Filed 4/2/20 Keoshgerian v. Danielian 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

MARDIROS KEOSHGERIAN et al.,

Cross-complainants and Respondents.

v.

MASSIS DANIELIAN,

Cross-defendant and Appellant,

B293241

(Los Angeles County

Super. Ct. No. PC 052524)

APPEAL from a judgment of the Superior Court of Los Angeles County, Stephen P. Pfahler, Judge. Affirmed.

ABA Law Group, Kurt Zimmerman and Christopher Sean Reyes for Cross-defendant and Appellant Massis Danielian.

Fidelity National Law Group and Sheri M. Kanesaka for Cross-complainant and Respondent Mardiros Keoshgerian.

Zakari Law and Raymond V. Zakari for Cross-complainants and Respondents Mardiros Keoshgerian and Hmayak Keoshgerian.

Respondent Mardiros Keoshgerian initiated unlawful detainer proceedings against appellant Massis Danielian, as a result of which Danielian was evicted from the subject property. In a separate quiet title action that followed, tried by the court without jury, the court concluded that Mardiros Keoshgerian and Hmayak Keoshgerian (collectively, the Brothers), not Danielian, held title to the property. Danielian appeals from the judgment in the quiet title action, as well as the court’s denial of Danielian’s motion for a new trial. On appeal, he argues that the court should have granted him a new trial because (1) the dispute posed questions regarding the legal issue of possession that, unlike equitable issues regarding title, gave him the right to a jury trial; (2) the Brothers did not provide Danielian’s counsel with their trial brief, witness and exhibit lists, trial exhibits, or their supplemental brief until the first day of trial; and (3) the trial court refused to read into the record deposition testimony to impeach a key witness.

As to the first point, even assuming the dispute poses a question of possession, and further assuming this issue is one for the jury, the trial court did not err in denying a jury trial. The court’s conclusion on the equitable issue of title—the merits of which Danielian does not challenge—obviated the need to adjudicate any title-based right to possession. Because the final unlawful detainer judgment prevented Danielian from claiming a right to possession based on anything other than his holding title, there was nothing for a jury to decide.

We also disagree that the issues Danielian raises in his second and third arguments reflect prejudicial “[i]rregularit[ies]” in the proceedings that warrant a new trial. (See Code Civ. Proc., § 657, subd. (1).)

Accordingly, we affirm.

FACTUAL AND PROCEDURAL SUMMARY

A. Initial Sale of the Property

Danielian sold real property located at 8401 Nestle Avenue in Northridge, California (the Property) to respondent Mardiros Keoshgerian (Mardiros) in a short sale. On December 23, 2010, a grant deed was recorded that transferred title of the Property to Mardiros. At the time of the sale, Danielian resided at the Property with his family. The court admitted a written “purchase agreement” between the parties regarding the sale that was offered by the Brothers, without objection from Danielian. The agreement provided that Mardiros would lease the Property to Danielian following the sale.

Danielian contends on appeal, as he did below, that, notwithstanding the written purchase agreement, the sale is controlled by an oral agreement between the parties. According to Danielian, under the oral agreement, the parties agreed that Mardiros would purchase the Property with money Danielian provided him, but transfer the Property back to Danielian or Danielian’s brother, Hamlet Suleymanyan, six months later. Instead, however, in July 2011, Mardiros conveyed a 95 percent interest in the Property to Mardiros’s brother, respondent Hmayak Keoshgerian (Hmayak) via grant deed.

B. Unlawful Detainer Action

Danielian stopped paying rent “[a]t some point” after his sale of the Property. As a result, on December 7, 2011, Mardiros filed an unlawful detainer action against Danielian and Suleymanyan, seeking “past-due rent,” “reasonable attorney fees,” “forfeiture of the agreement,” “damages,” and other relief “as the court deems just and proper.”

On February 28, 2012, the trial court in the unlawful detainer action (Commissioner Alan H. Friedenthal), entered judgment in favor of Mardiros. The court awarded Mardiros restitution and possession of the Property and issued a writ of possession against both Danielian and Suleymanyan as “[j]udgment debtor[s].” Danielian and his family were ultimately evicted from the Property.

C. Quiet Title Proceedings and March 2012 Deed

On February 22, 2012, while the unlawful detainer action was pending, Danielian and Suleymanyan filed a quiet title action against the Brothers. Danielian alleged the specifics of the oral agreement he claimed governed his sale of the Property to Mardiros. These included allegations that Mardiros purchased the Property with $305,000 Danielian had given Mardiros, and that Danielian had given Mardiros other funds and valuables, such as jewelry, as consideration for Mardiros’s efforts under the oral agreement.

On March 6, 2012, Danielian recorded a grant deed transferring the Property from the Brothers to Suleymanyan (the March 2012 deed), as of November 2011, which transfer Danielian claimed the oral agreement required. The March 2012 deed appears to bear the signature of a notary by the name of Shabir Azam.

On March 23, 2012, the Brothers filed a cross-complaint against Danielian and Suleymanyan seeking to quiet title to the Property in their names. On September 27, 2012, they filed an amended cross-complaint (the operative cross-complaint). In it, they allege that they are “the owners and entitled to possession of the . . . Property.” (All capitalization omitted.) They further allege that their signatures on the March 2012 deed are forged, and that Azam’s purported notarization on the deed is fraudulent.

Danielian answered the operative cross-complaint and denied both that the Brothers were owners of the Property, and that they were entitled to possession thereof.

D. Discovery and the Brothers’ 2017 Trial Documents

The Brothers’ took Azam’s deposition in April 2015. The record does not indicate whether Danielian received proper notice of the deposition, but Danielian has never argued that he did not. Counsel for Danielian did not attend this deposition or request a transcript thereof. During his deposition, Azam denied that he had notarized the March 2012 deed.

The quiet title litigation was stayed intermittently over the course of several years as a result of multiple bankruptcy actions filed by Danielian in 2015 and Suleymanyan in 2017.

During a break in one of these stays, the court held an October 4, 2016 hearing, at which both parties demanded a jury trial. At this same hearing, the court set a February 2017 date for a “jury trial.” In anticipation of this initial trial date, on January 30, 2017, the Brothers lodged a trial brief, witness list and exhibit lists with the court. The trial brief included citations to Azam’s deposition testimony.

A bankruptcy stay of proceedings was reinstated, and the 2017 trial date was postponed as a result.

E. Default Judgment Quieting Title and Danielian’s Successful Motion to Set Aside the Default

All bankruptcy stays were permanently lifted on June 14, 2017. Thereafter, Danielian and Suleymanyan’s then counsel (Nicholas Tepper) failed to appear at consecutive hearings. As a result, the court struck their operative complaint and the answer to the operative cross-complaint. On October 4, 2017, following a prove-up hearing, the trial court entered a default judgment against Danielian and Suleymanyan.

Danielian obtained new counsel, Kurt Zimmerman. Through his new counsel, Danielian (but not Suleymanyan) moved to set aside the default judgment and for leave to refile Danielian’s answer to the operative cross-complaint (though not his complaint). The trial court granted the motion, permitting the quiet title action to proceed between Danielian and the Brothers based on the operative cross-complaint.

On appeal and below, Danielian represents that “both Danielian and his new counsel . . . Zimmerman . . . repeatedly requested that . . . Tepper provide . . . Zimmerman with copies of the voluminous pleadings and papers filed as part of the litigation,” but that “Tepper failed and refused to make any of the documents available to them to prepare for trial.”

F. 2018 Pretrial Proceedings

In May 2018, Zimmerman reiterated Danielian’s previous counsel’s request for a jury trial. The trial court denied the request, concluding that because the matter was a quiet title action and thus equitable, Danielian was not entitled to a jury trial. The court also ordered the parties to lodge their trial briefs, trial exhibit lists, and witness lists with the court on June 4, 2018, and to serve these documents at the final status conference the following day. The court does not appear to have required the parties to lodge or serve the trial exhibits.

At the final status conference on June 5, 2018, the court clarified its earlier order by “instruct[ing] [the Brothers] not to refile the . . . documents [they] filed back in February 2017” (italics added), as counsel for Danielian (Zimmerman) said “that they had those documents.”

Other than those 2017 documents, the Brothers did not lodge or serve any trial documents before the final status conference. Danielian lodged his trial documents the day of the final status conference and provided opposing counsel with copies at the status conference and/or the next day via email.

The next day, Danielian’s counsel (Zimmerman) emailed Brothers’ counsel asking them to “provide [Zimmerman] with all of the documents that [the Brothers] lodged with the [c]ourt on Monday [June 5, 2018].” In a follow-up email, Zimmerman clarified that, in his request, he was “referring to [the Brothers’] trial brief, exhibit and witness lists. I already have your previously filed trial brief, exhibit and witness lists (i.e.[,] from last year); so, I don’t need to see them if that’s what was lodged with the [c]ourt on Monday [June 5, 2018].” The email responses from Brothers’ counsel are somewhat unclear, but, in any event, counsel did not provide Danielian with copies of any documents. Zimmerman also specifically suggested that the parties meet to review the documents on their respective exhibit lists “so that we can stipulate to admit as many as possible. . . . I am not asking that you provide me with my own copies of [the Brothers’] documents before trial, just the opportunity to see them in your office.” In exchange, Zimmerman offered to provide opposing counsel the “small number of documents” he planned to use at trial, which “also appear on [the Brothers’] exhibit list.” Brothers’ counsel never responded to this request.

On Tuesday, June 6, 2018, the Brothers lodged with the court several deposition transcripts, including Azam’s. They served Danielian’s counsel (via mail) with notice of such lodging. The record does not reflect that, after receiving the notice of lodging, Danielian’s counsel ever sought copies of any of the transcripts or sought to review the copies lodged with the court.

G. Brothers’ Trial Brief, Supplemental Briefs, Exhibits, and Exhibit and Witness Lists

The matter proceeded to a court trial on June 11, 2018. The morning of this first day of trial, the Brothers served Danielian with “Supplemental Briefing re[garding] Statements Made by Cross-Defendant Massis Danielian in His Bankruptcy Cases,” which argued that Danielian could not “ ‘claim in his bankruptcy that he has no interest in the Property only to go back to this [c]ourt and assert otherwise.’ ” The Brothers’ counsel also provided Danielian trial copies of the Brothers’ 2017 trial briefing, exhibit and witness lists and related documents.

Danielian objected that he had received copies of these documents for the first time only that morning. After an off-the-record discussion with counsel, the court permitted a 45 minute recess “to review the documents” and “allow[ed] the parties to make sure that they have exchanged exhibits.” Danielian objected that this was an “inadequate opportunity to review the documents.”

H. Azam Testimony and Related Evidentiary Ruling Regarding Deposition Transcript

Trial lasted less than four hours spread out over two days, and included testimony from Azam, Danielian, and both of the Brothers. On the first day of trial, Azam testified—consistent with his deposition testimony—that the notary signature on the March 2012 deed was not his, and that his notarial journal did not reflect having notarized the March 2012 deed. Azam based this testimony in part on the notarial journal attached to his deposition transcript, which he reviewed and discussed during his direct testimony, but was not admitted into evidence.

On cross examination, Danielian’s counsel asked Azam when he “first learn[ed] there was a question regarding [the] authenticity” of the deed, and Azam stated that this occurred when the Federal Bureau of Investigation “had come to investigate [the] matter.” After both the Brothers and Danielian finished questioning Azam, all attorneys confirmed that they had no further questions for the witness, and the court excused him.

On the second day of trial, Danielian requested that he be able to impeach Azam’s trial testimony with Azam’s deposition testimony, in which Azam stated that he first learned of the March 2012 deed from the Brothers’ counsel. Danielian explained that he had not cross-examined Azam with his deposition testimony the day before because he “was provided with these exhibits yesterday.” The trial court sustained the Brothers’ objection to admitting Azam’s deposition testimony, explaining that because Azam had been excused, the Brothers would be denied the ability to rehabilitate him, which would be fundamentally unfair, particularly given that Danielian had already been afforded an opportunity to impeach him.

I. Judgment and Motion for New Trial

The trial court entered judgment quieting title in the Brothers. The court “note[d] the importance of the testimony of . . . Azam, which the [c]ourt found to be credible,” and that “Danielian’s testimony in prior [bankruptcy] proceedings was inconsistent with the position [Danielian took] in the instant trial.” Finally, the court noted that, given Danielian’s theory of the case, were the court to find in favor of Danielian, it “could potentially be condoning an improper financial transaction.”

Danielian filed a motion for a new trial, which Mardiros (but not Hmayak) opposed. On September 10, 2018, the trial court denied the motion. On October 10, 2018, Danielian filed his notice of appeal from both the order denying the new trial motion and the underlying judgment.

DISCUSSION

Code of Civil Procedure section 657 provides for a new trial where, inter alia, the party seeking such relief shows an “[i]rregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial” or an “[e]rror in law, occurring at the trial and excepted to by the party making the application.” (Code Civ. Proc., § 657, subds. (1) & (7).) In either instance, the error or irregularity must have “materially affect[ed] the substantial rights of [the moving] party.” (Code Civ. Proc., § 657.)

Where a party appeals from a judgment, he may also challenge the denial of a new trial motion associated with that judgment. (See Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 18.) “ ‘[A] trial judge is accorded a wide discretion in ruling on a motion for new trial and . . . the exercise of this discretion is given great deference on appeal.’ ” (Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1160–1161 (Sherman).) Nevertheless, we review denial of a new trial motion de novo, looking at “ ‘the entire record, including the evidence, so as to make an independent determination whether [any] error was prejudicial.’ ” (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 417, fn. 10; Young v. Brunicardi (1986) 187 Cal.App.3d 1344, 1348.) Because “prejudicial error is the basis for a new trial,” we have “no discretion to grant a new trial for harmless error.” (Osborne v. Cal Am Financial Corp. (1978) 80 Cal.App.3d 259, 265–266.)

A. Right to a Jury Trial

Danielian first argues that the trial court erred by denying his request for a jury trial. The California Constitution “guarantees the right to a jury trial in actions at law, not those in equity.” (American Motorists Ins. Co. v. Superior Court (1998) 68 Cal.App.4th 864, 871.) “[A] simple action to quiet title when the [legal issue of] possession of the property is not involved . . . is an equitable action” and may be tried by a judge. (Thomson v. Thomson (1936) 7 Cal.2d 671, 681 (Thomson).) Danielian argues that he is entitled to a jury trial because his answer contested not just the Brothers’ ownership of the Property, but their right to possession of it as well. To support his argument, Danielian cites Thomson for the proposition that, if a cross-complainant seeking to quiet title “is in possession [of the property], and the [cross ]defendant by answer . . . seeks to eject the [cross-complainant] and recover possession, the action involves both equitable and legal issues,” “the [cross-complainant] is entitled to have the equitable issues [regarding title] tried by the court without a jury, and the [cross ]defendant is entitled to have the legal issues [regarding possession and ejectment] submitted to a jury.” (Ibid.)

Even assuming that Danielian’s answer to the cross- complaint seeks possession or ejectment, and further assuming that the issue is one for the jury, the court did not err by refusing a jury trial. “ ‘ “When an action involves both legal and equitable issues, the equitable issues, ordinarily, are tried first, for this may obviate the necessity for a subsequent trial of the legal issues.” ’ ” (Veale v. Piercy (1962) 206 Cal.App.2d 557, 562–563, quoting 29 Cal.Jur.2d (1956) Jury, § 9, p. 496; see Thomson, supra, 7 Cal.2d at pp. 681–683; see, e.g., Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1238 (Nwosu) [“Where plaintiff ’s claims consist of a ‘mixed bag’ of equitable and legal claims, the equitable claims are properly tried first by the court.”].) “Stated otherwise, . . . [t]he court may decide the equitable issues first, and this decision may result in factual and legal findings that effectively dispose of the legal claims.” (Id. at p. 1244, italics omitted.)

This is precisely what occurred here: the court’s “determination of the equitable issue[ ] [of title] in favor of [the Brothers] precluded [Danielian’s] recover[ing]” any right to possession based on title. (Nwosu, supra, 122 Cal.App.4th at p. 1244.) Nor could Danielian have sought possession or ejectment on any basis other than his holding title to the Property, because the final judgment in the unlawful detainer proceedings barred any such claims. Thus, after the court’s ruling on title, nothing remained for a jury to decide, and the trial court did not err in denying defendant’s request for a jury trial. (See Thomson, supra, 7 Cal.2d at p. 683 [“Had the court found against plaintiff in the action to quiet title, then it would have been its duty to try the issue of ejectment,” but “ ‘[t]hat time never arrived,’ and it was only that [legal] issue [of ejectment] which the defendant was entitled to have tried by the jury.”].)

B. Opportunity to Review the Brothers’ Trial Briefing and Exhibits

Danielian next argues that because he did not receive the Brothers’ trial exhibits and supplemental brief until the morning of trial, and because he did not realize until the day of trial that the Brothers’ 2017 trial brief, exhibit and witness lists were the operative versions of these documents, the court should have permitted him more time to review these materials before proceeding with the trial. According to Danielian, the court’s decision to allow an extra 45-minute recess for such review constitutes an “irregularity in the proceedings” by which he was denied a fair trial. We disagree.

1. 2017 trial brief and exhibit and witness lists

Danielian does not dispute that his counsel received the Brothers’ 2017 trial brief, exhibit and witness lists well in advance of the June 2018 trial. These were the same documents that the Brothers lodged and used for the trial. The record does not reflect—and Danielian does not argue—that either the Brothers or the court led Danielian to believe that the Brothers would be relying on new and different versions of these documents at trial. That Danielian apparently believed this was the case and chose not to use the 2017 documents to prepare is not an irregularity in the proceedings. (See Montoya v. Barragan (2013) 220 Cal.App.4th 1215, 1229–1230 [As the phrase is used in Code of Civil Procedure section 657, an “ ‘[i]rregularity in the proceedings’ ” “is a catchall phrase referring to any act that,” inter alia, “violates the right of a party to a fair trial.”].)

2. Trial exhibits

With respect to the Brothers’ trial exhibits, we find a useful analogy in the rule that purportedly newly discovered evidence cannot provide a basis for a new trial without a showing that “ ‘diligence has been exercised in its discovery and production.’ ” (Sherman, supra, 67 Cal.App.4th at p. 1161.) By this same logic, the purportedly untimely disclosure of the Brothers’ trial exhibits cannot provide a basis for Danielian’s new trial motion unless he also shows he diligently sought these documents at an earlier time.

The record fails to show diligence. Danielian never served any formal discovery requests on the Brothers, “failed to . . . participate in the meet and confer process” in advance of the final status conference, and instead informally requested the trial exhibits from opposing counsel via email.

Danielian cites no authority suggesting that, under these circumstances, the court or opposing counsel was under any duty to assure that Danielian had seen all trial exhibits within some specific amount of time in advance of trial. The court does not appear to have ordered the parties to lodge or exchange their trial exhibits before trial. And the applicable local rules require counsel to serve and file only “lists of pre-marked exhibits to be used at trial”—but not the exhibits themselves—“[a]t least five days prior to the final status conference.” (Super. Ct. L.A. County, Local Rules, rule 3.25, subd. (f)(1), italics added.) With respect to the exhibits themselves, the rules require that “[a]ll exhibits must be exchanged and pre numbered, except for those anticipated in good faith to be used for impeachment . . . before any reference thereto by counsel or a witness,” but the rules do not specify a particular time for this exchange. (Id., rule 3.52, italics added; accord, id., rule 3.150 [“Before the first reference to any exhibit, the proponent must show it to opposing counsel for review.”].)

Thus, the Brothers’ disclosures complied with the applicable rules, and the court was acting well within its broad discretion to permit trial to proceed despite Danielian not having received or reviewed all of the Brothers’ trial exhibits until the morning of trial. The trial court did not err in denying a new trial on this basis.

3. Supplemental brief

Before the Brothers filed their supplemental brief the morning trial began, Danielian did not have and could not have gained access to it. The brief is one and a half pages and argues that, because Danielian represented in his bankruptcy schedules that he did not own the Property, he should not be permitted to make a contrary representation in the quiet title proceedings. The bankruptcy schedules on which this argument is based are on the Brothers’ 2017 trial exhibit list and were admitted into evidence without objection at trial. Moreover, Danielian and his attorney Christopher Reyes—a member of the same firm as Zimmerman—offered these schedules to the bankruptcy court. Thus, we may assume Danielian and Zimmerman were aware of the contents of the schedules. Finally, at trial, the Brothers made the same point outlined in the supplemental brief while questioning Danielian about his representations to the bankruptcy court that he had no interest in the Property. Supplemental briefs based on trial testimony generally are acceptable as a trial proceeds. Under these circumstances, the Brothers’ last-minute, less than two-page supplemental brief did not render the proceedings fundamentally unfair and did not provide a basis for granting a new trial.

C. Exclusion of Azam Deposition Testimony

Danielian’s counsel cross-examined and recross-examined Azam at trial, but did not ask Azam about his deposition testimony. At the conclusion of this examination, Danielian’s counsel represented to the court that he had no further questions for Azam. Danielian argues that, after Azam had been excused as a witness, Danielian’s counsel should have been permitted to read a portion of the Azam deposition transcript into evidence for the purposes of impeaching the witness, even though Azam had been excused. Danielian contends that he should have been allowed to do this because he was unfamiliar with the deposition transcript while cross-examining Azam, having just received the document that day.

This is not a sufficient basis for allowing such a one-sided use of the deposition transcript. Danielian and his counsel could have reviewed that transcript since, at the very latest, the date they received notice of its lodging with the court. (See Cal. Rules of Court, rule 2.550(c) [“[u]nless confidentiality is required by law, court records are presumed to be open”]; see also Cal. Rules of Court, rule 2.400(a) [specifying manner in which court records may be inspected by the public].) Moreover, as discussed above, we reject Danielian’s argument that his failure to obtain this or other trial exhibits prior to trial provides a basis for a new trial. The court was well within its discretion in refusing Danielian’s request.

In sum, Danielian has not met his burden of showing there is a basis for granting him a new trial.

DISPOSITION

The judgment is affirmed. Respondents are awarded their costs on appeal.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

BENDIX, J.

WHITE, J.*