Opinion
G054605
12-17-2018
SID MIRRAFATI, Plaintiff and Respondent, v. FATEMEH ANARI et al., Defendants and Appellants.
Law Offices of Christopher K. Jafari, Christopher K. Jafari and Kiarash Kay Jafari for Defendants and Appellants. Samini Scheinberg and Bobby Samini for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 30-2013-00693057) OPINION Appeal from a judgment of the Superior Court of Orange County, William D. Claster, Judge. Affirmed. Law Offices of Christopher K. Jafari, Christopher K. Jafari and Kiarash Kay Jafari for Defendants and Appellants. Samini Scheinberg and Bobby Samini for Plaintiff and Respondent.
* * *
Defendants Fatemeh Anari and Reza Danayan appeal from a judgment against them in favor of plaintiff Sid Mirrafati. Anari and Danayan argue Mirrafati failed to provide substantial evidence in support of the specific allegations raised in his complaint. They also claim the trial court erred by admitting certain text messages into evidence and awarding prejudgment interest. For the reasons stated below, we disagree and affirm the judgment.
I
FACTS
A. Mirrafati's Allegations
In May 2014, Mirrafati filed the operative first amended complaint (FAC) against his second cousin, Anari, Anari's husband, Danayan, and Anari's sister, Mojan Anari. Mirrafati alleged he "entered into a written broker agreement" with Anari and Danayan "whereby [Mirrafati] agreed to furnish . . . $130,000 in funding [as a] down payment to acquire real property in Toronto, Canada." Mirrafati also alleged "[i]n exchange for locating an acceptable property and facilitating the purchase on [Mirrafati's] behalf, [Anari] and Danayan agreed to accept 6% back end commission to be paid by the home builder . . . ." According to Mirrafati, Anari and Danayan "retained a portion of the $130,000 for their personal use and benefit, including but not limited to using the funds toward a down payment . . . for . . . certain real property . . . [in] Brea, California." Mirrafati also alleged Anari and Danayan "gave Mojan [Anari] at least $30,000 of the $130,000 . . . to assist her with law school tuition." Based on these allegations, Mirrafati asserted claims for breach of written contract, fraud, negligent misrepresentation, money had and received, and conversion. The FAC also requested "[p]rejudgment interest on all damages awarded, dating back to the date on which [Anari and Danayan] first breached the Agreement." B. Evidence Presented at Trial
At trial, Mirrafati testified Danayan approached him in 2011 and suggested Mirrafati buy certain real estate in Canada. Mirrafati agreed to "start small" by purchasing a condominium and testified he provided $130,000 in three separate payments: (1) $50,000 to Danayan in November 2011; (2) $30,000 to Danayan in March 2012; and (3) $50,000 to Anari in March 2012. Anari and Danayan acknowledged receiving the money in three handwritten receipts. According to Mirrafati, he provided the money so Anari and Danayan would invest it for him in Canadian real estate.
Mirrafati, Anari, and Danayan eventually reached an agreement whereby Mirrafati would purchase a specific house in Canada for $765,000. Two other individuals, Jaleh Ariazar and Hassan Khosroshahi, had purchased the house and assigned their interest in the property to Anari's mother in 2012. According to Mirrafati, Anari and Danayan agreed in early 2013 that Anari's mother would transfer the house to Mirrafati.
Mirrafati also testified Anari sent a text message to him about the house in February 2013. Mirrafati's counsel read the text message into the record, which stated: "This is your house in framing stage; it will be done in June." Mirrafati confirmed Anari sent this text message to him, and Anari and Danayan never objected to the testimony. Mirrafati also testified he flew to Toronto in July 2013 without informing Anari and Danayan because he was "suspicious of something going on" and wanted "to check out th[e] house by [himself]." Mirrafati ultimately did not get the house or his money back. At the conclusion of his closing argument, Mirrafati's counsel stated: "We would ask that . . . the court award prejudgment interest at 10 percent per annum for the roughly three years that th[e] money ha[d] been taken."
Anari and Danayan presented a different story at trial. According to Anari and Danayan, they owned a dress store in Canada, and the store closed in late 2010 or early 2011. They testified Mirrafati provided the $130,000 to buy an inventory of gowns. Anari testified she purchased the gowns from a supplier and presented a certificate showing the gowns were shipped to Canada in August 2010 and December 2011. However, Danayan testified he picked up the dresses from a Los Angeles based supplier in September 2011. Danayan also testified he delivered the dresses to Mojan Anari's apartment in Studio City. According to Mojan Anari, two men picked up the dresses from her apartment in November 2011. While Anari and Danayan acknowledged the real estate transaction involving Canadian property, they claimed it was unrelated to the $130,000 they received from Mirrafati. C. Statement of Decision and Judgment
Following the bench trial, the trial court issued a statement of decision. Although Anari and Danayan claimed Mirrafati "was not even aware of [the Toronto real estate] until June or July 2013," the court detailed "evidence to the contrary." According to the court, "[o]n February 26, 2013, [Anari] . . . sent a text with a picture to [Mirrafati] that said: 'This is your house in the framing stage. It will be done in June.'" The court also found "[Anari] did not provide a reason why [Mirrafati who was] a cosmetic surgeon . . . would buy [the gowns]." The court ultimately concluded the story presented by Anari and Danayan had "too many holes to be credible."
The court explained: "Among other things, [Anari and Danayan] did not explain why they did not subpoena [the supplier] to testify in order to verify their story. Also, the timing of the sales—[Anari] buying dresses from [the supplier] in August 2010 for shipment in December 2011 when the store closed in January, 2011, and [the supplier] delivering gowns to [Danayan] in September 2011 without any assurance of payment and no purported deal in place to sell the dresses to [Mirrafati] for at least another month—raises even more questions. When these issues are considered along with the lack of documentation for such a large transaction and the lack of any real reason why [Mirrafati] would want the gowns, the most logical conclusion is that [Danayan] and [Anari] took the money that [Mirrafati] gave them for Toronto real estate and used it to pay off debts from their dress store business or to buy dresses, possibly for future resale to others. In any case, what they actually did with the dresses is not really at issue given the Court's conclusion that [Mirrafati] did not give [Danayan] and [Anari] $130,000 to buy them."
In finding in favor of Mirrafati, the trial court stated: "[Mirrafati's] actions . . . including his surprise visit to the property, when considered in conjunction with (1) [Anari's] February 2013 text regarding building progress, and (2) [Danayan's] commitment to 'give back' $30,000 to [Mirrafati], support the conclusion that [Anari] and [Danayan] retained and used the $130,000 for their own purposes." However, the court found there was no evidence supporting Mirrafati's contention that Anari and Danayan used the money to purchase a house in Brea, California. The court also dismissed the claims against Mojan Anari and found the only evidence Anari and Danayan used the money to pay for Mojan Anari's law school tuition was "[Danayan's] purported statement to [Mirrafati] . . . to that effect."
Based on the evidence, the trial court concluded Mirrafati prevailed on his claims for fraud, negligent misrepresentation, money had and received, and conversion. The court also found Mirrafati "established the existence of an oral contract—in exchange for the opportunity to earn a 6% commission . . . [Danayan] and [Anari] agreed to use [Mirrafati's] $130,000 as a deposit for the purchase of real estate." Although there was evidence Anari and Danayan breached the contract, the court held the breach of contract claim was barred by the statute of frauds. The court ultimately awarded "$130,000 plus prejudgment interest at the rate of 10% per annum commencing as of October 10, 2013."
Mirrafati subsequently filed three proposed judgments including specific prejudgment interest amounts. The trial court entered judgment and found Anari and Danayan were jointly and severally liable for: (1) $130,000 in general damages; (2) $40,214.98 in prejudgment interest; (3) $8,758.67 in costs; (4) $5,000 in punitive damages against Anari; and (5) $5,000 in punitive damages against Danayan.
II
DISCUSSION
A. Substantial Evidence in Support of Mirrafati's Claims
Anari and Danayan contend Mirrafati "failed to satisfy his burden of proof of presenting substantial evidence at trial to support the specific allegations raised in his operative [FAC]." We disagree.
1. Statutory Framework and Standard of Review
Pursuant to Code of Civil Procedure section 469, "[v]ariance between the allegation in a pleading and the proof shall not be deemed material, unless it has actually misled the adverse party to his or her prejudice in maintaining his or her action or defense upon the merits." "Where the variance is not material, as provided in [s]ection 469 the court may direct the fact to be found according to the evidence . . . ." (§ 470.) However, "[w]here a party alleges facts amounting to a certain cause of action and the evidence sets forth an entirely separate set of facts constituting an entirely different cause of action from the one pled, the result is not an immaterial variance but a failure of proof. [Citations.] In determining if a failure of proof has occurred, the provisions of sections 469-471 should be interpreted liberally in favor of the plaintiff so that disputes can be settled expeditiously where to do so would not prejudice the defendant." (Fineberg v. Niekerk (1985) 175 Cal.App.3d 935, 939.)
All further statutory references are to the Code of Civil Procedure unless otherwise stated.
In reviewing the trial court's judgment, we also note the "judgment . . . is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Specifically, "[u]nder the doctrine of implied findings, the reviewing court must infer, following a bench trial, that the trial court impliedly made every factual finding necessary to support its decision." (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 48 (Fladeboe).) If a party fails to bring omissions or ambiguities in the statement of decision to the trial court's attention, the party "waives his right to claim on appeal that the statement was deficient in these regards," and the reviewing court will infer the trial court made implied factual findings to support the judgment, even on issues not addressed in the statement of decision. (In re Marriage of Arceneaux, supra, at pp. 1133-1134; Fladeboe, supra, at pp. 59-60.)
Because Anari and Danayan did not object to the statement of decision, we may only consider legal errors on the face of the statement, and whether the trial court's findings of fact are supported by substantial evidence. (Fladeboe, supra, 150 Cal.App.4th at pp. 59-60.) In applying the substantial evidence standard, we "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." (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.)
Mirrafati claims Anari and Danayan forfeited any substantial evidence challenge because they did not summarize "fact findings and witness credibility assessments adverse to them in the statement of decision." Although Anari and Danayan did not cite all significant facts, they summarized adverse evidence, including Mirrafati's testimony. Regardless, their main argument is that Mirrafati failed to satisfy his burden of proof. We therefore decide the case on the merits.
2. Money Had and Received and Conversion
Anari and Danayan claim Mirrafati did not provide substantial evidence supporting his allegations for the money had and received and conversion causes of action. First, they contend Mirrafati's claims were "based solely on a nonexistent 2011 written broker agreement." Second, they argue Mirrafati's "entire theory for recovery . . . was premised on allegations that [Anari and Danayan] used the funds to purchase a home in Brea, California and pay for Mojan Anari's law school tuition." Because the trial court found there was an oral contract and concluded Anari and Danayan likely used the money to pay off business debts or to buy dresses, Anari and Danayan claim Mirrafati did not satisfy his burden of proof. We disagree.
To prove a claim for money had and received, a plaintiff must establish: (1) "the defendant received money 'intended to be used for the benefit of [the plaintiff]'"; (2) "the money was not used for the plaintiff's benefit"; and (3) "the defendant has not given the money to the plaintiff." (Avidor v. Sutter's Place, Inc. (2013) 212 Cal.App.4th 1439, 1454; CACI No. 370.) The claim "can be based upon money paid by mistake, money paid pursuant to a void contract, or a performance by one party of an express contract." (Utility Audit Co., Inc. v. City of Los Angeles (2003) 112 Cal.App.4th 950, 958.) Thus, "'it is generally necessary for the plaintiff to prove only his right to the money and the defendant's possession; and any facts, circumstances or dealings from which it appears that the defendant has in his hands money of the plaintiff which he ought in justice and conscience to pay over to him . . . .'" (County of Santa Cruz v. McLeod (1961) 189 Cal.App.2d 222, 228-229.)
Here, there was substantial evidence supporting each element of the cause of action for money had and received. First, Anari and Danayan do not dispute they received $130,000 from Mirrafati. There also was evidence the money was intended for Mirrafati's benefit. Mirrafati testified he provided the money so Anari and Danayan would invest it for him in Canadian real estate. Although Anari and Danayan testified Mirrafati paid the money to buy an inventory of gowns, the trial court had the benefit of personally observing the parties' demeanor and hearing their testimony so we defer to its judgment regarding credibility and the weight of evidence. (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 622 ["The appellate court cannot reweigh the credibility of witnesses or resolve conflicts in the evidence"].) Second, there was evidence Anari and Danayan did not use the money to purchase real estate for Mirrafati. They testified they used the money to purchase an inventory of gowns. Third, Anari and Danayan do not dispute they never returned the money to Mirrafati. Viewed in the light most favorable to the judgment, there was sufficient evidence for the court to conclude Mirrafati proved each element.
Substantial evidence also supports the conversion cause of action. "'"Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion are the plaintiff's ownership or right to possession of the property at the time of the conversion; the defendant's conversion by a wrongful act or disposition of property rights; and damages."'" (Plummer v. Day/Eisenberg, LLP (2010) 184 Cal.App.4th 38, 45; CACI No. 2100.) "Money may be the subject of conversion if the claim involves a specific, identifiable sum . . . ." (Welco Electronics, Inc. v. Mora (2014) 223 Cal.App.4th 202, 208-209.) California courts typically permit conversion actions where specific funds held for the benefit of another have been "misappropriated, commingled, or misapplied." (PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 396.) For example, a conversion claim exists if a defendant accepts funds to be paid to another but pockets the money instead. (Id. at p. 395; SP Investment Fund I LLC v. Cattell (2017) 18 Cal.App.5th 898, 907 ["[W]hen the money at issue is a specific identifiable sum held for the benefit of another that has been misappropriated, a conversion claim can be made"].)
Here, there was evidence Mirrafati entrusted $130,000 to Anari and Danayan to purchase real estate for him in Canada. There also was evidence Anari and Danayan did not use the money to purchase the real estate. Instead, Anari and Danayan testified they used the money to purchase gowns. Thus, there was substantial evidence supporting each element of the conversion cause of action.
Despite the evidence, Anari and Danayan argue Mirrafati should have amended the FAC to allege an oral contract and state the "never-before-alleged theory" of how Anari and Danayan used the money to pay off their business debts. However, it does not appear they objected at trial to any variance between the pleading and proof at trial, and "section 469 . . . precludes a party from complaining about a variance . . . for the first time on appeal when there was no objection lodged at trial . . . ." (Schweitzer v. Westminster Investments, Inc. (2007) 157 Cal.App.4th 1195, 1214; see Lujan v. Minagar (2004) 124 Cal.App.4th 1040, 1048 [finding "no improper variance between pleading and proof" where party failed to object below].)
Regardless, Anari and Danayan were not prejudiced by the pleading. Anari and Danayan cite no authority, nor has our research uncovered any, which holds a plaintiff must prove a written contract to establish a claim for money had and received or conversion. They also do not contend the written contract that was pled was materially different from the oral contract proven at trial. (See Fineberg v. Niekerk, supra, 175 Cal.App.3d at pp. 939-941 [finding the plaintiff's failure to establish the specific contract alleged in the complaint was not a failure of proof where there was proof of another contract on the same subject matter]; Johnson v. De Waard (1931) 113 Cal.App. 417, 422 ["When a cause of action is based upon one contract and the proof establishes an entirely different contract, the case is one of failure of proof, but when the contract pleaded and the contract proved are essentially the same, the judgment may stand if the proof is sufficient"].) Likewise, Anari and Danayan cite no authority, nor has our research uncovered any, which holds a plaintiff must prove how the defendant actually used the money to prove a claim for money had and received or conversion. In any event, Anari and Danayan's own testimony established they did not use the money as intended. We accordingly find it inconsequential that the trial court held there was an oral contract or that Anari and Danayan used the money for different reasons than alleged in the FAC.
Finally, Anari and Danayan contend the trial court erred in finding they were jointly and severally liable for the $130,000. Instead, they argue they should each be liable for the specific sum received: $80,000 received by Danayan and $50,000 received by Anari. We reject their contention because tort liability for economic damages is joint and several. (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1198.) For the reasons below, we find the court did not err in finding Mirrafati prevailed on his tort claims. Accordingly, joint and several liability was appropriate.
3. Fraud and Negligent Misrepresentation
a. Substantial Evidence
Anari and Danayan claim Mirrafati failed to provide substantial evidence in support of his fraud and negligent misrepresentation claims because the "[FAC] is based on alleged misrepresentations made in 2011 in connection with an otherwise non-existent written broker agreement." They also contend Mirrafati "failed to prove the requisite element of intent as alleged in his [FAC]" because he did not prove Anari and Danayan used the money to purchase property in Brea, California or to fund Mojan Anari's law school education. As discussed above, it does not appear Anari or Danayan objected at trial to any variance between the FAC and proof at trial. They therefore are precluded "from complaining about a variance . . . for the first time on appeal." (Schweitzer v. Westminster Investments, Inc., supra, 157 Cal.App.4th at p. 1214.) Regardless, we find Mirrafati satisfied his burden of proof.
"A cause of action for fraud contains 'the following elements: (1) a knowingly false representation by the defendant; (2) an intent to deceive or induce reliance; (3) justifiable reliance by the plaintiff; and (4) resulting damages. [Citation.]'" (Hasso v. Hapke (2014) 227 Cal.App.4th 107, 127.) "The elements of negligent misrepresentation are: '"[M]isrepresentation of a past or existing material fact, without reasonable ground for believing it to be true, and with intent to induce another's reliance on the fact misrepresented; ignorance of the truth and justifiable reliance on the misrepresentation by the party to whom it was directed; and resulting damage. [Citation.]" [Citation.]'" (Ibid.)
Anari and Danayan only challenge the evidence supporting the misrepresentation and intent elements. Here, there was substantial evidence supporting both elements. First, there was evidence Anari and Danayan misrepresented how they would use the $130,000. Whether the misrepresentations were made "in connection with . . . [a] written broker agreement" or an oral agreement makes no difference. Mirrafati testified Danayan approached him in 2011 and suggested Mirrafati buy certain property in Canada. He also testified Anari and Danayan represented they would use the $130,000 to purchase real estate in Canada. While Anari and Danayan testified they never agreed to use the money for this purpose, we defer to the trial court's judgment regarding credibility and weight of evidence. (Rufo v. Simpson, supra, 86 Cal.App.4th at p. 622.) Second, there was evidence Anari and Danayan intended to deceive or induce Mirrafati's reliance so they could use the money for their own purpose. As the trial court noted, "as of late 2011 a total of $130,000 was owed . . . [by Anari and Danayan] for [certain gowns,]" and Danayan "used the $130,000 he and [Anari] received from [Mirrafati] to pay this outstanding balance." Thus, there was substantial evidence supporting the misrepresentation and intent elements. Because Mirrafati's negligent misrepresentation claim overlaps with the fraud claim, we need not separately address the negligent misrepresentation claim.
b. Economic Loss Rule
In the alternative, Anari and Danayan argue the economic loss rule bars Mirrafati's fraud claims. While Mirrafati contends Anari and Danayan forfeited this argument because they never raised it in the trial court, Anari and Danayan claim they raised the issue in their trial brief. In their trial brief, Anari and Danayan argued Mirrafati was barred from recovering tort damages because he brought an equitable claim for money had and received. This is not the same as the economic loss rule, which "'prevent[s] the law of contract and the law of tort from dissolving one into the other.'" (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 988 (Robinson).) Because an appellant generally is required to preserve issues for appeal, Anari and Danayan forfeited the right to appeal this issue by failing to raise it in the trial court. (Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486.)
In any event, we find the economic loss rule does not bar the fraud claims. The economic loss rule typically applies in a different context to limit recovery for the purchase of defective goods. In Robinson, our Supreme Court summarized the economic loss rule as follows: "Economic loss consists of '"'"damages for inadequate value, costs of repair and replacement of the defective product or consequent loss of profits—without any claim of personal injury or damages to other property . . . ."'" [Citation.]' (Jimenez v. Superior Court (2002) 29 Cal.4th 473, 482.) Simply stated, the economic loss rule provides: '"'[W]here a purchaser's expectations in a sale are frustrated because the product he bought is not working properly, his remedy is said to be in contract alone, for he has suffered only "economic" losses.'" This doctrine hinges on a distinction drawn between transactions involving the sale of goods for commercial purposes where economic expectations are protected by commercial and contract law, and those involving the sale of defective products to individual consumers who are injured in a manner which has traditionally been remedied by resort to the law of torts.' [Citation.] The economic loss rule requires a purchaser to recover in contract for purely economic loss due to disappointed expectations, unless he can demonstrate harm above and beyond a broken contractual promise. [Citation.] Quite simply, the economic loss rule 'prevent[s] the law of contract and the law of tort from dissolving one into the other.' [Citation.]" (Robinson, supra, 34 Cal.4th at p. 988.)
The Robinson court also described instances where tort damages are permitted in contract cases. "'Tort damages have been permitted in contract cases where a breach of duty directly causes physical injury [citation]; for breach of the covenant of good faith and fair dealing in insurance contracts [citation]; for wrongful discharge in violation of fundamental public policy [citation]; or where the contract was fraudulently induced. [Citation.]' [Citation.] '[I]n each of these cases, the duty that gives rise to tort liability is either completely independent of the contract or arises from conduct which is both intentional and intended to harm. [Citation.]'" (Robinson, supra, 34 Cal.4th at pp. 989-990.)
Here, the fraudulent inducement exception to the economic loss rule applies. To establish a fraudulent inducement claim, the plaintiff must show the defendant did not intend to honor its contractual promises when they were made. (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30.) As the trial court noted in the statement of decision, Anari and Danayan "had the full $130,000 by March 2012, [but] no real estate was purchased for [Mirrafati] throughout that year." The trial court also noted "that as of late 2011 a total of $130,000 was owed . . . [by Anari and Danayan] for [certain gowns]." Danayan "used the $130,000 he and [Anari] received from [Mirrafati] to pay this outstanding balance." Given these facts, there was circumstantial evidence Anari and Danayan did not intend to use the $130,000 to purchase Canadian real estate for Mirrafati at the time when their contractual promise was made.
Anari and Danayan claim Robinson, which held the economic loss rule did not bar a fraud claim, is distinguishable because the "defendant's conduct [in Robinson] was intentional, independent of the contract, and could have led to . . . concomitant personal liability." (Boldfacing omitted.) Although the Robinson court suggested its decision was a narrow one, we find its explicit limits do not exclude Mirrafati's fraud cause of action. As the court explained, "'[i]n pursuing a valid fraud action, a plaintiff advances the public interest in punishing intentional misrepresentations and in deterring such misrepresentations in the future. [Citation.] Because of the extra measure of blameworthiness inhering in fraud, and because in fraud cases we are not concerned about the need for "predictability about the cost of contractual relationships" [citation], fraud plaintiffs may recover "out-of-pocket" damages in addition to benefit-of-the bargain damages.' [Citation.] In addition, 'California also has a legitimate and compelling interest in preserving a business climate free of fraud and deceptive practices.' [Citation.]" (Robinson, supra, 34 Cal.4th at p. 992.) We accordingly find the economic loss rule does not bar Mirrafati's fraud claims. B. The Trial Court's Evidentiary Rulings
Anari and Danayan contend they are entitled to a new trial because the trial court erred by admitting text messages previously excluded from evidence. Even if admission of the text messages was error, we find the error was not prejudicial and summarize the pertinent facts below.
After Mirrafati generally testified about a February 2013 text message from Anari to Mirrafati, Mirrafati's counsel read the text message into the record. The text message stated: "This is your house in framing stage; it will be done in June." Mirrafati confirmed Anari sent this message to him, and Anari and Danayan never objected to the testimony.
Mirrafati's counsel later moved to admit certain text messages, including the February 2013 text message, into evidence as exhibits 72 and 73. Anari objected because Mirrafati did not produce some of those text messages in discovery. The trial court sustained the objection but noted: "[Mirrafati has] already testified to all the information in the text, so [the parties are] fighting over something that's more theoretical than anything else. I've already heard all the evidence about it."
Mirrafati's counsel later moved to admit other text messages into evidence as exhibits 55 through 57. Although Mojan Anari previously objected that some of those text messages were not produced in discovery, the trial court admitted them into evidence. The court explained: "If [Mirrafati has] other exhibits that [he] did produce that are text messages and [he] want[s] to use one of the reprinted documents from [exhibits] 72, 73 to replace those [in exhibits 55 through 57] because they're not very easy to read, I'm okay with that."
Anari and Danayan contend exhibits 55 and 56 include text messages the trial court had excluded when it sustained objections to exhibits 72 and 73. According to Anari and Danayan, they would not have been liable if the court had properly excluded exhibits 55 and 56, and they point to portions of the statement of decision where the court relied on the February 2013 text message. Mirrafati contends Anari and Danayan forfeited this issue on appeal by failing to object to the proposed statement of decision or testimony describing the text messages. He also argues "the text message evidence was properly used because it was put into evidence during [Mirrafati's] testimony without any objection . . . ." We agree there was no prejudicial error and need not address Mirrafati's forfeiture argument.
On any claim of evidentiary error, the appellant's "burden is to demonstrate the court's 'discretion was so abused that it resulted in a manifest miscarriage of justice.'" (Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 456, disapproved on another ground in People v. Freeman (2010) 47 Cal.4th 993, 1006-1007, fn. 4.) "The record must show that the appellant 'sustained and suffered substantial injury, and that a different result would have been probable if such error . . . had not occurred or existed. There shall be no presumption that error is prejudicial, or that injury was done if error is shown.'" (Grail Semiconductor, Inc. v. Mitsubishi Electric & Electronics USA, Inc. (2014) 225 Cal.App.4th 786, 799.) Thus, even if evidence has been erroneously admitted, the judgment shall not be reversed unless the reviewing court believes the error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; Evid. Code, § 353.)
Anari and Danayan come nowhere close to meeting this high bar. First, other than a bare assertion of prejudice, they offer no reasoning as to why a different result was probable without the text messages. While they quote portions of the statement of decision referencing the February 2013 text message, the trial court's decision was based on more than the February 2013 text message. Indeed, the court relied on Mirrafati's testimony, his unannounced trip to Canada, and various "holes" in Anari and Danayan's testimony. Second, we find no prejudice because Mirrafati testified about the February 2013 text message before the relevant exhibits were ever admitted. He generally testified Anari sent a text message to him about the house in February 2013. He also testified about the details of the text message, and Anari and Danayan never objected to his testimony. We therefore find no probability of a different results had the text messages been excluded, and hence, no basis for reversal on this ground. C. The Trial Court's Prejudgment Interest Award
Based on the record on appeal, we also note it does not even appear that exhibits 55 through 57 include the February 2013 text message.
Anari and Danayan claim their due process rights were violated because the trial court awarded prejudgment interest even though Mirrafati never filed a motion for prejudgment interest. Mirrafati contends Anari and Danayan were afforded proper due process because Mirrafati's counsel made an oral motion for prejudgment interest and the proposed statement of decision referenced prejudgment interest. Mirrafati also argues Anari and Danayan forfeited the right to challenge prejudgment interest because they did not object in the trial court proceedings. Because a formal motion was not required, we find the court did not err in awarding prejudgment interest and need not address whether Anari and Danayan forfeited any arguments on appeal.
Relying on North Oakland Medical Clinic v. Rogers (1998) 65 Cal.App.4th 824 (North Oakland), Anari and Danayan contend a formal motion was required. In North Oakland, the court found it was improper for the plaintiffs to request prejudgment interest in a cost bill. (Id. at p. 830.) Because prejudgment interest is an element of damages rather than a cost, the court reasoned it "should be awarded in the judgment on the basis of a specific request therefore made before entry of judgment." (Ibid.) The court concluded "requests for prejudgment interest under [Civil Code] section 3287 by a successful plaintiff must be made by way of motion prior to entry of judgment, or the request must be made in the form of a motion for new trial no later than the time allowed for filing such a motion." (Id. at p. 831.) However, the court also explained no statute or rule of court establishes a procedure for requesting prejudgment interest. (Id. at pp. 829-831.)
While indicating the best procedural practice, North Oakland does not bar the prejudgment interest award under the facts of this case. Here, the FAC prayed for "[p]rejudgment interest on all damages awarded, dating back to the date on which [Anari and Danayan] first breached the Agreement." This was sufficient to invoke the trial court's authority to award prejudgment interest. "A general prayer in the complaint is adequate to support an award of prejudgment interest. 'No specific request for interest need be included in the complaint; a prayer seeking "such other and further relief as may be proper" is sufficient for the court to invoke its power to award prejudgment interest. [Citations.]'" (North Oakland, supra, 65 Cal.App.4th at p. 829.) Mirrafati's counsel also requested prejudgment interest at trial by requesting "the court award prejudgment interest at 10 percent per annum for the roughly three years that th[e] money ha[d] been taken." Finally, Anari and Danayan never objected to the prejudgment interest included in the proposed statement of decision, final statement of decision, or proposed judgments. Given these particular facts, we conclude prejudgment interest, absent a formal motion, did not violate any due process rights.
III
DISPOSITION
The judgment is affirmed. Mirrafati is entitled to his costs incurred on appeal.
MOORE, J. WE CONCUR: BEDSWORTH, ACTING P. J. ARONSON, J.