Filed 10/8/26 Alcantar v. Rotondo CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
TRACY ALCANTAR et al., B338788
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. Nos.
v. 19LBCV00214,
20LBCV00030)
EUGENE ROTONDO et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Mark C. Kim, Judge. Affirmed.
Law Office of Richard J. Foster and Richard James Foster
for Defendants and Appellants.
Law Office of Jerry L. Steering, Brenton W. Aitken Hands
and Jerry L. Steering for Plaintiffs and Respondents.
______________________________
Defendants and appellants Eugene Rotondo (Rotondo),
Timothy Moriarty (Moriarty), James A. Wieser (Wieser), Jerome
Chiaro (Chiaro), and Donalde Heckman (Heckman) (collectively,
defendants) appeal from a judgment following a bench trial
awarding plaintiffs and respondents Tracy Alcantar (Alcantar)
and Aristides Gascon (Gascon) (collectively, plaintiffs) $750,000
in damages. Defendants contend that the damages award is not
supported by substantial evidence. We affirm.
BACKGROUND
The Acapulco Inn Bar and Restaurant (Acapulco Inn) in
Long Beach was the sole asset of Acapulco Inn Holdings, LLC
(AIH). A dispute arose among the parties concerning ownership
of AIH. Following an evidentiary hearing in 2023, the trial court
ruled that, as of 2013, Alcantar and Gascon each owned
45 percent of AIH and Heckman owned 10 percent. The court
further found that, as of 2013, neither Rotondo nor Moriarty had
an ownership interest in AIH, and that Wieser had never owned
an interest in AIH.
In April 2024, the trial court conducted a bench trial on the
remaining claims between the parties. Plaintiffs pursued causes
of action against defendants for “tortious interference with
prospective business advantage, conversion, conspiracy, trespass
to chattels, fraud, civil theft, and abuse of process.” The court
found that plaintiffs had satisfied their burden of proving
conversion, civil theft based on violations of Penal Code section
496, and conspiracy.
As for damages, the trial court explained: “In 2014,
Acapulco Inn was probably worth $800,000 based on the fact
that . . . Heckman was willing to sell his 10 percent interest for
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$80,000. [¶] But from 2014 to 2017, many things happened.
This court has absolutely no idea what was the financial
condition of Acapulco Inn, because the party that was able to
produce the documents to show the condition, the financial
condition of Acapulco Inn, didn’t. [¶] So at this point, the court
has to determine [that] Acapulco Inn . . . lost possession of the
lease, attempted to do a business at another location that lasted
six weeks. [¶] The court finds that based on totality of the
evidence, I’m going to value the Acapulco Inn at $250,000.” The
court further found that plaintiffs were entitled to treble
damages under Penal Code section 496.
On May 6, 2024, the trial court entered judgment in favor
of Alcantar and Gascon against defendants, jointly and severally,
in the amount of $750,000. Defendants timely appealed from the
judgment.
DISCUSSION
Defendants challenge the sufficiency of the evidence
supporting the damages award, contending that no admissible
evidence supports setting the fair market value of the Acapulco
Inn in 2017 at $250,000.1
I. Relevant Law
“ ‘Where the fact of damages is certain, the amount of
damages need not be calculated with absolute certainty.
[Citations.] The law requires only that some reasonable basis of
computation of damages be used, and the damages may be
computed even if the result reached is an approximation.
[Citation.] This is especially true where . . . it is the wrongful
1 Defendants do not challenge the trial court’s trebling of
damages under Penal Code section 496, subdivision (c).
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acts of the defendant that have created the difficulty in proving
the amount of loss of profits [citation] or where it is the wrongful
acts of the defendant that have caused the other party to not
realize a profit to which that party is entitled.’ [Citation.]”
(Sargon Enterprises, Inc. v. University of Southern California
(2012) 55 Cal.4th 747, 774–775 (Sargon).)
II. Standard of Review
We review a damages award for substantial evidence.
(Godfrey v. Oakland Port Services Corp. (2014) 230 Cal.App.4th
1267, 1285.) “Substantial evidence is evidence that is ‘of
ponderable legal significance,’ ‘reasonable in nature, credible, and
of solid value,’ and ‘ “substantial” proof of the essentials which
the law requires in a particular case.’ [Citation.]”
(Conservatorship of O.B. (2020) 9 Cal.5th 989, 1006.) We “do[]
not evaluate the credibility of the witnesses or otherwise reweigh
the evidence. [Citation.] Rather, ‘we defer to the trier of fact on
issues of credibility.’ [Citation.] ‘If the trial court’s resolution of
the factual issue is supported by substantial evidence, it must be
affirmed.’ [Citation.]” (Greisman v. FCA US, LLC (2024)
103 Cal.App.5th 1310, 1322.)
III. Substantial Evidence Supports the Damages Award
The trial court heard the owners’ testimony concerning the
value of the business. Chiaro testified that, before its failure,
AIH was “over a million-dollar business.” Alcantar testified that
AIH “had a minimum value of $800,000, and a maximum value of
$1.3 million.” Defendants concede in their reply brief that
“owners” and “company officers” may express opinions concerning
the value of their property. (See Barragan v. Banco BCH (1986)
188 Cal.App.3d 283, 301–302.)
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The trial court also heard testimony that, in 2014,
Heckman agreed to sell 10 percent of AIH for $80,000 based on
an $800,000 total valuation. This provides some objective
measure for valuing the business as of 2014.
Conversely, the trial court considered evidence that the
business had diminished in value by 2017 and was no longer
worth $800,000 or more. The court considered evidence that the
Acapulco Inn lost the lease for its long-time location and had to
relocate to a nearby location before it closed. The court expressly
found that losing the lease caused the business to lose value,
crediting Rotondo’s testimony on this point.
The trial court discounted the value of the business based
upon other events, noting that “from 2014 to 2017, many things
happened.” The court was not required to identify these “many
things” or provide additional discussion to support its valuation
because neither party requested a statement of decision.
The trial court further discounted the value of the business
based upon plaintiffs’ failure to provide business records to
support Alcantar’s opinion that the business was worth at least
$800,000 in 2017. The court recognized that it may weigh the
evidence based upon which party had the ability to produce
better evidence and failed to do so. The court drew an adverse
inference against plaintiffs because “the party that was able to
produce the documents to show the condition, the financial
condition of Acapulco Inn, didn’t.”
Defendants argue that Alcantar’s testimony about AIH’s
value lacked foundation because plaintiffs did not introduce any
business records at trial. This goes to weight, not admissibility,
because the owner of a business can testify as to its value. At
oral argument, defendants’ counsel argued that the trial court
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rejected Alcantar’s testimony on this issue. In the absence of a
statement of decision, we interpret the court’s comments as
meaning it considered Alcantar’s testimony but did not give it full
weight. (See Flores v. Liu (2021) 60 Cal.App.5th 278, 296 [“[W]e
‘review the record in the light most favorable to the’ verdict,
resolve all conflicts in favor of the verdict, and draw all
reasonable inferences in favor of the verdict”].)
Defendants further argue that the trial court stated it had
“zero evidence” and had to “guess” as to AIH’s value. The court
made these comments during closing argument. “[A] judge’s
comments in oral argument may never be used to impeach the
final order” (Jespersen v. Zubiate-Beauchamp (2003) 114
Cal.App.4th 624, 633 (Jespersen)), especially here, where the
parties discussed the evidence after the court made the
comments.
In sum, there is sufficient substantial evidence to support
the trial court’s finding that the Acapulco Inn was worth
$250,000 in 2017. The court was not required to calculate the
damages “with absolute certainty” and could approximate the
value of the business based upon a reasonable methodology,
which the court employed in this case. (Sargon, supra, 55 Cal.4th
at p. 774.) The court was not required to fully explain its
reasoning or the metrics underlying its decision because
defendants did not request a statement of decision. It does
appear, however, that the court credited plaintiffs’ argument that
defendants’ wrongful conduct rendered a more precise valuation
impossible. (See Zinn v. Ex-Cell-O Corp. (1944) 24 Cal.2d 290,
297–298 [“One whose wrongful conduct has rendered difficult the
ascertainment of the damages cannot escape liability because the
damages could not be measured with exactness”]; Drouet v.
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Moulton (1966) 245 Cal.App.2d 667, 672 [“When a business is
closed or interfered with . . . , it is obvious that profits are being
lost”].)
Having identified substantial evidence to support the
damages award, “it is of no consequence” that other evidence or
inferences drawn from the evidence might have supported a
different finding. (Bowers v. Bernards (1984) 150 Cal.App.3d
870, 874, italics omitted; see also R.D. v. P.M. (2011)
202 Cal.App.4th 181, 190, fn. 9 [“in examining the sufficiency of
the evidence we must disregard the evidence that does not
support the trial court’s express and implied findings”].)
Defendants point to various forms of evidence that might have
been proffered to support a claim for damages, but they fail to
identify any authority showing that such documentary evidence
was required. (See Keyes v. Bowen (2010) 189 Cal.App.4th 647,
655 [“the trial court’s judgment is presumed to be correct, and the
appellant has the burden to prove otherwise by presenting legal
authority on each point made”].) Nor do we attach significance to
comments made by the trial court throughout the proceedings
that were not included in its oral explanation of the damages
award or in the judgment itself. (See Jespersen, supra,
114 Cal.App.4th at p. 633.)
Finally, defendants’ reliance on Resort Video, Ltd. v. Laser
Video, Inc. (1995) 35 Cal.App.4th 1679 is misplaced, as that case
is readily distinguishable. Resort Video affirmed the grant of a
new trial based on excessive damages and, thus, considered
whether the trial court in that case had abused its discretion in
finding a lack of evidence to support the jury’s damages award.
(Id. at pp. 1690–1691, 1696–1701.) Here, we must review the
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damages award in the first instance for substantial evidence,
which we have identified.
DISPOSITION
The judgment is affirmed. Plaintiffs and respondents
Tracy Alcantar and Aristides Gascon are entitled to their costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
GOORVITCH, J.
We concur:
CHAVEZ, Acting P. J.
RICHARDSON, J.
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