Filed 10/1/19 Karamooz v. Karamooz 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

NIMA KARAMOOZ, as Special Administrator, etc.,

Plaintiff and Respondent,

v.

HOSSEIN KARAMOOZ,

Defendant and Appellant.

G054712, G054833, G055181

G055209

(Super. Ct. No. 30-2015-00788172)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, William D. Claster, Judge. Request for judicial notice granted. Judgment reversed and remanded with directions.

Haynes and Boone, Mary-Christine Sungaila, Polly Fohn; Ross Wersching & Wolcott, Suzanne M. Tague and Gianna Gruenwald for Defendant and Appellant.

Lefton Law Corp., Jennifer Lefton; Conti Law and Alexander L. Conti for Plaintiff and Respondent.

One, Peter R. Afrasiabi, Oscar M. Orozco-Botello; Law Office of Kathryn M. Davis, Kathryn M. Davis; Kermani, Ramin Kermani-Nejad, Mohamad Ahmad and Makoa Kawabata for original Plaintiff and Respondent

* * *

In this action (Conversion Action), Saeed Karamooz (Saeed), then the administrator of the estate of Nahid Karamooz (decedent), obtained a $4.43 million judgment against defendant and appellant Hossein Karamooz (Hossein) for trespass to chattels and conversion of assets from decedent’s estate. Hossein filed a motion for judgment notwithstanding the verdict (JNOV) and a notice of intent to move for new trial. The court denied the JNOV but granted a new trial.

Saeed filed a motion to set aside the new trial order under Code of Civil Procedure section 473. The court granted the motion and reinstated the original judgment. Hossein then filed another motion for new trial and motion for JNOV, a motion to reduce the damages to the amount alleged in the complaint, and a motion to vacate the order reinstating the judgment, all of which the court denied.

Hossein appealed from the original and reinstated judgments, and from denial of all of his posttrial motions on numerous grounds. He contends plaintiff had no standing to bring this action and the judgment and punitive damages were not supported by substantial evidence. He also asserts the court erred when it found the notice of intent to move for new trial was untimely, when it denied all of Hossein’s motions following reinstatement of the judgment, and when it failed to decide defendant’s equitable defenses. Finally, Hossein claims, at the least, the amount of the judgment should be reduced to conform to the amount prayed for.

Before the Conversion Action was commenced, Nima Karamooz (Nima), the son of decedent and Hossein and the sole beneficiary of decedent’s estate, filed an action to remove Saeed as personal representative of decedent’s estate (In re Estate of Karamooz; Karamooz v. Karamooz, (Super. Ct. Orange County, 2010, No. 30-2010-00380990); Removal Action). After the completion of initial briefing in this case the court in the Removal Action entered a judgment removing Saeed as the estate personal representative and appointed Nima as the special administrator. Over strong objection by Saeed, we subsequently ordered Nima substituted in as the respondent in this appeal. We then allowed the parties to file supplemental briefs.

In the supplemental respondent’s brief, Nima claims Saeed’s original respondent’s brief contained “too many factual errors to address each individually,” and asks that we disregard the entire statement of facts in the original respondent’s brief. He also disagrees with an argument Saeed made with respect to the valuation of the property subject to the Conversion Action. Further, he argues it was error for the valuation of the estate assets to be left to a jury; rather, a referee should have undertaken the valuation. Finally, he asks us to decide whether this is a probate case or a civil case and for direction as to how to inventory and appraise the estate’s assets.

In the supplemental opening and reply briefs Hossein reiterates his arguments Saeed had no authority to file the Conversion Action and the judgment is not supported by substantial evidence.

We conclude there is insufficient evidence to support the judgment and reverse, with directions to the trial court to enter a judgment in favor of Hossein. We decline to address the other issues Nima raised as outside the scope of the appeal.

REQUEST FOR JUDICIAL NOTICE

In connection with filing his supplemental opening brief, Hossein filed an unopposed request for judicial notice of nine documents from the Removal Action and the reporter’s transcript of a hearing in the Removal Action to give us a “comprehensive picture” of the entirety of this matter. We grant the request.

FACTS AND PROCEDURAL HISTORY

Decedent and Hossein were married for 30 years until the marriage was dissolved in 2002. They had three children, including Nima. Saeed is decedent’s brother.

In 2007 decedent created a revocable trust (Trust) and also executed a pour-over will (Will). The purpose of the Trust was to provide for Nima’s “education, health, maintenance and support” as well as for decedent’s support upon her disability, and to distribute her estate after her death. Decedent was the original trustee of the Trust and Nima was the successor trustee. Nima was the sole beneficiary of the Trust.

In early 2009, within a month after decedent’s death, Nima did not want to act as successor trustee and appointed Hossein as trustee. Nima also signed a statutory power of attorney giving Hossein all powers, including the power to act in “[e]state, trust, and other beneficiary transactions.”

In June 2009 Nima filed a petition to confirm Trust ownership of real and personal property assets, to avoid having to probate the Will. (Prob. Code, § 850, subd. (a)(3); all further statutory references are to this code unless otherwise specified.) This type of petition is granted as a matter of course absent an objection. When the petition was filed, Saeed was given notice he was decedent’s personal representative, and he objected to the petition. Saeed then filed a petition to probate decedent’s Will, valuing her estate at approximately $4.85 million.

In June 2010, as part of issuing letters testamentary to Saeed naming him the administrator of the estate, the court informed him in writing he was required to file an inventory and appraisal of all of the estate’s assets within four months. Saeed did not file such an inventory within the four-month period. In June 2012 Saeed filed a final inventory and appraisal and a final accounting and report, showing two bank accounts with not quite $183,000 total balances as the only estate assets.

Nima objected to the accounting and filed the Removal Action seeking to remove Saeed as the decedent’s personal representative. The objection listed 14 grounds for removal, including that Saeed had failed to timely file the inventory of assets, failed to file estate tax returns for three years, and failed to properly safeguard estate assets.

In 2013 Saeed, individually and as personal representative of decedent’s estate, filed the Conversion Action against Hossein for conversion, recovery of property under section 850, trespass to chattels, breach of implied contract, claim and delivery, replevin, and for recovery of double damages under section 859. Saeed sought damages of $3 million. In his answer Hossein raised several equitable defenses, including waiver and estoppel, laches, and unclean hands.

As far as is relevant to this appeal, the trial in the Conversion Action focused on Hossein’s alleged conversion of three categories of property: 186 Persian rugs; a Mercedes; and other property including additional rugs, jewelry, metals, crystals, and chandeliers.

The jury returned a verdict in Saeed’s favor, awarding $3,932,000 in actual damages and $500,000 in punitive damages. As noted above, Hossein filed a JNOV motion and, alternatively, a notice of intent to move for new trial. The court denied the JNOV but granted a new trial, vacating the judgment.

In the new trial order, as to the 186 rugs the court found undisputed testimony that Nima, the sole beneficiary and successor trustee, agreed Hossein could take possession of the rugs for safekeeping. Further, Saeed’s inventory did not list the rugs as assets nor did Saeed seek to recover them for three years. Thus, there was insufficient evidence of conversion.

As to the Mercedes, the court found Hossein’s name remained on title when he sold it, thus “undercut[ting]” conversion. Further, the award of $30,000 was excessive and not supported by credible evidence.

As to the other property, i.e., additional rugs, jewelry, metals, crystals, and chandeliers, the court found “there was not one iota of credible evidence that [Hossein] ever possessed” it. The only evidence as to these items was that someone saw them in decedent’s home six months before she died and after her death Hossein had access to and visited the house twice a month for six months. There was no evidence anyone saw Hossein take the items or saw them in his possession. Nor was there any evidence Hossein “somehow ‘profited’” from them. Therefore the evidence did not support a verdict for conversion or misappropriation.

The court also noted Hossein denied taking anything other than the 186 rugs and the Mercedes. The testimony on this issue of three other witnesses, including Nima and Hossein’s daughter, corroborated Hossein’s testimony.

The court found there was insufficient evidence Hossein acted with fraud, oppression, or malice when he took the 186 rugs and the Mercedes, thereby defeating an award of punitive damages. Also, that Nima was the sole beneficiary and consented to defendant taking them “weigh[ed] heavily” against punitive damages.

Thereafter Saeed filed a motion to vacate the new trial order pursuant to Code of Civil Procedure section 473, contending it was void because the notice of intent to move for new trial was untimely. After a hearing, the trial court changed its prior ruling and concluded Hossein’s filing and service were late. Therefore, it ruled, the order for new trial was void and reinstated the judgment.

After the judgment was reinstated, Hossein filed another motion for new trial and motion for JNOV, a motion to reduce the damages to the amount alleged in the complaint, and a motion to vacate the order reinstating the judgment. The court denied all of the motions.

Hossein appealed from the original and reinstated judgments, and from the denial of all of his posttrial motions.

DISCUSSION

1. Saeed’s Standing

Under section 9820, subdivision (a), a personal representative has the authority to “[c]ommence and maintain actions” “for the benefit of the estate.” Hossein claims Saeed had no standing to bring or maintain the Conversion Action because the action was not “for the benefit of the estate.” Hossein emphasizes Nima, the sole beneficiary of the estate, opposed the Conversion Action.

Hossein contends there is no reason other than Saeed’s personal gain to file the Conversion Action, including increased executor fees and leverage to compel Nima to settle the Removal Action. Thus, Hossein concludes, because the Conversion Action is not for the benefit of the estate, Saeed had no standing to bring it.

Assuming, without deciding, Hossein’s argument was correct, Saeed is no longer the plaintiff; Nima is. Although Nima did not address this issue, as the personal representative and sole beneficiary he plainly has standing to maintain the Conversion Action. That Nima has repeatedly stated it was not in the estate’s best interests to pursue the Conversion Action does not deprive him of standing.

2. Sufficiency of the Evidence Standard of Review

Hossein claims the judgment is not supported by substantial evidence. When we review a claim of insufficiency of the evidence, we begin with the presumption the judgment is correct. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) We determine only if the record as a whole contains substantial evidence, whether contradicted or not, supports the judgment. (Quigley v. McClellan (2013) 214 Cal.App.4th 1276, 1282.)

But this standard does not allow us to rely on any evidence to support the judgment. (Quigley v. McClellan, supra, 214 Cal.App.4th at p. 1282.) Rather, “we must determine whether there exists substantial evidence which is evidence of ponderable legal significance that is reasonable, credible and of solid value, supporting the challenged findings of the trier of fact.” (Id. at pp. 1282-1283.) It must be “‘“relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”’” (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 314.)

3. Conversion

“‘“‘Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages.’”’” (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.)

Hossein argues there is insufficient evidence to support the judgment he converted 186 appraised Persian rugs. We agree.

Nima testified that, more than a year before Saeed was appointed as personal representative and before any actions had been filed, Nima had given Hossein permission to move the rugs out of decedent’s house. Hossein was worried the 186 rugs might be damaged if they were left in an unoccupied home. Nima testified Hossein had never refused Nima access to or possession of the186 rugs. Therefore, there is no evidence to support the jury’s finding Hossein “intentionally and substantially interfere[d]” with the estate property by taking the 186 rugs.

In addition, where the original possession is lawful, there is no conversion unless demand is made by the lawful owner or one with the right to possess. (Cerra v. Blackstone (1985) 172 Cal.App.3d 604, 609.) Further, under section 9650, subdivision (c), a beneficiary may retain a decedent’s tangible personal property unless the personal representative deems it necessary to have possession to administer the estate.

Here, Saeed made no demand for the 186 rugs. This is logical since he never claimed the 186 rugs were assets of the estate, failing to list them on the inventory and appraisal or in the final accounting. This undercuts any claim of conversion.

4. Damages

Hossein challenges the $2.4 million damages award for the other items that were the subject of the Conversion Action, claiming there is insufficient evidence of the value of the items. Hossein is correct.

In his brief, Saeed did not point to any evidence as to the value of most of these items. Instead, he relied on the fact decedent and Hossein valued jewelry, some of the crystals, and most of the silver at $2.5 million at the time of their dissolution. This, he claimed, was roughly equivalent to the $2.4 million aggregate award for precious jewelry, including a Rolex watch and a diamond and ruby necklace; crystal chandeliers and other precious crystals; silver dishes; and gold coins. None of this is sufficient to support the damages awarded.

First, the items allegedly converted are not identical to those valued at the time of the dissolution judgment in June 2002. The alleged conversion occurred after decedent’s death in December 2008. Saeed points to no evidence of the fair market value of these items at the time of the alleged conversion. Generally, damages for conversion are based on the value of the converted property at the time of conversion. (Civ. Code, § 3336; Lueter v. State of California (2002) 94 Cal.App.4th 1285, 1302.) “‘[D]amages which are speculative, remote, imaginary, contingent, or merely possible cannot serve as a legal basis for recovery.’” (Lueter, at p. 1302.)

Second, Saeed’s aggregate valuation of the items will not suffice. The jury awarded specific amounts for each of the items, most of which were far in excess of what plaintiff requested in argument. For example, plaintiff sought $20,000 for “precious crystals” and the jury awarded $500,000. Likewise as to precious jewelry, the request was $181,000 and the award $500,000; for silver dishes, the request was $50,000 and the award $500,000. Additionally, Saeed did not argue any amount as to the value of the crystal chandelier, for which the jury awarded $250,000 or the Rolex watch, for which damages awarded were $2,000.

Third, the jury awarded $30,000 for the Mercedes per Saeed’s request. But the only evidence of its value at the time of the alleged conversion was the sale price of $14,500 and there was no evidence the sale price was too low. Thus, no evidence supported a $30,000 award.

Fourth, as to the additional Persian rugs (separate from the 186 appraised rugs), the evidence is also insufficient. There is no evidence the additional rugs were the same type as the appraised rugs, for which there was expert testimony they were worth $200 per square foot. We have not been directed to any other evidence of the value of the additional rugs.

Finally, in the supplemental respondent’s brief, not only does Nima repudiate Saeed’s statement of facts in the original respondent’s brief as erroneous, Nima also specifically disclaims Saeed’s argument the collective value of the items was $2.5 million. He maintains it was improper for a jury to set the value of estate assets but instead the estate’s inventory should have been valued as of the date of death by a probate referee under the supervision of the probate court. (§§ 8800 [personal representative must inventory estate property and file it with the court]; 8801 [supplemental inventory]; 8901& 8902 [probate referee appraises all property except for cash and cash equivalents and insurance proceeds].) As an additional ground for reversal, we construe Nima’s position and concession as admissions the damages amounts set by the jury were incorrect. (Williams v. Superior Court (1964) 226 Cal.App.2d 666, 674.)

5. Punitive Damages

Hossein claims there was no evidence to support the punitive damages award because the underlying causes of action for conversion and trespass to chattels lack substantial evidence and there was insufficient evidence of malice, fraud, or oppression or Hossein’s financial condition. Hossein must prevail on this argument.

As discussed above, there was no evidence Hossein wrongfully took possession of the 186 rugs and insufficient evidence of the value of any of the other items he allegedly converted. Because punitive damages are not recoverable without proof of an underlying tort (569 E. County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 430, fn. 3), the punitive damage award must be reversed. Consequently we need not address the claims there was insufficient evidence of oppression, fraud, or malice or of Hossein’s financial condition.

Saeed’s claim Hossein waived this argument by failing to include it in his notice of intent to move for new trial is wrong. It was included in that notice and argued in the points and authorities. Listing an error in the notice of intent to move for new trial is sufficient to raise the issue in the trial court. (McCarty v. Department of Transportation (2008) 164 Cal.App.4th 955, 983.)

6. Other Issues

Because we reverse on these grounds, there is no need for us to address any other arguments Hossein raised.

Nima raises three additional issues in his supplemental respondent’s brief. First, he asks us to decide whether this case is a probate case, as he contends, or whether it is a civil action as Saeed apparently argues. But a decision on this issue is not necessary to our determination of the case nor is it before us because it is not encompassed by Hossein’s appeal.

Second, Nima asks us to decide whether the estate’s assets at issue should have been appraised by a probate referee after being inventoried by Saeed rather than by a jury. He contends it would be “incredibly problematic” for him to be required to adopt the jury’s valuation of the assets. Again, this issue is not before us. Nevertheless, we note we are rejecting the jury’s award of damages, expressly as to all of the items except the 186 rugs, and impliedly as to the 186 rugs because we have determined they were not converted.

Finally, Nima asks for direction as to how he should fulfill his fiduciary duties vis-à-vis inventorying and appraising the estate’s assets. Again, these issues are not within the scope of the appeal and we may not issue advisory opinions. (Pacific Hills Homeowners Assn. v. Prun (2008) 160 Cal.App.4th 1557, 1567.)

DISPOSITION

The judgment is reversed and the matter is remanded to the superior court with directions to enter judgment in favor of Hossein. The request for judicial notice is granted. Hossein is entitled to costs on appeal.

THOMPSON, J.

WE CONCUR:

FYBEL, ACTING P. J.

IKOLA, J.