Boladian v. Lopez

Filed 9/24/08 Boladian v. Lopez CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. William F. Highberger, Judge. Affirmed.

Maynard J. Klein for Plaintiff and Appellant and Defendant, Cross-complainant and Appellant.

No appearance for Defendants, Cross-defendants and Respondents.

_____

This dispute began as a partition action of commercial property operated as a used car lot, title to which was held by Pierre Boladian, Guillermo Ocampo, Angelica Lerma, and Laura Cortez. After the property was sold to a third party, the entitlement to approximately $176,000 in net proceeds from the sale of the property came before the court. The trial court awarded Boladian a 25 percent interest in the proceeds, rejecting his claim that there was a drafting mistake in a deed and that he and his grantor, Francisco Lopez, intended that Boladian receive a 50 percent interest in the property. On appeal from the judgment, Boladian challenges the trial courts rejection of his reformation claim. Boladian and Lopez also challenge the trial courts denial of a credit of $63,715 for a mortgage payment. We affirm the judgment because appellants contentions are essentially challenges to the sufficiency of the evidence, and the evidence is sufficient to support the judgment.

BACKGROUND^[1]

The trial courts judgment was based on the terms of three grant deeds conveying interests in the car lot: (1) In April 2004, Richard and Melody Ferber conveyed by grant deed an undivided one-half interest in the car lot to each Lopez and Ocampo. (2) On November 4, 2004, a grant deed was recorded by which Lopez conveyed his half-interest in the car lot to Ocampo, a single man as to an undivided one-half interest and Pierre Boladian, a single man, as to an undivided one-half interest. (3) On November 15, 2004, Ocampo executed a grant deed, later recorded, conveying to . . . Lerma . . . as to an undivided 32.5% of grantors 75% interest and . . . Cortez . . . as to an undivided 32.5% interest of grantors 75% interest in the car lot.

Boladian and Lopez testified that an escrow officer drafted Lopezs grant deed and mistakenly used language in the deed which did not reflect their intent, which was that Boladian was to receive Lopezs entire one-half interest in the property. The trial court found that the testimony of all of the key witnesses, including the testimony about the alleged mistake in Lopezs grant deed to Boladian, was not credible and not worthy of forming a basis for any judicial ruling in favor of anybody who needed to depend in whole or in part on the testimony of any of these witnesses. The court rejected all parties claims for reformation of the deeds and all requests for credits for alleged advances or payments in connection with the property.

The court awarded the net proceeds to Boladian, Ocampo, Lerma, and Cortez according to their respective interests in the property as reflected by the terms of the foregoing three grant deeds. Boladian received a 25 percent interest in the proceeds. Boladian and Lopez, who were represented at trial by the same attorney, appealed from the judgment.

DISCUSSION

Boladian contends that the trial court acted arbitrarily and unreasonably in making its credibility determinations and in rejecting Boladians reformation claim because the testimony was undisputed that Ocampo gave no consideration for the Lopez grant deed, that Lopez and Boladian did not intend to make a gift to Ocampo, and that Boladian and Lopez agreed that Boladian would receive Lopezs entire one-half interest in the car lot. We disagree.

The trial court could have reasonably rejected the parties testimony. In the middle of the trial, the court remarked, The more I hear the more confused I get . . . . None of it makes sense. Toward the end of the trial, in overruling an objection to a witnesss testimony about an oral agreement pertaining to real property, the trial court acknowledged that such testimony would violate the statute of frauds but nevertheless admitted the evidence because the court was trying to get such scraps of information as I can get to understand these, otherwise economically, illogical and essentially unbelievable transfers. During closing arguments, the attorney for Lerma and Cortez stated that the testimony indicated that there were agreements among the parties that did not come out in the testimony. The court responded, Since the testimony doesnt offer a logical explanation, one would hope that there was some rationality of what was going on, but you wouldnt know it from this record.

With respect to the parties credibility, the court stated, For various reasons, I found Mr. Lopez and Mr. Boladian and Miss Cortez to each be . . . unpersuasive in part because their testimony did not appear to make sense. In part based on demeanor observation. In part based on the apparent inconsistency of what they were saying with other evidence before the court. On the instant record, the trial courts explanation for finding the parties not to be credible is reasonable.

Boladian also contends that the trial court erred in denying his motion for summary adjudication of the reformation claim because Ocampo, Lerma and Cortez did not raise any material dispute of fact in opposition. But this claim is not cognizable after an error-free trial on the merits. (Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 836 [review of ruling denying summary judgment is inappropriate after a trial on the merits free from prejudicial error].)

We reject Boladians claim that the court erred in failing to award him a $63,715 credit. For the reasons explained above, the trial court was entitled to reject Boladians testimony. There were numerous disputes in the evidence about the nature of the transaction, with Boladian testifying that the $63,715 came from one of his bank accounts, and with Lopez testifying that Boladian made the payment on Lopezs behalf, and Lopez gave Boladian sort of like a promissory note to repay the money to Boladian. The court commented during closing arguments, I dont believe Mr. Boladian or Mr. Lopez.

Boladian also contends that he is entitled to the credit from Cortezs and Lermas shares of the proceeds by virtue of a stipulation, at the start of trial, by the attorney for Cortez and Lerma, who offered to stipulate that Boladian was entitled to the credit. But Boladians attorney did not respond to the offer. And neither the attorney for Ocampo nor the court accepted the stipulation. After Ocampo testified, the court asked Boladian to put on his next witness. Boladians attorney stated that, in view of what Mr. Fleishman [attorney for Cortez and Lerma] was stipulating to, I may not, I dont think I need to call [Cortez and Lerma], Ill call Francisco Lopez. Thereafter, the issue of Boladians entitlement to the credit was litigated and presented to the court for adjudication. Boladian did not request that the court accept the stipulation or base its ruling on it, and the court rejected Boladians request for the credit.^[2]

Finally, Boladian and Lopez argue that if Boladian is not entitled to the credit, then Lopez is. But Lopezs entitlement to a credit was not raised below and the issue cannot be presented for the first time on appeal.^[3]

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

MALLANO, P. J.

We concur:

ROTHSCHILD, J. HASTINGS, J.^*

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^[1]We grant appellants request under California Rules of Court, rule 8.224, for permission to transmit copies of the trial exhibits to the Court of Appeal.

^[2]During closing argument, Ocampos attorney argued that Boladian can recover his $63,715 from Lopez. Ocampos attorney claimed that Lopez admitted he executed a promissory note in that amount payable to Boladian. After the court indicated it was inclined to rule against Boladian on the credit issue, Boladians attorney stated, And if your Honor is halfway inclined to award those other parties moneys and make Mr. Boladian file a lawsuit against Mr. Lopez, then, your Honor, I request to reopen the case. . . . The court denied the request.

^[3]At the conclusion of trial, Lopezs attorney told that court that Lopezs cross-complaint sought essentially two things. It join[ed] Mr. Boladian in seeking reformation based on grounds of mistake. It also alleged a theory by which . . . Mr. Lopez had a 50 percent equitable interest in the property as against Mr. Ocampo, Miss Lerma and Miss Cortez, and we are not pursuing that aspect of the case.

^*Retired Associate Justice of the Court of Appeal, Second Appellate District, Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.