Occidental Blvd. v. Ha
Filed 6/4/13 139 S. Occidental Blvd. v. Ha CA2/7
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SEVEN
139 S.
OCCIDENTAL BLVD., LLC,
Plaintiff and Respondent,
v.
JAMES HA et al.,
Defendants and Appellants.
B224218
(Los Angeles
County
Super. Ct.
No. BC357685)
APPEALS
from a judgment of the Superior Court
of
County, John Shook, Judge.
Dismissed in part; affirmed as modified in part.
Law Offices
of Sean Chandra, Sean Chandra; Law Office of Mansfield
Collins and Mansfield Collins for
Defendant and Appellant James Ha.
Reyes &
Barsoum and Jorge H. Reyes for Defendant and Appellant Nam
Kyung Cho.
Law Offices
of Larry Fabrizi, Larry Fabrizi; Park & Lim and S. Young Lim for Plaintiff
and Respondent.
_____________________
Defendants James Ha
judgment entered in favor of plaintiff 139 S.
Occidental Boulevard, LLC (the LLC).
dismiss Cho’s appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In May
2004, Ha made an offer to purchase the property located at 139
S. Occidental Boulevard in Los
Angeles (the property). Ha wanted to demolish the apartment building
existing on the property and replace it with a 40-unit condominium complex.
On June 3, 2004, Ha entered into escrow
to purchase the property. At some point,
Ha decided that the project would be financed and owned by a limited liability
company that he would form and for which he would solicit investors. On June 15, Ha filed the LLC’s articles of
incorporation.
By February 2, 2005, all members of the
LLC had executed the LLC’s operating agreement, which specified the LLC’s
purpose was the development and sale of the property. The initial members of the LLC were Louie
Young Development Company (LYDC), Ha, Hyon Sam Yi, Hyon Mi Yi, Donna Lee Faure,
Jonathan Kim, Brian Choe, Maryann K. Lee and Cho. Hyon Sam Yi, Donna Lee Faure, Jonathan Kim,
and Maryann K. Lee were members of Hyon Mi Yi’s family, and Brian Choe was a
family friend.
The
operating agreement designated Ha as the LLC’s sole manager. In this capacity, Ha was responsible for real
property ownership, management and proposed development. On February
14, 2005, Ha opened a bank account in the name of the LLC with an
initial deposit of $150,000, which was provided by members other than Ha and
Cho. The bank account, as well as the
LLC operating agreement, required that any check over $10,000 be signed by both
Ha and Hyon Mi Yi.
By February 17, 2005, Hyon Mi Yi, Hyon
Sam Yi, Jonathan Kim, Donna Lee Faure, Brian Choe, and Maryann Lee had
tendered, in full, their initial capital contributions.
On February 17, 2005, escrow on the
property closed in Ha’s name alone. The
purchase price of $1,775,000 included the LLC members’ capital contributions
totaling $891,000. None of this money
was contributed by Cho.
Within 15
days after opening the LLC bank account, Ha wrote seven checks to himself
totaling $60,000. Each check, however,
was written for an amount less than $10,000.
Ha claimed he had borrowed $50,000 from his brother-in-law in order to
close escrow and withdrew the $60,000 in order to repay him.
On April
25, 2005, Cho tendered $216,065.29 to Ha as part of a 1031 exchange for which
Ha, in turn, grant deeded her a 12.5 percent interest in the property. Ha did not deposit this money into the LLC’s
bank account. Rather, he deposited these
funds into his personal account. No
contract authorized Ha or LYDC to keep Cho’s $200,000.
Almost two
months later on June 21, 2005, Ha and Cho quitclaimed the property to the
LLC. On June 16, Ha and Cho signed an
affidavit regarding the lack of consideration given and received for
transferring ownership of the property to the LLC.
It was not
until sometime in 2006 that LLC members Hyon Mi Yi, Hyon Sam Yi, Jonathan Kim,
Donna Lee Faure, Brian Choe, and Maryann Lee first met or spoke with Cho.
Eventually,
dissension arose amongst some of the members of the LLC. On July 15, 2006, Ha was voted out as
the LLC’s managing member. Believing
that Ha had breached his managerial duties and mishandled the LLC’s funds, the
LLC instituted this action in August 2006.
The LLC
filed its third amended complaint against Ha, LYDC and Cho on December 19,
2008,
duty (first), breach of contract (second), fraud (third), constructive fraud
(fourth), accounting (fifth) against Ha, as well as a cause of action for
(sixth). The LLC later requested
dismissal of the third cause of action for fraud against Ha. That cause of action was dismissed on
September 18, 2009.
On November
16, 2009, while trial was ongoing, the LLC requested leave to amend the third
amended complaint to conform to proof adduced at trial. Specifically, the LLC sought to add a seventh
cause of action for declaratory relief against Ha, an eighth cause of action
for money had and received against Ha and LYDC and a ninth cause of action for
breach of contract by a third party beneficiary against Ha. The trial court granted the LLC’s motion, and
on December 23, 2009, the LLC filed its operative fourth amended complaint to
conform to proof.
On February
18, 2010, the trial court signed and filed its 48-page statement of decision. It found in favor of the LLC and against Ha
and/or Cho on all of its causes of action.
With
respect to the LLC’s first cause of action for breach of fiduciary duty against
Ha, the trial court found that the LLC did not modify Ha’s fiduciary duties as
set forth in Corporations Code section 17005, subdivision (d), that Ha owed the
LLC a fiduciary duty while acting as its manager, that Ha failed to meet his
burden of proving he did not breach his fiduciary duty and that the LLC
sustained damages as a result of Ha’s breaches of his fiduciary duty.
As to the
LLC’s second cause of action for breach of contract and its ninth cause of
action for breach of contract by a third party beneficiary, both against Ha,
the trial court found that Ha breached the operating agreement, entitling the
LLC to damages.
The trial
court further found that, as to the LLC’s fourth cause of action for
constructive fraud, Ha was liable to the LLC for constructive fraud. The court found that Ha “formed and
controlled the LLC to his advantage by misleading the LLC members to their
prejudice.â€
As to the
fifth cause of action for an accounting against Ha and LYDC, the court
determined that neither Ha nor LYDC provided a total accounting of the LLC’s
assets and liabilities to the detriment of the LLC.
With regard
to the LLC’s sixth cause of action for declaratory relief against Cho, the
trial court determined that none of Cho’s money inured to the benefit of the
LLC. Cho did not actually contribute
$200,000 to the LLC. As such, she was
not entitled to a 12.5 percent membership interest in the LLC. The court reasoned that the property already
had been bought and paid for by the time Cho gave Ha her money, none of which
was ever deposited into the LLC’s bank account, and the “operating agreement
had already provided for the no additional consideration transfer of the
already paid for property to the LLC.â€
(Underlining deleted.)
Specifically, section 1.7 provided “Title to the Property shall be
transferred and held in the name of Company with 15 days of execution of this
agreement.â€
On the
LLC’s seventh cause of action for declaratory relief against Ha, the trial
court observed that Ha’s initial capital contribution for a 25 percent interest
in the LLC was supposed to be $400,000.
Ha had only made a $50,000 capital contribution, however. Therefore, he never acquired a 25 percent
interest in the LLC.
As for the
LLC’s eighth cause of action for money had and received against Ha and LYDC,
the court determined that Ha and LYDC were alter egos of each other such that
the separate nature of each was to be disregarded to prevent injury to the
LLC. The court also determined that Ha
and LYDC were indebted to the LLC for money had and received for the use and
benefit of the LLC.
On March 5,
2010, judgment in favor of the LLC and against Ha and Cho was entered. The judgment ordered Ha to pay the LLC actual
damages totaling $362,015.95,
name="_ftnref5" title="">[5] plus punitive damages in the amount of
$500,000, along with attorney’s fees and costs.
Judgment was also entered in favor of the LLC and against LYDC for
actual damages in the sum of $30,000,
attorney’s fees and costs. The court
further ordered and decreed that neither Ha nor Cho had an interest in the LLC. With regard to attorney’s fees and costs, the
judgment provided that the court would adjudicate entitlement to fees if a
post-judgment motion for allowance of attorney’s fees as part of costs was
filed. The LLC subsequently filed such a
motion.
A. Cho’s Appeal
In the
conclusion section of her opening brief,
Cho asks this court to reverse the judgment and to order the trial court to
enter a new judgment in her favor, declaring her a member of the LLC. She further seeks reversal of an attorney’s
fee order and asks that she be declared the prevailing party and that the
matter be remanded on the issue of attorney’s fees. A review of Cho’s opening brief, however,
quickly reveals its inadequacy in form and substance. Indeed, it is virtually impossible to
understand what this case is about or to isolate Cho’s legal contentions on
appeal.
It is a
firmly established principle of appellate jurisprudence that a judgment or
order of the trial court is presumed to be correct. On appeal, it is the appellant’s burden to
demonstrate prejudicial error affirmatively by an adequate record. (Parker
v. Harbert (2012) 212 Cal.App.4th 1172, 1178.) If the appellant fails to meet this burden,
the judgment or order appealed from cannot be disturbed. (See Bell
v. H.F. Cox, Inc. (2012) 209 Cal.App.4th 62, 80.)
An
appellant’s opening brief must contain “a summary of the significant facts
limited to matters in the record.†(Cal.
Rules of Court, rule 8.204(a)(2)(C).)
Any reference to a matter in the appellate record must be supported “by
a citation to the volume and page number of the record where the matter
appears.†(Id., rule 8.204(a)(1)(C); Nazari
v. Ayrapetyan (2009) 171 Cal.App.4th 690, 694, fn. 1.) Procedural and factual statements that are
not supported by citations to the record may be disregarded on appeal. (Liberty
National Enterprises, L.P. v. Chicago Title Ins. Co., supra, 194 Cal.App.4th at p. 846; Gotschall v. Daley, supra,
96 Cal.App.4th at p. 481, fn. 1.)
Legal
arguments made in an appellate brief must be supported by citations to
appropriate legal authority. (Cal. Rules
of Court, rule 8.204(a)(1)(B).) A
conclusionary argument devoid of citation to legal authority is insufficient
and may be disregarded. (
(2013) 212 Cal.App.4th 997, 1000, fn. 3; Dabney
v. Dabney (2002) 104 Cal.App.4th 379, 384.)
Legal contentions may also be treated as waived if the appellant fails
to direct the reviewing court to the portion of the record supporting his legal
arguments. (Lonely Maiden Productions, LLC v. GoldenTree Asset Management, LP
(2011) 201 Cal.App.4th 368, 384.)
Cho’s
opening brief is chock full of procedural and factual statements that are not
supported by references to the appellate record. She also refers to documents and quotes from
documents without directing us to the documents’ whereabouts in the appellate
record. In fact, not once does Cho cite
to the five-volume clerk’s transcript or the one-volume supplemental clerk’s
transcript. Although Cho’s opening brief
contains some citations to the 10-volume reporter’s transcript, these citations
appear only on two of the 14 pages of her brief. Moreover, they appear to be selective
citations to evidence she believes is favorable to her cause. These selective facts are insufficient to
provide us with an overview of what this case is about or to allow us to
identify her specific contentions on appeal.
At the
conclusion of the trial, the trial court signed a 48-page statement of
decision. Not once does Cho mention, let
alone challenge, any portion of this lengthy document. Thus, while the relief Cho would like is
clear, she has utterly and fatally failed to provide us with a road map that
would allow us to navigate her opening brief or to reach the result she seeks.
“‘We are a
busy court which “cannot be expected to search through a voluminous record to
discover evidence on a point raised by [a party] when his brief makes no
reference to the pages where the evidence on the point can be found in the
record.â€â€™ [Citation.]†(Myers
v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 745.) “It is the duty of counsel to refer us to the
portion of the record supporting his contentions on appeal. [Citations.]
‘It is not incumbent upon this court to search a record of this
character to determine a point raised in this manner.’ [Citations.]â€
(Schmidlin v. City of Palo Alto
(2007) 157 Cal.App.4th 728, 738.) “‘If
no citation “is furnished on a particular point, the court may treat it as
waived.†[Citation.]’†(Lonely
Maiden Productions, LLC v. GoldenTree Asset Management, LP,
Guthrey v. State of California (1998)
63 Cal.App.4th 1108, 1115.) Due to the
fatal deficiencies in Cho’s opening brief, we deem her appeal to be
abandoned. (Cf. 108 Holdings, Ltd. v. City of Rohnert Park (2006) 136 Cal.App.4th
186, 193, fn. 3.)
B. Ha’s Appeal
Ha’s
opening brief, like Cho’s, suffers from some deficiencies. For example, Ha makes numerous references to
“TEâ€s, which we presume to mean “trial exhibits.†Although Ha lodged with this court two
binders containing documents purporting to be trial court exhibits, the
exhibits to which he cites in his opening brief do not correspond by number
with those contained in the binders.
Stated otherwise, while the binders contain a listing of the actual
trial exhibits by number, the order in which the documents appear in the
binders bears no correlation to the actual trial court exhibits. It is not our responsibility to search though
the multitude of documents supplied by Ha and determine which purported
exhibits, if any, support Ha. (
(2009) 171 Cal.App.4th 72, 89.) Also
problematic is Ha’s failure to cite to the clerk’s transcript or the
supplemental clerk’s transcript. For
example, he cites to the Statement of Decision by its individual page numbers
but never once does he cite to the document in the record on appeal. It is the appellant’s responsibility to cite
to the volume and page number of the appellate record where the matter referred
to appears. (Ibid.)
With these
deficiencies having been pointed out, we proceed to address, as best we can,
Ha’s contentions on appeal, which for the most part are challenges to the
sufficiency of the evidence supporting findings in the statement of decision.
decision provides the trial court’s reasoning on disputed issues and is our
touchstone to determine whether or not the trial court’s decision is supported
by the facts and the law.†(
Cal.App.4th 713, 718.) “We review the trial court’s express factual findings
for substantial evidence.†(
599, 608.) The party attacking
the sufficiency of the evidence to support a finding of the trial court “must
set forth in his brief all the material evidence bearing on the issue and not
merely the evidence favorable to him, and failure to do so may be deemed a
waiver of the claimed error.
[Citations.]†(
Crest Dairy, Inc. (1978) 77 Cal.App.3d 742, 758.)
In
examining the sufficiency of the evidence, “we view the evidence and draw all reasonable
inferences therefrom in support of the judgment. [Citation.]
Credibility of witnesses and weight of the evidence are matters for the
trier of fact. [Citation.] We do not substitute our views for those of
the trial court. [Citation.]†(Biren
v. Equality Emergency Medical Group, Inc. (2002) 102 Cal.App.4th 125, 143.)
1. Fiduciary Duty
Ha contends
the LLC agreed to eliminate the creation of any fiduciary relationship between
the LLC, its members and the manager.
The trial court found otherwise.
In its statement of decision, the trial court observed: “The evidence has shown that an LLC managing
member owes fiduciary duties as mandated by statute akin to a partner in a
partnership, (Corp. Code, § 17153).
“The
evidence has shown that the LLC did not modify the Corp[orations] Code
fiduciary/statutory duty with any informed consent as is required by
Corp[orations] Code [section] 17005[, subdivision ](d). The LLC members testified that Section 3.6,
‘modify’ the statutory fiduciary duty was never specifically read by them nor
explained to them by anyone, including HA’S attorney on other matters, James
Chu, (and attorney Chu did not appear as a witness to contend otherwise). In fact, the operating agreement in Paragraph
3.2D(a) specifically states that a fiduciary duty does
exist . . . . Said
paragraph states: [¶] ‘Managers shall have the fiduciary
responsibility for the safekeeping and use of all funds and assets of Company,
whether or not in their immediate possession or control. The funds of Company shall not be commingled
with the funds of any other person and the Manager shall not employ, or permit
any other person to employ, such funds in any manner except for the benefit of Company.’ [¶]
Additionally, paragraph 3.6 which purports to modify the Corp[orations]
Code dates is not a modification attempt.
It appears to be a waiver which is not a ‘modification’ under
Corp[orations] Code [section] 17005[, subdivision ](d).
“In any
event, even if the fiduciary duty was ‘modified’ with informed consent and even
if Paragraph 3.2D(a) stated above is not considered, HA admits in his trial
brief that a fiduciary duty would still exist in cases of fraud, gross
negligence, willful misconduct or bad faith . . . .
“The
evidence has shown that HA’S actions in breaching of his fiduciary duty were
indeed ones of fraud, gross negligence, willful misconduct and in bad faith,
and thus a purported modification or waiver is actually a non-issue.
“JAMES HA
did not meet the burden of proof imposed upon him by law, to prove that he did
not breach his fiduciary duty to Plaintiff and in fact, Plaintiff has
affirmatively proven that HA did breach his fiduciary duties.
“The
evidence has shown JAMES HA did not act as a partner legally must to a partner
(Corp. Code[, §§] 16404 and 17153) nor with the standard of conduct to act in
the highest good faith to the Plaintiff that he sought to obtain an advantage
over Plaintiff by misconduct, misrepresentation, concealment, threat or adverse
process . . . .â€
Ha has
failed to demonstrate a basis for disturbing the trial court’s finding that he
owed a fiduciary duty to his co-LLC members.
It is not enough for Ha simply to claim that there was no evidence of
fraud, coercion, misrepresentation or duress or that certain testimony should
not have been believed by the court.
Also, his reliance on the evidence suggesting that his co-LLC members
did not read the operating agreement before signing is misplaced, in that such
evidence does not negate the existence of a fiduciary duty.
2.
Agency
Spinning
the evidence in the light most favorable to himself, Ha characterizes Hyon Mi
Yi as the de facto or ostensible agent of her family members and friend and
argues that he was entitled to rely on her representations in that
capacity. Even if this were true, which
we do not decide, Ha makes no effort to demonstrate how this would have changed
the end result in this case.
In any
event, defendant does not cite to any evidence that would have justified a
finding that Hyon Mi Yi had any authority, ostensible or otherwise, to make
major decisions on their behalf with regard to the affairs of the LLC. In fact, the trial court found that Hyon Sam
Yi and Donna Lee Faure testified that they did not authorize Hyon Mi Yi to vote
for them. The court expressly found Hyon
Sam Yi’s and Donna Lee Faure’s testimony to be credible.
3. Ha’s Capital Contribution
Ha asserts
that the LLC agreed that he did not have to contribute all of his capital until
the date that building permit fees were due.
That is true, but there is more to it.
Section 2.2(c) of the LLC’s operating agreement required Ha to pay the
balance of his initial capital contribution, $343,500, “to the City of Los
Angeles to obtain all applicable building permits for the Project Developmentâ€
when the building permit fees were due.
However, “in the event the sum total of building permit fees is less
than $343,500, the then remaining balance of Mr. Ha’s initial capital
contribution shall be paid directly to the Company.â€
Ha does not
dispute, however, that the project was not completed, no building permit fees
were ever paid and the project has since been abandoned. Thus, under the terms of the operating
agreement, and as the trial court found, he had to pay the LLC $343,500 “in
order for him to hold a 25% [interest] in the LLC.†Absent such payment, “he cannot have a 25%
interest in the LLC.â€
4. Duty to Disclose Commission
Ha realized a
commission for himself in the net amount of $34,120 in connection with his purchase
of the property. He challenges the trial
court’s determination that he had a duty to disclose his receipt of a
commission to the LLC members and that his failure to fulfill this duty
required that he disgorge his commission.
As the
trial court aptly found, when escrow closed on February 17, 2005, Ha already
had been designated the LLC’s manager via the operating agreement. As a fiduciary managing member he was
obligated to disclose his commission to the other LLC members. Having failed to do so, the trial court
properly ordered that he disgorge his commission. (Cf. Terry
v. Bender (1956) 143 Cal.App.2d 198, 212.)
5.
Ha’s Loan to the LLC
Ha claims
he did not breach any fiduciary duty when he borrowed $50,000 from his
brother-in-law, loaned it to the LLC and then repaid it. The trial court did not believe Ha’s
claim. With regard to Ha’s credibility,
the trial court stated it “is highly suspect if it exists at all. He appears to have an initial answer for
everything.†The court further noted that
“[w]ithin days of opening the LLC account with $150,000 of the member’s [
immediately withdrew $60,000 to himself in $10,000
checks . . . . His
‘excuse’ was that he was paying back $50,000 his brother-in-law Kyung Mok Lee
loaned to the LLC to help purchase the property.†The court then noted that Ha had offered no
credible explanation for taking $60,000 out of the LLC account when the loan
was only $50,000. In addition, the court
questioned why there was no paperwork memorializing the transaction, why Ha did
not simply write his brother-in-law a check for $50,000 from the LLC bank
account and why he “clandestinely†cut multiple checks to himself, each under
$10,000. We have no basis for disturbing
the court’s credibility determination or its factual determination that the LLC
suffered actual damages of $60,000 as a result of Ha’s conduct in withdrawing
this money from its account. (
846, 917 [reviewing court does “‘not reweigh evidence
or reevaluate a witness’s credibility.’â€].)
6.
Delay in Transferring Title
Ha
maintains that he acted in good faith and that the LLC suffered no damage as a
result of his delay in transferring title of the property to the LLC until
Cho’s 1031 exchange was complete.
Assuming this is true, Ha has failed to demonstrate how the trial
court’s failure to make a finding on this issue below requires reversal of the
judgment.
“‘The
burden is on the appellant in every case to show that the claimed error is
prejudicial; i.e., that is has resulted in a miscarriage of justice.’ [Citation.]
Injury is not presumed from error, but injury must appear affirmatively
upon the court’s examination of the entire record. ‘But our duty to examine the entire cause
arises when and only when the appellant has fulfilled his duty to tender a
proper prejudice argument. Because of
the need to consider
the particulars of the given case, rather than the type of error, the appellant
bears the duty of spelling out in his brief exactly how the error caused a
“miscarriage of justice.â€â€™
[Citation.] . . . ‘Where any error is relied on for reversal it
is not sufficient for appellant to point to the error and rest there.’ [Citation.]â€
(In re Marriage of McLaughlin
(2000) 82 Cal.App.4th 327, 337.) “[W]e
cannot presume prejudice and will not reverse the judgment in the absence of an
affirmative showing there was a miscarriage
of justice. [Citations.] Nor will this court act as counsel for
appellant by furnishing a legal argument as to how the trial court’s ruling was
prejudicial. [Citations.]†(Century
Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963.)
7. Entitlement to Cho’s $200,000
Ha claims
that a majority of the LLC members signed a contract on May 18, 2005, with LYDC
containing a signing payment of $200,000.
Ha claims he was entitled to retain the $200,000 from Cho to satisfy the
contract.
In its
statement of decision the trial court noted that “Judge Fern found that no such
‘contract’ was ever entered into, (sustained demurrer without leave to amend
heard on September 2, 2008 and judgment for dismissal effective October 8, 2008
— also see Plaintiff’s Motion in Limine #1).â€
The court continued: “After the
above purported LLC/LYDC contract was found not to exist by Judge Ferns, JAMES
HA then subsequently produced another document (Ex. 246) not previously
produced to Judge Ferns as per Judge Ferns order re: the demurrer hearing. Mr. HA testified that he had not given this
document to his previous Attorney, Mr. Spolin because he ‘couldn’t locate
it.’ Said document was not produced in
previous written discovery but rather only at his deposition taken immediately
prior to trial. This Court finds that
this document (Ex. 246) was fabricated by JAMES HA as evidenced by, among other
things, the language itself, an initial only, the Social Security Numbers of
members which Mr. HA previously had in his possession; and the identical fax
stamp on this fabricated document that existed on a different document (Ex.
148) JAMES HA admitted he had previously received (Ex. 246).†(Underlining omitted.)
Inasmuch as
Ha has failed to set forth all relevant evidence related to this contention and
has failed to direct our attention to the whereabouts of this contract in the
appellate record, we reject his claim. (
Crest Dairy, Inc., supra, 77
Cal.App.3d at p. 758.)
8.
Commingling of Monies and Accounting
Ha next
contends he “did not commingle any personal accounts with the 139-LLC bank
account.†This contention is
disingenuous and does nothing to dispel the court’s finding that he deposited
the $200,000 he received from Cho into his own personal account. The court found incredible Ha’s position that
Cho’s $200,000 belonged to LYDC.
Specifically, the court found that Ha “deposited CHO’s money into his
personal account for his own use in April of 2005. However, the purported ‘contract,’ supposedly
authorizing him to do so, was not signed, according to HA’s position, until May
of 2006. Ha has failed to demonstrate
that the evidence is insufficient to support these factual findings.
Ha also
contends that he provided a full accounting of the monies he received and expended and challenges the trial
court’s finding to the contrary. In its
statement of decision, the trial court found that Ha’s witness Lynn Kim
“testified as a paid expert for HA/LYDC as to ‘the accounting practices of
James Ha, [LYDC] and [the LLC].’ He has
been the personal CPA for both HA and LYDC for approximately 4 years. He shares a four-man suite with Mr. HA’S
attorney, Mansfield Collins. He
introduced Mr. HA to Attorney Collins.
He has never testified as an expert before.
“Mr. Kim
testified that he only reviewed those documents which were given to him by Mr.
HA, all of which he said were contained in Ex. 243. He has admitted that he only reviewed one
personal account of Mr. HA and even that one account did not include the bank
statements. Mr. HA did not give him
those bank statements.
“Mr. Kim’s
analysis and charts he prepared are contained in Ex. 243, which included and
was prefaced by his letter of March 13, 2009 in which he, among other things,
distances himself from the reliability of the information contained in the
charts. He further admitted that he had
no way of knowing, from the documentation provided by Mr. HA which he reviewed,
whether JAMES HA actually deposited all the LLC property rent monies into the
LLC account. He further admitted that
his analysis as to what purportedly benefited the LLC came only from what Mr.
HA told him.
“The court
does not find Lynn Kim’s relevant testimony credible as against Plaintiff.â€
The court
ultimately determined that neither Ha nor LYDC provided a total accounting of
the LLC’s assets and liabilities, resulting in damage to the LLC. In support of its findings, the court noted
that Ha failed to account to the LLC for the $60,000 he withdrew from the LLC
account payable to himself between March 1 and 4, 2005, for the $34,118.95 in
the LLC rental monies that he received, for the $30,000 paid from the LLC
account without the consent of 51 percent of the LLC members as required by the
contract, for the $200,000 he received from Cho, for two checks he paid to
himself in May 2005 and for one check he paid to 3320 Beverly Boulevard LLC in
February 2008.
As with the
issue of commingling, Ha has failed to demonstrate any basis to disturb the
trial court’s factual findings on the accounting issue.
9.
Hyon Mi Yi’s Credibility
Next, Ha
challenges the trial court’s determination that Hyon Mi Yi was credible,
claiming she lied during trial.
Determining the credibility of witnesses, even one who is caught in a
lie, is the exclusive province of the trier of fact, which in this case was the
trial court. We will not disturb the
trial court’s credibility determination on appeal. (People
v. Alexander, supra, 49 Cal.4th
at p. 917.) Moreover, that the trial
court did not reach the result desired by Ha does not establish that the court
ignored evidence.
10. Actual Damages: Cho’s $200,000
Ha contends
the trial court committed reversible error when it included in its actual
damage award the $200,000 from Cho, and still declared that Cho was not a
member of the LLC.
Cho
purchased a 12.5 percent interest in the property from Ha, who at the time of
the purchase was the legal owner of the property. The trial court found that Ha had deposited
the $200,000 he received from Cho into his personal account for his own use in
April 2005. After Ha transferred that
interest to her via a grant deed, Cho and Ha then quitclaimed the property to
the LLC.
The trial
court rejected as incredible Ha’s initial position that the “$200,000 belonged
to LYDC pursuant to a ‘contract’ between the LLC and LYDC†that was not signed
until May 2005. We have no basis to
disturb the trial court’s decision not to believe Ha’s version of events. (People
v. Alexander, supra, 49 Cal.4th
at p. 917.)
11. Punitive Damages
Ha challenges the sufficiency of the evidence supporting
the trial court’s award of $500,000 in punitive damages. He contends the LLC failed to prove by clear
and convincing evidence that it was entitled to such damages. Inasmuch as Ha has failed to set forth all
relevant evidence related to this contention in his legal discussion, we deem
it waived. (Orange County Flood Control Dist. v. Sunny Crest Dairy, Inc.,
challenging the sufficiency of the evidence to support a finding “must set
forth in his brief all the material evidence bearing on the issue and not
merely the evidence favorable to him, and failure to do so may be deemed a
waiver of the claimed errorâ€].) Thus,
generalized arguments and references to the evidence do not suffice to
demonstrate error on appeal.
C. Double
Recovery
As
previously noted, the trial court entered judgment in favor of the LLC and
against LYDC for $30,000. This sum
represents the amount Ha paid from the LLC’s account to LYDC without the
required authorization of 51 percent of the LLC. The court also entered judgment against Ha
and ordered him to pay the LLC actual damages totaling $362,015.95. Included within this sum is $30,000 of LLC
monies that Ha paid out without authorization.
Thus, it appears the LLC recovered the same $30,000 twice.
At oral
argument, the court inquired whether this constituted a double counting of the
same $30,000 payment. Counsel for the
LLC acknowledged “that may have been†double counting as to that $30,000, in
that it was the same amount. We believe the
judgment must be modified accordingly.
DISPOSITION
Cho’s
appeal from the judgment is dismissed.
In light of the trial court’s determination that Ha and LYDC are alter
egos of each other, and in order to eliminate the double counting of the
$30,000 each was ordered to pay the LLC, we vacate that portion of the judgment
in favor of the LLC and against LYDC in the amount of $30,000. As modified the judgment is affirmed. The LLC is awarded its costs on appeal from
Cho and Ha.
JACKSON,
J.
We concur:
WOODS,
Acting P. J.
ZELON,
J.
name="_ftn1" title="">[1] Ha is also known and identified in the appellate record as
In Bong Ha.
name="_ftn2" title="">[2] Defendant Louie Young Development Company also appealed
from the judgment. Following its
default, this court dismissed its appeal pursuant to California Rules of Court,
rule 8.140(b).
