Opinion
E067554
06-29-2018
SHARON J. CLAPHAM et al., Plaintiffs and Respondents, v. PETER SINAMBAL, Defendant and Appellant.
The Law Office of Roland Ho and Roland Y. Ho for Defendant and Appellant. No appearance for Plaintiffs and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIFDS1600082) OPINION APPEAL from the Superior Court of San Bernardino County. Stanford E. Reichert, Judge. Affirmed. The Law Office of Roland Ho and Roland Y. Ho for Defendant and Appellant. No appearance for Plaintiffs and Respondents.
Following an evidentiary hearing, the trial court issued an order restraining defendant and appellant Peter J. Sinambal for three years from, among other things, financially abusing plaintiff and respondent Sharon Clapham, destroying the personal property of Sharon, disturbing the peace of Sharon, destroying certain business records, and coming within 100 yards of Sharon. (Welf. & Inst. Code, § 15657.03.) Sinambal contends the trial court erred by issuing the restraining order because (1) there was insufficient evidence of Sinambal having an intent to defraud or a wrongful use for the business files (§ 15610.30); and (2) Sharon came to court with unclean hands. We affirm the order.
Two people involved in this case have the last name Clapham. For the sake of clarity, we use their first names. No disrespect is intended.
All subsequent statutory references will be to the Welfare and Institutions Code, unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
Michael Harding was Sharon's caregiver and held her power of attorney. On October 24, 2016, Harding requested an elder abuse restraining order to protect Sharon from Sinambal. Harding asserted Sharon was 73 years old. (§ 15610.27 ["elder" is a person 65 years of age or older].) An evidentiary hearing on Harding's request was held on November 18, 2016.
B. PLAINTIFF'S CASE
Sharon's husband, Robert Clapham, was a certified public accountant and owned an accounting firm (the firm). Sinambal was an employee of the firm. Robert died on April 20, 2013. Sharon planned to sell the firm through a broker. On April 22, Sinambal asked Sharon to sell the firm to him. However, it did not appear to Sharon that Sinambal had the money to purchase the firm.
Sinambal offered to assist Sharon in collecting money owed to the firm by various clients. Sinambal said he needed the firm's files in order to perform the collection work; Sharon gave Sinambal the firm's records for that purpose. There were two accounting firms interested in purchasing the firm. Sharon needed the files back from Sinambal in order to sell the firm. Sharon repeatedly asked Sinambal to return the files, but Sinambal refused to return them.
In regard to the collection work, Sinambal collected $400,000 from the firm's clients, but did not give the money to the firm or Sharon. The clients who paid Sinambal said Sinambal told them that he (Sinambal) had purchased the firm from Sharon, which was why he should be paid.
B. DEFENDANT'S CASE
Sinambal was the firm's sole employee. Sinambal was a certified public accountant. After Robert died, one of the firm's clients, Pico Union, called Sinambal and asked about an audit that had not been completed. Pico Union asked Sinambal to finish the audit. Pico Union owned multiple housing projects.
Sinambal and Sharon met with a second client, Barker Management. Barker Management also owned multiple housing projects. During the meeting, Barker Management asked Sinambal to finish Barker Management's audit. Barker Management's audit "was late already." The audit/report was supposed to be submitted to a government agency in March, and when Robert died in April, the audit still had not been completed. Barker Management was concerned about receiving a warning letter due to the late audit. Sinambal agreed to finish the incomplete audits and Sharon consented. Sinambal had the clients sign engagement letters with him so that he could sign the completed audits.
The clients had already paid 44 to 60 percent of the audit fees to the firm prior to Robert's death. Sinambal explained that the firm no longer existed due to Robert being the sole owner and Robert having passed away. Therefore, Sinambal told the clients they could not pay the firm the fees still owing; rather, they could pay Sinambal. Sharon consented to Sinambal taking the fees for completing the audits.
Sinambal needed the clients' files from the firm in order to complete the audits. Sharon agreed to Sinambal taking the files so that he could finish the audits. Sinambal and Sharon negotiated over Sinambal purchasing the firm. However, an agreement was never reached.
At the evidentiary hearing, when Sharon cross-examined Sinambal, she asked him if he still had the files, or working papers, for various clients. Working papers are the accountant's analysis or observations concerning the audit. Sinambal said he did not understand Sharon's questions. For example:
"[Sharon]: Do you have the working papers for Mid-Wilshire?
"[Sinambal]: I don't understand the question.
"[Sharon]: Do you have the working papers for Las Brisas?
"[Sinambal]: I don't understand the question.
"[Sharon]: Do you have the working papers for Luisa?
"[Sinambal]: I don't understand the question."
When asked to clarify what it was that he did not understand, Sinambal explained that the files were confidential, so he would need the clients' prior consent due to Sharon "ask[ing] for those files."
C. RULING
The trial court found that Sinambal had the firm's files. The court said, "Mr. Sinambal's testimony was evasive, in the Court's view, in the extreme with respect to his failure to understand the simplest questions, namely because he had the working papers for a number of entities that [Sharon] identified in her questions." The court described other ways in which it believed Sinambal evaded the questions asked of him. Then the court said, "The evasions of Mr. Sinambal were many, and I've just identified a few of the ones. The ones that the Court finds especially egregious, and so the Court finds that Mr. Sinambal's testimony is not credible, and the testimony of [Sharon] and Mr. Harding is credible by a preponderance of the evidence.
"Therefore—and I should add, the financial abuse also relates not only to these working papers, but also all of the documents which the Court is going to describe in a moment having to do with the business of the [firm] and [Sharon's] interest in that business. [¶] So the court is going to issue the elder abuse restraining order against Mr. Sinambal." The trial court issued a restraining order preventing Sinambal from financially abusing Sharon, destroying Sharon's personal property, disturbing Sharon's peace, and destroying or modifying the firm's files or Robert's files.
DISCUSSION
A. SUBSTANTIAL EVIDENCE
Sinambal contends the trial court erred by issuing the restraining order because there is insufficient evidence of Sinambal having an intent to defraud or a wrongful use for the business files. (§ 15610.30.)
" 'Financial abuse' of an elder . . . occurs when a person or entity does any of the following: [¶] (1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder . . . for a wrongful use or with intent to defraud, or both." (§ 15610.30, subd. (a)(1).)
We apply the substantial evidence standard when reviewing the trial court's factual findings. (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 135.) In applying this standard, "[w]e resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge in all legitimate and reasonable inferences to uphold the finding of the trial court if it is supported by substantial evidence which is reasonable, credible and of solid value.' " (Harris v. Stampolis (2016) 248 Cal.App.4th 484, 499.)
According to Sharon's evidence, Sinambal was given the firm's files for the purpose of collecting money owed to the firm. Sinambal collected the money, failed to give it to the firm, and failed to return the files to Sharon. According to Sinambal, he was given the firm's files for the purpose of completing audits that were time sensitive in 2013. Sinambal continued to possess the files in November 2016. Because Sharon does not have the files, she cannot not sell the firm. Sinambal expressed an interest in purchasing the firm from Sharon. Sinambal and Sharon negotiated over the purchase price, but never reached an agreement.
It can reasonably be inferred from the evidence that Sinambal continues to possess the client files because he is carrying-on the firm's business without purchasing the firm from Sharon. In essence, Sinambal intends to steal the firm from Sharon by retaining the client files. Sinambal's intent to steal the firm via retaining the files reflects an intent to defraud. (See Pen. Code, § 484, subd. (a) [defining theft as defrauding another person].) Therefore, there is substantial evidence of Sinambal retaining the personal property of an elder with an intent to defraud. (Welf. & Inst. Code, § 15610.30, subd. (a)(1).) The trial court's order is supported by substantial evidence.
Sinambal contends there is not substantial evidence supporting the trial court's order because he took the client files for the purpose of completing the audits. Elder financial abuse is not focused solely on the receipt of the property, it is also concerned with retaining property. (§ 15610.30, subd. (a)(1).) While Sinambal may have received the files with a proper intent, there is substantial evidence reflecting his retention of the files is occurring with an intent to defraud. In particular, the intent to take the firm's business without paying for it. Accordingly, we find Sinambal's assertion to be unpersuasive.
Sinambal contends there is not substantial evidence supporting the trial court's order because Sinambal made monthly payments to Sharon in anticipation of entering into a contract to purchase the firm. Sinambal's contention is not persuasive because there was no agreement for Sinambal to purchase the firm and Sharon repeatedly asked for Sinambal to return the files. In looking at the record in the light most favorable to the trial court's order, there was no proper reason for Sinambal to still have the firm's files in 2016. Accordingly, we find Sinambal's assertion to be unpersuasive.
B. UNCLEAN HANDS
Sinambal contends the trial court erred by issuing the restraining order because the trial court failed to take into consideration the doctrine of unclean hands. Sinambal asserts Sharon had unclean hands because she and Harding harassed and intimidated Sinambal.
Unclean hands is an affirmative defense that must be specifically raised in the trial court. (Marshall v. Marshall (1965) 232 Cal.App.2d 232, 253; Fibreboard Paper Products Corp. v. East Bay Union of Machinists, Local 1304, United Steelworkers of America, AFL-CIO (1964) 227 Cal.App.2d 675, 726.)
In Sinambal's response to Sharon's request for a restraining order, Sinambal asserted that he did not agree with Sharon's request for a restraining order, and requested that Sharon and Harding be restrained from contacting Sinambal. To support his assertion that Sharon and Harding should be restrained, Sinambal attached, to his response, various e-mails from Harding that Sinambal believed were meant to harass or intimidate him. In the written response, Sinambal did not argue the affirmative defense of unclean hands. At the evidentiary hearing, Sinambal did not argue that Sharon had unclean hands. Because Sinambal did not specifically raise the affirmative defense of unclean hands in the trial court, the trial court did not err by not considering the issue.
Sinambal filed a request for judicial notice on July 31, 2017, which we ordered considered with the appeal on August 22, 2017. The request is granted in part and denied in part. Sinambal requests this court take judicial notice of (1) two civil subpoenas duces tecum brought by Sharon, in Los Angeles County probate proceedings, seeking the financial records of Sinambal; and (2) a Los Angeles County Probate Court order (a) granting Sinambal's motion to quash the subpoenas duces tecum, and (b) requiring Sharon to pay $4,000 in sanctions.
As required by law, we grant the request for judicial notice as to the Los Angeles County Probate Court's order. (Evid. Code, §§ 452, subd. (c), 453.)
We deny the request for judicial notice as to the subpoenas because Sinambal has not established the documents are court records. (Evid. Code, § 452, subd. (e); Ross v. Creel Printing and Publishing Co. (2002) 100 Cal. App.4th 736, 743 [party requesting judicial notice bears the burden of proof].) The subpoenas bear court seals, but they are not filestamped.
DISPOSITION
The order is affirmed. Appellant is to bear his own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
Respondents did not make a substantive appearance at this court. Therefore, we do not make an award of costs in their favor. (Cal. Rules of Court, rule 8.278 (a)(5).) --------
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. CODRINGTON
J.