Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC388418 James R. Dunn, Judge.
Robert F. Rubin for Defendant and Appellant.
Cole & Loeterman and Dana M. Cole for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Rochelle Conroy Booth appeals from a judgment in favor of plaintiff J.K. Selznick following a court trial. She contends that the award of damages was not supported by substantial evidence, the trial court erred in the admission of lay opinion evidence, and there was no substantial evidence of conversion. We agree that substantial evidence did not support the award of damages for emotional distress. In all other aspects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are largely taken from the trial court’s statement of decision. Additional facts will be set forth in the discussion as necessary.
The lawsuit for conversion alleged that defendant, a bookkeeper, took possession of voluminous financial records belonging to plaintiff and, after a billing dispute, threw most of them away. The trial court awarded plaintiff the sum of $30,000, consisting of $25,000 in file reconstruction costs and $5,000 in emotional distress damages. The court rejected plaintiff’s claim for punitive damages.
Plaintiff was referred to defendant by Michael Chavez (Chavez), a banker. Both parties were customers of First Financial Bank, where Chavez was employed. Plaintiff took her financial records to defendant’s residence. The record is clear that some records were delivered to defendant’s residence and some were returned by defendant to First Financial Bank.
Plaintiff suffered a brain injury several years ago which causes her difficulty in organizing things and maintaining focus. Plaintiff could not testify with any degree of clarity what kind or quantities of records she had or that she took to defendant’s residence. Chavez and John Ranhoffer (Ranhoffer) both described plaintiff as a challenging or difficult person.
Defendant testified that plaintiff delivered six large tubs of documents and to the dimensions of the tubs. Defendant conducted an experiment with a PT Cruiser attempting to show how many boxes would fit. Plaintiff testified that she had the back seat of her PT Cruiser folded down and that she had 12 to 15 boxes. She also testified that she did not deliver any records in the big plastic tubs as testified to by defendant.
Chavez stated that approximately six boxes were returned to the bank, and the boxes were much smaller plastic boxes of varying sizes. Plaintiff also introduced surveillance photos from the bank on the day the returned boxes were given back to her by Chavez. Based upon the bank surveillance video and the testimony of Chavez, the court determined that many fewer documents were returned than were received, and plaintiff had established conversion.
DISCUSSION
A. Standard of Review
In considering defendant’s contention that the judgment is not supported by the evidence, we review the record to determine whether there is any substantial evidence to support the trial court’s findings. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) Substantial evidence “is more than ‘a mere scintilla, ’ and the term means ‘such relevant evidence as a reasonable man might accept as adequate to support a conclusion[]’.... [¶]... It must be reasonable in nature, credible, and of solid value; it must actually be ‘substantial’ proof of the essentials which the law requires in a particular case.” (Estate of Teed (1952) 112 Cal.App.2d 638, 644.)
The principle is well-settled that “‘[w]hen a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.’ [Citations.]” (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881.) We presume that the record contains evidence to sustain every finding of fact and that the judgment is correct. (Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1658.) As the party challenging a factual finding, an appellant has the burden to demonstrate that the record does not contain any substantial evidence to sustain the finding. (Ibid.)
We defer to the trial court’s determination of credibility (Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1065) and do not reweigh the evidence (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630). To determine whether substantial evidence exists, we must view the evidence in the light most favorable to the prevailing party and resolve all evidentiary conflicts and indulge all reasonable inferences in support of the judgment. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) If the evidence supports more than one inference, we may not substitute our inference for that of the trial court. (Veguez v. Governing Bd. of the Long Beach Unified School Dist. (2005) 127 Cal.App.4th 406, 422.) Even if an appellant were to demonstrate that inferences favorable to the appellant are reasonable, we have no power to reject the contrary inferences drawn by the trial court, if they are reasonable as well. (Boeken v. Philip Morris, Inc., supra, 127 Cal.App.4th at p. 1658.)
If, without regard to conflicts in evidence and considering the evidence in the light most favorable to the prevailing party, there is substantial evidence to support the findings at issue, the findings must be sustained and the conclusion is final. (Field v. Mollison (1942) 50 Cal.App.2d 585, 591.) If any “‘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, supra, 72 Cal.App.4th at p. 631.) “‘“We may overturn the trial court’s factual findings only if the evidence before the trial court is insufficient as a matter of law to sustain those findings.”’” (Veguez v. Governing Bd. of the Long Beach Unified School Dist., supra, 127 Cal.app.4th at p. 422.)
B. Damages
Defendant contends that the trial court’s award of damages is not supported by substantial evidence. We disagree.
1. The Damages Award
The trial court awarded plaintiff the following damages for reconstruction of the missing records:
Missing investment records:
$5,000
Missing tax returns:
$5,000
Missing legal documents:
$5,000
Missing credit card records:
$2,000
Missing bank statements:
$2,000
Missing real estate records:
$5,000
Missing insurance policies:
$1,000
TOTAL:
$25,000
2. Investment Records
Plaintiff presented evidence from Ranhoffer, an investment adviser for the last six years. He testified that he could obtain prior investment information but it would be difficult. He estimated that the cost to reconstruct these investment records would be approximately $5,000.
3. Tax Returns
While defendant testified that she did not receive any tax returns from plaintiff, Ranhoffer testified that he had plaintiff’s tax returns from 2004 and could copy them for her. He did not have the underlying documents for them. The trial court determined that the only estimate in the record for reconstructing the tax records was Ranhoffer’s estimate of $5,000 to reconstruct investment records, and the court determined that the effort to obtain supporting documentation would be approximately $5,000.
4. Credit Card Records
The court awarded $2,000 for the reconstruction of credit card records, which could be remedied through inquiries with credit card companies.
5. Bank Statements
The court found that some effort would be required to reconstruct these records, which could be recovered from bank records/archives. The court awarded $2,000 for the reconstruction.
6. Records from Properties Owned
Plaintiff testified that she owned various properties and there were records relating to them. The court awarded $5,000 to reconstruct the homeowner’s association records, property tax records, deed and other evidence of title.
7. Insurance Policies
Plaintiff testified as to policies related to her vehicle and umbrella policies. The trial court determined that to reconstruct the records would require a minimal effort, most of which could be performed by plaintiff, and awarded her $1,000.
8. Analysis
At the conclusion of the trial, the trial court allowed plaintiff to re-take the witness stand and provide her opinion regarding the cost to reconstruct her own files. She claimed that it would cost upwards of $50,000, estimating $75,000. While the trial court obviously gave little weight to the testimony, when combined with the testimony of Ranhoffer, plaintiff’s financial adviser, the court determined that a modest showing of damages had been made.
Defendant did not impose any objections to the court’s statement of decision. If a party does not bring deficiencies to the statement of decision to the trial court’s attention, the party waives the right on appeal to claim that the statement was deficient and the appellate court will imply findings to support the judgment. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134.) The purpose of a statement of decision “is to provide an explanation of the factual and legal basis for the court’s decision.” (Onofrio v. Rice (1997) 55 Cal.App.4th 413, 425.)
There is substantial evidence to support the decision of the trial court. The court indicated in its statement of decision that there were serious credibility issues in the case, and in many respects the testimony of the plaintiff and defendant were irreconcilable. The only evidence of the cost of reconstruction was that of Ranhoffer and plaintiff. Plaintiff was allowed to testify as to the cost of reconstructing her personal financial records pursuant to Evidence Code section 813, subdivision (a)(2). The testimony of Ranhoffer and plaintiff provides a basis upon which the trial court could calculate the cost of reconstruction.
Evidence Code section 813, subdivision (a)(2), provides as follows: “(a) The value of property may be shown only by the opinions of any of the following: [¶]... [¶] (2) The owner or the spouse of the owner of the property or property interest being valued.”
That defendant may have demonstrated that substantial evidence supports a finding favorable to her is not determinative on appeal. (Veguez v. Governing Bd. of the Long Beach Unified School Dist., supra, 127 Cal.App.4th at p. 422.) Our power on appeal is limited to determining whether the trial court’s conclusion was supported by substantial evidence, and, if so, to affirm the conclusion. (Boeken v. Phil Morris, Inc., supra, 127 Cal.App.4th at p. 1658.) The trial court concluded that there was sufficient evidence of damages submitted by plaintiff. The trial court’s conclusion is supported by substantial evidence.
C. Lay Opinion
Defendant submits that the admission of plaintiff’s lay opinion regarding the costs to reconstruct the missing records was prejudicial and in violation of the Evidence Code. We disagree.
Plaintiff testified that it would cost $75,000 to reconstruct her files based on her inquiries with an accountant and her attorney. While the court gave little weight to her opinion, the court did consider it together with the testimony of her financial adviser in reaching its decision. This testimony was allowed by the trial court pursuant to Evidence Code section 813, subdivision (a)(2). We find no error in allowing plaintiff to testify as to her opinion as to the cost to reconstruct her files.
D. Emotional Distress Damages
Defendant also contends that there was not sufficient evidence to support the award of $5,000 for emotional distress damages. We agree.
The trial court recognized that in most cases where there is only a financial loss, no emotional distress damages are recoverable. The court found there was a legal basis to make such an award where it would be apparent that some emotional distress may follow the loss of certain property, such as heirlooms, citing the case of Gonzales v. Personal Storage, Inc. (1997) 56 Cal.App.4th 464. In Gonzales, the court upheld an award of damages for emotional distress caused by conversion of personal property. (Id. at p. 477.) While the personal property converted in Gonzales consisted of rare and valuable pieces of furniture and personal belongings, the award of damages to plaintiff in the instant case was for the conversion of her personal papers.
The court did find that the demand for $100,000 in emotional distress damages was grossly excessive. In reaching its decision to award $5,000 in emotional distress damages, the court stated as follows: “[Plaintiff] has offered no specific evidence of emotional distress, or any expert testimony in this regard, and as noted in argument, she only seeks damages that would flow normally from the loss of financial records. [Plaintiff] herself did not testify to any particular emotional distress which she experienced, and there is no objective evidence such as frustrated or ineffective efforts to reconstruct or retrieve duplicates of the purported lost records, or other consequences flowing from the absence of the records, which would indicate emotional distress was experienced. Any emotional distress here is nominal and the court awards $5,000 in emotional distress damages.”
“‘Our search for substantial evidence in support of [a] judgment “does not mean we must blindly seize any evidence in support of the respondent in order to affirm the judgment. The Court of Appeal ‘was not created... merely to echo the determinations of the trial court. A decision supported by a mere scintilla of evidence need not be affirmed on review.’ [Citation.] ‘[I]f the word “substantial” [is to mean] anything at all, it clearly implies that such evidence must be of ponderable legal significance. Obviously the word cannot be deemed synonymous with “any” evidence. It must be reasonable..., credible, and of solid value....’ [Citation.] The ultimate determination is whether a reasonable trier of fact could have found for the respondent based on the whole record. [Citation.] While substantial evidence may consist of inferences, such inferences must be ‘a product of logic and reason’ and ‘must rest on the evidence’ [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding.” [Citation.]’ [Citation.]” (Frei v. Davey (2004) 124 Cal.App.4th 1506, 1512.)
Under the above standard, there is insufficient evidence that the conversion resulted in emotional distress damages to plaintiff. Plaintiff acknowledged that she did not seek any medical treatment for emotional distress. When she thought about what happened, it made her “really tired.” As the trial court stated in the statement of decision, in most cases where there is only a financial loss, no emotional distress damages are recoverable. The court then went on to indicate that no specific evidence of emotional distress or expert testimony was presented to warrant the award of damages for emotional distress. The awarding of emotional distress damages in the instant case is not supported by the evidence, and the inferences from the evidence to support the award of the damages were mere speculation or conjecture.
Even if the record supported an award of damages for the emotional distress suffered by plaintiff, the trial court made a finding that any emotional distress was nominal, but still awarded $5,000 in emotional distress damages. It is clear that “nominal damages are limited to an amount of a few cents or a dollar.” (Avina v. Spurlock (1972) 28 Cal.App.3d 1086, 1089.) In Avina, the court indicated that nominal damages are properly awarded where there is no loss or injury to be compensated but where there is still a technical invasion of a plaintiff’s rights or a breach of a defendant’s duty, or where there has been real, actual injury or damage suffered, but the extent of the injury and damages cannot be ascertained from the evidence presented. (Id. at p.1088.) The award of $5,000 was not nominal, and it is not supported by the evidence.
E. Conversion
Defendant contends that the evidence is insufficient to support the trial court’s finding of conversion. We disagree.
The trial court, in its statement of decision, discussed whether plaintiff gave records to defendant and, if so, which records were returned to plaintiff. The court found serious credibility problems with both parties; both litigants were difficult and stubborn individuals, although plaintiff’s brain injury may have contributed to her conflicting testimony. The court concluded that more documents were delivered to defendant’s home than were returned from the independent testimony of the banker Chavez and the bank surveillance video.
We conclude there is substantial evidence that there was conversion of documents by defendant, although the determination of the damages was difficult for the trial court to ascertain. As such, the trial court’s findings and conclusions regarding the conversion may not be disturbed. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881.)
DISPOSITION
The judgment is reversed as to the award of damages for emotional distress. In all other aspects, the judgment is affirmed. Plaintiff is to recover her costs on appeal.
We concur: PERLUSS, P. J. WOODS, J.