Oh v. Kiemm

Filed 10/1/08 Oh v. Kiemm 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, Mary Fingal Schulte, Judge. Affirmed.

Simon H. Langer for Cross-complainant and Appellant.

Tomas W. Gillen for Cross-defendant and Respondent.

* * *

At a bench trial, cross-complainant Kyung Sik Oh obtained a $16,000 judgment against cross-defendant Kenneth Kiemm. Cross-complainant appeals, contending uncontradicted evidence showed his damages exceeded $1 million. But the court did not abuse its discretion by discrediting his conclusory testimony, which his documentary evidence did not support. We affirm.

FACTS

Cross-complainant alleged he paid just over $1 million to cross-defendant to buy a private college in Anaheim.[1] He asserted causes of action against cross-defendant for fraud, negligent misrepresentation, money had and received, and promissory estoppel.

Cross-complainant was the only witness at the afternoon-long trial. He testified he paid $300,000 for 25 percent of the colleges stock, but received no shares. He later paid $250,000 for another 25 percent interest in the college, and then $400,000 for the remaining 50 percent interest. He also paid some additional amounts. But he never received any stock.

Cross-complainant offered a payment summary listing dates, amounts, and notations indicating he paid more than $1 million to cross-defendant. The summary attached copies of cancelled checks, receipts handwritten in Korean, and other documents. Cross-defendant objected, but stated no legal ground for the objection. The court admitted the summary into evidence.

The court entered judgment for cross-defendant on the causes of action for fraud, negligent misrepresentation, and promissory estoppel. It noted, The allegations in the cross-complaint are quite detailed, and not borne out either in the testimony or in the exhibits carefully read by the Court.

The court entered judgment for cross-complainant on the count for money had and received. It noted the payment summary attached two checks payable to cross-defendant, one for $10,000 and one for $6,000. It stated cross-complainant testified he gave this money to Mr. Kiemm in exchange for stocks that he never received. This is enough for the common count.

DISCUSSION

Cross-complainant contends the court had to award him more than $1 million because his testimony and the payment summary were uncontradicted at trial. He relies upon Lujan v. Minagar (2004) 124 Cal.App.4th 1040, 1046 (Lujan): A court may not disregard or reject the uncontradicted and undisputed testimony of a witness unless that testimony is inherently improbable or other circumstances such as the witnesss demeanor, bias, or motives, create a logical basis for doing so.

Lujans limitation dooms cross-complainants claim. The court may reject uncontradicted testimony when circumstances create a logical basis for doing so. (Lujan, supra,124 Cal.App.4th at p. 1046.) Cross-complainant concedes as long as the trier of fact does not act arbitrarily and has a rational ground for doing so, it may reject the testimony of a witness even though the witness is uncontradicted. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204 (Beck).) Beck further instructs, the testimony of a witness which has been rejected by the trier of fact cannot be credited on appeal unless, in view of the whole record, it is clear, positive, and of such a nature that it cannot rationally be disbelieved. (Ibid.)

Cross-complainants testimony was not so clear [and] positive . . . that it cannot rationally be disbelieved. (Beck, supra,44 Cal.App.4th at p. 1204.) His testimony was conclusory and fleeting, comprising little more than a blanket endorsement of the payment summary. And the payment summarys attachments rendered it dubious. Most of the checks were not payable to cross-defendant.[2] Some of the attached checks were not drawn on cross-complainants account. Cross-complainant offered no coherent explanation for these discrepancies. The receipts were handwritten in Korean with no certified translation. Only two attachments have any connection to this case on their face  the $10,000 and $6,000 checks upon which the court relied.[3] These checks were the only ones drawn on cross-complainants account and made payable to cross-defendant. The court acted logically, rationally, and not arbitrarily by limiting cross-complainants damages to the $16,000 supported by his documentary evidence.[4] (Ibid.; see also Lujan, supra, 124 Cal.App.4th at p. 1046.)

DISPOSITION

The judgment is affirmed. Cross-defendant shall recover his costs on appeal.

IKOLA, J.

WE CONCUR:

MOORE, ACTING P. J.

ARONSON, J.

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[1] The court precluded cross-defendant from introducing evidence on his complaint because he did not answer discovery requests, and dismissed the complaint. Cross-defendant does not appeal from the dismissal.

[2] Some of the checks were made payable to American States College or ASC. At oral argument, cross-complainant contended Kiemm was liable for money had and received by the college because he was its sole shareholder by the facts in evidence at the trial. Cross-complainant cited no such evidence in the record on appeal, nor did he raise any alter ego issue in his appellate briefs. And he did not pursue or prove alter ego below. To the contrary, he testified he did not make any payments for stock to the college: Q: And you paid the money to American States College, not Mr. Kiemm, right? [] A: No. I made a contract with Mr. Kiemm, and I paid the money to Mr. Kiemm.

[3] We deny cross-complainants request in his reply brief to take judicial notice of a purported translation of a transcript of an interview between cross-defendant and local prosecutors in Seoul, Korea. (Cal. Rules of Court, rule 8.252 [request must be made in separate document]; Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 975, fn. 5 [Ordinarily an appellate court will not take judicial notice of matters outside the appellate record]; Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, fn. 7 [court cannot take judicial notice of the truth of hearsay statements in decisions or court files, including . . . affidavits [and] testimony]; Leibert v. Transworld Systems, Inc. (1995) 32 Cal.App.4th 1693, 1700 [no judicial notice of [m]ere secondhand reports of conversations . . . and unauthenticated internal documents].)

[4] Cross-defendant contends insufficient evidence supports the $16,000 judgment, but he cannot obtain affirmative relief because he did not appeal. (Building Industry Assn. v. City of Oceanside (1994) 27 Cal.App.4th 744, 758, fn. 9.)