^{Mariage of Nakamoto}

^{Filed 3/12/07 Mariage of Nakamoto CA2/5}

^{NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS}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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.}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

^{APPEAL from a judgment of the Superior Court of Los Angeles County. Roy L. Paul, Judge. Affirmed.}

^{Peyman & Rahnama and Pehman Rahnama for Appellant.}

^{Grace White for Respondent.}

^{_____________________________________}

INTRODUCTION

The marriage of petitioner Mercedes Nakamoto and respondent Luis Nakamoto ended with a judgment of dissolution in 2001.^[1] The judgment provided that a family owned business, Super Pollo I, would be co-owned by the parties. Mercedes was allowed to run Super Pollo I and had the right to purchase Luiss interest within four years. The judgment further provided that the businesss accounting was to be handled by White, Zuckerman, Warsavsky, Luna, Wolf & Hunt (White Zuckerman), and if Mercedes exercised the buyout provision, the value of Luiss interest would be determined by an appraisal performed by White Zuckerman.

When Mercedes tendered payment to purchase the business in 2004 pursuant to an appraisal by White Zuckerman, Luis objected to the amount of the appraisal and refused to complete the sale. Luis appeals from the trial courts postjudgment order determining that the appraisal was valid and the sale was to be completed in accordance with the judgment of dissolution. In this appeal, Luis argues: (1) the trial courts order appointing White Zuckerman at the time of the dissolution judgment in 2001 was error because of a lack of evidence the firm was qualified to prepare the appraisal; (2) the order appointing White Zuckerman was deficient because the order did not detail how White Zuckerman was to conduct the appraisal; and (3) the trial court erred by enforcing the buyout provision of the judgment based upon the appraisal of White Zuckerman.

We hold the first and second contentions were forfeited by Luiss agreement to the terms of the judgment and his failure to appeal from the judgment in 2001. We further hold the trial court properly construed the judgment of dissolution to mean the White Zuckerman appraisal was binding on the parties and enforcement of the buyout provision was proper.

FACTS

A. The Judgment

The judgment of dissolution was entered on December 13, 2001. As relevant to this appeal, Mercedes assumed management and control of the community business referred to as Super Pollo I, effective October 12, 2001. The trial court reserved jurisdiction over all matters related to the transfer of the business to Mercedes and the operation of the business thereafter. Mercedes was responsible for record keeping and filing of all appropriate tax returns. The business was to operate as a partnership. An accountant was to be hired to keep the financial records of the business and prepare partnership tax returns. Mercedes was to be paid $50,000 annually as a management fee and net income was to be divided between the parties.

Mercedes had the right to purchase Luiss interest in Super Pollo I for one half the appraised value of the business at that time at any time up to and including January 1, 2006. The appraisal was to be conducted by White Zuckerman. If White Zuckerman was unable to complete the appraisal within 90 days, the parties could select another appraiser, but in the absence of agreement, the court could select an alternative appraiser upon ex parte application. Mercedes was required to tender the purchase price within 60 days of the appraisal.

B. Mercedess Attempt to Purchase Luiss Interest

On June 18, 2004, Mercedes gave written notice of her intent to purchase Luiss interest in Super Pollo I. A written retainer agreement with White Zuckerman for the purpose of preparing the appraisal was signed by Mercedes and Luis on July 1, 2004. White Zuckerman completed the appraisal on July 21, 2004, determining the value of the business as of April 30, 2004, was $62,000.

On August 9, 2004, Mercedes tendered payment of $10,936.04 to Luis for buyout of his interest in SuperPolloI.^[2] On September 8, 2004, Luis refused the tender. He questioned the appraisal value of the business, claiming the business was more profitable before Mercedes took control. He also believed the appraised value of the business was higher at the time of the dissolution judgment. Luis indicated he would obtain another appraisal of the business.

On September 30, 2004, Mercedes filed an order to show cause for execution of that part of the judgment of dissolution controlling the buyout of Luiss interest in Super Pollo I. She alleged the business was appraised at a current value of $62,000 by White Zuckerman, the accounting firm selected by the parties and approved by the court. She also alleged having given notice of intent to purchase and the tender of funds to complete the sale.

On October 25, 2004, Luis filed a responsive declaration objecting to the order to show cause on the ground the business should be re-appraised and that portion of the judgment pertaining to the sale of the co-owned business be deemed unconscionable and unenforceable. In a supporting declaration, Luis disputed the appraisal value. He also questioned the adequacy of the records kept by Mercedes and claimed to have been denied access to the records. White Zuckerman had been selected by Mercedes and her counsel, but Luis only agreed to retain their services because he did not feel [he] had a choice in the matter.

To support his objection to the order to show cause, Luis retained certified public accountant Eric R. Steinwald. Steinwald prepared a declaration which concluded White Zuckermans appraisal in the amount of $62,000 was inadequate. Steinwald concluded the value of Super Pollo I was $658,255.

Mercedes replied to Luiss opposition to the order to show cause with a declaration stating she had not mismanaged the business. She argued Luis had not appealed from the judgment entered in 2001, nor had he challenged it as unconscionable.

Luis filed an order to show cause on December 10, 2004, alleging a breach of fiduciary duty by Mercedes. He alleged the value of the business had depreciated during Mercedess management. She had refused to make the books and records of the business available for inspection. She had been untruthful about income and profits. Steinwald also filed a declaration, questioning unexplained cash transactions, questionable payouts, and unrecorded sales.

Mercedes filed a declaration in response to Luiss breach of fiduciary duty order to show cause. She deferred to the appraisal of White Zuckerman to answer Luiss allegations regarding valuation. She denied mismanagement or suppression of the books and records.

At the conclusion of court proceedings, the trial court made the following findings: White Zuckerman had been appointed by mutual agreement of the parties; Luiss tax returns with the federal government prior to the date of dissolution showed the business making an income of $2,300 to $2,400 per month, which means Mercedes grew the business, rather than mismanaging it, unless Luis had been dishonest in his tax returns; the judgment of dissolution specified White Zuckerman as a neutral accountant to make sure everything was handled correctly; White Zuckerman did not engage in misconduct, nor did it engage in a conspiracy with Mercedes to breach the firms fiduciary duty; the current litigation before the court was not a trial, but instead was merely a postjudgment proceeding that was not intended to be a dispute between experts; the judgment contemplated that White Zuckerman would do the appraisal which would serve as the basis of the buyout; White Zuckerman found no evidence of misappropriation by Mercedes; and the court was not required to decide if Steinwalds evaluation was correct, since the judgment specified the appraisal was to be prepared by White Zuckerman.

The court entered a written order after hearing. The order provided that Mercedes had not breached her fiduciary duty, nor did White Zuckerman breach its duties in handling the account of the business or in the appraisal process. The judgment of dissolution named White Zuckerman as the joint appraiser for the business and set forth an unambiguous procedure for appraisal. There was no malfeasance or misfeasance on the part of White Zuckerman, and the appraisal was adopted by the court. The sale of Super Pollo I was ordered carried out in accordance with the appraisal.

DISCUSSION

I

THE APPOINTMENT OF WHITE ZUCKERMAN IS NOT PROPERLY

BEFORE THIS COURT ON AN APPEAL FROM A POSTJUDGMENT ORDER

Luiss first argument is that the trial court erred when it appointed White Zuckerman, pursuant to Evidence Code section 730, to serve as accounting firm for Super Pollo I and conduct the buyout appraisal. Luis argues the record does not demonstrate White Zuckerman has sufficient expertise to appraise Super Pollo I. The argument fails for three reasons.

First, Luis did not object to the appointment of White Zuckerman at the time of the judgment of dissolution. The failure to challenge an experts qualifications in the trial court forfeits the claim. (People v. Panah (2005) 35 Cal.4th 395, 478; People v. Farnam (2002) 28 Cal.4th 107, 162.) It is well established that issues or theories not properly raised or presented in the trial court may not be asserted on appeal, and will not be considered by an appellate tribunal. A party who fails to raise an issue in the trial court has therefore waived the right to do so on appeal. [Citations.] (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 117.)

Second, Luiss argument goes to the validity of the original judgment, from which he did not appeal in order to challenge the appointment of White Zuckerman. The time to appeal from the 2001 judgment of dissolution has long since lapsed. (Cal. Rules of Court, rule 8.104(a); see also former rule 2(a).) The appeal currently pending is from a postjudgment order, made approximately four years after the original judgment about which Luis now complains. Issues that should have been raised in an appeal from the original judgment are not cognizable on an appeal from a postjudgment order, because issues raised by the appeal from the order must be different from those arising from an appeal from the judgment. [Citation.] The reason for this general rule is that to allow the appeal from [an order raising the same issues as those raised by the judgment] would have the effect of allowing two appeals from the same ruling and might in some cases permit circumvention of the time limitations for appealing from the judgment. [Citation.] (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651; P R Burke Corp. v. Victor Valley Wastewater Reclamation Authority (2002) 98 Cal.App.4th 1047, 1053.)

Third, not only did Luis not object to the appointment of White Zuckerman, he agreed to it. Luis and Mercedes each signed the judgment of dissolution, approved by the trial court, which included both the buyout agreement and the designation of White Zuckerman as the appraiser. The trial court signed the judgment beneath language stating, APPROVED AS CONFORMING TO THE AGREEMENTS REACHED AT TRIAL ANDSUBSEQUENT ORDERS OF THE COURT. Luis cannot now object to a judgment to which he agreed. We hold that this stipulation was sufficiently broad to cover the issue of the competency of these witnesses, and thus we are precluded from reviewing the same on this appeal. [Citations.] (Vestal v. State Personnel Board (1960) 178 Cal.App.2d 920, 922.)

II

THE ADEQUACY OF THE ORDER FOR APPRAISAL IS NOT PROPERLY

BEFORE THIS COURT ON AN APPEAL FROM A POSTJUDGMENT ORDER

Luiss second argument is that the judgment of dissolution did not spell out, in sufficient detail, how the appraisal should be conducted. Citing In re Marriage of Seagondollar (2006) 139 Cal.App.4th 1116, Luis argues the judgment merely ordered White Zuckerman to appraise the business, but no other charge was given to said experts.

This argument suffers from the same three defects as were fatal to his first contentionhe did not object to the language of the judgment in the trial court, he did not appeal from that judgment, and he agreed to the terms. For each of these reasons, an appeal from the postjudgment order to complete the sale of the business is not the proper means to challenge the specificity of a four-year old judgment of dissolution.

Assuming the issue was cognizable on this appeal, it has no merit. Luis cites no pertinent authority suggesting a judgment of dissolution must dictate how an accounting firm is to conduct its appraisal of a family-owned business. The only authority cited by Luis, In re Marriage of Seagondollar, supra, 139 Cal.App.4th 1116, is unrelated to the issues presented in this case. The issue in Seagondollar was the propriety of an order allowing one parent to move out of state with a child subject to a joint custody order. The defective order appointing an expert in Seagondollar related to a child custody evaluation, an appointment subject to the requirements of California Rules of court, rule 5.220(d). While the scope of a child custody evaluation is subject to the standards set forth in rule 5.220, there is no corresponding rule for the appraisal of family owned fast-food establishments. Luis does not explain how a trial court would know how an appraisal should be approached, particularly years in advance of the appraisal. The purpose for appointment of an experthere, White Zuckermanis so the expert can prepare the appraisal in accord with its expertise. The order appointing White Zuckerman was not defectively incomplete.

III

THE TRIAL COURT DID NOT COMMIT ERROR BY

ACCEPTING THE APPRAISAL OF WHITE ZUCKERMAN

Luiss final argument, the only one cognizable on appeal from the postjudgment order, is that the trial court committed error when it accepted the appraisal of White Zuckerman and ordered the sale of the Super Pollo I at the appraisal price. We conclude the trial court correctly interpreted the judgment to mean that the appraisal would be conducted by White Zuckerman, and no further appraisal was contemplated in the absence of misconduct by the accounting firm.

A. Standard of Review of Interpretation of a Judgment

When the subject matter of a stipulation is incorporated in a judgment it is the duty of the court to carry out the intent of the parties as expressed therein and, if the language used by them is ambiguous, to ascertain that intent in accord with established principles. [Citations.] (Southern Cal. Gas Co. v. Joseph W. Wolfskill Co. (1963) 212 Cal.App.2d 882, 888.) Unless the interpretation of a written instrument turns on the credibility of extrinsic evidence, an appellate court must independently arrive at its own interpretation and may not uphold a judgment based on an inconsistent interpretation of the trial court merely because the construction made by the trial court was reasonable. [Citations.] (Rooney v. Vermont Investment Corp. (1973) 10 Cal.3d 351, 372.) Accordingly, review of the interpretation of the judgment of dissolution is de novo on appeal.

B. The Trial Courts Interpretation of the Judgment

The trial court ruled the judgment of dissolution named White Zuckerman as the joint appraiser of the business and set forth a specific and unambiguous procedure for the appraisal. Our de novo review of the judgment leads to the same conclusion. The judgment of dissolution contemplates one appraisal performed by White Zuckerman. It clearly does not authorize a battle of experts in a full-blown trial, as attempted by Luis. The trial court also correctly concluded that in the event of malfeasance or illegality on the part of White Zuckerman, the trial court had the power to order a new and different appraisal. The only remaining issue is the sufficiency of the evidence as to the trial courts finding no malfeasance or misfeasance on the part of the accountant.

C. Sufficiency of the Evidence

The sufficiency of the evidence is reviewed on appeal under the substantial evidence rule. Under this standard of review, our duty begins and ends with assessing whether substantial evidence supports the verdict. [Citation.] [The] reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact. [Citation.] We review the evidence in the light most favorable to the respondent, resolve all evidentiary conflicts in favor of the prevailing party and indulge all reasonable inferences possible to uphold the jurys verdict. [Citation.] (US Ecology, Inc. v. State of California(2005) 129 Cal.App.4th 887, 908.)

Fred Warsavsky, a certified public accountant and an equity partner in White Zuckerman, was a member of the American Society of Appraisers and had been doing valuation work for approximately 21 years. He valued Super Pollo I by using a capitalization of earnings approach, because there was insufficient data to determine value using a market approach. Warsavsky looked at income over a period of two years four months and adjusted it for expenses, including the $50,000 annual compensation to Mercedes. Her compensation was for work performed at the business, was for a reasonable amount, and was properly charged off as an expense.^[3] Income figures were determined from the accounting records prepared by White Zuckerman, in the firms capacity as accountant for the business. Using a capitalization rate of 35.13 percent of earnings, Warsavsky concluded the value of the business was $62,200. In Warsavskys opinion, there was no reason to use industry studies to value the business, there are distortions in the studies, the studies have a limited database, and there is a lack of specific comparable businesses.^[4]

Luis challenged the methodology of White Zuckerman through the testimony and declarations of Steinwald. In doing so, however, he merely created a factual issue for the trial court as to the propriety of the conduct of White Zuckerman. The trial courts resolution of this issuefinding nothing untoward in the conduct of White Zuckermanis amply supported by the declarations and testimony presented on behalf of Mercedes. Because there is substantial evidence to support the trial courts findings, there is no basis for reversal on appeal.

DISPOSITION

The postjudgment order is affirmed. Respondent Mercedes Nakamoto is to recover her costs on appeal.

^{KRIEGLER, J.}

^{We concur:}

^{TURNER, P. J.}

^{MOSK, J.}

^{Publication courtesy of San Diego pro bono legal advice.}

^{Analysis and review provided by Poway Property line attorney.}

^[1] We refer to the parties by their first name for clarity and not out of disrespect.

^[2] The amount tendered took into account Luiss half interest in the business, with additional offsets that are not in dispute.

^[3] According to the testimony of Kenneth Walheim, the accountant who prepared the valuation of Super Pollo I at the time of dissolution, the $50,000 paid annually was properly shown as an expense, because someone has to perform that job and he had never known people to work for free. So I would say that it is a cost of the business.

^[4] Walheim prepared his valuation of Super Pollo I using industry standard studies in making his appraisal, but only because there were no reliable business records to use.