Russell Branton, Inc. v. Castle

Filed 11/21/08 Russell Branton, Inc. v. Castle CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. William Burby, Judge. (Retired judge of the Los Angeles Super. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.

Stanley W. Hodge and Arshak Bartoumian for Defendant and Appellant.

Mohajerian Law Corporation, Al Mohajerian and Michael T. Smith for Plaintiff and Respondent.

1. Introduction

Russell Branton, Inc., doing business as RBI Framing (RBI), sued its employee, Gerald Castle, for fraud, breach of contract, and related causes of action. After a jury trial and posttrial motions, the court entered judgment in favor of RBI in the amount of $656,012.88, including punitive damages, attorneys fees, and costs.

Castle now appeals. We affirm the judgment on the merits and based on the inadequacy of Castles appellate brief.

2. Factual and Procedural Summary

As discussed more fully below, Castles appellate brief does not comply with California Rules of Court, rule 8.204 in that he makes no effort to support his factual statements with references to the record. For that reason, we generally adopt RBIs factual recitation as supported by its proper citations to the record.

In November 2002, RBI hired Castle to act as president of its field operations. As part of Castles employment compensation, RBI agreed to loan him about $50,000^[1]for the purchase of residential real property located in Apple Valley. The property was to be occupied by Castle but held in trust by him for RBI, subject to various terms and conditions.

Apparently Castle purchased the property in the name of his daughter instead of in his name in trust for RBI. Furthermore, Castle breached his employment agreement by converting other company assets for personal use. These included unauthorized credit card charges of $2,992.50 and another $30,000 worth of stolen labor and materials.

The damages awarded by the jury included $7,000 for intentional misrepresentation; $8,000 for concealment; $30,000 for conversion (reduced from $261,608.77); $15,000 for negligent misrepresentation; $48,391.23 for breach of contract; $2,992.50 for money had and received; and $104,000 for punitive damages. The court awarded additional damages of $310,000 for fraud, $144,687.50 for attorneys fees, and $15,941.65 for costs.^[2]

3. The Sufficiency of Evidence Claims

As a preliminary matter, we note Castles opening brief is seriously deficient. (Pierotti v. Torian (2000) 81 Cal.App.4th 17, 29-30.) The clerks transcript is five volumes and almost 1,200 pages and the reporters transcript is five volumes and about 1,300 pages. The statement of the case is more than three pages long but it offers nothing except a chronological description of the documents in the clerks transcript, the same information as is available from the chronological index.

Although Castle bases many of his appellate arguments on the sufficiency of the evidence, he does not supply the court with an appropriate statement of facts. The so-called statement of facts is only one and one-half pages. It does not [p]rovide a summary of the significant facts limited to matters in the record. (Cal. Rules of Court, rule 8.204(a)(2)(C).) The statement of facts begins with a paragraph of legal argument, the meaning of which is not easily comprehended. It then proceeds to make factual assertions without any supporting record citations. It migrates into a description of the jury verdict and various court rulings. It contains a single citation to the record, a mere mention of the third amended complaint.

We summarily reject appellants contentions based on lack of substantial evidence because Castles opening appellate brief contains no summary of material facts bearing on those issues involving questions of fact: Statements of fact that are not supported by references to the record are disregarded by the reviewing court. (McOwen v. Grossman (2007) 153 Cal.App.4th 937, 947, citing Yeboah v. Progeny Ventures, Inc. (2005) 128 Cal.App.4th 443, 451.) Castles omission prevents this court from considering the contentions unless we ourselves search the record for error. That we will not do. (Margott v. Gem Properties, Inc. (1973) 34 Cal.App.3d 849, 853, citing McKeon v. Santa Claus of California, Inc. (1964) 230 Cal.App.2d 359, 362.)

For the foregoing reasons, we decline to consider Castles following contentions: that there was insufficient evidence to support the damages award of $261,608.77 for conversion;^[3]that there was insufficient evidence to support a jury verdict for breach of contract; that all the damages assessed by the jury, including punitive damages, were not supported by substantial evidence.

4. Unlawful Contract

Castle assays a legal argument that the employment contract with RBI was illegal under Labor Code sections 206.5, 221, and 2855.

Labor Code section 2855 provides a seven-year limit to enforce an employment contract to render personal service . . . of a special, unique, unusual, extraordinary, or intellectual character, which gives it peculiar value and the loss of which can not be reasonably or adequately compensated in damages in an action at law . . . . (Foxx v. Williams (1966) 244 Cal.App.2d 223, 239-243 [the seven-year statute applied to Redd Foxx, the comedian and recording artist].)

The employment agreement in the present case provided for a 15-year term, subject to earlier termination. At the end of the 15 years, if not before, it was contemplated that title in the Apple Valley property would vest in Castle.

It is doubtful that the RBI employment agreement qualifies as a personal-services agreement under Labor Code section 2855, which generally applies to actors and other performers. (De Haviland v. Warner Bros. Pictures (1944) 67 Cal.App.2d 225.) In any case, the action brought by RBI was within the statutes seven-year time limit for enforcement of a personal-services contract. Castles contract began in November 2002 and the lawsuit was filed in October 2004. Therefore, RBIs claims based on the contract were not barred by Labor Code section 2855.

Labor Code section 221 also does not apply in the present circumstances. That code section provides: It shall be unlawful for any employer to collect or receive from an employee any part of wages theretofore paid by said employer to said employee. Castle interprets what occurred as allowing for a forfeiture of Mr. Castles wages already paid to him, i.e., $48,000.00, by requiring he forfeit his home should he breach his duties under the contract. But the $48,391.23 was a loan to Castle, not wages. Because Castle breached his contract with RBI, RBI was entitled to be repaid its loan.

Similarly, Labor Code 206.5,^[4]also concerning wages, does not bar RBIs claim for breach of contract against Castle. We acknowledge Castles related argument, based on Business and Professions Code section 17000 et seq. and Labor Code sections 407 and 450, but we deem it too incoherent for consideration. Castle offers no intelligible analysis and cites no evidence to show there was a violation of these statutes. Castles effort to argue the subject employment agreement was unconscionable suffers from a similar absence of appropriate legal analysis applied to identified facts.

5. Punitive Damages

Because he has not supplied citations to the record supporting his assertions, we disregard Castles factual arguments regarding the punitive damages award of $104,000. (Zainudin v. Meizel (1953) 119 Cal.App.2d 265, 271.) We briefly consider the legal validity of the award based on the information provided by RBI.

The jury awarded RBI $45,000 in damages for conversion ($30,000), intentional misrepresentation ($7,000), and concealment ($8,000). Castles yearly salary was $104,000. The latter figure was apparently the basis for the award of punitive damages, which is 2.3 times the compensatory damages. In this instance the ratio of punitive damages to actual harm is not significant enough to violate due process. (Simon v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159, 1181-1183.)

6. Other Issues

Castles argument about being denied the right to a jury trial is almost impossible to understand. It apparently was copied verbatim from his motion for new trial. We conjecture Castle means the court should not have awarded RBI additional damages of $310,000 for fraud based on the loss of the benefit of the bargain. (CACI No. 1944). Castle offers no citation to the record and no legal analysis, making it impossible for us to review his contentions.

In another argument, again copied almost verbatim from his new trial motion, Castle argues RBI made an election of remedies between contract and tort for recovery of damages. Again, Castle fails to offer supporting evidence and pertinent legal analysis.

RBI, however, has offered factual citations to the record that show Castle was paying RBI employees to work on a non-work-related structure and Castle was paid a $25,000 bonus and extra amounts of about $7,000. Other RBI employees were paid to work on Castles residence. These facts reasonably supported the awards for $7,000, $8,000, and $15,000 for intentional misrepresentation, concealment, and negligent misrepresentation: It is well settled that damages are excessive only where the recovery is so grossly disproportionate to the injury that the award may be presumed to have been the result of passion or prejudice. (Fortman v. Hemco, Inc. (1989) 211 Cal.App.3d 241, 259.)

As previously noted, the evidence and the law also supported the $310,000 damages award by the court for fraud in addition to the jury award of $48,391.23 for breach of contract. (Salahutdin v. Valley of Cal. (1994) 24 Cal.App.4th 555, 567-568.) The value of the Apple Valley property was $310,000 in July 2004 when RBI discovered Castles fraud. In his role as fiduciary and trustee of the Apple Valley property, Castle was liable to RBI for the value of the property in addition to being liable for the loan to buy the property. (Moeller v. Superior Court (1997) 16 Cal.4th 1124, 1133-1134.)

7. Disposition

We affirm the judgment. RBI, as the prevailing party, is entitled to recover its costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/McKinster

Acting P. J.

s/King

J.

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^[1] The actual sum was $48,391.23.

^[2] As we read the record, by our calculation, the total amount of the judgment should have been $686,012.88, $30,000 more than stated in the judgment. There is some confusion, however, in the record about the amounts of the damages for each of the causes of action. We have tried to represent the damages as accurately as possible.

^[3] As noted, the conversion award was actually $30,000.

^[4] No employer shall require the execution of any release of any claim or right on account of wages due, or to become due, or made as an advance on wages to be earned, unless payment of such wages has been made. Any release required or executed in violation of the provisions of this section shall be null and void as between the employer and the employee and the violation of the provisions of this section shall be a misdemeanor.