Filed 9/24/26 Reich v. Hashem CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
JACOB REICH, B322326
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. 19STCV20062
v.
MANSOUR HASHEM,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Jon R. Takasugi, Judge. Affirmed.
Louis P. Dell for Plaintiff and Respondent.
Jeff Dominic Price for Defendant and Appellant.
____________________
Jacob Reich and Mansour Hashem agreed to improve a
property owned by Reich and to share the profits. Hashem did
not fulfill his part of the bargain, and a jury awarded Reich
damages. We affirm the jury’s results, as well as the trial court’s
decision not to disturb those results.
I
We construe facts in the light favorable to the judgment.
(David v. Hernandez (2014) 226 Cal.App.4th 578, 581.)
In 2018, Reich and Hashem made an oral agreement about
the Atlanta Drive property Reich owned. As contractor, Hashem
would improve the property so it could be sold for gain. Reich
would fund the improvements.
The deal required Hashem to pay Reich half the costs of the
improvements and half the value of the property by February
2019. The property value would be the amount of a purchase
offer Reich had declined at Hashem’s behest, minus the value of
the property as of February 2019. Reich and Hashem would then
be equal co-owners of the property. They expected Hashem’s
improvements would allow them to sell the property for more
than the declined offer. The two planned to divide the proceeds
from this anticipated sale.
Later that year, Reich wanted to memorialize the
agreement, so the men wrote down the monetary terms and
signed a one-page document. It included the amount of the
declined purchase offer, how Hashem’s eventual payment was to
be calculated, and how he would obtain the funds to pay it.
Hashem botched the job. His concrete deck collapsed, and
making things right would cost over $300,000. Hashem also
refused to make his contractual payments.
Reich sued Hashem. The operative complaint is the third
amended complaint, filed April 12, 2021.
No reporter transcribed the trial testimony.
The parties created daily joint summaries of the trial
evidence. Each daily summary was a few pages long. The record
includes summaries for the following trial days:
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1. March 22, 2022
2. March 23 (incorrectly dated March 24, but continues
where March 22 left off and leaves off where the
following March 24 continues)
3. March 24
4. March 27
Excluding cover pages, our record contains about eight
pages of notes describing the testimony given and listing the
exhibits admitted.
The final settled statement provided for the record in this
appeal includes these daily joint summaries, but no other
recitation of findings of fact.
According to the “Agreed and Contested Jury Instructions”,
the parties agreed on almost all the jury instructions before trial.
The parties’ stipulations revised the special verdict forms into a
single form.
The jury found for Reich, delivering a special verdict that a
contract was formed, that Hashem had breached it, and that
specified the damages Hashem owed Reich.
Hashem moved for a new trial or a judgment
notwithstanding the verdict. The trial court denied this motion.
Hashem appeals this ruling.
II
We address Hashem’s requests for a new trial and for
judgment notwithstanding the verdict. The two standards of
review vary slightly.
A
Motions for a new trial based on insufficiency of the
evidence are within the sound discretion of the trial court. We
review the trial court’s fact finding for substantial evidence, while
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we independently review conclusions of law. (Hernandez, supra,
226 Cal.App.4th at p. 589.)
The trial court succinctly explained the verdict’s sound
logic.
“First, the damages awarded for breach of contract are
adequately supported by evidence and law. Defendant argues
that the jurors failed to follow the proper measure of damages
here because the jury verdict is in excess of the purchase price as
provided for in the agreement, and failed to take the value of the
real property retained by the seller as an offset. However, the
Joint Jury Instruction No. 3903 clearly set forth the formula for
how the jurors were to calculate contract damages: [($620,000 +
all expenses paid on the property from 7/1/2018-2/15/2019) – the
fair market value of the property on 2/15/2019] / 2. Plaintiff
introduced evidence to argue $117,281.08 in corrective expenses,
and an appraiser was called as an expert witness to testify as to
the value of the property. The appraiser testified that the value
of the property on 2/15/2019 was $477,000.00. Accordingly,
Plaintiff introduced evidence which could show that he was
entitled to, at most, $130,140.54 (($620,000 + 117,281.08 -
477,000)/2.) Jurors awarded $117,281.08. As such, the evidence
indicates that jurors followed the Joint Jury Instruction in
calculating damages, and awarded an amount that was within
the range supported by evidence.”
“Second […] the damages awarded for negligent
construction and unpaid loans were similarly supported by
adequate evidence. As for the [negligent construction], Plaintiff
introduced a number of photo exhibits to show the construction
damage to the home, introduced evidence that he had already
incurred $81,430.16 in repair costs, and called an expert witness
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that testified that the cost of remaining repairs would total
$309,096. As such, the jury’s award of 390,526.86 ($309,096 +
$81,430.16) is supported by adequate evidence. As for the
[unpaid loans], Plaintiff testified that he lent a total of $35,000,
and introduced nine checks into evidence that totaled $34,200.00.
The [jury] awarded $34,200, and thus the Court finds that award
supported by adequate evidence.”
The trial court’s analysis includes one mistake in the
numbers – the jury actually awarded a smaller amount for the
negligent construction – but this mistake was inconsequential
because the jury’s award was within the range supported by the
evidence. The trial court had a firm grip on the case and
convincingly explained the evidentiary basis for the jury’s
rational action. This is model trial court decisionmaking.
B
The moving party may appeal from the judgment or from
the order denying the motion for judgment notwithstanding the
verdict, or both. (Code Civ. Proc., § 904.1, subd. (a)(4) [making
such an order appealable].) The standard of review is whether
substantial evidence supported the jury’s conclusion. (Sweatman
v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.)
As we have seen, substantial evidence supported the jury’s
findings. Hashem disputes this evidence, which on appeal is a
vain effort. The jury was entitled to believe Reich’s proof. (Cf.
Estate of Fain (1999) 75 Cal.App.4th 973, 992 [we presume the
judgment is correct when there is no reporter's transcript and no
error is apparent on the face of the record].)
C
Hashem also faults the jury instructions and the special
verdict form. As stated, the parties agreed on almost all the jury
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instructions, including those Hashem now challenges, before the
trial. The trial court also memorialized the fact the parties
reached an agreement as to the final form of the jury instructions
and the special verdict form before these were given to the jury.
Hashem’s first claim on this subject is that jury instruction
CACI 328, “Breach of Implied Duty to Perform with Reasonable
Care –– Essential Factual Elements” was misleading and
prejudicial. The instruction as given read, in part, “The parties’
contract requires that Mansour Hashem negligently constructed
a deck on the Atlanta Dr. property.” We read this language
together with the rest of the instruction. It goes on to say Reich
“claims Mansour Hashem breached this implied condition” and
describe the elements required to establish the claim, including
that Reich must establish the parties entered into a contract at
all.
Hashem’s second jury instruction claim is the jury received
the wrong instruction concerning how to assess damages for
Hashem’s negligent construction of the deck which collapsed. He
says that the correct instruction would have been CACI 354,
“Owner’s/Lessee’s Damages for Breach of Contract to Construct
Improvements on Real Property”, which provides that to recover
damages for breach of a contract to construct improvements on
real property, the plaintiff must prove the reasonable cost to
plaintiff of completing the work. Reich did provide evidence of
this cost: as noted in our description of the facts, an expert
witness opined it would cost over $300,000 to remove and
properly replace the collapsed deck.
There is no indication Hashem objected to any of these
instructions at trial. It appears he agreed to all of them.
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To simplify matters, however, we will assume there was
legal error in the instructions. Even so, there was no miscarriage
of justice. The jury found contracts existed, found Hashem had
breached them, and specified the resulting damages. This was an
eminently sensible result. There was no prejudice.
Regarding the special verdict form, Hashem asserts it
lacked specificity as to the findings necessary to support the
judgment.
Hashem tells us this form was insufficiently specific. Now
he claims it should have required more findings. Hashem,
however, forfeited this argument by agreeing to this verdict form
in the trial court. (E.g., Behr v. Redmond (2011) 193 Cal.App.4th
517, 529–530.)
D
Hashem’s final contention is the judgment must be
reversed as to the claim for negligent construction because that
claim was subject to a demurrer for failure to state facts in the
operative complaint sufficient to support the claim. He
acknowledges he did not demur at the trial court, but says he
need not have demurred because “[t]he objection that a complaint
does not state facts sufficient to constitute a cause of action may
be raised at any stage of the proceedings and, even for the first
time on appeal.” (McAllister v. County of Monterey (2007) 147
Cal.App.4th 253, 283 (McAllister).)
Hashem’s briefing cites the fact McAllister quotes here
from Horacek v. Smith (1948) 33 Cal.2d 186, 191 (Horacek).
Horacek goes on to note that, because material facts may be
alleged on information and belief, any failure more specifically to
state the circumstances is one of uncertainty or ambiguity that
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could have been cured if brought to the trial court’s attention. “In
the absence of a demurrer, such a defect is waived.” (Ibid.)
Had Hashem demurred to the cause of action for
negligence, Reich would have had the opportunity to correct
pleading deficiencies. Hashem cannot wait until after trial to
attack the pleadings. This conduct forfeits this argument.
DISPOSITION
We affirm the order and award costs to Reich.
WILEY, ACTING P. J.
We concur:
VIRAMONTES, J.
SCHERB, J.
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