Opinion
G055293
09-25-2019
ARMEN TEMURYAN et al., Plaintiffs, Cross-defendants and Appellants, v. COSWAY USA INC., Defendant, Cross-complainant and Respondent, EPICERA INCORPORATED, Defendant and Respondent.
Corey Evan Parker for Plaintiffs, Cross-defendants and Appellants. Wellman & Warren, Scott W. Wellman, Chris Wellman; Law office of Stuart Miller and Stuart M. Miller for Defendants, Respondents, and Cross-complainant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 30-2014-00717436) OPINION Appeal from a judgment and post-judgment order of the Superior Court of Orange County, Randall J. Sherman, Judge. Affirmed. Corey Evan Parker for Plaintiffs, Cross-defendants and Appellants. Wellman & Warren, Scott W. Wellman, Chris Wellman; Law office of Stuart Miller and Stuart M. Miller for Defendants, Respondents, and Cross-complainant.
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Armen Temuryan and Houry Tartarian appeal from the judgment entered on their complaint against Cosway USA Inc., a multi-level marketing company, Cosway's president, Glen Jensen, and Epicera, Incorporated (a company sometimes referred to as Epic), and also entered in favor of Cosway on its cross-complaint for conversion of funds against Temuryan.
Temuryan and Tartarian argue the judgment must be reversed because (1) the trial court abused its discretion by refusing to enter sixteen of their trial exhibits into evidence; (2) the court erred by granting a motion for nonsuit on their cause of action for negligent misrepresentation; (3) the jury's award of zero damages on their cause of action for conversion was not supported by substantial evidence; (4) the jury's rejection of their claim for quantum meruit was not supported by substantial evidence; (5) the jury's finding that Temuryan breached a contract with Cosway was not supported by substantial evidence; and (6) the jury's finding against Temuryan on Cosway's conversion claim was not supported by substantial evidence.
The court refused to admit Temuryan and Tartarian's sixteen exhibits into evidence because the request, made after both sides had rested their cases, was untimely. Temuryan and Tartarian do not acknowledge that fact in arguing the court abused its discretion, and thus fail to establish why it was an abuse. Their challenge to the nonsuit ruling likewise fails because they failed to address the content of the nonsuit motion, and because the evidence they contend was sufficient to sustain their cause of action for negligent misrepresentation was unrelated to the facts they alleged in support of it.
Temuryan and Tartarian's first two substantial evidence challenges pertain to issues on which they bore the burden of proof at trial. It was the responsibility of the jury to determine whether Temuryan and Tartarian satisfied that burden. We must presume the jury's findings against them are attributable to its rejection of their evidence. Under these circumstances, Temuryan and Tartarian can prevail on appeal only by demonstrating the jury was required to make findings in their favor. They have not done so.
Finally, we reject Temuryan's contention that the evidence was insufficient to support the jury's findings that he breached a contract with Cosway and was liable for conversion. Temuryan's own testimony supports those findings and was sufficient to sustain them.
We therefore affirm.
FACTS
Cosway is a multi-level marketing company, which sells products through distributors and sub-distributors. Cosway provides a commission to each person making a sale and to any distributors senior to that person.
Temuryan and Tartarian agreed to become distributors of Cosway products. Pursuant to their successful sales, they were asked to operate stores in Pasadena and Burbank. Cosway also requested that Temuryan take over a store in Henderson, Nevada. However, after Temuryan and Tartarian voluntarily terminated their operation of the Pasadena store, their relationship with Cosway soured. They then were locked out of the Burbank and Henderson stores amidst claims they had embezzled funds generated from store sales.
Shortly before the lockout, Temuryan and Tartarian had discussions with Cosway's incoming president, Glen Jensen, about the creation of Epicera, which they characterize as a "company . . . to be formed in order to purchase other businesses." According to Temuryan and Tartarian, Jensen denied any knowledge of why they had been locked out of their Cosway stores. He told them he was satisfied with their accounting, and he "agreed to forgive any debt they owed to Cosway" because of "how much work Mr. Temuryan had brought to the company."
Temuryan and Tartarian also claim Jensen encouraged Temuryan to "go back into the field and focus on bringing leaders into the new company" and that Jensen's brother suggested Temuryan "would be the face of the new company." Although Temuryan claims he then worked hard to help establish Epicera, he and Tartarian alleged they were "prevented from attending the launch of Epicera, and Mr. Temuryan was never given the chance to join the new company."
Temuryan and Tartarian sued Cosway, Jensen and Epicera (among others), setting forth various causes of action arising out of alleged promises and misrepresentations relating to their involvement with Cosway and Epicera. They allege Cosway and Jensen represented to them that they (1) would be allowed to operate their Cosway stores and be paid a share of the profits generated by those stores; (2) would be paid a share of Cosway sales generated by the sellers "downline" of them in their distribution chain; and (3) would be given a "priority genealogy" in Epicera in exchange for introducing new business leaders to the enterprise. Temuryan and Tartarian also allege defendants converted their personal property by abruptly locking them out of their Cosway stores without giving them time to retrieve their property.
The other defendants named in Temuryan and Tartarian's amended complaint, Brent Jensen, Regina Noriega, Douglas Wead and Jahseh K. Ahlem, were dismissed without prejudice at the beginning of trial.
After a series of pleading challenges and amendments, the court sustained defendants' demurrers, without leave to amend, regarding Temuryan and Tartarian's causes of action for breach of contract, breach of the covenant of good faith and fair dealing, intentional fraud, and unfair business practices—leaving them with a fourth amended complaint alleging causes of action for quantum meruit and negligent misrepresentation, as well as for conversion of their personal property. The facts alleged in support of Temuryan and Tartarian's causes of action for breach of contract and fraud had also been incorporated by reference into their remaining causes of action for quantum meruit and negligent misrepresentation, and thus remained as the factual basis for those surviving claims.
Meanwhile, Cosway filed a cross-complaint alleging Temuryan and Tartarian had embezzled funds from each of the three Cosway stores they operated, and seeking recovery of the embezzled funds under a variety of legal theories, including breach of contract and conversion.
The case proceeded to a jury trial on Temuryan and Tartarian's causes of action for quantum meruit, negligent misrepresentation and conversion, and on Cosway's causes of action for breach of contract and conversion. At the conclusion of the evidence, the trial court granted Cosway's motion for nonsuit on Temuryan and Tartarian's cause of action for negligent misrepresentation.
The jury's verdict reflected its findings: (1) Temuryan and Tartarian had established all the elements of their conversion claim, but were entitled to no damages on the claim; and (2) Temuryan and Tartarian failed to establish the elements of their quantum meruit claim. On the cross-complaint, the jury found that (1) Cosway established all the elements of its breach of contract claim against Temuryan, but not against Tartarian; nonetheless, the jury awarded no damages on that claim; and (2) Cosway established all the elements of its conversion claim against Temuryan, but not against Tartarian; the jury awarded $15,200 against Temuryan on that claim. This appeal followed.
DISCUSSION
1. Refusal to Admit Exhibits
Temuryan and Tartarian first contend the trial court erred by refusing their request to admit a group of 16 exhibits into evidence.
We review a trial court's evidentiary rulings for abuse of discretion. (City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900.) "This standard is not met by merely arguing that a different ruling would have been better. Discretion is abused only when in its exercise, the trial court 'exceeds the bounds of reason, all of the circumstances before it being considered.'" (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 281.)
"[I]t is settled that: '[a] judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Thus, the burden is on Temuryan and Tartarian to explain all the relevant circumstances surrounding their request to admit the exhibits, as well as the substance of the objection raised, in order to provide context for the court's ruling. (See Mackey v. Board of Trustees of California State University (2019) 31 Cal.App.5th 640, 657 [appellant has the burden of establishing the court's ruling exceeded the bounds of reason].)
In this case, Temuryan and Tartarian provide no such context. They also fail to acknowledge that their request to admit the group of 16 exhibits came after both sides had rested their cases and the evidence was closed. It was largely for that reason that Cosway's counsel objected to the admission of the exhibits, pointing out that Temuryan and Tartarian had not moved them into evidence at the appropriate time and he was "kind of blindsided right now." Counsel suggested that if the court were to give him time to review all 16 exhibits, there might be a few he would agree could be admitted, but he could not agree to admit any of them on the spot.
After the trial court agreed that "[t]his is being raised way too late," Temuryan and Tartarian's counsel effectively conceded the point and explained how the error occurred: "[w]e had left it off Friday because we thought we'd have another witness Monday morning. And that didn't happen. And then we went right into the defense case." The trial court was not persuaded by the explanation and sustained Cosway's timeliness objection.
Temuryan and Tartarian argue that the court's ruling was an abuse of discretion because it amounted to a disfavored "blanket ruling[]" which is "generally not helpful to the parties or to the reviewing court." (Kemper v. County of San Diego (2015) 242 Cal.App.4th 1075, 1097.) We disagree.
A "blanket ruling" occurs when a court "[s]ummarily rul[es] on multiple evidentiary objections . . . without providing any reasoning." (Twenty-Nine Palms Enterprises Corp. v. Bardos (2012) 210 Cal.App.4th 1435, 1447.) But in this case, as Cosway points out, the court's ruling did not encompass multiple evidentiary objections. Rather, its ruling excluded the group of 16 exhibits based on "a single objection to the belated presentation of all the exhibits." The court's reasoning was clear. This was not a blanket ruling.
In any event, even if we believed the court had abused its discretion, reversal would be warranted only if Temuryan and Tartarian demonstrated the error was prejudicial. (Blank v. Kirwan (1985) 39 Cal.3d 311, 331; Cal. Const., art. VI, § 13.) "'[A]ppellant bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice.'" (County of Los Angeles v. Nobel Ins. Co. (2000) 84 Cal.App.4th 939, 945; see Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694 ["Plaintiff has failed to show she was prejudiced by the trial court's adoption of evidentiary rulings proposed by defendant's attorneys"].)
In order to demonstrate prejudice, Temuryan and Tartarian would have to describe each of the 16 exhibits and how each related to the issues in dispute, and then explain why their admission into evidence would have created a "reasonable probability that a result more favorable to the appealing party would have been reached . . . ." (Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 815.) Temuryan and Tartarian have failed to undertake this analysis. Instead, they briefly describe only one of the 16 exhibits, which they use as an "example" of how all the exhibits were "directly relevant to [their] causes of action against [Cosway]."
That single exhibit, identified as exhibit no. 93, is described by Temuryan and Tartarian as a "list of personal expenses that Mr. Temuryan incurred during his efforts at the Henderson store." Contrary to their assertion that the exhibits are all "relevant to [their] causes of action against [Cosway]," Temuryan and Tartarian then claim that the list is relevant because it "directly contradicts [Cosway's] conversion claim against Mr. Temuryan . . . ." They do not explain how the list of expenses contradicts that conversion claim, which was based on the allegation that Temuryan breached an obligation to deposit all store proceeds into the bank.
In any event, Temuryan has failed to explain why, in the context of all the evidence presented related to that claim, the admission of this evidence would have made a difference. Indeed, if the jury was already aware of Temuryan's claimed expenses, even without the admission of the written list, it is difficult to see how the inclusion of the list might have altered the jury's analysis of the claim. Finally, we note that any claim of prejudice stemming from the court's rejection of the other exhibits in the group would be significantly undercut by the fact that—as Temuryan and Tartarian concede in their reply brief—"all of the exhibits except for one had already been discussed in oral testimony during the trial."
Consequently, Temuryan and Tartarian have failed to demonstrate that the trial court's ruling on their motion to admit 16 exhibits after the close of evidence, even if erroneous, was prejudicial.
2. Nonsuit on Claim for Negligent Misrepresentation
Temuryan and Tartarian also contend the court erred by granting a nonsuit on their cause of action for negligent misrepresentation, claiming there was substantial evidence to support a jury verdict in their favor on the claim.
"A motion for nonsuit allows a defendant to test the sufficiency of the plaintiff's evidence before presenting his or her case. Because a successful nonsuit motion precludes submission of plaintiff's case to the jury, courts grant motions for nonsuit only under very limited circumstances. [Citation.] A trial court must not grant a motion for nonsuit if the evidence presented by the plaintiff would support a jury verdict in the plaintiff's favor." (Carson v. Facilities Development Co. (1984) 36 Cal.3d. 830, 838 (Carson).)
Because an order granting a nonsuit raises pure issues of law, our review is de novo. "In an appeal from a judgment of nonsuit, the reviewing court is guided by the same rule requiring evaluation of the evidence in the light most favorable to the plaintiff. 'The judgment of the trial court cannot be sustained unless interpreting the evidence most favorably to plaintiff's case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.'" (Carson, supra, 36 Cal.3d at p. 839.)
Once again, the burden is on Temuryan and Tartarian to demonstrate the court erred in granting the motion; we will not presume error. (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532-1533.) The burden of demonstrating error requires a discussion of the nonsuit motion itself because "[o]nly the grounds specified by the moving party in support of its motion should be considered by the appellate court in reviewing a judgment of nonsuit." (Carson, supra, 36 Cal.3d at p. 839.)
Temuryan and Tartarian have not discussed, nor even cited, the nonsuit motion in their opening brief. Instead, they simply assert the motion was ruled upon after a "back and forth" between the court and their own counsel. The cited portion of the record neither encompasses the motion nor reveals the specific grounds upon which it was made.
By failing to include any reference to the nonsuit motion in their brief, Temuryan and Tartarian have waived any claim that the trial court erred by granting it. "'The appellate court is not required to search the record on its own seeking error.' [Citation.] Thus, '[i]f a party fails to support an argument with the necessary citations to the record, . . . the argument [will be] deemed to have been waived.'" (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)
Even if we were to presume that the colloquy between the court and appellants' counsel accurately summarized the nonsuit motion itself, we would find no error in the court's ruling. During that exchange, the court highlighted that a cause of action for negligent misrepresentation must be based on a representation of past or existing fact, rather than a promise of something in the future (see Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 196 [summarizing elements of the cause of action].) Temuryan and Tartarian concede that point in their opening brief.
The court then noted that Temuryan and Tartarian's negligent misrepresentation cause of action—which consisted almost entirely of allegations incorporated by reference from other causes of action—did not clearly allege such a misrepresentation, and the court asked Temuryan and Tartarian's counsel to identify the representation on which the claim was based. Counsel identified a representation that Cosway "reward[s] the producers," and also a representation that "the debt is forgiven."
The court then asked counsel to identify the evidence that would support the existence of such statements. Counsel responded by pointing to testimony that Jensen had made statements in various meetings and telephone conferences that he "rewards the producers" and "my word is my bond." The court noted that in relation to Temuryan and Tartarian, such representations seemed to imply a promise of future treatment, which is not the type of existing fact that would support a claim for negligent misrepresentation. Counsel then pointed to other "statements and promises of 'how good you're going to be rewarded' and 'how we take care of our people.'" But the court concluded that the "argument goes to things other than this cause of action" and granted the motion for nonsuit on negligent misrepresentation.
We find no flaw in the court's reasoning, and Temuryan and Tartarian do not identify one. Instead, they argue that the salient misrepresentation—which they had mentioned only in passing to the trial court and cited no evidence in support of—was the statement "[y]our debt is forgiven." They now point to evidence that Glen Jensen "agreed to forgive any alleged debt owed to Cosway based on the amount of work Mr. Temuryan had brought into the company" and that Jensen stated "[y]our debt is forgiven," as the evidence supporting their cause of action for negligent misrepresentation.
That statement has little to do with the facts alleged in support of Temuryan and Tartarian's cause of action for negligent misrepresentation. As the trial court noted, the cause of action consists almost entirely of factual allegations incorporated by reference from prior causes of action—specifically from Temuryan and Tartarian's three intended causes of action for breach of contract and their intended fraud cause of action. The broadest interpretation of that cause of action would include the alleged promises to give Temuryan and Tartarian primary genealogy in Epic if they succeeded in introducing business leaders; to pay them commissions on all Cosway products sold by them or by others in their distribution chain; and to pay them a percentage of the monthly sales generated in their Cosway stores. There is no reference to debt forgiveness in any of those allegations.
A careful reading of the allegations supporting the negligent misrepresentation cause of action indicates it is based solely on the alleged representation that Temuryan and Tartarian would be given a financial interest in Epicera. Indeed, they expressly allege their damages flowed from their reliance on that specific promise: "As a . . . result of the negligent misrepresentations by Defendants, PLAINTIFFS have incurred loss of profit, loss of earning capacity, loss of business opportunities, loss of time, loss of money, and energy made in reliance on and as a result of the loss of the promised financial interest in EPIC made by Defendants." (Italics added.)
Even if we inferred the cause of action had been amended at trial to incorporate that additional representation of debt forgiveness—and Temuryan and Tartarian make no claim that it was—we would conclude the court did not err in granting the nonsuit. According to the testimony cited by Temuryan and Tartarian, the "debt" purportedly forgiven was comprised of the funds allegedly embezzled by Temuryan from the Burbank store. Those same funds were the subject of Cosway's cross-complaint, and the fact the jury found in favor of Cosway on that claim—awarding damages for conversion against Temuryan—suggests the jury necessarily rejected the assertion that Cosway had forgiven the debt at issue.
The statement, "[y]our debt is forgiven" is described as referring specifically to the funds from the Burbank store.
An alternative interpretation would be that the jury believed Jensen had made the representation, but interpreted it as merely his promise that Cosway would forgive the debt—which Cosway never actually did—rather than as a representation of existing fact. If that were the case, the representation of that future forgiveness would not support a cause of action for negligent misrepresentation.
We consequently reject Temuryan and Tartarian's contention that the order granting a nonsuit on their cause of action for negligent misrepresentation must be reversed.
3. Challenge to Verdict Awarding Zero Damages on Conversion Claim
Temuryan and Tartarian next challenge the jury's verdict on their cause of action for conversion against Cosway. This verdict required the resolution of two questions. First, the jury was asked whether Temuryan and Tartarian had "establish[ed] all the elements of Conversion against Cosway. . . ." The jury answered that question "yes." The verdict form then instructed the jury that if its answer to that first question is "yes," it must answer the second question, which was "[w]hat, if any, are Armen Temuryan and Houry Tartarian's damages for Conversion?" The jury answered that their damages were zero.
Temuryan and Tartarian suggest the jury's verdict on their conversion cause of action is inconsistent because it includes both a finding that they had established "all the elements of Conversion" and a finding that their damages on that claim were zero. Temuryan and Tartarian contend that because one of the elements of a cause of action for conversion is "damages" (citing Los Angeles Federal Credit Union v. Madatyan (2012) 209 Cal.App.4th 1383, 1387), the jury's determination that they had established all the elements of the claim cannot be reconciled with its subsequent finding that they had established zero damages. In the abstract, that argument has some appeal.
"A special verdict is inconsistent if there is no possibility of reconciling its findings with each other." (Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 357 (Singh).) "'"Where the findings are contradictory on material issues, and the correct determination of such issues is necessary to sustain the judgment, the inconsistency is reversible error."'" (City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 682.)
However, where a special verdict appears inconsistent, it is the court's obligation to "interpret the verdict in light of the jury instructions and the evidence and attempt to resolve any inconsistency." (Singh, supra, 186 Cal.App.4th at p. 358.) In this case, the jury instructions resolve any apparent inconsistency by treating the element of "harm" caused by the conversion as something separate and apart from the amount of monetary "damages" awardable to compensate for it. The instructions defined the elements of conversion as including findings that Temuryan and Tartarian owned or possessed the items at issue; that Cosway interfered with that ownership or possessory interest without consent; and that Temuryan and Tartarian were "harmed" by the unconsented taking of their property.
The jury was separately instructed on the "presumed measure of damages for conversion." That instruction told the jury that if it decided Temuryan and Tartarian "proved their claim," it must "also decide how much money will reasonably compensate [Temuryan and Tartarian] for the harm." The jury was told that Temuryan and Tartarian had the burden of proving the amount of any damages to which they were entitled, and that the damages they were seeking would be measured by the "fair market value of the personal property taken" plus "[r]easonable compensation for the time and money" expended "in attempting to recover their personal property." Finally, the jury was told not to "speculate or guess in awarding damages."
When we interpret the jury's verdict in the context of those jury instructions, we find no inconsistency in its findings. The jury apparently concluded that although Temuryan and Tartarian had been "harmed" by Cosway's taking of their property without consent, they had not proved they were entitled to financial compensation for that harm.
Temuryan and Tartarian then contend that the jury's award of zero damages on their conversion claim was not supported by substantial evidence. Such challenges are difficult to sustain because we are required to interpret the record in the light most favorable to the judgment, resolving all conflicts in the evidence and drawing all reasonable inferences in favor of the jury's verdict. (Pope v. Babick (2014) 229 Cal.App.4th 1238, 1245-1246.)
"[T]he test is not the presence or absence of a substantial conflict in the evidence. Rather, it is simply whether there is substantial evidence in favor of the respondent. If this 'substantial' evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment must be upheld. As a general rule, therefore, we will look only at the evidence and reasonable inferences supporting the successful party, and disregard the contrary showing." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.)
When the party challenging the sufficiency of the evidence is the party that bore the burden of proof on the issue at trial, as is the case with Temuryan and Tartarian's conversion claim, "it is almost impossible for him to prevail on appeal . . . ." (Bookout v. State of California ex rel. Dept. of Transportation (2010) 186 Cal.App.4th 1478, 1486 (Bookout).) This is because the jury is not obligated to credit the testimony offered in support of the claim: "[I]t was the province of the jury to disbelieve any testimony which appeared to them to lack verity. They were the exclusive judges of the credibility of the witnesses and the weight to be given their testimony." (Gray v. Southern Pacific Co. (1944) 23 Cal.2d. 632, 641.)
Thus, for the party with the burden of proof, "it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment [because it] allows an attack on (1) the evidence supporting the party who had no burden of proof, and (2) the trier of fact's unassailable conclusion that the party with the burden did not prove one or more elements of the case." (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) Consequently, "unless the [trier of fact] makes specific findings of fact in favor of the losing plaintiff, we presume [it] found the plaintiff's evidence lacks sufficient weight and credibility to carry the burden of proof." (Bookout, supra, 186 Cal.App.4th at p. 1486.)
Because the issue on appeal turns on Temuryan and Tartarian's failure of proof at trial, rather than on whether the verdict against them was supported by substantial evidence, the question for a reviewing court is "whether the evidence compelled the trial court to find in [plaintiffs'] favor on that issue." (Roesch v. De Mota (1944) 24 Cal.2d. 563, 571; Bookout, supra, 186 Cal.App.4th at p. 1486.) It did not.
As we have already noted, the jury was told that any award of damages for the conversion of Temuryan and Tartarian's property would have to be based on the "fair market value" of the property and the value of the time and money they expended in seeking its return. Thus, the burden was on Temuryan and Tartarian to prove those values. The evidence they cite in their opening brief on appeal lists the items they claim were taken—e.g., "chairs," "coffee-making machines," "a 38 or 42-inch Panasonic flat screen TV," and in some cases (but not all), estimating the amount paid for the item. None of that necessarily proves the items had any specific market value at the time they were allegedly converted. Nor do Temuryan and Tartarian point to any evidence establishing the extent of their efforts to retrieve the property or to establish the cost of any such effort. Consequently, they have not demonstrated the evidence compelled the jury to award them any measure of monetary damages as compensation for the conversion of their property.
We agree the evidence cited by Temuryan and Tartarian would have been sufficient to support an award of damages, had the jury made one. But it did not.
4. Challenge to Quantum Meruit Verdict
Temuryan and Tartarian next contend the evidence was insufficient to support the jury's verdict finding that they failed to prove the elements of their cause of action for quantum meruit. In making this argument, they essentially argue the evidence supporting their claim was so overwhelming it could not "reasonably be disputed." They also assert that the foreperson of the jury "admitted that the jury believed [their] story regarding quantum meruit," but it did not rule in their favor because it "was under the mistaken assumption that [it] needed an exhibit that would specifically show . . . damages."
We disagree. Temuryan and Tartarian again fail to acknowledge that they had the burden of proof on this cause of action, and thus we must presume the jury found their evidence to be unpersuasive on one or more of the elements.
We reject Temuryan and Tartarian's effort to impeach the jury's verdict with evidence of its deliberations. "[E]vidence about a jury's 'subjective collective mental process purporting to show how the verdict was reached' is inadmissible to impeach a jury verdict. [Citation.] Thus, juror declarations are inadmissible where, as here, they 'at most suggest "deliberative error" in the jury's collective mental process—confusion, misunderstanding, and misinterpretation of the law.'" (Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1683.)
In any event, the evidence relied upon to establish the deliberative error does not support Temuryan and Tartarian's contention that the jury incorrectly believed it needed to find the relevant evidence within the exhibits. Temuryan and Tartarian rely on four essentially identical declarations (one from each of them and two from their friends), relating statements allegedly made by the jury foreperson in response to their questions. There is no declaration from the foreperson herself. All four declarations state the foreperson initially claimed the jury had not doubted their quantum meruit claim, but jurors "were looking for an exhibit which would simply show the numbers." The declarations go on to relate that when Temuryan responded by telling the foreperson that the necessary evidence was "all in my testimony and the [exhibit] book, she responded 'We had no time to go through the big exhibit books.'" Thus, it is apparent that exhibits potentially sufficient to support appellants' damage claims were admitted into evidence and available to deliberating jurors. We presume—as we must—that the jury was not persuaded to return any damage award based on the evidence before it.
5. Cosway's Causes of Action for Breach of Contract and Conversion
Finally, Temuryan challenges the sufficiency of the evidence to support the jury's findings that (1) he breached a contract with Cosway (albeit with no award of damages) and (2) that he was liable to Cosway for conversion. Although Temuryan challenges each finding separately, we address them together because both causes of action arise out of the same set of facts.
Cosway alleged both breach of contract and conversion against Tartarian as well, but the jury found in her favor on both causes of action.
Cosway alleged that as a condition of operating a Cosway store, Temuryan was obligated to account for all sales and deliver the funds to Cosway's accounting department. After the numbers were reconciled, Cosway would pay a commission to Temuryan based on the amount of sales. Temuryan allegedly "intentionally withheld monies that should have been delivered to Cosway's accounting department each month," and "would pocket some of those funds in hopes that Cosway would not recognize the discrepancy." According to Cosway, those facts entitled them to an award of damages based on either a breach of contract or a conversion theory.
Temuryan contends the evidence is insufficient to support the finding that he breached a contract with Cosway because although he admits he entered into both a Distributor Agreement and a Guarantee Agreement with Cosway, he claims only one of those agreements was admitted into evidence and "neither agreement was mentioned by name more than three times during trial, counsel did not argue that these agreements had been breached during his closing argument, and the jury instructions did not mention either agreement." (Initial capitalization omitted.) That argument is largely unrelated to the sufficiency of the evidence question (see Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1173 ["[a]rgument of counsel is not evidence"]; and People v. Dowdell (2014) 227 Cal.App.4th 1388, 1418 [jury instructions are tested by whether they fully and fairly state the applicable law]). In any event, we believe it is not well founded.
As Cosway points out, Temuryan's own testimony was sufficient to establish that he breached an agreement with Cosway. Temuryan also admits in his opening brief that he "had in fact used some of the store revenue for business expenses instead of depositing it," but justified that action by explaining "all of the money from the store income was put toward continuing efforts for the store." In light of Temuryan's own testimony, and the concession of the issue in his brief, we reject his assertion that the evidence was insufficient to support the jury's verdict that he breached an agreement with Cosway.
"Q. You signed a store operating agreement, correct? [¶] A. Yes, sir. [¶] Q. And the agreement required you to deposit the monies into the bank, and you already testified that you took some of those monies, correct? [¶] A. I said I didn't take the money. We used it for expenses, sir. There is a difference. [¶] Q. Okay. Are you aware of anything in the agreement that allows you to take the money to use for business expenses or for renting an apartment? [¶] A. No."
We also reject Temuryan's contention that the breach of contract claim fails as a matter of law because "[a] breach of contract is not actionable without damage" (Bramalea California, Inc. v. Reliable Interiors, Inc. (2004) 119 Cal.App.4th 468, 473), and thus the jury's award of no damages demonstrates Cosway's failure to prove that element of the cause of action. Here again, the jury was instructed that a determination Temuryan breached a contract with Cosway must include a finding that Cosway was "harmed," rather than a finding it was entitled to "damages." That finding of harm, without any corresponding award of monetary damages, makes sense here when considered in conjunction with the jury's subsequent determination that Cosway was entitled to recover damages on its conversion cause of action. As we have already explained, the two causes of action represented alternative theories for recovery of the same funds.
Finally, we reject Temuryan's substantial evidence challenge to the conversion verdict. He admits that he did not deposit all of the money from the Burbank store into the bank, but argues this was not conversion because he spent the money in ways he believed would benefit the store. According to Temuryan, this diversion of funds was necessary because he "had not been given any other discretionary money for these expenses." He contends that "[h]ad Cosway properly allocated monies for [him] to use for marketing expenses, he would not have had to resort to using money that should [have been] deposited for these expenses." Temuryan cites no authority for this "necessity" defense to conversion; consequently he has waived any such claim.
Temuryan argues the jury was required to conclude that Cosway forgave the debt represented by the converted funds, based on his testimony and that of his wife, Tartarian. Although Temuryan concedes that "Mr. Jensen testified that he never forgave the debt," he nonetheless asserts Jensen's testimony should be discredited because it "is directly contradicted by the only two other people who were in the meeting where the debt forgiveness took place [referring to himself and Tartarian]."
This argument flies directly in the face of the substantial evidence rule. (Powell v. Tagami (2018) 26 Cal.App.5th 219, 231 ["'A single witness's testimony may constitute substantial evidence to support a finding. [Citation.] It is not our role as a reviewing court to reweigh the evidence or to assess witness credibility'"].) It also ignores the fact that forgiveness of the debt would be an affirmative defense to the conversion claim; proving a lack of forgiveness is not an element of the claim itself. Hence, Cosway had no affirmative burden to refute the claim of forgiveness. We consequently reject the argument.
DISPOSITION
The judgment is affirmed. Respondents are to recover their costs on appeal.
In their notice of appeal, appellants indicated their intent to appeal the trial court's denial of their "Motion for New Trial-Notice of Ruling filed on July 10, 2017." They failed to address that topic in their briefing and as a result abandoned that portion of their appeal.
GOETHALS, J. WE CONCUR: MOORE, ACTING P. J. IKOLA, J.