Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC381305, Mary Ann Murphy, Judge.
Cohon & Pollak, Jeffrey M. Cohon and Kristina S. Keller for Defendant and Appellant Hai Lecong.
Alison Minet Adams for Appellant Ashley Tran.
Law Office of Lauren M. Tran and Lauren M. Tran for Defendants and Appellants Lauren M. Tran, Sage Décor, Inc. (formerly Direct Building Supplies), Lexcel Solid Surfacing., Inc. and Golden West Kitchen & Bath, Inc.
MOSK, J.
INTRODUCTION
Three cases are consolidated for appeal. Plaintiff Ashley Tran loaned money to her sister, defendant Lauren Tran and, according to Ashley, the latter’s partner, defendant and appellant Hai Lecong. Those defendants formed a business. When the loans were unpaid, plaintiff filed an action and obtained a judgment against Lauren, Lecong, and their companies. Lecong appeals from that judgment. Upon supplementary enforcement proceedings, the trial court struck or expunged an abstract of judgment on the grounds it was misleading, and plaintiff appeals from that order. The trial court struck a second writ of execution as being misleading, but excluded certain funds, that were then to be released to plaintiff. Lauren and the entity defendants appeal from the latter order, and plaintiff cross appeals from the expungement order. Lecong, in his appeal from the judgment, claims that the oral loan agreements were barred by the statute of limitations; he was not a party to the loans; there is insufficient evidence of fraud, emotional distress damages or punitive damages; and the damages were excessive.
We refer to the sisters by their first names.
We affirm the judgment against Lecong for fraud and damages, except as to damages for breach of contract and for noneconomic and punitive damages. As to noneconomic and punitive damages against Lecong, we reverse because of lack of substantial evidence. The oral contracts are barred by the statute of limitation, and therefore plaintiff is allowed damages only for breach of the written, promissory note, as well as for fraud. We affirm the trial court’s order with respect to the abstract of judgment against Lecong. We also affirm the trial court’s order expunging a writ of execution and notice of levy, and excepting certain funds already levied upon.
BACKGROUND
Ashley, Lauren and Lecong were business partners. Ashley and Lauren are sisters. Ashley is a dentist. Lauren is a licensed California attorney and licensed California contractor. Lecong and his former partner, Bob Crigler (Crigler), originally had hired Lauren’s law firm to perform legal services for their company, Professional Marble Corporation.
In 1996 or 1997, Lecong and Crigler had owned and operated Professional Marble Corporation, which manufactured and sold cultured marble and synthetic kitchen and bath materials. In or about 1998, a new corporation, Excelstone International, Inc. (Excelstone), was formed, in which Lauren, Lecong and Crigler became equal shareholders. Lauren contributed $60,000 she borrowed from Ashley to purchase her one-third share of Excelstone. According to Ashley, Lauren verbally agreed to pay her back the $60,000 loan in two years at 10 percent interest. The time provision was not alleged in the complaint or amended complaint. Ashley testified that Lauren said “if you loan me that amount, then I will go into the partnership and we form that partnership and then we will repay you.” Lauren and Lecong bought Crigler’s interest in Excelstone. In 1999, they formed a new corporation called Lexcel Solid Surfacing, Inc. (Lexcel). Excelstone dissolved in 1998. Lexcel was responsible for Excelstone’s debts.
Shortly after the first loan, Lauren asked Ashley for an additional $65,000 to invest in Excelstone or in Lexcel. Ashley loaned Lauren the money, and again Lauren verbally agreed to pay back the loan in two years at 10 percent interest. Again, the time requirement was not alleged in the complaint. Ashley claims that the loan was made to Lauren and Lecong because Lecong and Lauren had to put additional sums into the business. Lecong and Lauren suggested that the loans were to the companies. Ashley concedes that at the time of these loans, she did not speak with Lecong. Yet, she said she understood Lecong was responsible for the loans along with Lauren because it was for the business in which Lauren and Lecong were involved.
In or around late 2003 or early 2004, Lauren decided to open a showroom for the business in order to increase sales. In late 2004, Lauren formed a corporation named Goldenwest Kitchen & Bath, Inc. (Goldenwest), which would operate the showroom. In order to open the showroom, Lauren “borrowed” $70,000 from Ashley’s home equity line of credit (HELOC) on certain residential property owned by Ashley. Lauren signed Ashley’s name to the checks, which Ashley claims amounted to forgery. According to Ashley, Lauren orally agreed to repay the monies she obtained from this HELOC source. Ashley’s testimony was as follows: “Q. These loans started almost ten years ago, in 1999. Is that your testimony? A. [Ashley] yes. Q. Okay. How soon were they suppose to be repaid? A. It was supposed to be repaid in two years, with 10 percent.” There is no allegation in the complaint that there would be two years to repay this loan. The assets of Goldenwest were transferred to another company, Direct Building and Supplies, LLC (Direct Building Supplies), in effect, a successor of Lexcel, and which ultimately became Sage Décor, Inc. (Sage Décor), as contributions by Lauren and Lecong. Lecong noted that all the companies were the same but operated under different names.
In or about 2000, Lauren and Lexcel entered into a “Syndication Agreement” with Ashley. In that connection, Ashley agreed to purchase real property in Diamond Bar and invest money to build on it. Lecong said he was not a party to the Syndication Agreement, except that he was the broker entitled to a commission and acted as a broker on the Diamond Bar property. Lecong also acted on behalf of Lexcel. Lauren agreed to act as the developer on the project. According to Ashley, Lauren said another property in Whittier, which was listed as a property on the projects for this “syndication” would be sold and the proceeds used to pay off the loans to Ashley. Ashley purchased the Diamond Bar property in May 2001 for $205,000 and began supervising the construction on it. Pursuant to the agreement, when the project was completed, the property would be sold and the parties would split the proceeds. Ashley was to recover 70 percent of the profit, and Lauren was to receive 30 percent of the profit. Lauren intended to use her proceeds to pay back Ashley for the loan. In connection with construction costs, Ashley spent additional amounts, so that she spent a total of about $500,000 on the property. The property was not sold, so the loans were not paid off. Lecong actually lived in the home on the Whittier property, also which was not sold. According to Lecong and his wife, that Whittier property was the separate property of Lecong’s wife.
At some point, Lauren and Lecong told Ashley they did not have the monies to repay the loans, although they assured Ashley they would repay them. On or about September 19, 2007, Lecong and Lauren signed a promissory note with Ashley that provided that Lecong and Lauren each owed Ashley 50 percent of a $135,000 debt. Lauren, an attorney, advised Lecong to sign the note. Lecong stated that he signed the note under great “duress” just as he was coming back from his father’s funeral in Vietnam. The note was to be paid by September 12, 2008. No interest rate or any other terms of repayment were set forth in the note. The promissory note was to supersede other notes. The notes reflected the $65,000 amount loaned to Excelstone and the $70,000 HELOC “loan”. Plaintiff asserted that the note is inaccurate because both Lecong and Lauren were to be responsible for the full amount. Lecong concedes that he and Lauren are obligated on the note. Other transactions occurred that are not the subject of this appeal.
November 27, 2007 Ashley filed an action against Lauren, Lecong, the business entities, and Lecong’s wife. The case was tried to a jury on three causes of action—two of them against Lecong and Lauren for breach of contract and fraud, and one against Lauren for conversion. The jury determined that all the defendants were liable for compensatory and punitive damages. The jury then returned a monetary verdict for Ashley on her punitive damages claims.
As to Lauren, the jury found that Lauren was liable for breach of contract and fraud in the total amount of $407,993, plus $100,000 in noneconomic damages for emotional distress. The jury also awarded $100,000 in punitive damages. The jury further determined that Lauren was liable for conversion in the amount of $102,027 in economic damages and $35,000 in noneconomic damages. The jury also assessed $100,000 in punitive damages against Lauren.
As to Lecong, the jury assessed damages against him for fraud and breach of contract in the amount of $230,335. Apparently, that amount reflects the total amount of the loans, plus interest. The jury also found that Lecong was liable for $50,000 in noneconomic damages and $50,000 in punitive damages. The jury also found for Ashley against Lexcel, Goldenwest, Direct Building Supplies and Sage Décor.
Judgment was entered on November 7, 2008. It provides as follows: “NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that said Plaintiff ASHLEY TRAN have and recover: [¶] 1. The sum of $230,355[], jointly and severally, from Defendants LAUREN M. TRAN, HAI LECONG, LEXCEL SOLID SURFACING, INC., GOLDENWEST KITCHEN & BATH, INC., and DIRECT BUILDING SUPPLIES, LLC; [¶] 2. The additional sum of $100,000[] from defendant LAUREN M. TRAN, of which amount Defendants LEXCEL SOLID SURFACING, INC., GOLDENWEST KITCHEN & BATH, INC., DIRECT BUILDING SUPPLIES, LLC shall be jointly and severally liable in the amount of $70,000[], and Defendant HAI LECONG shall be jointly and severally liable in the amount of $50,000[]; [¶] 3. The additional sum of $177,658[] from Defendant LAUREN M. TRAN; [¶] 4. The additional sum of $100,000[] from Defendant LAUREN M. TRAN as punitive damages; [¶] 5. The additional sum of $50,000[] from Defendant HAI LECONG as punitive damages; [¶] 6. The additional sum of $75,000[] from Defendant LEXCEL SOLID SURFACING, INC. as punitive damages; [¶] 7. The additional sum of $75,000[] from Defendant GOLDENWEST KITCHEN & BATH, INC. as punitive damages; [¶] 8. The additional sum of $200,000[] from Defendant DIRECT BUILDING SUPPLIES, LLC as punitive damages; [¶] 9. All with interest thereon at the rate of ten percent (10%) per annum from the date of the entry of this judgment until paid, together with costs and disbursements in the amount of $______________.”
Lecong filed a motion for new trial and a motion for judgment notwithstanding the verdict, which motions were denied. Lecong timely appealed from the judgment and the order denying his motion for new trial and his motion for judgment notwithstanding the verdict.
Ashley then obtained a writ of execution against the defendants in the amount of $1,007,993. Lecong applied to expunge the abstract of judgment on the ground that one could be mislead into believing that each defendant was obligated for the total amount; the other defendants attempted to join in the motion and to expunge the writ of execution and a notice of levy. The trial court granted Lecong’s motion to expunge the abstract of judgment as being misleading, denied the other defendants’ joinder as being too late but sua sponte struck the writ of execution along with the abstract of judgment on the ground that they were misleading. The trial court’s order was without prejudice to the filing of a new abstract of judgment and writ of execution. Plaintiff appeals from these orders.
The minute order does not reflect the sua sponte order.
Thereafter, the trial court ruled that a new writ of execution and notice of levy should be expunged as misleading, but funds levied by the new writ of execution served upon Pre Con Industries (Pre Con) that levied upon Sage Décor’s funds were not affected by its ruling and ordered that the Santa Barbara Sheriff release those funds to plaintiff. Lauren and the corporate defendants appealed from that order. Plaintiff cross appealed from the order expunging the new writ of execution and notice of levy. As noted, all three appeals have been consolidated.
DISCUSSION
I. Standard of Review
If the facts are undisputed, whether the statute of limitations bars a claim is an issue of law reviewed de novo. (International Engine Parts, Inc. v. Feddersen & Co. (1995) 9 Cal.4th 606, 611-612.) When the facts are in dispute, the trial court’s resolution of those issues is reviewed under the substantial evidence standard of review. (Wingrad v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) Whether there was an oral agreement to which a person is a party is a question of fact, which is reviewed under the substantial evidence standard of review. Whether a written contract is ambiguous is a question of law reviewed de novo. (Winet v. Price (1992) 4 Cal.App.4th 1159, 1165-1166.) If the written contract is ambiguous and there is conflicting extrinsic evidence as to its interpretation, the interpretation is a question of fact reviewed under the substantial evidence standard of review. (Id. at pp. 1165-1166; see Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 847-848.) A finding of fact is reviewed under the substantial evidence standard of review.
“When a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion. [Citations.]” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.) “Testimony may be rejected only when it is inherently improbable or incredible, i.e., ... ‘“wholly unacceptable to reasonable minds.”’ [Citation.]” (Kolender v. San Diego County Civil Service Com (2005) 132 Cal.App.4th 1150, 1155.)
“On appeal from the denial of a motion for judgment notwithstanding the verdict, we determine whether there is any substantial evidence, contradicted or uncontradicted, supporting the jury’s verdict. [Citations.] If there is, we must affirm the denial of the motion. [Citations.] If the appeal challenging the denial of the motion for judgment notwithstanding the verdict raises purely legal questions, however, our review is de novo.” (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1138.) The “‘“appellate court must read the record in the light most advantageous to the plaintiff, resolve all conflicts in his favor, and give him the benefit of all reasonable inferences in support of the original verdict.”’” (Carter v. CB Richard Ellis, Inc. (2004) 122 Cal.App.4th 1313, 1320.) “When the trial court has denied a motion for a new trial... we must determine whether the court abused its discretion by examining the entire record and making an independent assessment of whether there were grounds for granting the motion.” (ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 832.)
The amount of damages is a factual question, committed first to the discretion of the jury and next to the discretion of the trial judge on a motion for new trial. (Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506.) On review, the appellate court indulges all presumptions in favor of the decision of the trial court and can “interfere on the ground that the judgment is excessive only on the ground that the verdict is so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury.” (Id. at p. 507; see Rufo v. Simpson (2001) 86 Cal.App.4th 573, 614-615.) As to whether there is evidence to support a damage award, and not the amount, the substantial evidence standard of review is applicable.
The standard for reviewing a punitive damage award is similar to that used in reviewing compensatory damages. A punitive damage award may be reversed as excessive if the entire record, viewed most favorably to the judgment, indicates the award was the result of passion and prejudice. (Stevens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1658.) “The essential question for the jury, the trial court, and the appellate court is whether the amount of the award substantially serves the public interest in punishment and deterrence. The California Supreme Court has established three criteria for making that determination: (1) the reprehensibility of the defendant’s misdeeds; (2) the amount of compensatory damages, though there is no fixed ratio for determining whether punitive damages are reasonable in relation to actual damages; and (3) the defendant’s financial condition.” (Ibid.) Also, whether there is evidence to support a punitive damage award is reviewed under the substantial evidence standard of review.
II. Statute of Limitations
Lecong asserts that any alleged oral promise he made to repay loans were barred by the two-year statute of limitations. (Code Civ. Proc., § 339, subd. (1).) Ashley testified that the terms of her initial oral loans of $60,000 and $65,000 were two years. These loans were made in or about 1998 and 1999. Thus, those loans came due in or prior to 2002. The so-called HELOC loan was made in 2003 or 2004. It consisted of a promise to repay monies improperly taken. There is no allegation in the amended complaint as to when the money was to be repaid. When the money was taken, the obligation accrued. Ashley’s testimony concerning the subject is ambiguous as to when this HELOC money was to be repaid. Plaintiff has not argued that the HELOC loan obligation accrued later than 2003 or 2004 based on a two year period to repay. Instead she relies on continuing oral promises.
The action was filed on November 27, 2007. Thus, the two-year period of limitation had expired as to those oral loans or obligations. Ashley argued that the statute of limitations was extended by oral promises of Lauren and Lecong to repay the loans beyond the due dates of the loan. When the statute of limitations would bar a claim for breach of contract, the claim cannot be renewed by an oral promise to pay. (Code Civ. Proc., § 360; Kurokawa v. Blum (1988) 199 Cal.App.3d 976, 990.) It can only be revived by a written acknowledgement. (Ibid.) Here, the September 19, 2009, written promissory note does not match the oral agreements. Even though it may cover some of the debt reflected in the oral argument, it does not include some of the major terms, such as interest or date due. Also, unlike the oral agreements, Lecong and Lauren expressly are liable for 50 percent of the debt. Accordingly, that writing does not constitute a written memorandum of the oral agreements, nor does it serve to revive any claim based on the oral agreements. (Cf. Dillon v. Sumner (1957) 153 Cal.App.2d 639, 643 [“If [a contemporaneous oral agreement could vary a written agreement]... then every written contract of sale, no matter how carefully and specifically it described the property to be sold, could be varied by proof that the seller orally agreed to convey additional property not described in the written contract”].) Moreover, the written agreement may not be contradicted by an alleged prior oral agreement. (Code Civ. Proc., § 1856, subd. (a); Frederick v. Fox (1949) 91 Cal.App.2d 101, 105.)
Ashley argues that by virtue of the actions of Lecong and Lauren, they are estopped to assert the statute of limitations. This argument was never made to the trial court and is therefore forfeited. (See Coloney Ins. Co. v. Crusader Ins. Co. (2010) 188 Cal.App.4th 743, 751-752.) Since Lecong was only liable under the written promissory note, his liability for breach of contract could only be $67,500.
III. Parties to the Agreement and Amount of Contract Damages
Lecong asserts he was not a party to the original loan agreements. Because the statute of limitations barred the alleged oral promises, Lecong could only be liable under the written promissory note, which unambiguously provides that Lecong is obligated in the amount of $67,500. (Code Civ. Proc., § 1856, subd. (a); Sunniland Fruit, Inc. v. Verni (1991) 233 Cal.App.3d 892, 898 [“Parol evidence cannot... be admitted to show intention independent of an unambiguous written instrument].) Lecong does not dispute that obligation, but rather argues he is not liable for any more than that amount. To the extent the damages awarded against Lecong for breach of contract exceed $67,500, they do not reflect the proper measure of damages and are not based on substantial evidence. (See Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co. (1977) 66 Cal.App.3d 101, 122.) The judgment should be modified to reflect the award of breach of contract damages is $67,500. Because the amount of damages for breach of the promissory note is established and, in effect, covered by the fraud damages (cf. Michelson v. Hamada (1994) 29 Cal.App.4th 1566, 1583), no retrial is necessary in connection with contract damages.
IV. Fraud
Lecong contends that there was not substantial evidence of fraud to support the jury verdict. He challenges the trial court’s denial of the judgment notwithstanding the verdict on the same basis. The fraud claim is based on the failure to perform promises to repay monies—the inference being that the promises were made without the intention of performing them.
Lecong argues that there is no evidence that he made any false promises. He says the evidence shows that he left the financial matters to Lauren and the companies. The jury found that Lecong knowingly or recklessly without regard for the truth made false promises to Ashley with the intention that she rely on them and that she relied upon them, causing her damage.
Lecong took responsibility for at least some loans of money by signing a promissory note. The money went into companies in which he was a principle. The monies were not paid back to Ashley. Over the years, Lecong assured Ashley that “we are going to pay you.” The promotion of the “projects by Lexcel”—into which the “Syndication Agreement” money was to go—listed the Whittier property. But Lecong lived in that house and asserted it belonged to him (or really his wife). He denied that he saw the promotional material. But Ashley said Lecong promised to use the proceeds of the sale of the house in Whittier to pay back at least the $70,000 HELOC loan. He and Lauren would not make payments of $1,000 per month as suggested by Ashley. And, Lauren even stopped payment on one check she gave to Ashley.
There was substantial evidence that Lecong was at least complicit with Lauren in connection with promises regarding repayment of the loans, including interest. The evidence that Lecong defrauded Ashley is based upon the promise that Lauren borrowed money with a promise to pay back the money; Lauren’s promise to pay the money back was false because she never had any intention to pay back the money; Lecong was involved in these promises because the monies went to the companies in which he was a principal; and Lecong continued to participate in promising Ashley she would be repaid, including out of the sale of real property that was not sold.
“A promise to do something necessarily implies the intention to perform, and where that intention is absent, there is an implied misrepresentation of fact, which is actionable fraud. [Citations.]” (5 Witkin, Summary of California law (10th ed. 2005)§ 781, p. 1131.) “Circumstantial evidence of subsequent conduct is admissible and may be sufficient [to prove the original lack of intention.]” (5 Witkin, Summary of California law, supra, § 782, p. 1132.) Mere proof of nonperformance of a promise is insufficient to establish fraud. (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30-31.) The evidence of his conduct after the loans suggests his involvement with the false promises. There is evidence Ashley forbeared in pursuing collection of monies owed her based on the promises. The jury found that Lecong was liable for $230,335 for the breach of the oral contracts and for fraud. That included interest at 10 percent. Although that recovery is not justified under the oral contracts because of the statute of limitations, it would be justifiable damages for fraud. (See Crawford v. Nastos (1960) 182 Cal.App.2d 659, 665 [“settled rule that every person connected with a fraud is liable for the full amount of damages... and the wrongdoers (if any) are jointly and severally liable.”].)
V. Non Economic Damages
The jury awarded $50,000 to the plaintiff for emotional distress. Lecong asserts that because he could not be liable for fraud, he should not be liable for emotional distress damages. He adds there is not substantial evidence of such damages.
Our Supreme Court stated, “[t]he general rule of damages in tort is that the injured party may recover for all detriment caused whether it could have been anticipated or not. [Citations.] In accordance with the general rule, it is settled in this state that mental suffering constitutes an aggravation of damages when it naturally ensues from the act complained of, and in this connection mental suffering includes nervousness, grief, anxiety, worry, shock, humiliation and indignity as well as physical pain. The commonest example of the award of damages for mental suffering in addition to other damages is probably where the plaintiff suffers personal injuries in addition to mental distress as a result of either negligent or intentional misconduct by the defendant. [Citations.] Such awards are not confined to cases where the mental suffering award was in addition to an award for personal injuries; damages for mental distress have also been awarded in cases where the tortious conduct was an interference with property rights without any personal injuries apart from the mental distress. [Citations.] [¶] We are satisfied that a plaintiff who as a result of a defendant’s tortious conduct loses his property and suffers mental distress may recover not only for the pecuniary loss but also for his mental distress. No substantial reason exists to distinguish the cases which have permitted recovery for mental distress in actions for invasion of property rights.” (Crisci v. Security Ins. Co. (1967) 66 Cal.2d 425, 433.)
“‘While it is true that plaintiffs must show with reasonable certainty that they have been damaged because of the wrongful conduct of the defendant, “once the cause and existence of damages have been so established, recovery will not be denied because the damages are difficult of ascertainment.” [Citation]. Liability cannot be evaded because damages cannot be measured with exactness.’” (Schroeder v. Auto Driveaway Co (1974) 11 Cal.3d 908, 921.)
Plaintiff, in support of the award of emotional distress damages, makes some general observations, but provides no citations to any evidence in the record supporting emotional distress damages. The failure to support an argument with citations to the record results in a waiver of the argument. (Miller v. Superior Court (2002) 101 Cal.App.4th 728, 743.) Even if there was not such a waiver, our review of the record does not reveal substantial evidence to support emotional distress damages—i.e. the noneconomic damages.
The record reflects a confrontation Ashley had with defendants in which there was some yelling and even physical contact initiated by Lecong. Ashley said she was upset that her sister forged Ashley’s name on checks. One can infer that having to repeatedly demand payment from a sister and being put into a precarious financial situation would be disconcerting. She said “And I told them, I said, you con me out of all of my life savings and now I’m up to my neck with loans and debts... and all of my money, all my life savings gone. And you guys haven’t paid me back....”
But there was no evidence that Ashley actually suffered emotional injury damages. In closing argument plaintiff said, “[y]ou also got to award noneconomic loss. This is the inconvenience, emotional distress, pain and suffering, that sort of thing... she seemed pretty stressed out to me. She seemed emotionally distraught. I mean, this is her sister, she’s learning that her sister is defrauding her.”
Ashley argues, in effect, that “an inference drawn from evidence of the [defendant’s] conduct will suffice. It will not. Plaintiff[s] must show actual damage;... The rule in personal injury cases that damages for pain and suffering generally can be inferred from the nature, extent, severity and treatment of the injury [citations] does not pertain here.” (McLaughlin v. National Union Fire Ins. Co. (1994) 23 Cal.App.4th 1132, 1162-1163.) Although Ashley testified, she did not testify about her emotional distress—at least not enough to show damage with reasonable certainty.
In Pintor v. Ong (1989) 211 Cal.App.3d 837, 846, the court said, “[t]o put the award in context, it is helpful to recall that to recover emotional distress damages, ‘the injury suffered must be severe, i.e., substantial or enduring as distinguished from trivial or transitory.’ (Young v. Bank of America [(1983)]141 Cal.App.3d [108, ] 114.) The range of injury broadly encompasses ‘“‘all highly unpleasant mental reactions...’”’ (ibid.) and “‘includes fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation and indignity, as well as physical pain.”’ (Thing v. La Chusa (1989) 48 Cal.3d 644, 648-649 [257 Cal.Rptr. 865, 771 P.2d 814].)” In that case, the trial court found that the plaintiff “‘experienced’ worry, frustration, anger and sleeplessness due to [defendant’s]” tortious conduct. (Id. at p. 847.) There is no evidence in the record here of such feelings. Accordingly, the award for emotional distress damages is reversed as to Lecong. The reversal is based on insufficiency of the evidence to show any noneconomic damages; no retrial on this issue is necessary.
VI. Punitive Damages
Lecong contends that the punitive damage award against him is not supported by substantial evidence. He says, in effect, that there was insufficient evidence of his net worth to support a punitive damage award and asserts that there is insufficient evidence that he was guilty of oppression, fraud or malice. He also argues that the damages awarded were excessive.
“Civil Code section 3294, subdivision (a) permits an award of punitive damages ‘for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.’ We review the trial court’s award of punitive damages for substantial evidence. [Citation.] ‘An award of punitive damages hinges on three factors: the reprehensibility of the defendant’s conduct; the reasonableness of the relationship between the award and the plaintiff’s harm; and, in view of the defendant’s financial condition, the amount necessary to punish him or her and discourage future wrongful conduct.’ [Citations.]” (Baxter v. Peterson (2007) 150 Cal.App.4th 673, 679.)
“Evidence of the defendant’s financial condition is a prerequisite for an award of punitive damages. (Adams v. Murakami (1991) 54 Cal.3d 105, 108-109, 284 Cal.Rptr. 318, 813 P.2d 1348 (Adams) [‘an award of punitive damages cannot be sustained on appeal unless the trial record contains meaningful evidence of the defendant’s financial condition’].) ‘Without such evidence, a reviewing court can only speculate as to whether the award is appropriate or excessive.’ (Id. at p. 112.) Plaintiff has the burden of proof. (Id. at p. 119.) [¶] Adams ‘decline[d] … to prescribe any rigid standard for measuring a defendant’s ability to pay.’ (Adams, supra, 54 Cal.3d at p. 116, fn. 7 [‘[w]e cannot conclude on the record before us that any particular measure of ability to pay is superior to all others or that a single standard is appropriate in all cases’].) In Baxter v. Peterson, supra, 150 Cal.App.4th 673 [58 Cal.Rptr.3d 686], the court summarized the pertinent court of appeal authorities on the point: ‘Net worth is the most common measure, but not the exclusive measure. (Rufo v. Simpson [supra, ] 86 Cal.App.4th [at pp.] 624–625 [103 Cal.Rptr.2d 492] [evidence that defendant was “a wealthy man, with prospects to gain more wealth in the future”]; see Zaxis Wireless Communications, Inc. v. Motor Sound Corp. (2001) 89 Cal.App.4th 577, 582–583 [107 Cal.Rptr.2d 308] [“Net worth is too easily subject to manipulation to be the sole standard for measuring a defendant's ability to pay”].) In most cases, evidence of earnings or profit alone are not sufficient “without examining the liabilities side of the balance sheet.” [Citations.] “What is required is evidence of the defendant’s ability to pay the damage award.” [Citation.] Thus, there should be some evidence of the defendant’s actual wealth. Normally, evidence of liabilities should accompany evidence of assets, and evidence of expenses should accompany evidence of income.’ (Baxter v. Peterson, supra, 150 Cal.App.4th at p. 680.)” (Green v. Laibco, LLC (2011) 192 Cal.App.4th 441, 459-460.)
Here again, plaintiff fails to provide any record citation concerning Lecong’s ability to pay punitive damages. This constitutes a forfeiture of the argument that there was substantial evidence of ability to pay. In addition, although plaintiff refers to exhibits, she has not produced those exhibits as part of the record. It was her obligation to comply with rule 8.224 of the California Rules of Court. She did not do so. We have obtained the exhibits from defendant, but plaintiff has not identified specific exhibits that support her position.
Again we reviewed the record. Lecong did have a house but he deeded it to his wife; his wife said it was paid for by proceeds from the sale of her house and thus was her separate property. It then was transferred to a trust. Lecong testified he did not have the capital to put into his businesses. Although he had put money into the companies. He said he had financial hardship. An undated document notes that the Whittier Property is “currently value [sic] over $2,000,000.” Lecong said the property was worth “$1.2 or $1.3 million, ” but did not testify as to what, if any, portion of the property was free of any loans.
Lauren testified that the present company, Direct Building Supplies—that the four people own, including Lecong—is worth “anywhere from 10 to $50,000.” Lecong and Lauren are one-third owners. The Company’s gross sales for 2007 were $69,476. She said, “Mr Lecong been working for the company for free the last ten years or so. He hardly draw any money.” She added they are working hard and hope for business, but it is a “struggling business.” Lecong also testified he took little if anything out of the company. He said as of 2008, he had $2,173 in his personal deposit account. He said he has no income and his wife takes care of the financial affairs. He estimated the assets of the company to be $50,000. He said he had $9,078 in his IRA account and he contributes nothing to the family. His wife had been earning over $200,000 per year to support the family. But she lost her job. During closing argument, plaintiff’s counsel did not even discuss the amount of punitive damages.
There is little evidence of Lecong’s actual assets or income and no evidence of his liabilities. Based on this record, there is insufficient evidence to support Lecong’s ability to pay punitive damages. (See Baxter v. Peterson, supra, 150 Cal.App.4th at p. 680; Storage Services v. Oosterbaan (1989) 214 Cal.App.3d 498, 517 [“in the absence of any evidence of [his] wealth, the punitive damage award... must be reversed”].) “When a punitive damage award is reversed based on the insufficiency of the evidence, no retrial of the issue is required.” (Baxter v. Peterson, supra, 150 Cal.App.4th at p. 681.) Accordingly, the punitive damage award is reversed and retrial is unnecessary.
VII. Motion for New Trial
Lecong argues that the trial court abused its discretion in not ordering the new trial because of insufficiency of the evidence to justify the verdict.
“The authority of a trial court in this state to grant a new trial is established and circumscribed by statute. [Citation.] [Code of Civil Procedure section] 657 sets out seven grounds for such a motion: (1) ‘Irregularity in the proceedings’; (2) ‘Misconduct of the jury’; (3) ‘Accident or surprise’; (4) ‘Newly discovered evidence’; (5) ‘Excessive or inadequate damages’; (6) ‘Insufficiency of the evidence’; and (7) ‘Error in law.’” (Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 633.) “A new trial shall not be granted upon the ground of... excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.” (Code Civ. Proc., § 657.)
“We will not disturb the trial court’s determination of a motion for a new trial unless the court has abused its discretion. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 859 [107 Cal.Rptr.2d 841, 24 P.3d 493].) When the court has denied a motion for a new trial, however, we must determine whether the court abused its discretion by examining the entire record and making an independent assessment of whether there were grounds for granting the motion. (Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1160-1161 [79 Cal.Rptr.2d 641].)” (ABF Capital Corp. v. Berglass, supra, 130 Cal.App.4th at p. 832.)
Defendant’s grounds for a new trial were insufficiency of evidence, excessive damages, and the verdict was against the law. We have already concluded that there was sufficient evidence to support the verdict, except as to the amount of damages under the breach of contract claim, emotional distress damages and punitive damages. We have dealt with damages for breach of contract and emotional distress and punitive damages. The amount of compensatory damages for fraud are not excessive. They reflect the admitted indebtedness plus interest. Defendant asserts that the verdict is against the law because of the award of non-economic and punitive damages—issues with which we have dealt.
VIII. Judgment Notwithstanding the Verdict
“The trial judges power to grant a judgment notwithstanding the verdict is identical to his power to grant a directed verdict. [Citations.] The trial judge cannot weigh the evidence [citation], or judge the credibility of witnesses. [Citation.] If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied. [Citations.] ‘A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied.’” (Hauter v. Zogarts (1975) 14 Cal.3d 104, 110; Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68 [“As in the trial court, the standard of review is whether any substantial evidence contradicted or uncontradicted supports the jury’s conclusion”].)
In reviewing an order granting judgment notwithstanding the verdict, appellate courts employ the same standard of deference to the jury’s verdict. (Henrioulle v. Marin Ventures, Inc. (1978) 20 Cal.3d 512, 515; Begnal v. Canfield & Associates, Inc. (2000) 78 Cal.App.4th 66, 72-73.) We have concluded that there was substantial evidence to support the fraud verdict, but not as to contract, noneconomic and punitive damages.
IX. Abstract of Judgment
Lecong moved for an order expunging the abstract of judgment. The trial court granted the motion because the form was “misleading.” In essence, all the amounts were totaled, and the form might suggest that Lecong was liable for the total amount of damages awarded against all the defendants combined. The trial court granted the motion and also sua sponte struck the writ of execution and notice of levy. Plaintiff appeals from these orders.
“There is no statutory procedure ‘for expunging’ an abstract of judgment.” (Federal Deposit Ins. Corp. v. Charlton (1993) 17 Cal.App.4th 1066, 1070.) Nevertheless, it has been done. (In re Michael S. (2007) 147 Cal.App.4th 1443, 1458.) The trial court could declare the abstract a nullity (Ellrott v. Bliss (1983) 147 Cal.App.3d 901, 903-905) or could exercise its inherent power to correct a clerical error. (Commonwealth Land Title Co. v. Kornbluth (1985) 175 Cal.App.3d 518, 531; Code Civ. Proc., § 473, subd. (d).) In any event, upon reversal, the abstract of judgment has to be modified as to Lecong. The form should be modified to eliminate any confusion that there is a judgment against Lecong for the entire judgment against all the defendants combined. Thus, we affirm the trial court’s order with regard to the abstract of judgment and the writ of execution.
X. Writ of Execution and Levy
After the trial court expunged the abstract of judgment and writ of execution, Ashley refiled the writ of execution and served it with a Notice of Levy on Pre Con, which was holding funds belonging to defendant Sage Décor, formerly Direct Building Supplies—the company in which Lauren and Lecong, among others, had an interest. Defendants Sage Décor, Lexcel, Goldenwest and Lauren moved to expunge the new writ of execution and notice of levy served upon Pre Con on the ground that the writ had the same defects as did the earlier expunged one. The trial court granted the motion but provided that “The $48,000 previously levied upon [Pre Con] and paid is not affected by this order.” The defendants’ motion for reconsideration of the order that in effect prevented Pre Con from releasing the funds to defendants was denied. Ashley cross appeals from the order expunging the writ of execution.
The trial court reasoned that the writ of execution was confusing as to the amount owed by each judgment debtor and that separate writs of execution and notices of levy must be issued for each defendant with the specific amount of the judgment against each defendant in the respective writs and notices. The $48,000 already had been levied upon and had been paid to the sheriff. The trial court reasoned that the levy was confusing but not void, and therefore the $48,000 previously levied and paid was not affected by the order. The judgment was for over $500,000.
On the motion for reconsideration, the moving defendants contended that after the first writ of execution was expunged, Ashley induced Pre Con to withhold the funds from the defendant Sage Décor by deception. The trial court denied the motion for reconsideration. “The court’s inherent control over its process gives it power on motion to recall or quash a writ of execution improperly or inadvertently issued.” (8 Witkin, Cal. Procedure (5th ed. 2008) Enforcement of Judgment, § 163, p. 196.) “When an execution is quashed, any levy under it falls with it, and any title to the property vested in the levying officer by the levy is defeated.” (Id. at p. 197.) Although, “[a] motion to quash the levy may be made where the officer has already levied on the property” (ibid.), the trial court determined that its order expunging the writ of execution was prospective and did not affect the levy already made. As the trial court was exercising its inherent power and the amount levied was far under the amount of the judgment being enforced, there was no miscarriage of justice (Cal. Const., art. VI, § 13). Accordingly, the trial court’s order is affirmed.
DISPOSITION
The judgment as to Lecong is reversed as to the following awards: breach of contract damages of $230,335, noneconomic damages of $50,000, and punitive damages of $50,000. There shall be no retrial. The judgment against Lecong for fraud for $230,335 is affirmed. The post-judgment orders regarding the abstract of judgment and execution of the judgment are affirmed. Each party shall bear its, his or her own costs of appeal
We concur: ARMSTRONG, Acting P. J., KRIEGLER, J.