Filed 5/20/20 Haddad v. Haddad CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SUZAN HADDAD, as Trustee, etc.,

Plaintiff, Cross-defendant and Appellant,

v.

WALID HADDAD,

Defendant, Cross-complainant and Respondent.

B291415

(Los Angeles County

Super. Ct. No. BC639780)

APPEAL from the order of the Superior Court of Los Angeles County. Frederick C. Shaller, Judge. Affirmed.

Bleau Fox, Thomas P. Bleau, Megan A. Childress and Elizabeth M. Martin for Plaintiff, Cross-defendant and Appellant.

Lyden Law Corporation and Christine C. Lyden for Defendant, Cross-complainant and Respondent.

* * * * * * * * * *

Plaintiff, cross-defendant and appellant Suzan Haddad, as trustee of the Haddad Family Trust, appeals from the entry of judgment, following a bench trial, in favor of defendant, cross-complainant and respondent Walid Haddad. Plaintiff contends the trial court’s statement of decision is deficient, the court abused its discretion in excluding evidence of lost profits, and the court erred in awarding attorney fees to defendant.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff owns a gas station, including the land on which it is situated, in the city of Pasadena. It was her husband’s business, but she helped him run it for a period of time. Before her husband passed away in 1998, ownership of the station was transferred to the family trust. Plaintiff is the sole trustee.

In 1999, plaintiff determined she needed assistance operating the station. Defendant, who is plaintiff’s cousin by marriage, was asked to take over running the business. He was experienced in running gas stations, having done so for many years, including his father’s station. Defendant began operating the station as a Mobil station, under an oral agreement with plaintiff, and eventually under a written five-year lease agreement.

Sometime in 2004, defendant and plaintiff agreed to remodel the premises, primarily expanding the convenience store at the station by converting the area occupied by two auto repair bays.

In 2007, defendant and plaintiff signed a new lease agreement under which defendant would continue operating the gas station for an eight-year term with an increase in the monthly rental payments to plaintiff. During this second lease term, a dispute arose over who was responsible to pay for environmental upgrades. Defendant sued plaintiff. The court determined that defendant was not legally responsible to pay for new equipment, only to maintain existing equipment. Thereafter, the parties agreed to settle the action. One of the terms of the settlement was that defendant’s lease would be extended for one more year.

The lawsuit resulted in a deterioration of the parties’ relationship. Plaintiff decided she wanted to take back operation of the gas station and have her son, Shibli, manage the day-to-day operation. Plaintiff intended to operate the gas station as a Shell station after defendant vacated. In November 2015, defendant received written notice from plaintiff advising him that his lease would not be further renewed and he was to vacate the premises by March 31, 2016.

Thereafter, plaintiff filed this action for breach of contract, contending, among other things, that defendant left the premises in a state of disrepair and otherwise caused damage by removing and taking various pieces of equipment or property in violation of the terms of the lease. Defendant filed a cross-complaint seeking reimbursement for numerous costs he incurred improving the premises which he claimed were plaintiff’s responsibility.

The parties waived jury and the case proceeded to a bench trial in January 2018. Plaintiff, her son Shibli, and defendant testified. Only one other witness was called, a representative from Anabi Oil, the company with whom plaintiff contracted in 2016 to rebrand the gas station as a Shell station. Closing arguments were by written briefs.

The court issued a tentative statement of decision and both parties filed written objections and requests for additional findings. The court overruled most of the objections and issued a modified proposed statement of decision. The parties filed further objections and requests for additional findings.

The trial court ruled on the second round of objections and issued a final written statement of decision in which it concluded that neither party was entitled to relief, finding in favor of defendant on the complaint and in favor of plaintiff on the cross-complaint.

Defendant filed a memorandum of costs and a motion for attorney fees pursuant to contract and Code of Civil Procedure section 998. Plaintiff filed a motion to tax costs and opposed defendant’s fee request arguing, among other things, that defendant was not a prevailing party.

After a hearing, the court taxed $622 in costs and awarded $14,956.44 in costs to defendant. The court also awarded defendant $127,358 in attorney fees.

Judgment was entered in favor of defendant on June 5, 2018.

This appeal followed.

DISCUSSION

1. The Statement of Decision
2.
Plaintiff contends the trial court’s statement of decision contains numerous deficiencies and that reversal is therefore warranted because of the court’s failure to address all material factual issues. We disagree.

Code of Civil Procedure section 632 provides that, upon timely request, a trial court “shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial.”

Here, the trial court issued a detailed statement of decision after ruling upon two different sets of lengthy written objections by both parties. The court’s final decision carefully explains the factual and legal bases upon which the court based its findings and conclusions about the parties’ contractual dispute. “ ‘[T]he trial court is not required to respond point by point to issues posed in a request for a statement of decision. “The court’s statement of decision is sufficient if it fairly discloses the court’s determination as to the ultimate facts and material issues in the case.” ’ ” (Pannu v. Land Rover North America, Inc. (2011) 191 Cal.App.4th 1298, 1314, fn. 12; accord, Duarte Nursery, Inc. v. California Grape Rootstock Improvement Com. (2015) 239 Cal.App.4th 1000, 1012.)

Plaintiff’s appeal focuses exclusively on only six of the court’s numerous adverse findings.

As to five of those findings (denying recovery of damages to plaintiff for the store room door, wallpaper removal, electrical outlets, threshold repair, and coffee island), plaintiff asserts the court’s findings are not supported by substantial evidence. In so arguing, plaintiff stands the relevant standard of review on its head. Our job is not to determine whether the trial court’s findings are supported by substantial evidence. Rather, because plaintiff bore the burden of proof on her damage claims and her evidence was found wanting by the court, the applicable standard of review is whether the evidence compelled a finding in plaintiff’s favor as a matter of law. (See, e.g., Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761, 769 [“On appeal from a determination of failure of proof at trial, the question for the reviewing court is ‘ “whether the evidence compels a finding in favor of the appellant as a matter of law.” ’ ”].)

Plaintiff has not shown that the evidence compelled a finding in her favor as a matter of law. She has not presented any argument articulating the correct standard of review and why the court’s decision is deficient as a result. “ ‘Arguments should be tailored according to the applicable standard of appellate review.’ [Citation.] Failure to acknowledge the proper scope of review is a concession of a lack of merit.” (Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465.)

At best, plaintiff asserts her testimony was largely unimpeached. That is not correct. The court made it clear that it found plaintiff’s testimony and that of her son less credible than defendant’s. The court said it gave “significant weight to [defendant’s] testimony about the condition of the premises . . . and the timing and cause of the deteriorations” that existed on the premises at the end of defendant’s lease term. The court found defendant to be more reliable due to his experience in operating gas stations and his hands-on experience on the premises for almost two decades. The court explained that, in contrast to defendant’s experience, plaintiff and her son had been “in the gas station business for only a short time and have not had industry experience beyond their own store.”

Long-standing precedent “holds that, in a bench trial, the trial court is the ‘sole judge’ of witness credibility. [Citation.] The trial judge may believe or disbelieve uncontradicted witnesses if there is any rational ground for doing so. [Citation.] The fact finder’s determination of the veracity of a witness is final. [Citation.] Credibility determinations thus are subject to extremely deferential review. [Citation.]” (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 582.) We have no quarrel with the court’s recitation of the factors it considered in making its credibility determinations.

The court also repeatedly emphasized plaintiff’s failure of proof, including her failure to call witnesses such as the contractors who performed the repair work. For example, with respect to the claim for damages related to the removal of wallpaper, the court said, “[a]gain, the absence of testimony from the contractor is critical here. The hearsay statements on the bills as to the cause of the work done are not considered as they are not supported by the testimony of the contractor and are found to be unreliable evidence since it is clear that the evidence as to the bills has apparently been manipulated by Plaintiff to attempt to show a causal connection of the work done to the removal of the wallpaper.”

The court further explained that plaintiff “did not present any credible evidence at trial regarding the condition of the lease premises at or prior to the commencement of the lease” with defendant and that her case was largely “premised upon the false notion that [defendant] is required under the terms of the subject lease and relevant statutes and case law to essentially renovate the premises to a condition that [plaintiff] finds to be suitable for the operation of a gas station according to her subjective lay opinion. There is no evidence presented as to industry custom or practice as to what deterioration of the premises is acceptable given the use, and ordinary wear and tear on the premises.”

Plaintiff fails to acknowledge the court’s articulated reasons for rejecting her evidence. The essence of plaintiff’s argument is really nothing more than a request for this court to disregard the standard of review and to reweigh the evidence in her favor. This we will not do.

Finally, plaintiff’s contention the court omitted a material factual issue is equally without merit. Plaintiff contends the court failed to make a finding on her claim for $100 in damages to remove a PVC pipe that had been used to drain water from the ice machine and to patch the resulting hole in the wall.

The court expressly overruled plaintiff’s objections to the proposed statement of decision, including objection 11 which sought additional findings related to the removal of the PVC pipe. The court did not discuss the PVC pipe claim under a separate heading in its statement of decision. However, under the section discussing the requested damages for repairing the threshold, the court addressed the insufficiency of the evidence presented in support of plaintiff’s $100 damage claim for the PVC pipe (exhibit 23). The court once again noted plaintiff’s failure to call the contractor who performed the work to clarify the invoice which failed to differentiate between work that plaintiff claimed as damages and other unrelated services. It is clear from reading the decision as a whole that the court found plaintiff failed to meet her burden of proof on this issue and the mere fact the decision did not enumerate the $100 damage claim under a separate heading does not render it legally defective. It does not amount to an omission of a material finding.

3. Exclusion of Evidence Regarding Lost Profits
4.
Plaintiff contends the trial court erred in excluding her claim for lost profits. She says her proffered evidence was not speculative and that expert testimony was unnecessary. Plaintiff proposed that she and perhaps her son, as well as an employee of Anabi Oil, testify about different Shell gas station sales. We are not persuaded.

“ ‘A trial court’s exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” (Christ v. Schwartz (2016) 2 Cal.App.5th 440, 446-447; see also Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773 [admission or exclusion of expert testimony regarding lost profits reviewed for abuse of discretion].)

The trial court granted defendant’s motion in limine to preclude plaintiff’s proffered lay testimony on the issue of lost profits. Plaintiff contended the opening of the station, rebranded as a Shell station, was delayed by two months because of the state of disrepair in which defendant left the premises upon vacating. The court found plaintiff’s evidence to be speculative at best and that expert testimony was necessary, explaining “Plaintiff does not describe with sufficient particularity the evidence from other Shell convenience stores that would form a reasonably reliable basis (substantially similar comparable businesses) for any conclusion that the store would have lost profits. Most importantly, such evidence calls for expert opinion testimony since the determination of substantial similarity and reasonably reliable basis for lost profits based upon profits in other stores or the same store in the following year calls for an opinion outside the scope of common knowledge and experience.”

Plaintiff has not demonstrated the court’s ruling constituted an abuse of discretion. Nor has plaintiff shown the error resulted in a miscarriage of justice. Since plaintiff has not demonstrated the court erred in finding defendant did not breach the lease agreement, plaintiff cannot recover damages for breach of contract, including lost profits.

5. The Attorney Fee Award
6.
The trial court correctly found defendant to be the prevailing party. Code of Civil Procedure section 1032, subdivision (a)(4) defines “prevailing party” to include “a defendant where neither plaintiff nor defendant obtains any relief.” Section 1033.5, subdivision (a)(10) specifies that recoverable costs include attorney fees provided by contract, statute or law. Where, as here, the defendant in a contract action prevails on the complaint, and the plaintiff prevails on the cross-complaint, the defendant is statutorily entitled to an award of costs as well as contractual attorney fees. (Cussler v. Crusader Entertainment, LLC (2012) 212 Cal.App.4th 356, 371-372.)

The only reason why plaintiff says the fee award must be reversed is her belief the judgment must be reversed—she otherwise articulates no factual or legal defect in the court’s award. We have already determined the judgment is properly affirmed, and so should the fee award be affirmed.

DISPOSITION

The judgment entered in favor of Walid Haddad is affirmed. Walid Haddad shall recover costs of appeal.

GRIMES, J.

WE CONCUR:

BIGELOW, P. J. WILEY, J.