Opinion
G060437
03-27-2023
MANDIR, INC., Plaintiff and Appellant, v. VISHWANATH TIWARI et al., Defendants and Respondents
Chugh, Navneet Chugh and Minh Luong for Plaintiff and Appellant. Thomas Vogele &Associates, Thomas A. Vogele, Timothy M. Kowal, and Teddy T. Davis for Defendants and Respondents.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 30-2018-01028690, Deborah C. Servino, Judge. Affirmed. Motion for Monetary Sanctions. Granted. Motion to Dismiss Appeal. Denied.
Chugh, Navneet Chugh and Minh Luong for Plaintiff and Appellant.
Thomas Vogele &Associates, Thomas A. Vogele, Timothy M. Kowal, and Teddy T. Davis for Defendants and Respondents.
OPINION
SANCHEZ, J.
INTRODUCTION
Plaintiff Mandir, Inc. (Mandir) appeals from a judgment in favor of defendants Vishwanath Tiwari and Shashi Tiwari (the Tiwaris) that was entered following a bench trial. Mandir sued the Tiwaris, who were its former officers and directors, for false promise fraud, fraudulent concealment, failure to use reasonable care, breach of duty of undivided loyalty, and various other claims. We affirm the judgment.
This appeal not only is unsuccessful but is frivolous. Mandir challenges the trial court's decision for reasons, and on grounds, that are directly contrary to several fundamental principles governing appellate review. Although no party requested a statement of decision, and the trial did not issue one, Mandir ignores the doctrine of implied findings and instead attacks statements made by the trial court in rendering the statement of intended decision. Mandir mounts a substantial evidence challenge which, as we shall explain, violates virtually every precept of that standard of review. And despite making a substantial evidence challenge, and citing trial exhibits in its appellate opening brief, Mandir has not secured transmission of the trial exhibits to this court.
Mandir's lack of understanding and compliance with the rudiments of appellate law shows Mandir has not met its burden, as the appellant, of demonstrating reversible error. For that reason, we affirm. For the same reason, we conclude Mandir's appeal is frivolous. We grant the Tiwaris' motion for monetary sanctions and award sanctions against Mandir's counsel in the requested amount of $49,243.20.
The parties waived oral argument on the appeal. After we received Mandir's opposition to the motion for monetary sanctions, we gave the parties the opportunity to request oral argument on the motion for monetary sanctions. No party requested oral argument on the sanctions motion.
FACTS
As the standard of review dictates, we view the evidence in a light most favorable to the Tiwaris - the prevailing parties - and resolve all conflicts in their favor. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 787.)
I. Background; Formation of Mandir
Vishwanath Tiwari (Tiwari) has been involved in buying and managing residential and commercial real property since 1977. He and his wife, Shashi Tiwari, are Hindus, and for years regularly worshipped at temples in Placentia and Riverside. In about 2002, they moved from Anaheim Hills to the Newport Beach area, which greatly increased their distance from the temples they had been attending.
In August 2004, Tiwari purchased a commercial building on Aston Street in Irvine (the Aston Building) for $1.3 million. When Tiwari purchased the Aston Building, it had a tenant, Chef's Toys, Inc., with a "triple net" lease, meaning the tenant paid rent and all utilities, property taxes, maintenance costs, and insurance. Tiwari purchased the Aston Building as an investment.
Tiwari was a volunteer in an organization called the India Association of Southern California (IASC). In 2004, the members of the IASC began a search for a place to start a Hindu temple in the Irvine/Tustin area. After searching unsuccessfully, members of the IASC asked Tiwari about using the Aston Building as a site for the proposed temple. Tiwari agreed to rent space in the Aston Building for use as the temple. He also considered the possibility of selling the Aston Building to the temple once it had the necessary funds.
Mandir was formed out of the IASC in late 2004 and early 2005 as a nonprofit religious corporation for the purpose of starting a Hindu temple in the Irvine/Tustin area (Mandir means temple in Hindi). Tiwari engaged a company to prepare the articles of incorporation, bylaws, and other necessary paperwork to form the corporation. Tiwari was the first president of Mandir and was on the board of directors from its formation to 2018, when he formally resigned, although there were several periods in which he was "inactive."
II. Lease of the Aston Building to Mandir
In 2005, Tiwari leased over half of the Aston Building to Mandir at the rate of $1.20 per square foot. The lease with Mandir was a "gross lease," meaning that Mandir was responsible only for paying rent. Mandir was not responsible for paying property taxes or repairs and maintenance. To accommodate the temple, Tiwari had to remove the existing tenant, Chef's Toys, which had been subject to a triple net lease that had been more favorable to Tiwari. Tiwari was taking a risk by evicting Chef's Toys, which had been paying rent on time and was a good tenant, and leasing the space to Mandir, which had just been formed, had no established congregation, and was not guaranteed to succeed.
Mandir, as a religious nonprofit corporation, ultimately was exempt from paying property taxes. Tiwari testified that the Aston Building was not exempt from property taxes because the other tenant could not claim the exemption and it took nearly 18 months for Mandir to obtain that exemption.
Indeed, Mandir did not have the wherewithal to pay rent, and so Tiwari did not charge it rent for the first 18 months of its occupancy. Mandir did repay some back rent when it was able to do so, but Tiwari never charged late fees or interest or threatened eviction. When, on other occasions Mandir was unable to pay rent on time, Tiwari never charged late fees or threatened eviction. In addition, Tiwari never sought reimbursement for improvements to the Aston Building.
III. Rental of Condominium to Priests
Temple priests serving Mandir were, at a certain point in time, living in a motel in Tustin near the Aston building. Sometime between 2004 and 2011, two priests started complaining about living conditions in the motel and did not want to move their families into the motel when they brought them over from India.
Mandir's board of directors met to discuss where to house the priests. The priests wanted to live in a condominium complex where a third priest was living, which was near an Indian market. That condominium complex had two units for sale but none available to rent. At the board's request, Tiwari purchased a condominium in the complex and rented it to the priests and their families for $1,800 per month.
IV. Mandir's Move to a Larger Space at 1732 Reynolds
The temple grew, and, about three years after leasing over half the space at the Aston Building, Mandir's board of directors decided to lease the entire building. The temple congregation continued to grow and by the middle of 2010 had outgrown the Aston Building. Mandir moved its operations to a larger facility located at 1732 Reynolds Avenue, in Irvine (which is referred to as the "Ray Taylor Building"). The lease signed by Mandir in April 2011, was for a five-year term, with an option to purchase, and monthly rent of $17,000. The lease was approved by Mandir's board of directors, which consisted of Tiwari and three other persons. At 24,000 square feet, the Ray Taylor Building was a much larger space than the Aston Building. Tiwari was able to find a subtenant for part of the Ray Taylor Building.
The larger space at the Ray Taylor Building allowed Mandir to continue to grow and attract a new congregation that honored a different deity. The addition of the new congregation increased the amount of donations Mandir collected. The added space enabled Mandir to host more events, which resulted in more revenue.
During the last year of its lease, Mandir attempted to negotiate the purchase of the Ray Taylor Building pursuant to the option in the lease. The negotiations did not go smoothly so Mandir hired a law firm to represent it in the negotiations.
Mandir solicited donations to raise funds to purchase the Ray Taylor Building. Mandir also sought to aggregate its resources with another congregation, represented by Vhargava Patel, to purchase the building. Mandir was obligated to raise $700,000. Tiwari opened up a line of credit for $700,000 to loan Mandir to cover whatever amount it did not raise. On the eve of the closing date, Vhargava Patel changed his mind, and the seller canceled the sale. All donations were returned to the donors.
V. Mandir's Move from the Ray Taylor Building to 1882 McGaw Street
After the plans to purchase the Ray Taylor Building fell through, Mandir began looking for a new location and settled on a building on Airport Way in Costa Mesa. During the search, another temple congregation, led by Hansa Patel, approached Mandir about joining with it to purchase a property. According to Hansa Patel, the building on Airport Way was too small.
The two congregations eventually settled on a building located at 1882 McGaw Street in Irvine (the McGaw Building). Tiwari understood that Mandir was going to jointly own the McGaw Building with Hansa Patel's congregation. Hansa Patel also became the president of Mandir.
Mandir moved from the Ray Taylor building to the McGaw building in the summer of 2016. Unbeknownst to Tiwari and others, Hansa Patel and her husband had purchased the McGaw Building through their trust rather than through their temple congregation. Upon discovering the title problem, Tiwari asked Hansa Patel's husband why Mandir was not on title. Tiwari was told not to worry, that it needed to be that way for financial reasons. At that time, Hansa Patel was still Mandir's president, so Tiwari turned his attention to the ongoing transition to the McGaw Building.
Tiwari believed the McGaw Building would serve as Mandir's permanent location. Mandir volunteers, including Tiwari, made improvements to the McGaw Building with that understanding.
VI. Eviction from McGaw Building
In early December 2016, Hansa Patel resigned as president of Mandir. In January 2017, she evicted Mandir from the McGaw building. The eviction surprised Tiwari and the rest of Mandir's congregation, and they had to scramble to find a new location. Tiwari led the effort to find a new location, and in February 2017, Mandir leased the building at 1851-1861 Reynolds in Irvine (the Reynolds Building).
PROCEDURAL HISTORY
Mandir commenced this litigation in October 2018 by filing a complaint against Tiwari and Shashi Tiwari. Mandir's first amended complaint asserted causes of action or common counts for false promise fraud, fraudulent concealment, failure to use reasonable care, breach of duty of undivided loyalty, conversion, money had and received, accounting, and unfair business practices.
The complaint is short on details, but based on the appellant's opening brief and the trial court's statement of intended decision, it appears Mandir was making the following claims: (1) Tiwari falsely promised he would give the Aston Building to Mandir; (2) in renting the Aston Building to Mandir, Tiwari concealed the fact that Mandir could use the building only on weekends; (3) during the brief period of time Shashi Tiwari was the secretary of Mandir she failed to disclose certain facts; (4) Tiwari and Shashi Tiwari failed to use reasonable care as officers and directors of a nonprofit religious corporation by (a) purchasing the Aston Building in the name of their trust rather than in the name of Mandir, (b) overcharging rent for the Aston Building, (c) moving Mandir to the Ray Taylor Building, which was too large of a space, (d) moving Mandir to the McGaw Building and expending funds for improvements without having a lease in place, and (e) moving Mandir to the Reynolds Building, which was too large of a space; (5) upon resigning from the Mandir board of directors, Tiwari failed to turn over access to the "go daddy" server, bank accounts, and e-mail addresses; (6) Tiwari received money intended for Mandir's benefit; (7) a balance is due from the Tiwaris for which Mandir is entitled to an accounting; and (8) the Tiwaris engaged in an unfair business practice by failing to comply with Mandir's bylaws.
A bench trial was conducted over nine days in May 2021. At the conclusion of evidence and closing argument, the trial court read a statement of intended decision into the record. The court found against Mandir and in favor of the Tiwaris on every cause of action and explained the legal and factual bases for its intended decision. At the conclusion, the court announced, "judgment is for the defendants against the plaintiff." The court stated: "If there are any requests for a statement of decision, you'll need to comply with the California Rules of Court, rule 3.1590."
No party requested a statement of decision, and the trial court did not prepare one. Judgment in favor of the Tiwaris was entered in June 2021. Mandir timely filed a notice of appeal from the judgment.
MOTION TO DISMISS APPEAL
The Tiwaris filed a motion to dismiss the appeal on the ground that by failing to secure transmission of the trial exhibits, Mandir has not furnished a record sufficient to allow us to review the merits. Although Mandir did not take the steps necessary to have the trial exhibits transmitted to this court, we decline to dismiss the appeal.
Mandir included in its designation of record 15 exhibits admitted into evidence at trial. (See Cal. Rules of Court, rule 8.122(a)(3).) The designated exhibits were not copied in the clerk's transcript, undoubtedly because, as the register of actions reflects, the exhibits were returned to counsel at the end of trial on May 26, 2021. When the exhibits have not been copied in the clerk's transcript, a party wishing to have the exhibits transmitted to the Court of Appeal must comply with California Rules of Court, rule 8.224(a)(1), which provides: "Within 10 days after the last respondent's brief is filed or could be filed under rule 8.220, a party wanting the reviewing court to consider any original exhibits that were admitted in evidence, refused, or lodged but that were not copied in the clerk's transcript under rule 8.122 or the appendix under rule 8.124 must serve and file a notice in superior court designating such exhibits." (Italics added.) California Rules of Court, rule 8.224(b)(2) sets forth the obligations of the party in possession of the exhibits to send them to the reviewing court once a notice under rule 8.224(a)(1) is filed and served.
Mandir did not file a notice under rule 8.224(a)(1) of the California Rules of Court to secure the transmission of exhibits to this court. It was Mandir's responsibility to do so because, as the appellant, Mandir has the burden of furnishing a record on appeal that is sufficient to demonstrate error. (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1200; Hiser v. Bell Helicopter Textron Inc. (2003) 111 Cal.App.4th 640, 656-657 (Hiser) [failure to transmit exhibits].)
Dismissal of the appeal would be too drastic of a remedy because Mandir did furnish us with the reporter's transcript for the nine-day trial. Instead of dismissing the appeal, we assume Mandir has abandoned any contentions based on the trial exhibits (Brown v. Copp (1951) 105 Cal.App.2d 1, 8-9) and presume the exhibits fully support the judgment (see Hiser, supra, 111 Cal.App.4th at p. 657).
DISCUSSION
Mandir makes two arguments in favor of reversal. First, it argues the trial court erred as a matter of law by misallocating to Mandir the burden of proving the challenged transactions conducted by Tiwari were not fair and reasonable and were undertaken in bad faith. Second, Mandir argues substantial evidence in the record supports its claims and allegations against the Tiwaris. Both arguments conflict with and misapply the relevant standard of review and are, we conclude, frivolous.
I. Misallocation of Burden of Proof
When a corporate director acts under a conflict of interest, the burden shifts to the director to show the transaction was fair and reasonable, made in good faith, and inherently fair from the corporation's viewpoint. (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 31-32.) Mandir argues the trial court erred as a matter of law in shifting that burden of proof to Mandir and concluding it bore the burden of proving the transactions conducted by the Tiwaris were improper. This argument ignores the doctrine of implied findings and improperly challenges statements made by the trial court in the statement of intended decision.
The first sentence of California Rules of Court, rule 3.1590(a) states: "On the trial of a question of fact by the court, the court must announce its tentative decision by an oral statement, entered in the minutes, or by a written statement filed with the clerk." The trial court here complied with rule 3.1590 by orally reciting a lengthy statement of intended decision, announcing that judgment would be in favor of the Tiwaris, and advising counsel to follow the California Rules of Court if requesting a statement of decision.
Neither Mandir nor the Tiwaris requested a statement of decision; the trial court accordingly did not issue one. Because no party requested a statement of decision, we presume the trial court made "all factual findings necessary to support the judgment for which substantial evidence exists in the record." (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 267.) "The doctrine of implied findings requires the appellate court to infer the trial court made all factual findings necessary to support the judgment." (Fladeboe v. American Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 58.) "'In other words, the necessary findings of ultimate facts will be implied and the only issue on appeal is whether the implied findings are supported by substantial evidence.'" (LSREF2 Clover Property 4, LLC v. Festival Retail Fund 1, LP (2016) 3 Cal.App.5th 1067, 1076.)
Thus, we presume the trial court found that all challenged transactions were made in good faith and were reasonable and inherently fair from the corporation's viewpoint. (Tenzer v. Superscope, Inc., supra, 39 Cal.3d at pp. 31-32.) Those implied findings are binding regardless of what the trial court said in rendering the statement of intended decision.
Further, misallocation of the burden of proof does not constitute reversible error if substantial evidence supports the trial court's findings. (Perez v. VAS S.p.A. (2010) 188 Cal.App.4th 658, 679; In re Marriage of Burkle (2006) 139 Cal.App.4th 712, 736; see Merrill v. Normandie Corp. (1930) 110 Cal.App. 621, 623 ["the question of the weight of evidence and the question of upon whom rests the burden of proof become purely academic when the trial court has found upon substantial evidence that the essential facts have been proved"].) Accordingly, even if the trial court misallocated the burden (an issue we need not decide), Mandir would have the burden on appeal of demonstrating the trial court's implied findings were not supported by substantial evidence.
In the reply brief, Mandir argues "the lack of a formal statement of decision is not conclusive" and the trial court's statement of intended decision "was detailed enough and can be used to attack the judgment." Mandir is incorrect. The trial court's statement of intended decision does not constitute a statement of decision or formal findings of fact. (In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 646.) A trial court is not bound by the statement of intended decision. (Ibid.) The judgment constitutes the final decision of the court, and the trial court's oral comments "'cannot be resorted to for the purpose of impeaching or gainsaying the . . . judgment.'" (Id. at p. 647; see Coakley v. Ajuria (1930) 209 Cal. 745, 749 [the "reasons of a trial court . . . do not in a strict sense constitute a part of the record on appeal"].) The oral statement of intended decision is not subject to appellate scrutiny; we review the correctness of the judgment using the doctrine of implied findings and the substantial evidence standard of review.
II. Substantial Evidence
Mandir makes a substantial evidence argument which is contrary to virtually every principle and precept of that standard of review. We start by reviewing those principles and precepts.
"Implied findings, like express ones, are reviewed under the substantial evidence standard." (Valley Crest Landscape Development, Inc. v. Mission Pools of Escondido, Inc. (2015) 238 Cal.App.4th 468, 488.) "If substantial evidence supports factual findings, those findings must not be disturbed on appeal." (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 582.)
In applying the substantial evidence standard, our task is to examine the entire record to determine whether there is evidence that is reasonable, credible, and of solid value to support the judgment. (Ferguson v. Yaspan (2014) 233 Cal.App.4th 676, 682.) "We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor." (Schmidt v. Superior Court, supra, 44 Cal.App.5th at p. 582.) The test is whether the record contains substantial evidence in favor of the respondent, and "[i]f this 'substantial' evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment must be upheld." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.)
The substantial evidence standard has been aptly explained in these architectural terms: "We review the trial court's factfinding for substantial evidence. This traditional standard of review is highly deferential. It has three pillars. First, we accept all evidence supporting the trial court's order. Second, we completely disregard contrary evidence. Third, we draw all reasonable inferences to affirm the trial court. These three pillars support the lintel: We do not reweigh the evidence. [Citation.] Under this standard of review, parties challenging a trial court's factfinding bear an '"enormous burden."'" (Schmidt v. Superior Court, supra, 44 Cal.App.5th at pp. 581-582.)
Mandir argues we must reverse the judgment because there is substantial evidence to support Mandir's claims and allegations. For example, Mandir argues "substantial evidence shows Mandir relied on Mr. Tiwari's promise to purchase the building for Mandir to its detriment," "substantial evidence shows that Mr. Tiwari violated said duty [of reasonable care] in perpetrating actions without the blessing of a duly-elected [b]oard," "there was substantial evidence . . . to support that Mr. Tiwari violated his duty o[f] reasonable care to Mandir," and "[s]ubstantial evidence of Mr. Tiwari's recklessness . . . was overlooked entirely by the trial court."
Mandir turns the substantial evidence standard of review on its head. The test is not whether substantial evidence supports the appellant but whether substantial evidence supports the judgment. "Our job is only to see if substantial evidence exists to support the verdict in favor of the prevailing party, not to determine whether substantial evidence might support the losing party's version of events." (Schmidt v. Superior Court, supra, 44 Cal.App.5th at p. 582.)
Mandir's misconception of the substantial evidence rule goes further. Mandir completely ignores evidence supporting the judgment, views the evidence in the light most favorable to it, and draws inferences against the Tiwaris, the prevailing party. (Schmidt v. Superior Court, supra, 44 Cal.App.5th at p. 582.) Mandir had the responsibility to set forth in its briefs "'all of the material evidence on the point and not merely [its] own evidence'" (Foreman &Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881), yet its appellate briefs present an entirely one-sided version of events.
Mandir challenges Tiwari's credibility and points to seemingly contradictory testimony as undermining the trial court's decision. But "[v]enerable precedent holds that, in a bench trial, the trial court is the 'sole judge' of witness credibility." (Schmidt v. Superior Court, supra, 44 Cal.App.5th at p. 582.) The trial court, we presume, made an implied finding that Tiwari was credible, and we defer that finding. (Gee v. Greyhound Lines, Inc. (2016) 6 Cal.App.5th 477, 492.)
It is presumed the record contains evidence to support every finding of fact, whether express or implied. (Foreman &Clark Corp. v. Fallon, supra, 3 Cal.3d 875, 881.) Mandir, as the appellant, bore the burden of affirmatively demonstrating error. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133; Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) By miscomprehending and misapplying the substantial evidence standard of review, and by not acknowledging its proper scope, Mandir has fallen far short of meeting that burden. (See Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465 "[f]ailure to acknowledge the proper scope of review is a concession of a lack of merit"].)
There is also the matter of the trial exhibits. In the appellant's opening brief, Mandir cites to exhibit Nos. 6, 16, 39, 57, 89, 90, 91, 125, 128, 131, 135, 136. Mandir had the burden of securing transmission of those exhibits to this court. (Cal. Rules of Court, rule 8.224(a)(1).) Mandir did not meet its obligation. We therefore deem Mandir to have abandoned any contention based on the cited exhibits (Brown v. Copp, supra, 105 Cal.App.2d at pp. 8-9) and presume all of the trial exhibits would support the judgment (Hiser, supra, 111 Cal.App.4th at p. 657).
MOTION FOR MONETARY SANCTIONS
The Tiwaris have filed a motion for sanctions against Mandir and its counsel for prosecuting a frivolous appeal. The Tiwaris seeks an award of $49,243.20. We agree with the Tiwaris that the appeal is frivolous, grant the motion, and impose sanctions against Mandir's counsel in the amount requested.
A Court of Appeal may impose monetary sanctions when it determines an appeal is frivolous. (Code Civ. Proc., § 907; Cal. Rules of Court, rule 8.276(a)(1); In re Marriage of Flaherty (1982) 31 Cal.3d 637; National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 524-527.) An appeal is frivolous "when it is prosecuted for an improper motive-to harass the respondent or delay the effect of an adverse judgment-or when it indisputably has no merit-when any reasonable attorney would agree that the appeal is totally and completely without merit." (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650.) "The inquiry is not whether counsel acted in the honest belief it had grounds for appeal, but rather would any reasonable person agree that the appeal is completely devoid of merit, and thus frivolous." (Malek Media Group, LLC v. AXQG Corp. (2020) 58 Cal.App.5th 817, 834.)
Mandir's appeal is objectively frivolous. Any reasonable person would agree no argument made by Mandir has the least bit of merit. As we have explained, Mandir's appeal is based upon arguments that ignore or violate fundamental principles of appellate law and review, specifically: (1) Mandir ignores the doctrine of implied findings even though it did not request, and the trial court did not issue, a statement of decision; (2) Mandir challenges statements made by the trial court in rendering the statement of intended decision; (3) Mandir fails to acknowledge and apply the correct standard of review in claiming misallocation of the burden of proof at trial; (4) Mandir violates the substantial evidence standard of review by contending the judgment must be reversed because there is substantial evidence to support Mandir's claims; (5) Mandir ignores evidence supporting the judgment, views the evidence in the light most favorable to it, draws inferences against the Tiwaris, and presents a one-sided statement of facts; (6) Mandir challenges Tiwari's credibility but ignores implied findings that the trial court found Tiwari to be credible; and (7) Mandir cites to trial exhibits in its opening brief but did not secure transmission of the exhibits to this court.
Mandir's opposition to the motion for sanctions confirms rather than disproves the appeal is frivolous. Both the respondent's brief and the motion for monetary sanctions informed Mandir of the consequences of a lack of a statement of decision, the doctrine of implied findings, and the substantial evidence standard of review. In opposing the motion for sanctions, Mandir persisted nonetheless in challenging the trial court's oral comments in the statement of intended decision, ignoring the doctrine of implied findings, arguing the applicable standard of review is de novo, and misapplying the substantial evidence rule. "[F]act-specific arguments which ignore the substantial evidence standard of review are not appropriate." (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762.)
It is true, as Mandir and its counsel argue, that a statement of decision was not necessary to file an appeal. A statement of decision was necessary, however, to avoid the doctrine of implied findings and, without a statement of decision, the judgment alone constitutes the trial court's final decision.
Mandir and its counsel argue the Tiwaris only have themselves to blame for the "missing part" of the record because they never informed Mandir's counsel that the record was incomplete. As we have explained, it was incumbent upon Mandir to file a notice under California Rules of Court, rule 8.224(a)(1) in order to secure the transmission of exhibits to this court. The Tiwaris did not have that responsibility.
The factors the court may consider in setting the amount of sanctions include the amount of the respondent's attorney fees, the amount of the judgment against the appellant, the degree of objective frivolousness and delay, and the need to discourage like conduct in the future. (J.B.B. Investment Partners, Ltd. v. Fair (2019) 37 Cal.App.5th 1, 19; Keitel v. Heubel (2002) 103 Cal.App.4th 324, 342.) After considering all of those factors, we award monetary sanctions in the amount requested: $49,243.20.
As to the first factor, the Tiwaris contend they have incurred $49,243.20 in attorney fees and costs related to preparing the respondents' brief and bringing the motion for sanctions. Mandir and its counsel do not challenge that amount. The second factor is not relevant to our analysis because no money judgement is at issue. The degree of objective frivolousness is, however, very high. Every argument made by Mandir was frivolous: The case "is not a close one." (Kleveland v. Siegel & Wolensky, LLP (2013) 215 Cal.App.4th 534, 559.) As to the fourth factor, the need to deter conduct of this nature in the future is strong. An appeal at the very least should be founded upon and pursued in accordance with the principles of appellate review and the applicable rules of court. If counsel is not aware of those principles and rules, they should be learned before an appeal is taken.
The final issue we address is who should pay the sanctions. We may impose sanctions against the litigant, the litigant's attorney, or both to pay sanctions on appeal. (J.B.B. Investment Partners, Ltd v. Fair, supra, 37 Cal.App.5th at p. 20; Pierotti v. Torian (2000) 81 Cal.App.4th 17, 36.) We believe the burden of paying the sanctions should be placed solely on Mandir's counsel. The attorney has the responsibility to research, understand, and apply the principles governing appellate review and to follow the rules of court necessary to perfect the record. There is no evidence that Mandir itself was involved in deciding whether to take the appeal as opposed to adopting advice of counsel. (See Summers v. City of Cathedral City (1990) 225 Cal.App.3d 1047, 1080.) Nor is there evidence that any decisionmaker at Mandir had legal training or experience. (Ibid.) It does not appear that Mandir will receive any benefit from delaying the finality of the underlying judgment. (Ibid.)
"This opinion constitutes a written statement of our reasons for imposing sanctions." (See J.B.B. Investment Partners, Ltd v. Fair, supra, 37 Cal.App.5th at p. 20.)
DISPOSITION
The judgment is affirmed. The Tiwaris shall recover costs on appeal.
The Tiwaris' motion for imposition of monetary sanctions is granted on the ground of a frivolous appeal. Chugh, LLP, Navneet Chugh, and Minh Luong are ordered to pay, jointly and severally, to the respondents Vishwanath Tiwari and Shashi Tiwari, jointly with their counsel Thomas Vogele &Associates, APC, Thomas A. Vogele, Timothy M. Kowal, and Teddy T. Davis sanctions in the amount of $49,243.20 within 15 days of the issuance of the remittitur. The clerk of this court is directed to forward a copy of this opinion to the State Bar upon the issuance of the remittitur. (Bus. &Prof. Code, §§ 6086.7, subd. (a)(3), 6068, subd. (o)(3); Cal. Code Jud. Ethics, canon 3(D)(2).) This opinion shall serve as notice to counsel the matter of the sanctions imposed has been referred to the State Bar. (Bus. &Prof. Code, § 6086.7, subd. (b).)
WE CONCUR: O'LEARY, P. J. DELANEY, J.