Plaintiff Federico S. Aguimatang, Jr., and cross-complainant Arnulfo Melgar Chanquin appeal from summary judgment entered in favor of defendants/cross-defendants California State Lottery Commission, State
FACTUAL AND PROCEDURAL BACKGROUND
In January 1988, Aguimatang filed a complaint for breach of contract and conversion, alleging he was one of three winning claimants entitled to share a $15.9 million Lotto jackpot but that the State Lottery awarded him only one-fourth of the jackpot. An amended complaint alleged the State Lottery's identification of four winners and set forth Aguimatang's theory that a Lotto jackpot must be divided by the number of claimants who come forward with valid tickets, not by the number of winners reflected in the State Lottery's computer. The misrepresentation cause of action alleged the State Lottery falsely represented that four winning tickets were presented. Aguimatang thus claimed the State Lottery had deprived him of his entitlement by transferring the fourth, unclaimed share to the Education Fund. Aguimatang claimed entitlement to the entire fourth share and therefore joined as necessary parties the Education Fund and the other winning claimants, Chanquin and Jorgenson.
In January 1989, Chanquin filed a cross-complaint which was premised on the same theory as the complaint but also added allegations that no fourth ticket ever issued.
At the demurrer stage, the trial court ruled that no cause of action was stated on the basis that there were only three claimants for the prize; division of the jackpot by the number of winning wagers, with reversion of the unclaimed share to education, conformed to the governing statutes. However, the court ruled a cause of action could be stated on the theory that the fourth ticket either never issued or was cancelled.
Amended pleadings were filed.
Aguimatang's second amended complaint asserts causes of action for breach of contract, declaratory relief, breach of statutory duty, conversion,
Chanquin's first amended cross-complaint alleges breach of contract, declaratory relief, breach of statutory duty and injunction, and conversion, premised on the same theories as Aguimatang's action. Chanquin additionally alleges violation of the statutory requirement that 50 percent of lottery revenues to be returned to the public in the form of prizes.
In May 1989, the State Lottery filed a motion for summary judgment or summary adjudication of issues as to both Aguimatang's second amended complaint and Chanquin's first amended cross-complaint.
In support of the summary judgment motion, the State Lottery submitted evidence of the following:
The State Lottery invited the public to participate in the California Lotto 6/49 Drawing for January 17, 1987 (Draw No. 14), with an expected "jackpot" of over $15 million.
On January 17, 1987, a drawing was held, and the State Lottery announced the winning numbers. After the numbers were announced, the lottery auditors began calculating the prize pools for the different categories of prizes, based upon computer reports. Once all computer reports were completed, the State Lottery began final calculations and verifications of the amount of the prize pools for the different categories.
Records for all transactions are stored in the computer in a file called Transaction Master File (TMF). A Transaction Master File Information Retrieval Report (TMIR) is used to report on the transactions stored in the TMF. Information on the TMIR includes the date, time, and amount of the transaction, and whether the transaction is good or cancelled. Certain error conditions would show under the column title "ERR" on the TMIR.
The State Lottery maintains an Internal Control System (ICS) of total sales that is compared with the TMF's record of total sales.
When a drawing is held, the winning numbers are entered into the computer to check for winning transactions. The prize pool for each prize category is calculated based on the amount of sales.
Retailers are provided with an on-line retailer/operator manual that requires each retailer to complete a "weekly settlement" used for final accounting of transactions. A request for adjustment form is provided for those instances when a retailer is unable to cancel a transaction due to a failure of the on-line system. The request for adjustment must indicate the date, approximate time, and circumstances of the failure.
For the January 17, 1987 drawing, the computer records show five transactions
There was no indication of error in the computer system, dedicated lines, or retailer terminals. There was no discrepancy between computer reports generated by GTECH and by the State Lottery. The accounts receivable records balanced with ticket sales.
Of the four uncancelled transactions, the one for which no claim was made is serial number 7715988, which was a $1 sale made at the New Lun Wah Company in San Francisco on January 17, 1987, at 3:43 p.m. New Lun Wah Company's settlement envelope for that Drawing period reconciled with the computer report of total sales. All cancelled transactions for the drawing period were accounted for. New Lun Wah Company's settlement envelope also contained a retailer request for adjustment dated January 18, 1987, and signed by owner Paul Lee. Lee sought adjustment for a $5 sale that occurred on January 17, 1987, at approximately 1 p.m., due to printer fault and cutter fault. The settlement envelope contained a misprinted ticket and a cut-off "Reprint" ticket.
Based upon all its information, on January 20, 1987, the State Lottery announced there were four winners of the January 17, 1987, jackpot of $15.9 million.
Three persons — Aguimatang, Chanquin, and Jorgenson — presented valid winning tickets within the allowable claim period, and each received an annuitized prize of approximately $4 million, representing one-fourth of the prize pool.
No fourth ticket was presented for payment. Upon expiration of the 180-day period for claiming prizes, the State Lottery announced the reversion of the fourth share to the Education Fund.
In opposition to the State Lottery's showing on the motion for summary judgment, appellants showed that certain errors would not show on the State Lottery's computer. Thus, the computer would not show the issuance of a defective ticket or the failure to issue a ticket due to a retailer's printer
Appellants also filed extensive papers, discussed post, attempting to raise a triable issue as to whether a valid fourth ticket ever issued for the fourth winning transaction. The document on which Aguimatang placed primary emphasis was a copy of a January 18, 1987, request for adjustment submitted to the State Lottery by Paul Lee of the New Lun Wah Company, where the missing ticket was supposed to have issued. Aguimatang's copy of that form bore the handwritten notation "7715988" (the transaction number of the missing winning ticket) in the upper right hand corner. A copy of the form is found at appendix A, post.
Aguimatang also submitted a declaration from Paul Lee which we shall discuss later.
The trial court ultimately concluded the question whether a valid fourth ticket issued was immaterial, because the State Lottery's computer process, which was indisputably functioning properly, produced four winning wagers, and there is a presumption that if a wager is made and not cancelled, a valid ticket has been issued. The trial court rejected appellants' attempts to relitigate the legal issues decided against them at the demurrer stage regarding whether the State Lottery's procedures for division and reversion of prizes complied with the statutes. The trial court thus granted the motion for summary judgment as to the entire lawsuit.
I. Standard of Review
"A motion for summary judgment `shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' (Code Civ. Proc., § 437c, subd. (c).)
"A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail. [Citation.] To succeed, the defendant must conclusively negate a necessary element of the plaintiff's case, and demonstrate that under no hypothesis is there a material issue of fact that requires the process of a trial. [Citation.]" (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107 [252 Cal.Rptr. 122, 762 P.2d 46].)
II. The State Lottery's Division and Reversion of Unclaimed Shares to Education Complies With the Statutes
We first address the legal questions of statutory and rule interpretation as to the proper handling of prizes, assuming four winning wagers. We will then address the factual question whether a triable issue exists in this case as to the number of winning wagers.
Appellants renew in this court their challenge to the statutory authorization for the State Lottery's handling of the jackpot.
A. How a Prize Is Created
Appellants rely on former section 8880.32, subdivision (c), which at the time of Draw No. 14 provided: "No particular prize in any Lottery Game may be paid more than once, and in the event the Commission reaches a binding determination that more than one claimant is entitled to a particular prize, the sole remedy of the claimants is the award to each of them of an equal share in the prize and the Commission shall direct the Controller to disburse the award to the claimants in equal shares."
Appellants' underlying premise is that the $15.9 million jackpot was a "particular prize." They apparently argue that "the sole remedy of the claimants is the award to them of an equal share in the [particular] prize," i.e., in the jackpot. However, as we shall explain, the jackpot is not a "particular prize." Rather, a "particular" prize is the share of the jackpot attributable to a winning wager.
"Prize" is not defined in the statutes. However, subject to limitations not material to this dispute, the State Lottery Commission has authority to promulgate rules and regulations "specify[ing] the number and value of prizes for winning tickets or shares in each Lottery Game" (§ 8880.29) and "specify[ing] the method for determining winners" (§ 8880.30).
The State Lottery's rules define "prize" as "amount paid for a winning number selection contained on an individual game board."
To make a selection, "a player must select one or more sets of six (6) different numbers ... for input into a retailer terminal.... The retailer will then issue a ticket, via the terminal, containing the selected set or sets of numbers, each set of which constitutes a selection. A ticket can contain up to five (5) selections, labelled A through E." (Rule 3(b).)
"Each selection made during the Drawing period shall be placed into a California Lotto 6/49 pool, which shall be eligible for the Drawing of the winning numbers at the conclusion of the period." (Rule 3(c).)
A ticket is the only proof of selection and the only valid receipt for claiming a prize. (Rule 3(c).)
In the event that more than one player is successful in matching all six winning numbers, all players with such winning selections shall divide equally the respective prize pool amount for that prize category. (Rules 4(c), 5(c)(2).)
In the event there is no valid winning ticket for the "6 of 6," "5 of 6 plus bonus number," "5 of 6," or "4 of 6" prize categories in any given Drawing, all monies allocated for those prize categories shall be carried forward or rolled over to the following week. (Rule 5(c)(4).)
From the foregoing rules, it is apparent that a "prize" is the entitlement due on an individual wager, with the amount determined by total sales. Thus, in this case, the $15.9 million jackpot was the "prize pool" for the six-of-six "prize category." Where four players win that prize category, there will be four prizes, each amounting to one-fourth of the prize pool.
This delineation of prizes is within the State Lottery's statutory authority to specify the number and value of prizes and the method for determining winners. (§§ 8880.29, 8880.30.) It does not conflict with former section
We therefore conclude that, assuming four winning wagers, the fourth share was a separate prize and a "particular prize" within the meaning of former section 8880.32, subdivision (c). The $15.9 million jackpot was not a "particular prize." Consequently, former section 8880.32, subdivision (c) did not require division of the jackpot among claimants presenting winning tickets.
B. Reversion to Education Was Proper
Section 8880.32, subdivision (e), at the time of Draw No. 14, provided as follows: "Players shall have the right to claim prize money for 180 days after the drawing or the end of the Lottery Game or play in which the prize was won. The Commission may define shorter time periods for eligibility for participation in, and entry into, drawings involving entries or finalists. If a valid claim is not made for a prize directly payable by the Lottery Commission within the period applicable for that prize, the unclaimed prize money shall revert to the benefit of the public purpose described in this chapter [i.e., public education]." (Stats. 1986, ch. 848, § 2, italics added.)
Appellants first note the statute allows reversion only "If a valid claim is not made for a prize" (italics in original), and argue they made claims for the fourth prize, hence the statute is inapplicable. We have already concluded that a prize is an entitlement under an individual winning wager. Therefore, assuming four winning wagers, appellants had no valid claim for the fourth prize.
Aguimatang then contends reversion to education applies only to prizes "directly payable by the Lottery Commission" (italics in original), and jackpot prizes are annuitized payments on annuity investments made by the State Treasurer, not the State Lottery.
The question, then, is what is a prize "directly payable by the Lottery Commission"?
Technically, no prizes are directly payable by the Lottery Commission. They are paid by the Controller or by a retailer. Thus, the Lottery Fund is a special fund within the State Treasury. (§ 8880.61.) "Money may be drawn
The State Lottery may authorize the retailer to validate claims and pay prizes. Thus section 8880.32, subdivision (a), provides (and provided at the time in question): "For convenience of the public, Lottery Game Retailers may be authorized by the Commission to pay winners of up to six hundred dollars ($600) after performing validation procedures on their premises appropriate to the Lottery Game involved." The State Lottery has exercised this authority in the Lotto game by authorizing retailers to pay Lotto prizes up to $99. (Rule 7(b).) Chanquin thinks the Lottery itself can directly pay prizes under section 8880.32, subdivision (d), which provides: "The Commission may specify that winners of less than twenty-five dollars ($25) claim the prizes from either the same Lottery Game Retailer from whom it was purchased or from the Lottery itself." By its terms, however, this subdivision speaks only of taking claims, not of paying claims. Its evident purpose is to allow the State Lottery to require small prize winners to go through the retailer. The State Lottery has chosen to require $5 Lotto prize winners to claim their prize from the retailer (unless the winner resides out of state). (Rule 7(b).)
Since prizes are paid by the Controller or by the retailer, technically no prizes are "directly payable by the Lottery Commission."
We will not adopt a technical interpretation of section 8880.32, subdivision (e), because it would lead to the absurd result that no unclaimed prize money would revert to education.
Moreover, in this instance, we will give deference to the interpretation of an administrative agency (the State Lottery) charged with administration of the statute. (See Norman v. Unemployment Ins. Appeals Bd. (1983) 34 Cal.3d 1,
A 1989 amendment changed the last sentence of subdivision (e) of section 8880.32 to read: "If a valid claim is not made for a prize directly payable by the Lottery Commission or for any Lotto prize within the period applicable for that prize, the unclaimed prize money shall revert [to education]." (Stats. 1989, ch. 917, § 5, italics added.)
Chanquin contends that the 1989 amendment prospectively affects only retailer-payable Lotto prizes, and that the new language means that the reverter provision had no prior application to Lotto at all but applied only to other Lottery Games such as the "scratcher" game. The 1989 amendment, though not in place at the time of Draw No. 14 may shed light on the meaning of the statute in place at the time of Draw No. 14.
Chanquin filed in this court a motion for judicial notice of numerous legislative materials relating to the 1989 amendment. Some of the materials do not constitute appropriate legislative history. However, an Assembly Governmental Organization Committee statement, constituting cognizable legislative history (Hutnick v. United States Fidelity & Guaranty Co. (1988) 47 Cal.3d 456, 465, fn. 7 [253 Cal.Rptr. 236, 763 P.2d 1326]) states in part: "[T]he State Controller stated that $5.9 million in unclaimed Lotto prizes were illegally being held by the Lottery Commission which should have gone exclusively to education.  [¶] The State Lottery Commission counters that the law only requires reversion to education of `unclaimed prize money directly payable by the Lottery Commission'  and that the Lotto prize money at issue is directly payable be [sic] retailers not the Lottery Commission since retailers pay the small [up to $10] Lotto prize winnings. [¶] This bill would resolve the debate in favor of the Controller's position by declaring that unclaimed Lotto prizes shall be reverted to education the same as all other unclaimed prizes payable by the Commission."
We also note the effect of the 1989 amendment was to resolve an ambiguity in the disposition of low level Lotto prizes, created by the State Lottery's rule making payment of $5 prizes dependent on the state of residence of the winner. Thus, under rule 7(b)(1), "a [Lotto] prize of $5.00 or less must be claimed only from an authorized CSL retailer, unless the claimant resides outside California."
We conclude that, assuming four winning wagers, reversion of the unclaimed fourth prize to education was proper under former section 8880.32, subdivision (e).
C. Reversion Does Not Violate the Requirement That 50 Percent of Revenues Be Returned to the Public
The State Lottery's evidence on the motion for summary judgment merely showed that 50 percent of Lotto revenues on a weekly basis are allocated for prizes (40 percent for the jackpot and 10 percent split among the lower prize categories), with rollover from the previous drawing added to the prize pool after the 50 percent calculation is made. Thus, it is apparent that reversion to education of any prize would result in less than 50 percent return to the public.
Although the statutory language of the second sentence of section 8880.4, read in isolation, is unambiguous in requiring a "return" of money to the public, there is a latent ambiguity that becomes apparent with the next sentence of section 8880.4. Thus, while the statute first directs that 50 percent of revenues be returned to the public and a minimum of 34 percent be allocated to education, section 8880.4 goes on: "In addition, all unclaimed prize money shall revert to the benefit of public education...." (Italics added.)
Since the Lottery Act also directs that 50 percent of revenues be "apportioned" to prizes (§ 8880.63
Moreover, the Lottery Act, as approved by the voters, states: "The People of the State of California declare that the purpose of this Act is support for preservation of the rights, liberties and welfare of the people by providing additional monies to benefit education without the imposition of additional or increased taxes. " (§ 8880.1.)
In light of this purpose, it thus seems the more reasonable construction of section 8880.4 is that the 50 percent of revenues must be allocated to prizes.
We recognize that the Attorney General reached a contrary conclusion in connection with a short-lived opinion under former section 8880.32, subdivision (e), that unredeemed "3 of 6" Lotto prizes of California residents were not required to be transferred to education because they were paid by the retailer, hence not directly payable by the Lottery Commission.
We therefore construe section 8880.4 as requiring that 50 percent of revenues be allocated to prizes. Unclaimed prizes falling within this 50 percent allocation revert to the Education Fund.
Having resolved the legal questions regarding disposition of the fourth share of the jackpot, we turn now to the questions of the sufficiency of the State Lottery's showing on summary judgment and whether appellants raised a triable issue of material fact.
III. The State Lottery's Initial Showing Was Sufficient to Make Out a Prima Facie Entitlement to Summary Judgment
The State Lottery takes the position that it may rely on its computer information regardless whether a valid fourth ticket ever issued, and that responsibility for nonproduction of tickets is not assumed by the state but is left with those whose fault, neglect, or inadvertence caused the loss.
While we agree with appellants that issuance of a valid ticket is material to the determination of winners, we find the State Lottery's initial showing sufficient.
A. A Prize Is Created Only if a Valid Ticket Issues, Constituting a Winning Wager.
The State Lottery concedes the existence of an implied contract with appellants. We are aware of authority holding that, in the absence of a winning ticket, no enforceable contractual right exists against the stakeholder in pari-mutuel betting. (Valois v. Gulfstream Park Racing Ass'n (Fla. Dist. Ct. App. 1982) 412 So.2d 959; Seder v. Arlington Park Race Track Corp. (1985) 134 Ill.App.3d 512 [481 N.E.2d 9]; Bourgeois v. Fairground Corp. (La. Ct. App. 1985) 480 So.2d 408; Hochberg v. New York City OffTrack Bet. Corp. (1973) 74 Misc.2d 471 [343 N.Y.S.2d 651]; Holberg v. Westchester Racing Ass'n (1945) 184 Misc. 581 [53 N.Y.S.2d 490].) We need not determine that issue here, because appellants' assertion of rights is based on their possession of winning tickets. Under these circumstances, the State Lottery properly concedes the existence of a contractual relationship with appellants.
The State Lottery's rules are part of its contract with appellants, as stated in the rules (rule 8), on the play slip, and on the ticket.
As we have noted, the rules define "prize" as "amount paid for a winning number selection...." (Rule 2(1).) Rule 2(c) defines "selection" as "a set of six (6) unique numbers chosen by a player from a set of integers, one (1) through forty-nine (49) inclusive, which set appears on a ticket as a single set of numbers to be played by a player in a game." (Italics added.) Since a prize requires a winning number selection, and since a selection appears on a ticket, a ticket is necessary to create a prize. This conclusion is reinforced by rule 3(b) which states in part: "The retailer will then issue a ticket, via the terminal, containing the selected set or sets of numbers, each set of which constitutes a selection." (Italics added.) Once again, since a selection is necessary for a prize, and since the selection appears on a ticket, issuance of a ticket is necessary to create a prize.
Additionally, rule 3(c) provides that a ticket is the only proof of selection and the only valid receipt for claiming a prize.
Finally, issuance of a valid ticket to create a prize is consistent with the State Lottery's advertisement of the Lotto game as based on a "parimutuel"
For all these reasons, a "prize," subject to reversion to the Education Fund, is created only when a valid winning ticket issues. If no valid ticket issues and there is consequently no wager or bet, no "prize" is created.
B. The State Lottery Made a Prima Facie Showing That It Was Entitled to Summary Judgment.
This leaves the question whether there is a triable issue of fact with respect to whether the fourth missing ticket issued. We shall examine first the showing made by the State Lottery to see whether it made out a prima facie entitlement to summary judgment. (See Code Civ. Proc., § 437c, subd. (b).)
As we have described, the State Lottery submitted evidence of how its procedures work, that the computer process was functioning properly at the time in question, that no errors were indicated, that the computer information reconciled with accounts receivable records, and that New Lun Wah Company's settlement envelope reconciled with the State Lottery's information, with no indication that that fourth winning transaction was a void transaction.
The State Lottery's evidence sufficiently showed that four valid winning tickets issued, resulting in the creation of four prizes, based not only on its computer records but also on reconciliation of those records with the retailer's information.
We disagree with appellants' contention that the only way the State Lottery could show issuance of the fourth ticket was by showing the ticket itself because the State Lottery's own rules say the "ticket is the only proof." (Rule 3(c).
Citing People v. Rath Packing Co. (1974) 44 Cal.App.3d 56 [118 Cal.Rptr. 438], Chanquin contends the State Lottery had the burden to show that there was no possibility of error in its procedures. Rath was an action brought by the People to enjoin a meat processor from selling allegedly short-weight bacon packages. The trial court granted the People's motion for summary judgment based on the inspector's affidavit that on a number of occasions he weighed Rath bacon packages which contained less than their stated weights. (Id. at p. 62.) The appellate court noted this affidavit, if uncontroverted, would entitle the People to judgment. (Id. at p. 62.) However, the opposition's declarations contained facts from which the inference could be drawn that the inspector erred — that the inspector never weighed the actual net contents but took gross weight and subtracted an estimated wrapper weight, that the inspector's estimated wrapper weight was of a wet rather than dry wrapper, which could result in a lesser calculated net weight, and that some of the package codes reported by the inspector were not Rath products. (Id. at pp. 61, 64.) The presumption that official duty has been regularly performed (Evid. Code, § 664) did not alter the substantive showing required for summary judgment; as the Court of Appeal stated, "[the People] must demonstrate that there is no possible way in which Rath can claim error in the weighing procedures used by [the inspector]." (Rath, supra, at p. 65.) Summary judgment was reversed because the meat processor demonstrated a possibility of error. (Ibid.)
We do not read Rath as requiring the State Lottery in its initial showing to demonstrate the absence of any possibility of error. As Rath noted, the People's initial showing of short-weighted inspections was sufficient, if uncontroverted. (44 Cal. App.3d at p. 62.) It only became insufficient when controverted by the party opposing summary judgment. Once the opposing party demonstrated the possibility of error in weighing procedures, the People would have to demonstrate no possibility of error in weighing procedures in order to overcome the opposition.
Here, the State Lottery's initial showing was sufficient.
C. Appellants' Evidentiary Objections to the State Lottery's Showing Are Not Meritorious.
Appellants make numerous contentions that the State Lottery's evidence was for the most part inadmissible.
In Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410, 1422 [267 Cal.Rptr. 819], the appellate court declined to review evidentiary objections insofar as they were not properly briefed on appeal. The court noted the rule that "an appellant must fully present all arguments in briefs rather than incorporate them by reference from papers filed below." (Id. at p. 1422.)
Here, where the record contains 1,400 pages of papers supporting and opposing the motion, it was particularly important for appellants properly to brief the issues on appeal, with appropriate citation to the location of the challenged evidence in the record.
We will therefore consider appellants' evidentiary arguments only insofar as they have been properly briefed.
However, Aguimatang cites only one declaration with the claimed defect (and our review of the declarations filed with the moving papers disclose no others.) Thus, Carol Clark declared she was custodian of records for the State Lottery and that certain records attached as exhibits to the declaration of Alfred Dial (former lottery auditor) are photocopies of original records kept in the regular course of business. The declaration is made to the best of
Computer printouts are admissible and are presumed to be an accurate representation of the data in the computer. (Evid. Code, § 1500.5.
Chanquin contends the computer printouts do not qualify as business records of the State Lottery, because they are records not of the State Lottery but of GTECH, the private firm under contract to provide and operate the lottery's on-line system. This overlooks the fact that GTECH itself provided
Chanquin further complains that the computer records were not shown to qualify as business records, because they were not made at or near the time of the event. (Evid. Code, § 1271, subd. (b).) This apparently refers to the TMIR printout (showing time and dollar amount of transactions for the Jan. 17, 1987, drawing), which was dated October 1988. TMIRs are printed out only on an as needed basis because it would be too cumbersome to store hard copies of each transaction recorded for each draw. However, the information contained on the computer's magnetic tapes, from which the TMIR is printed, is recorded daily as it is generated.
Chanquin cites no authority holding that the retrieval, rather than the entry, of computer data must be made at or near the time of the event. Thus, although to qualify as a business record the "writing" must be made at or near the time of the event, "writing" is not limited to the commonly understood forms of writing but is defined very broadly to include all "means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof." (Evid. Code, § 250.) Here, the "writing" is the magnetic tape. The data entries on the magnetic tapes are made contemporaneously with the Lotto transactions, hence qualify as business records. The computer printout does not violate the best evidence rule, because a computer printout is considered an "original." (Evid. Code, § 255.)
We conclude appellants fail to show the trial court abused its discretion in admitting the computer records.
Aguimatang objects to Paster's declaration on the ground that Paster did not state he compared copies to originals, as required by Dugar v. Happy Tiger Records, Inc. (1974) 41 Cal.App.3d 811, 818 [116 Cal.Rptr. 412]. That case is distinguishable. Dugar held that where affidavits referred to "attached" documents that were not in fact attached, an attempt by the party's attorney to add the documents as an exhibit via his own declaration was
We need not address Chanquin's evidentiary objections to the declarations of the State Lottery's public affairs officer and accounting officer, because their declarations are not material to our decision.
We conclude appellants' evidentiary objections are either waived or meritless, and the State Lottery's moving papers established prima facie entitlement to summary judgment.
IV. Appellants' Opposition to the Motion Raised No Triable Issue of Fact; However, Appellants Should Have Been Granted a Continuance to Pursue Discovery
In addition to his motion to strike evidence, Aguimatang filed an opposition. Aguimatang's response to the State Lottery's separate statement of undisputed facts disputes almost all of the facts asserted by the State Lottery and adds an "additional statement of undisputed facts" containing 80 new factual assertions. Chanquin's opposition raised similar issues.
Whether appellants showed a triable issue of fact is determined under subdivision (c) of Code of Civil Procedure section 437c. That statute provides that, in determining summary judgment, the court considers the evidence, and "all inferences reasonably deducible from the evidence, except
As we shall discuss, appellants ask us to draw inferences from evidence they adduced at the hearing. In deciding whether an inference may be drawn, we have in mind that, "An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action." (Evid. Code, § 600, subd. (b), italics added.)
With these rules in mind, we turn to the evidence appellants submitted in opposition to the motion.
As to the State Lottery's numerous factual assertions regarding the number of transactions recorded by the computer and the absence of any indication of computer error, Aguimatang responded repeatedly as follows: "DISPUTED: `Transactions' not `wagers' show on computer. Defendants offer no evidence that a TICKET was issued for transaction no. 7715988." As evidence of a dispute, Aguimatang cited testimony from three depositions as follows:
First, Gordon Jones (apparently a State Lottery employee) testified it could happen that the central computer registers a wager but no ticket issues from the terminal because the printer jams or the terminal runs out of paper. Such occurrences are very rare. The person in that situation would not receive a prize.
Second, State Lottery security agent William Brewer testified that, though he is comfortable that a ticket was issued, no one can be 100 percent certain that a ticket issued.
Third, Louis Mucci, Chief Gaming Systems and Planning Manager for the State Lottery, stated he had no opinion on whether a ticket was issued at the retailer terminal, and that the retailer is a critical component in the process of reconciliation and accuracy.
As to the State Lottery's assertions that computer reports were in balance and showed that recorded transactions reconciled with ticket sales, Aguimatang submitted a declaration from Paul Lee, owner of the New Lun Wah Company, the retailer involved in the missing winning ticket.
Contrary to appellants' contentions, Lee's declaration does not suggest the $5 adjustment was necessitated by the computer's failure to acknowledge a
This brings us to the copy of the request for adjustment submitted by the New Lun Wah Company (where the missing winning ticket was supposedly purchased) to the State Lottery, attached as appendix A, post. As we have said, the request for adjustment is the means by which a retailer seeks adjustment for lottery tickets that were not, in fact, issued by the retailer because of error in the retailer's machine. The request on its face seeks adjustment for an error occurring at 1 p.m. whereas the missing winning ticket issued at 3:43 p.m.
Aguimatang argues the request for adjustment may refer to the missing winning ticket because two lottery tickets were included with the request when it was sent to the State Lottery. Copies of the two tickets are a part of the record. One is improperly cut off and the other is marked "reprint." The tickets therefore match the explanations on the request for adjustment: "printer's fault"; "cutter's fault." Since there is a coherent and satisfactory explanation for the presence of two tickets in connection with the request for adjustment, there is no reasonable basis upon which to infer that the two tickets resulted from different transactions at 1 p.m. and at 3:43 p.m. The mere presence of two tickets did not create a triable issue of fact.
This brings us to the fact that the handwritten notation "7715988" appears on the upper right hand corner of the request for adjustment. The number is an internal control number assigned by the State Lottery. It does not appear on a ticket. According to the declaration of Aguimatang's attorney, the number was on the copy of the request for adjustment furnished to him by the State Lottery. This is not disputed by the State Lottery. The number "7715988" is the number assigned by the State Lottery to the missing winning ticket. The reasonable inference is that somebody in the State Lottery organization wrote the number on the copy of the request for adjustment furnished to Aguimatang's attorney.
The mere fact that somebody in the State Lottery wrote the transaction number of the missing ticket on the request for adjustment — without more —
Nonetheless, the presence of the number of the missing winning ticket on the request for adjustment undeniably tenders the possibility that someone in the State Lottery thought the request for adjustment embraced the missing winning ticket. If so, why? Might the retailer have indicated an incorrect time on the request for adjustment, so that, in fact, it referred to the transaction occurring at 3:43 p.m.? The situation is like that encountered by Sherlock Holmes, when he examined a note that was undated, and without either signature or address. Asked by Dr. Watson what the note meant, Holmes responded, "I have no data yet. It is a capital mistake to theorise before one has data. Insensibly one begins to twist facts to suit theories instead of theories to suit facts." (Doyle, A Scandal in Bohemia, in 1 Baring-Gould, The Ann. Sherlock Holmes (2d ed 1970) pp. 350-351.)
More data is what appellants sought. At the hearing on the motion for summary judgment, Aguimatang's attorney sought a continuance to allow the taking of depositions of State Lottery officials, scheduled for that very day, designed to pursue the issue. The trial court denied the motion erroneously concluding it was immaterial whether a valid fourth ticket issued. We conclude the trial court abused its discretion in denying the motion for a continuance.
Code of Civil Procedure section 437c, subdivision (h), provides: "If it appears from the affidavits submitted in opposition to a motion for summary judgment ... that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just."
The judgment is reversed and the matter remanded for proceedings consistent with this opinion. The parties will bear their own costs on appeal.
Carr, Acting P.J., and Nicholson, J., concurred.
Petitions for a rehearing were denied October 21, 1991, and the petition of appellant Arnulfo Melgar Chanquin for review by the Supreme Court was denied January 15, 1992.
In opposing summary judgment, both Aguimatang and Chanquin disputed the State Lottery's factual assertion that "The general public was specifically informed that all payouts on Lotto 6/49 tickets were made on a pari-mutuel basis." This assertion was partially inaccurate, because small prizes are not paid on a pari-mutuel basis. Thus, it is apparent from the evidence cited by Chanquin that his dispute relates only to the immaterial fact that players who match "3 of 6" winning numbers do not share on a pari-mutuel basis but receive a set prize of $5. The "3 of 6" prize category is not at issue in this case.
The evidence before the trial court included the "play slip" on which players make their selections, and which both Aguimatang and Chanquin assert is part of their contract with the State Lottery. The play slip clearly stated that, other than the $5 prizes, "all other payouts are calculated by a parimutuel formula." While on the one hand asserting the play slip as part of his contract, Aguimatang nevertheless disputed the State Lottery's factual assertion of pari-mutuel prize division with the irrelevant statement, unsupported by any citation of evidence, that "The DEFENDANTS' advertising did not make it clear that parimutuel betting was involved."
We deny Chanquin's request that we take judicial notice of the State Lottery's appellate brief in the Horan appeal.
We deny Chanquin's request for judicial notice of Ohio cases identified only by court docket number.
Chanquin cites a letter from the State Lottery's legislative liaison to the Senate Governmental Organization Committee explaining the reason for the amendment of section 8880.32, subdivision (c), was because disputes between two or more holders of a single ticket should be decided by the courts.
However, even assuming for the sake of argument the letter constitutes properly cognizable legislative history, the letter merely supports the conclusion, evident from the statutory language itself, that former section 8880.32, subdivision (c), referred to the inapposite situation of disputes between competing claimants under a single ticket.
The lottery rules and regulations are exempt from the Administrative Procedure Act (§ 8880.26), and so do not appear in the California Code of Regulations.
"[O]n more than one occasion from the time I started to sell Lotto 6/49 tickets, up to and including January 17, 1987, my cash drawer where we place money from Lotto 6/49 sales has been different from what the terminal indicated had been sold on a particular day. Sales are made by me and my employee MEI HUA CHU who is assigned that duty regularly.
"The cash drawer occasionally contained more and occasionally less money than our terminal indicated should have been in the drawer based upon sales of tickets for each day, because of sometimes maybe wrong change on merchandise purchases."
Lee then recounts his own failure to follow State Lottery procedures in that he sometimes reported "cancellation" late or not at all. "On occasion we were unable to complete the `cancellation' process through the terminal." On other occasions, Lee paid claims even though the customer had no ticket and gave a refund for an unreadable ticket the day after the sale, then reported the cancellation to the State Lottery the following day. There were instances in which Lee never reported misprinted tickets but refunded the player's money and paid for the ticket out of Lee's own pocket in order to keep his report to the Lottery correct.
As to the critical date of January 17, 1987, Lee declared: "I recall the $5.00 refund/adjustment I requested of the CSL for the day of the Saturday, January 17, 1987 drawing. I remember specifically because the ERRORS committed by the TERMINAL occurred on the DAY OF THE DRAW. Although I requested an adjustment of only $5.00.
I know that the number of TICKETS which were actually ENTERED into the terminal but which were NOT SOLD (and thrown away) totalled more than FIVE. I have struck out the above because I don't recall if there were more.
"The day of January 17, 1987 draw was a very busy day of sales of Lotto 6/49 tickets.  MEI had a lot of problems with the TERMINAL on many days. IT MISPRINTED, DOUBLE PRINTED, AND TICKETS FAILED TO COME OUT OF THE TERMINAL."