Atashi v. Foothill Nissan

Filed 5/5/10 Atashi v. Foothill Nissan CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Stan Blumenfeld, Judge. Affirmed and remanded.

Mgdesyan & Taheripour and Ali Taheripour, for Defendants, Cross-Complainants and Appellants.

The Law Offices of Allen Hyman, Allen Hyman and Christine Coverdale, for Plaintiff, Cross-Defendant and Respondent.

__________________________

Mehrdad Taheripour and Mehran Farhadi appeal from the order granting a new trial to plaintiff and cross-defendant Jobe Atashi after the jury reached what the trial court believed were inconsistent verdicts in this action arising from Atashis agreement to buy a share in Taheripour and Farhadis auto dealership. Because appellants did not provide an adequate appellate record and otherwise failed to show the trial court erred, we affirm and remand for new trial.

FACTS AND PROCEDURAL HISTORY

As best we can tell from the parties briefs and the limited record, Mehrdad Taheripour and Mehran Farhadi owned the Foothill Nissan car dealership. They hired Jobe Atashi to become the dealerships general manager, and then entered a written agreement to sell Atashi a 10 percent interest in the business. When business went bad, Atashi sued for fraud, negligent misrepresentation, and breach of contract. Taheripour and Farhadi cross-complained for breach of contract, alleging that Atashi failed to pay off the promissory notes Atashi signed to cover his purchase of the interest in the business. The case went to trial, and the jury awarded Atashi $280,000 after finding that only Taheripour was liable for both the failure to disclose material facts and for negligent misrepresentation. However, the jury also awarded Taheripour and Farhadi on their cross-complaint a combined $400,000 after finding that Atashi breached his contract by failing to pay off the promissory notes. Judgment on the verdict was entered. Atashi moved for a new trial on the grounds that the verdicts were inconsistent, that there had been misconduct by the jury and by respondents trial counsel, and that improper evidence had been admitted. The trial court granted the motion on the ground the verdicts were inconsistent, and declined to reach the other grounds raised in Atashis motion.[1]

Taheripour and Farhadi appealed that order.[2] They chose to prepare an appellants appendix instead of a clerks transcript that was limited to the parties briefs submitted to the trial court in connection with Atashis new trial motion. They also chose to prepare a reporters transcript that was limited to the hearing on the new trial motion.

DISCUSSION

A new trial may be granted on several grounds, including that a verdict is against the law. (Code Civ. Proc.,  657, subd. (6).) Inconsistent verdicts are against the law and are grounds for a new trial. (Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1344.) We review the trial courts order granting a new trial under the abuse of discretion standard. (Twedt v. Franklin (2003) 109 Cal.App.4th 413, 417.)

The rule against inconsistent verdicts is based on the fundamental proposition that a jury may not make inconsistent factual determinations based on the same evidence. (Cavallaro v. Michelin Tire Corp. (1979) 96 Cal.App.3d 95, 99.) Implicit in this rule, we believe, is the notion that our review of an order granting a new trial due to inconsistent verdicts requires an examination of the evidence at trial. (See Morris v. McCauleys Quality Transmission Service (1976) 60 Cal.App.3d 964, 970-971 [appellate court sets forth in detail, then analyzes, evidence from trial in concluding trial court did not err by granting new trial due to inconsistent verdicts.) Appellants have the burden of affirmatively showing that error occurred by providing an adequate record. We presume the trial courts order is correct, and we indulge all presumptions and intendments to support the order on matters as to which the record is silent. (Santa Clara Environmental Health Assn. v. County of Santa Clara (1985) 173 Cal.App.3d 74, 83-84.)

The record designated by appellants is very nearly silent. It does not include the complaint and cross-complaint, the actual verdict form, the judgment, the order, or a transcript of the trial proceedings and testimony. Instead, appellants designated only their moving and reply papers, and the opposition papers of Atashi, submitted to the trial court as part of Atashis new trial motion. Buried within those documents is a declaration from Atashis trial lawyer claiming that certain attached documents were trial exhibits 3, 4, 5, and 15. Two of those exhibits appear to be the asset purchase agreement and promissory note. The lawyers declaration also included what he claimed was his own personally notated copy of the jurys verdict. Atashi supplemented the record with several other documents, including the judgment and a notice of ruling on the new trial motion.

Despite omitting from the appellate record all of the trial evidence, appellants opening brief on appeal purports to describe portions of the testimony, and then analyze the issues in light of that evidence. Because there is no evidence for us to examine, we presume the record would support the trial courts new trial order, and therefore affirm.[3]

Appellants brief suffers from two other defects that lead us to affirm the new trial order. First, it fails to provide record citations to the many factual and evidentiary assertions set forth in their brief. As a result, their arguments are waived. (Cal. Rules of Court, rule 8.204(a)(1)(C); Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) Second, many of appellants arguments are aimed at the notion that the new trial was granted because of erroneous jury instructions, and appellants incorrectly cite the standard of review applicable when a new trial has been granted on that ground. The apparent source of their confusion is Atashis and the trial courts reference to certain jury instructions when analyzing why the verdicts were inconsistent in light of what the jury must have found pursuant to those instructions. Instructional error was not a ground for Atashis new trial motion, and was not the basis of the trial courts order granting a new trial. Therefore, to the extent appellants base their arguments on that ground, they have failed to address, and therefore waived, the true issue whether the verdicts were inconsistent.[4] (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.)

DISPOSITION

The new trial order is affirmed, and the matter is remanded to the superior court for further proceedings consistent with that order. Respondent Atashi shall recover his appellate costs.

RUBIN, ACTING P. J.

WE CONCUR:

FLIER, J.

LICHTMAN, J.*

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[1] The basis of the trial courts order appears in the notice of ruling prepared by Atashi, which he submitted as part of his respondents appendix. Appellants do not challenge the accuracy of that document.

[2] We refer to Taheripour and Farhadi collectively as appellants.

[3] At oral argument, appellants counsel referred to a declaration from one of the jurors that appellant submitted below in opposition to the new trial motion. In that declaration, the juror asserted that, based on their understanding of the instructions and certain testimony, the jury found a basis for Atashis favorable verdict that was distinct from the reasons the jury found Atashi liable to appellants. Not only was this declaration inadmissible (Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181 Cal.App.4th 1108, 1124, 1125), it does not fill in any of the evidentiary gaps that prevent us from rendering meaningful appellate review.

[4] All three points failure to procure an adequate record, failure to cite to the record, and the inapplicability of the instructional error analysis were raised by Atashi in his respondents brief on appeal. Appellants did not file a reply brief, or otherwise respond to those points. On the day before oral argument, however, appellants filed a motion to augment the record with Atashis second amended complaint. We hereby deny the motion because it was filed at an unreasonable time. (Advisory Com. com., 23 pt. 2 Wests Ann. Codes, Rules (2010 ed.), foll. rule 8.155(a)(1), p. 509.) We also note that had the motion to augment been granted, the numerous other record deficiencies discussed above would have remained.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.