Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC310024, Michael L. Stern, Judge.
Joel A. Spivak for Plaintiff, Cross-defendant and Appellant and Plaintiff, Cross-complainant and Appellant.
Kaplan, Kenegos & Kadin, Jerry Kaplan, Josh Solberg and David Scott Kadin for Defendant and Respondent and Defendant, Cross-complainant and Respondent.
MALLANO, Acting P. J.
Plaintiffs Robert Mayman, as trustee of the Maple Whitworth Trust, and Maple Whitworth, Inc., appeal from the judgment following a bench trial. Mayman contends that the trial court abused its discretion in awarding attorney fees against him as an individual under the lis pendens statute and erred in entering judgment against him. We affirm.
BACKGROUND
On February 3, 2004, Mayman, as trustee of the Maple Whitworth Trust, and Maple Whitworth, Inc. (sometimes collectively Mayman), filed a complaint against Susan Marlowe, Jacob Shlush, Danco, Inc., and 9221 Whitworth Drive, Beverly Hills, in rem, alleging causes of action in declaratory relief, injunctive relief, to set aside a fraudulent conveyance, quiet title, conversion, slander of title, civil conspiracy, and breach of fiduciary duty. The complaint alleged that an apartment building at 9221 Whitworth Drive (the subject property) is owned by Maple Whitworth, Inc. The Maple Whitworth Trust is the sole shareholder of Maple Whitworth, Inc., having acquired ownership upon the trust being formed in June 2000. The grantor and trustor of the trust is defendant Marlowe’s former husband, Michael Goland. Mayman is the trustee.
The complaint continued that “[u]nder the express terms of the [Maple Whitworth Trust], any and all beneficial interest which . . . Marlowe . . . had or may have had in and to the . . . Trust, was terminated on July 2, 2002, with the termination of her ‘marriage’ (under Jewish law) to the Trustor, Michael Goland.” Nevertheless, Marlowe continued to treat the subject property as if she owned it. In 2003, Marlowe married defendant Shlush, and in December of that year she purported to transfer all shares of Maple Whitworth, Inc., to Shlush. Shlush subsequently borrowed $250,000 from defendant Danco, Inc., using the subject property as security.
On February 9, 2004, plaintiffs caused a notice of pending action (lis pendens) to be recorded on the subject property.
Defendants filed answers to the complaint. Danco, Inc., and Shlush and Maple Whitworth, Inc. (sometimes collectively Shlush), also filed cross-complaints. The Shlush cross-complaint, which was filed on March 15, 2004, named Mayman both individually and as trustee of the Maple Whitworth Trust as cross-defendants. The cross-complaint, which stated causes of action in declaratory relief, injunctive relief, and quiet title, alleged that Shlush is the owner and president of Maple Whitworth, Inc., that Mayman has no interest in Maple Whitworth, Inc., and that Mayman and the Maple Whitworth Trust have no right to the subject property. On May 6, 2004, Mayman answered the cross-complaint both individually and as trustee of the Maple Whitworth Trust.
Maple Whitworth, Inc., thus appears in the action as both plaintiff and cross-complainant. As explained post, the trial court ultimately rejected Mayman’s and the Maple Whitworth Trust’s claim to ownership of Maple Whitworth, Inc., and of the subject property.
On April 1, 2004, plaintiffs caused a quitclaim deed to be recorded by which Maple Whitworth, Inc., purported to quitclaim the subject property to the clerk of the superior court as constructive trustee for the benefit of Maple Whitworth, Inc., pending determination and disposition of this case. On April 15, Shlush filed a motion to expunge both the February 9 lis pendens and the April 1 quitclaim deed. The motion further sought attorney fees against “plaintiffs” and their attorney, David Schechet.
As part of the April 15 motion to expunge, Shlush noted that he had previously filed a motion to expunge the February 9 lis pendens in which he argued that the lis pendens was not based on any valid claim. The April 15 motion recounted that Mayman then agreed to withdraw the lis pendens but failed to do so, following which Mayman recorded the April 1 quitclaim deed. In the points and authorities of the April 15 motion, Shlush argued that the quitclaim deed had the same effect in clouding title as a lis pendens and, like the February 9 lis pendens, was not based on any valid claim. Additionally, the April 1 quitclaim deed was not authorized by any rule or statute. In opposition, Mayman noted that the February 9 lis pendens had since been withdrawn and argued that the quitclaim deed was valid.
The trial court denied Shlush’s motion to expunge. Shlush then filed a petition for extraordinary relief in this court. We granted the requested relief. In an opinion and order granting a peremptory writ of mandate, we held that the quitclaim deed was void ab initio for lack of authority. We further ordered the trial court to declare the quitclaim deed null and void and awarded “all costs arising from this proceeding” to Shlush. (Shlush v. Superior Court (Aug. 11, 2004, B176224) [nonpub. opn.].)
On October 28, 2004, the trial court declared the quitclaim deed null and void. Shlush thereafter moved for attorney fees against Mayman and Schechet, arguing that he was the prevailing party in a “motion to expunge quitclaim lis pendens.” In the motion, which did not distinguish between Mayman as an individual and as trustee, Shlush argued that attorney fees were appropriate under the lis pendens statute (Code Civ. Proc., § 405.38), as well as this court’s opinion granting the peremptory writ of mandate. On May 10, 2005, the trial court granted Shlush’s motion, awarding fees and costs totaling $29,576.35 as against “[p]laintiff Robert Mayman and his attorney of record David Schechet, jointly and severally.”
The matter proceeded to trial in April 2006. Mayman, Goland, Marlowe, and Shlush were among the witnesses who testified. Numerous documents were also received in evidence. Mayman on the one hand and Marlowe and Shlush on the other hand presented dramatically different versions of facts. Mayman introduced evidence that the trust was valid, that ownership of the subject property appeared in Marlowe’s name only as a matter of convenience, and that Marlowe was, at most, a contingent beneficiary. Marlowe and Shlush presented evidence that Marlowe had legitimate title to the subject property and that the trust was a fabrication. In closing argument, Mayman asserted that the evidence he presented was compelling and that Marlowe’s testimony was demonstrably unreliable. Marlowe and Shlush argued to the contrary.
On July 31, 2006, the court filed a five-page “judgment after bench trial.” A section of the judgment titled “Factual Background” concluded: “The thrust of the testimony offered at trial by both camps was that the opposing witnesses were liars, cheats and deceivers not to be relied upon by the Court in determining ownership of the subject property.”
In the “Discussion of Claims” section, the court stated that “[a] determination of the ownership of Maple Whitworth, Inc. is central to the resolution of [plaintiffs’] claims and those mirror claims alleged in the Cross-Complaints.
“The Court concludes that plaintiffs have not established that the Maple Whitworth Trust owns Maple Whitworth, Inc. (and therefore rights appertaining to the property.) [T]he indicia of ownership of Maple Whitworth, Inc. by the Maple Whitworth Trust is scant; it relies on a questioned power of attorney allegedly executed by Marlowe to Goland. Goland held out to the world that Marlowe owned and controlled the corporation. He did little or nothing legally or publicly to divest her of actual ownership or the appearance thereof.
“The power of attorney by which Marlowe allegedly gave authority to Goland is suspect. Moreover, Goland’s prior inconsistent statements regarding ownership and the reasons provided by him for certain actions regarding the property undermine his credibility. His cozy relationship with the plaintiff Mayman and other witnesses also challenges his believability.
“For these reasons, the Court finds that plaintiff[s] have failed to meet their burden of proof of the ownership of Maple Whitworth, Inc. in the Maple Whitworth Trust. The stock of Maple Whitworth, Inc. was 100% owned by defendant Marlowe, who had the right to transfer shares of the corporation to . . . Jacob Shlush. Shlush, in turn, was within his legal right to borrow money from Danco, Inc. using the property as security because he is the owner of 100% . . . and has been since December 2003. Marlowe was entitled to transfer her shares . . . to Shlush. He could encumber the property with a deed of trust as security. The deed of trust is valid and any lien by Danco, Inc. is also valid. Based on these fundamental conclusions, plaintiffs’ remaining causes of action fail.”
The judgment continued that plaintiffs were to take nothing by way of their complaint and that Shlush and Maple Whitworth, Inc., were entitled to judgment on their cross-complaint. Mayman individually and Mayman as trustee of the Maple Whitworth Trust were declared to have no interest in the property, in which title was quieted in favor of Shlush and Maple Whitworth, Inc.
DISCUSSION
1. Attorney Fees
Mayman contends the award of attorney fees against him as an individual was improper because he was acting only in his capacity as trustee in bringing the action and filing the quitclaim deed. Indeed, Mayman continues, his “failure to attempt to obtain the Lis Pendens could easily be construed as a negligent dereliction of his duties [as trustee].” This argument must be rejected because where, as here, an attorney fee award is made in conjunction with expunging a lis pendens, Code of Civil Procedure section 405.39 prohibits review of that award on appeal, limiting the remedy of the aggrieved party to a petition for a writ of mandate. (Shah v. McMahon (2007) 148 Cal.App.4th 526, 529.)
Mayman and Schechet jointly filed such a writ petition in this court, arguing among other things that it was improper to award attorney fees against Mayman as an individual. The petition was summarily denied. (Mayman v. Superior Court (Aug. 18, 2005, B183793).)
In addition, we note that prior to the quitclaim deed being recorded, Mayman had been named as an individual (as well as a trustee) in the Shlush cross-complaint, and that prior to the attorney fees being awarded by the trial court, Mayman had answered the Shlush cross-complaint as an individual (as well as a trustee). Accordingly, an award of attorney fees against Mayman individually appears proper.
Shlush’s respondent’s brief contains attachments indicating that he has entered a settlement with Schechet whereby Schechet has satisfied the award of attorney fees entered against both Schechet and Mayman, thereby rendering Mayman’s argument moot. At oral argument, Mayman stated that he would not address the attorney fees issue based on what he had learned from Shlush’s brief. Nevertheless, the attached documents may not be considered by this court because they are not part of the appellate record, in violation of California Rules of Court, rule 8.204(d), nor are they the product of a request that evidence be taken by the reviewing court on appeal, in violation of California Rules of Court, rule 8.252(c).
2. Sufficiency of the Evidence
Mayman contends that “the [trial] court’s decision to disregard the existence of the Maple Whitworth Trust should be overturned because the trust was a valid trust.” In support of this contention, Mayman refers only to the testimony of various witnesses who supported his position at trial and concludes that this testimony proved his case. As such, Mayman misconstrues the nature of appellate review.
“‘When appellants challenge the sufficiency of the evidence, all material evidence on the point must be set forth and not merely their own evidence. [Citation.] Failure to do so amounts to waiver of the alleged error and we may presume that the record contains evidence to sustain every finding of fact. [Citation.]’ [Citations.]” (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317.) “‘[T]he power of the appellate court begins and ends with a determination as to whether there is any substantial evidence [on the record as a whole], contradicted or uncontradicted,’ to support the trial court’s findings. . . . ‘We must therefore view the evidence in the light most favorable to the prevailing part[ies], giving [them] the benefit of every reasonable inference and resolving all conflicts in [their] favor . . . .’” (Estate of Leslie (1984) 37 Cal.3d 186, 201, citations omitted; accord, Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 51.) “All issues of credibility are likewise within the province of the trier of fact. [Citation.]” (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925.)
Because Mayman’s briefing to this court does not address the evidence which supported the verdict in favor of defendants, any alleged error has been waived. In any event, as made clear in the judgment after bench trial, it was defendants’ evidence that the trial court found to be credible and which it used for the basis of its decision. Thus, the applicable standards of appellate review require that Mayman’s argument be rejected.
3. Transfer of Maple Whitworth, Inc.
Mayman further contends that Marlowe’s transfer of Maple Whitworth, Inc., to Shlush should have been annulled by the trial court as improper under the California Corporations Code provisions regarding transfers that do not benefit the issuer of securities and further because the shares of Maple Whitworth, Inc., were not registered. Apart from Mayman’s failure, once again, to set forth all material evidence on this point, his contention is based on a theory that was not raised in the trial court, nor has Mayman provided any cogent reason why this court should consider it for the first time now. Accordingly, the issue has been forfeited for purposes of appeal. (See Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316–1317; Peterson v. John Crane, Inc. (2007) 154 Cal.App.4th 498, 515.)
DISPOSITION
The judgment is affirmed.
We concur: VOGEL, J., ROTHSCHILD, J.