, supra, 31 Cal.3d at p. 651.) Here, Robinson’s contention the court 

erred in interpreting the evidence supporting his identity theft claim was thoughtful. 

Although the trial court drew a contrary inference from the evidence, “[c]ounsel and their 

clients have a right to present issues that are arguably correct, even if it is extremely 

unlikely that they will win on appeal.” (Flaherty, supra, 31 Cal.3d at p. 650.) It cannot 

be said that any reasonable person would agree that Robinson’s argument was “‘totally 

and completely devoid of merit.’” (Id. at p. 651.) Accordingly, this appeal was not 

frivolous, and we deny Select’s motion. 
18

DISPOSITION

We affirm the judgment. Respondent shall recover its costs on appeal. We 

deny Respondent’s motion to dismiss and request for sanctions.

O’LEARY, P. J.

WE CONCUR:

IKOLA, J.

GOETHALS, J.