Moatazedi v. Bostajani

Filed 8/15/06 Moatazedi v. Bostajani CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, James Bascue, Judge. Affirmed.

Diamond, Burt & Akhkashian, Daniel P. Hunt and Khachik Akhkashian for Plaintiff and Appellant.

Schreiber & Schreiber, Edwin C. Schreiber and Eric A. Schreiber for Defendant and Respondent.

INTRODUCTION

In 2004, Siroos Moatazedi (plaintiff) sued Fazi Bostajani (defendant) to establish a 50 percent interest in an airport shuttle service owned by defendant. Plaintiff alleged he had purchased an option to buy the interest in April 1992 and that defendant denied he (plaintiff) had any interest in the business. Defendant, relying upon the doctrine of judicial estoppel and plaintiff's failure to list the option as an asset in his November 1992 bankruptcy petition, moved for judgment on the pleadings. Based upon the allegations in plaintiff's complaint and matters properly the subject of judicial notice, the trial court granted defendant's motion.

Plaintiff, seeking a reversal of the judgment, urges there are factual disputes that need to be resolved before the trial court can determine if all elements of judicial estoppel are present. This approach fails because it is predicated upon argument and evidence that were not presented to the trial court. In other words, plaintiff, in violation of well-settled rules of appellate review, has changed his theory of the case on appeal. We therefore disregard his argument and, conducting a de novo review of the evidence, conclude the trial court's application of the doctrine of judicial estoppel was correct. Consequently, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Complaint

The complaint alleged the following facts.

In 1987, plaintiff, defendant and John Vallone[1] each owned a 1/3 interest in American Transportation Enterprises, Inc. (ATE), a taxicab and airport shuttle service.

In April 1992, defendant experienced financial difficulties and anticipated filing for bankruptcy. To protect ATE and defendant's interest in it, the three men agreed that ATE would transfer its assets to two newly formed corporations: Mini-Bus Systems, Inc. (MBS) and Xitoa, Inc. (Xitoa). Pursuant to this agreement, ATE transferred the airport shuttle service to MBS and the taxicab service to Xitoa. Carl Melvin was the sole shareholder of the two new corporations. Melvin provided plaintiff, defendant, and Vallone with options to purchase their pro rata interests in MBS and Xitoa.

In November 1992, defendant filed for bankruptcy.

In June 1993, plaintiff and defendant purchased Vallone's option.

In 1996, Melvin transferred all stock in Xitoa to plaintiff and all stock in MBS to defendant. The transfers â€