Miranda v. Southland Home Investment

Filed 2/18/10 Miranda v. Southland Home Investment 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Martin A. Hildreth, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.

P. David Cienfuegos for Plaintiffs and Appellants.

Elliott Luchs for Defendants and Respondents.

Maria Miranda, Zulma Miranda and Juan Miranda, plaintiffs and appellants (hereafter plaintiffs), appeal from the judgment in favor of defendants and respondents, Southland Home Investment, Inc. (Southland), Kamiar Karimpour and Mary Shoup^[1](hereafter referred to collectively as defendants or individually by name), following a jury trial in plaintiffs action for damages based on alleged violations of the notice provisions in the home equity sales contract law, Civil Code section 1695 et seq. The jury found that although Southland and Shoup violated that law, plaintiffs did not suffer any damages.

Plaintiffs contend in this appeal that the evidence supports an award of damages as a matter of law. Plaintiffs made this same claim in a motion for judgment notwithstanding the verdict, which the trial court denied after noting that although the jury found liability, they also found that plaintiffs failed to prove damages. Plaintiffs also contend the trial court erred in granting Karimpours motion for nonsuit on plaintiffs allegation that Southland is Karimpours alter ego. We conclude the jurys damage award is supported by substantial evidence. Therefore, we will affirm the judgment and in doing so will not address plaintiffs claim regarding Karimpours personal liability.

FACTUAL AND PROCEDURAL BACKGROUND

The pertinent facts are undisputed. Plaintiffs home was in foreclosure and noticed for nonjudicial foreclosure sale. According to the notice of trustees sale, plaintiffs owed $122,409.98, a figure comprised of the $110,000 outstanding balance on the note plus the estimated fees, charges and expenses of foreclosure. Two days before the scheduled trustees sale, defendant Shoup, acting as an agent of Southland, a California corporation wholly owned by Karimpour and his wife, offered plaintiffs $100,000 for their home. Plaintiffs accepted the offer. After Southland paid plaintiffs their money, it cured the default on the deed of trust, and made repairs to the property. Plaintiffs purchased another home with the money they received from Southland.

Plaintiffs later sued defendants for violation of Civil Code section 1695,^[2]unjust enrichment and unfair business practices. During the jury trial on that pleading, Southland admitted it had not complied with section 1695 in that it had not given plaintiffs the statutorily required rescission and cancellation notices. After both sides rested, Karimpour moved for a directed verdict on the alter ego allegations. The trial court granted that motion. The matter was submitted to the jury which returned a special verdict finding, first, that plaintiffs were damaged by Southland and Shoups violations of section 1695, and next that the total amount of damages plaintiffs suffered as a result of those violations was $0.00. The jury made the same findings with respect to plaintiffs unjust enrichment claim: that Southland and Shoup were unjustly enriched at the expense of plaintiffs but the amount of damages plaintiffs suffered was $0.00. The jury found defendants not liable on plaintiffs remaining cause of action for conversion. In accordance with the jurys special findings, the trial court entered judgment in favor of defendants. Plaintiffs moved for judgment notwithstanding the verdict, or in the alternative to vacate the judgment and grant a new trial, a motion the trial court denied, and this appeal followed.

DISCUSSION

We construe plaintiffs appeal as one from the trial courts postjudgment order denying their motion for judgment notwithstanding the verdict because an order denying a motion for new trial is not appealable. Plaintiffs argued in the trial court as they do on appeal that because the jury found plaintiffs were damaged by defendants violations of section 1695 and also found defendants were unjustly enriched, the jury was required to award damages to plaintiffs.^[3] As set out above, the trial court denied plaintiffs motion, noting that the jury apparently found plaintiffs failed to prove they sustained damages as a result of defendants actions.

On appeal, we review an order denying a motion for judgment notwithstanding the verdict to determine whether substantial evidence supports the jurys verdict. (Diffey v. RiversideCounty Sheriff's Department (2000) 84 Cal.App.4th 1031, 1035, disapproved on other grounds in Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019.) Our review of a jurys findings regarding damages is very narrow. (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 614.) We must consider the whole record, view the evidence in the light most favorable to the judgment, presume every fact the trier of fact could reasonably deduce from the evidence, and defer to the trier of facts determination of the weight and credibility of the evidence. (Ibid.)

Plaintiffs argue that the damage award of $0 is not supported by the evidence because Southlands own appraiser testified that at the time Southland purchased plaintiffs property it was worth $255,000. Based on that figure alone plaintiffs contend they were entitled to recover damages of $145,000, which is the difference between $255,000 and their outstanding loan balance of $110,000. Plaintiffs repeat this argument with respect to their unjust enrichment claim.

The obvious error in plaintiffs claim is that they do not include in their calculation the $100,000 Southland paid them.^[4] In addition, plaintiffs do not include in their calculation the fees and charges they would have had to pay, and which Southland did pay, to redeem the property and avoid foreclosure. Those costs, added to the outstanding balance on plaintiffs promissory note, total $122,409.98. Plaintiffs own expert also testified that typical closing costs in a real estate transaction are 8 percent of the sale price, additional costs plaintiffs would have had to pay. In addition, when property is sold as is, as plaintiffs was in this case, that lowers the value of the property and thus the money plaintiffs would receive for the sale of their home. According to the testimony of plaintiff Maria Miranda, the roof of the house leaked as evidenced by damage to the ceiling in a bathroom, two doors were damaged and the backyard was not landscaped. Plaintiffs also did not have to pay for a termite inspection or the cost of remediation if termites were found.

The foregoing evidence supports the jurys finding in this case that plaintiffs did not prove they suffered damages as a result of defendants actions. Because the evidence supports the jurys finding that plaintiffs did not prove their damages, and therefore are not entitled to any recovery, we will not address their claim that the evidence shows Southland was the alter ego of Karimpour. Although we do not share their view of the evidence, the issue is irrelevant because plaintiffs have nothing to recover from any defendant in this action.

DISPOSITION

The judgment is affirmed.

Defendants to recover their costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Ramirez

P.J.

/s/ Miller

J.

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^[1]Shoup has not filed a respondents brief or otherwise appeared in this appeal.

^[2]All further statutory references are to the Civil Code unless otherwise indicated.

^[3]Plaintiffs did not seek clarification of the jurys special findings in the trial court.

^[4]Southland and Karimpour pointed out this error in their respondents brief. Plaintiffs did not file a reply brief.