Opinion
B158483.
7-29-2003
JOHN ASTALIS, Plaintiff and Appellant, v. MINGYA HSU, Defendant and Respondent.
John Astalis, in pro. per., for Plaintiff and Appellant. Law Offices of Lee B. Ackerman and Lee B. Ackerman, for Defendant and Respondent.
This is a partnership dissolution action in which the trial court divided the partnerships assets between the two partners and made other orders for the distribution of money. One partner appeals, challenging both the judgment and two orders imposing sanctions against him. We reject his claims of error and affirm the judgment and the orders.
FACTS
A.
John Astalis and Mingya Hsu agreed to acquire, renovate, and sell residential rental properties, and they signed a general partnership agreement to that effect in March 1995.
In March 1995, the partnership purchased a 30-unit apartment building on Marathon Avenue for about $ 360,000. Astalis obtained a $ 60,000 loan for the down payment, and both partners signed the promissory note for that loan. Title was taken in Hsus name on behalf of the partnership. When Astalis later failed to make the required loan payments, Hsu paid the $ 36,000 balance in full. In May 1996, the partnership purchased a parking lot on Marathon Avenue, adjacent to the apartment building (and we henceforth refer to these two properties collectively as Marathon Avenue). In July 1995, the partnership purchased a duplex on Hyperion Street for about $ 100,000. Hsu paid the down payment ($ 30,000) and spent about $ 69,000 on renovations. Astalis has occupied one of the units since the property was purchased. In July 1997, the partnership purchased a duplex on Benton Way for $ 150,000. Hsu paid the down payment ($ 35,000) and spent $ 100,000 on renovations.
B.
On August 12, 1997, Astalis and Hsu signed an agreement to dissolve their partnership. The dissolution agreement (1) obligated Hsu to convey Hyperion to Astalis subject to an existing deed of trust securing an $ 87,500 obligation; (2) obligated Hsu to convey Benton Way to Astalis subject to an existing deed of trust securing a $ 116,000 obligation; (3) obligated Hsu to assign a promissory note from a third party (Michael Day) in the amount of $ 28,400 to Astalis; (4) provided that Hsu would retain title to Marathon, and (5) obligated Hsu to give Astalis her promissory note in an amount to be determined, with the note to be secured by a second deed of trust on Marathon.
On May 7, 1998, Astalis and Hsu signed an "Update Agreement" that (1) obligated Hsu to quitclaim Benton Way to Equi-Plus Limited Partnership (an entity controlled by Astalis) "for a price equal to its original purchase price plus all expenses incurred to date"; (2) obligated Hsu and Astalis to execute a "land contract" for Hyperion, granting Astalis a "100% vendees interest" in Hyperion; (3) obligated Hsu to pay $ 100,000 to Equi-Plus; (4) obligated Hsu to assign the Day promissory note to Equi-Plus; (5) provided that Benton Way had to be sold within 90 days; and (6) provided that Astalis would "be responsible [for] all tax consequences for both Hyperion and Benton Way." By this time, the deed of trust encumbering Hyperion had increased from $ 87,000 to $ 187,000 (apparently as a result of refinancing).
As required, Hsu gave Astalis a check for $ 100,000, payable to Equi-Plus, and a separate check for $ 26,870.57 payable to Astalis (the balance due on the Day note). Astalis continued to live at Hyperion, rent-free.
C.
In March 1999, Astalis (represented by Scott Carlson) sued Hsu for dissolution of the partnership, asking for various orders (accounting, quiet title, and the like) and damages for breach of fiduciary duty, conversion, and quantum meruit, and alleging that Hsu had mismanaged and misappropriated partnership assets. He claimed he was entitled to 80 percent of the partnerships assets, and he prayed for punitive damages. Hsu answered and cross-complained for rescission of the partnership agreement or dissolution of the partnership, and damages for fraud, breach of fiduciary duty, and conversion.
In December 2000, a referee (Paul White) was appointed to determine "all of the amounts of and all of the sources of all monies and other considerations received by [or] on behalf of [Hsu and Astalis] in connection with their partnership." At some point, Astaliss lawyer withdrew and Astalis substituted himself in propria persona.
In May 2001 (before an accounting was completed), Hsu moved for summary judgment, claiming she had paid about $ 125,000 to Astalis, and that his acceptance of her payment constituted an accord and satisfaction, so that the only thing remaining to be done was to convey title to the properties. The motion was granted, and the order for an accounting was vacated. In September, Astalis moved to vacate the order granting summary judgment; his motion was granted, the accounting order was reinstated, and the case was set for trial. Astalis and Hsu agreed that Stanley Parkhurst, CPA, the partnerships accountant, would prepare the accounting; Astalis later filed an ex parte application to replace Parkhurst on the ground that he was biased, but that motion was denied.
In December, Astalis filed a 200-page "motion for summary adjudication on all causes of action in the complaint and cross-complaint except accounting. . . ." Hsu opposed the motion and requested sanctions ($ 7,250 for her legal fees) pursuant to then-existing Code of Civil Procedure section 437c , subdivision (i). The trial court denied Astaliss summary adjudication motion and granted Hsus request for sanctions, but only in the amount of $ 750.
All section references are to the Code of Civil Procedure.
I.
We summarily reject Astaliss contention that he was impermissibly deprived of his right to a jury trial. The record shows he failed to deposit jury fees within the time required by statute (& sect; 631), never attempted to deposit jury fees, never objected to the trial court that he was impermissibly being deprived of his right to a jury trial, and never sought relief from his waiver of his right to a jury trial. (McIntosh v. Bowman (1984) 151 Cal. App. 3d 357, 364, 198 Cal. Rptr. 533; Taylor v. Union Pac. R.R. Corp. (1976) 16 Cal.3d 893, 900-901, 130 Cal. Rptr. 23, 549 P.2d 855;
The case was tried to the court in January 2002, with a new lawyer (Benjamin Brin) appearing for Astalis on the first day of trial.
Astalis testified that the dissolution agreement and update were intended to settle his and Hsus affairs. He was to get title to Hyperion and Benton Way, and Hsu was to pay him $ 100,000 (in addition to the money she had already given him). He said Benton Way would have to be sold only if he was unable to refinance the existing loans encumbering that property. Astalis offered no evidence to support his claims of wrongdoing by Hsu. Hsu, in turn, testified that Benton Way had to be sold within 90 days of the update agreement and the existing loan paid off from the proceeds of the sale. She anticipated there would be money left over (after the loan was paid) and said she was entitled to recoup her personal contributions to the purchase price and renovations from that fund.
On the second day of trial, Astalis told the court he had fired his lawyer and that he would once again be representing himself. Trial proceeded. Hsu called Parkhurst, who explained his accounting in detail and explained that Hsu had contributed about $ 30,000 more to the partnership than she had withdrawn from it, whereas Astalis had taken out about $ 366,000 more than he had put in.
The trial court entered a judgment dissolving the partnership. In the accompanying statement of decision, the court found (1) the dissolution agreement and update were intended by Astalis and Hsu to be a compromise and settlement of their claims; (2) Hsus pretrial payments of $ 126,000 to Astalis had constituted her partial and substantial performance of her obligations; (3) Hsu had paid $ 100,000 in expenses for Hyperion, and $ 100,000 in expenses for Benton Way; and (4) Parkhursts accounting was "complete and accurate."
The judgment ordered (1) the distribution of Marathon to Hsu; (2) the distribution of Hyperion to Astalis, conditioned upon refinancing the property within 90 days, with the proceeds to be used to pay off the existing loan in Hsus name or, if no refinancing was obtained, Hyperion was to be sold for not less than the balance owed on the existing loan and any proceeds distributed as provided in the judgment; (3) the sale of Benton Way, with the proceeds to be used to pay off the existing loan, and the balance to be used to reimburse Hsu for her Benton Way expenses, plus the amount of capital gain taxes she would be obligated to pay as a result of the sale, plus the amounts she had paid for Benton Way and Hyperion property taxes, plus one-half of the accountants fees, with any balance divided equally between Hsu and Astalis; and (4) the opening of an escrow to accomplish the transfers. Hsu and Astalis were ordered to execute all necessary escrow instructions and transfer documents.
E.
The escrow was opened but Astalis refused to sign the escrow instructions and transfer documents. In June 2002, the trial court granted Hsus ex parte application for an order compelling Astaliss compliance with the judgment, set the matter for hearing, and gave notice to Astalis that if he had not complied by the time of the hearing, sanctions would be imposed. Astalis then signed the instructions and the documents required for the transfer of Hyperion to himself, borrowed $ 250,000, and secured the loan with a deed of trust encumbering Hyperion, but still did not sign the other necessary documents.
At about the same time, Hsu found a buyer for Benton Way (for $ 455,000) and that transaction was handled through the existing escrow. The sale was delayed when Astalis refused to deposit into escrow a withdrawal of a lis pendens he had recorded against Benton Way. When he ultimately gave the escrow company the withdrawal, he instructed the company not to disburse the proceeds from the Benton Way sale pending resolution of his appeal from the judgment (he was referring to the appeal now before us).
In September, Hsu filed a motion for an order directing the escrow company to disburse the Benton Way proceeds. On September 25, at which time Astalis was represented by yet another lawyer (Harry Olivar), the motion was granted. The court ordered that (the loan having been paid) $ 260,000 was to be disbursed to Hsu, $ 37,000 to Astalis, and miscellaneous small amounts to others. The trial court imposed sanctions of $ 5,000 against
Astalis for his "failure to cooperate with the terms of the judgment, while at the same time receiving some of the benefits of the judgment."
Astalis, once again in propria persona, appeals from the judgment and sanction orders.
DISCUSSION
Astaliss pro se brief raises numerous "issues" but none with any merit and he does not challenge the sufficiency of the evidence. Although his points are not always clear, we have given each issue the attention it deserves.
Tyler v. Norton (1973) 34 Cal. App. 3d 717, 722, 110 Cal. Rptr. 307; Byram v. Superior Court (1977) 74 Cal. App. 3d 648, 654, 141 Cal. Rptr. 604.)
This was the entire discussion about the jury issue (it occurred at a pretrial conference):
"[HSUS COUNSEL]: I take it this is not going to be a jury trial . . . .
"THE COURT: Its a nonjury. No, its equitable.
"MR. ASTALIS: We asked for a jury trial, your honor.
"THE COURT: Theres no fees been posted, so this is a nonjury trial.
"MR. ASTALIS: Is it too late to post [jury fees]?
"THE COURT: Yes.
"MR. ASTALIS: Wow, I didnt know that.
"THE COURT: Yes, well, you know it —
"MR. ASTALIS: So its too late for a jury trial?
"THE COURT: Its a trial by myself.
"MR. ASTALIS: Wow."
II.
We reject Astaliss contention that the trial court erroneously ordered his complaint "stricken." The court did no such thing. At a pretrial conference, the court made an off-the-cuff comment — "I dont care about the complaint" — but it is clear, when read in context, that the court was concerned with nonpleading issues and simply interested in getting a handle on the manner in which the case would be tried — which was as an action for the dissolution and winding up of the partnership, not as a tort action for damages. This is a non-issue.
III.
We summarily reject Astaliss contention that the trial court erroneously admitted the accountants report and testimony, an argument based on Astaliss unsupported conclusory assertion that the report was "fraudulent on its face" and "the [accountants] conduct was that of an advocate for [Hsu]." (Emphasis added.) The fact that Astalis didnt like the result does not mean there was fraud or bias or error.
We also reject Astaliss contention that the court impermissibly intervened to "correct" the accountants testimony. The "intervention" was to sustain an objection by stating the obvious. Astalis asked the accountant how he knew that Astalis had withdrawn a certain amount of money. The accountant was in the middle of his answer when Astalis interrupted and asked, again, "But how do you know?" Hsus lawyer objected ("Let the witness finish his answer") and the court stated the obvious, "How does he know? He made an accounting of it." The court did no more than clarify the question and answer, and there was no error. (Gerson v. Kelsey (1935) 4 Cal. App. 2d 158, 162-163; People v. Hawkins (1995) 10 Cal.4th 920, 947-948, 897 P.2d 574.)
IV.
We reject Astaliss conclusory and unsupported contention that the trial court "held a fatal misunderstanding of the issues and facts of the case." Although Astaliss point is not altogether clear, he seems to object to the trial courts acceptance of parol evidence to explain the dissolution agreement and the update. Since neither was a model of clarity, and since Astalis and Hsu both attempted to explain their intent, it is plain that parol evidence was both admissible and necessary, and there was no error in admitting it. (Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co. (1968) 69 Cal.2d 33, 38-40, 69 Cal. Rptr. 561, 442 P.2d 641; Banco Do Brasil, S.A. v. Latian, Inc. (1991) 234 Cal. App. 3d 973, 1001-1003, 285 Cal. Rptr. 870.)
V.
We reject Astaliss contention that the court interpreted the dissolution agreement in a manner contrary to the law and the facts. Our summary of the facts of this case is based on evidence presented at trial, including Astaliss and Hsus testimony, their stipulations, and the accountants testimony and report. Astaliss argument about the result is nothing more than an improper request to us to reweigh credibility and redetermine contested facts, and that we will not do. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 766.)
VI.
We summarily reject Astaliss unsupported contention that the statement of decision "fails to state any legal ground." The statement of decision explains the factual and legal basis for the courts decision, and no more was required. (§ 632; Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1124-1125; Republic Indemnity Co. v. Empire Builders Corp. (1985) 167 Cal. App. 3d 1163, 1167, 213 Cal. Rptr. 787.)
VII.
We reject Astaliss challenge to the two sanction awards (the one for $ 750 for his 200-page summary adjudication motion, the other for $ 5,000 when he refused to comply with the judgment yet accepted the benefits of the escrow).
The $ 750 sanction order was based on the courts determination that Astaliss motion was "presented in bad faith" within the meaning of former section 437c, subdivision (i), and the record supports that finding. Our review of the 200-page motion persuades that Astalis could not have had a good faith belief that he could prevail. Most of his "evidence" was inadmissible, and he ignored all the rules governing summary judgment motions. The fact that Astalis was representing himself is legally irrelevant, and serves only to explain the trial courts generosity in reducing the amount of the award from the $ 7,250 requested to a mere $ 750. The order was appropriate.
The $ 5,000 sanction for disobeying a court order was not an abuse of discretion. (Winikow v. Superior Court (2000) 82 Cal.App.4th 719, 726.) Astalis has done little other than stall and delay, and he flatly refused to comply with the trial courts judgment and orders — while at the same time accepting the property he received through the escrow. The order was appropriate.
DISPOSITION
The judgment and sanction orders are affirmed. Hsu is awarded her costs of appeal.
We concur: ORTEGA, Acting P.J., MALLANO, J.