Trans World Sourcing v. Prend CA4/2 (2020) · DecisionDepot
Trans World Sourcing v. Prend CA4/2
California Court of Appeal Oct 14, 2020 No. E071712Unpublished
Filed 10/14/20 Trans World Sourcing v. Prend CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
TRANS WORLD SOURCING, INC., Plaintiff, Cross-defendant and Appellant, E071712
v. (Super.Ct.No. RIC1603278)
ROGER PREND, OPINION Defendant, Cross-complainant and Respondent;
ROGER PREND, as Trustee, etc. et al., Defendants and Respondents.
APPEAL from the Superior Court of Riverside County. Randall S. Stamen,
Judge. Affirmed.
Law Office of Armand Tinkerian and Armand Tinkerian for Plaintiff, Cross-
defendant and Appellant Trans World Sourcing, Inc.
Thompson & Colegate and Susan Knock Beck for Defendant, Cross-complainant
and Respondent Roger Prend and Defendants and Respondents Roger Prend, as Trustee,
etc. et al.
1
Trans World Sourcing, Inc. (Trans World) leased a commercial warehouse from
Roger Prend to store its inventory of television mounting brackets, consoles, and related
accessories. Trans World fell behind on its rent payments, and the parties entered into a
new lease termination agreement. That agreement gave Prend a security interest in Trans
World’s stored inventory—that is, if Trans World defaulted under the new agreement, the
inventory became Prend’s property. After Trans World failed to make any payments
not required to discuss or consider points which are not argued or which are not
supported by citation to authorities or the record”].) Moreover, we consider only
arguments or theories that the appellant preserved by raising them in the trial court.
(DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 676;
Saville v. Sierra College (2005) 133 Cal.App.4th 857, 872-873.)
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B. Fraud
Trans World argues that there was a triable issue of material fact as to whether
Prend secured the lease termination agreement through fraud. It relies on White’s
declaration to show that the broker promised Trans World exclusive control of the
inventory in the new warehouse. Trans World asserts that the trial court should have
considered that evidence because the parole evidence rule does not bar evidence of fraud.
It is true that the parol evidence rule does not bar extrinsic evidence for the
purpose of showing an agreement is void for fraud. (Riverisland Cold Storage, Inc. v.
Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 1174, 1182.) The parol
evidence rule protects the terms of a valid written agreement but does not preclude
evidence challenging the validity of the agreement itself. (Id. at p. 1174.)
But even if the broker promised Trans World exclusive control of the inventory in
the new warehouse, Trans World made no showing that the statement amounted to a false
representation. The lease termination agreement acknowledged that the inventory
belonged to Trans World, and it was only upon Trans World’s default that Prend would
have the right to the inventory. Trans World had the right to control the inventory, so
long as it performed its obligations under the agreement. There was no evidence that the
broker promised White exclusive control of the inventory even after a default. There was
no evidence that the broker discussed what would happen in the event of Trans World’s
default at all.
Even if the broker’s statement constituted a false representation, Trans World’s
argument fails for another reason. Justifiable reliance is an essential element of this
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cause of action. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) ‘“Generally, it is
not reasonable to fail to read a contract; this is true even if the plaintiff relied on the
defendant’s assertion that it was not necessary to read the contract.”’ (Rosencrans v.
Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1080, italics in original omitted.)
Accordingly, “a contract will not be ‘considered void due to fraud if the plaintiff had a
reasonable opportunity to discover the true terms of the contract.’” (Ibid.)
In this case, White did not dispute that he signed the lease termination agreement.
Notably, his declaration was silent about whether he actually read the agreement.
Likewise, he was silent on what terms were in the written agreement that he signed.
Instead, he merely stated that he signed the agreement in reliance on the broker’s
assurances about exclusivity. But White could not have justifiably relied on the broker’s
statements when he had the opportunity to read the lease termination agreement but failed
to do so. Had he read the agreement, he would have seen the unambiguous provision
giving Prend a security interest.
Because Trans World does not cite any evidence of a false representation or
justifiable reliance, we reject the argument that there were triable issues of material fact
as to the fraud claim.
C. Conversion
As to the conversion cause of action, Trans World contends that there were triable
issues of material fact about the terms of the lease termination agreement, whether Prend
prevented Trans World from accessing the inventory after the relocation, and whether
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Prend had the right to sell the inventory without notice to Trans World. The arguments
lack merit.
“‘Conversion is the wrongful exercise of dominion over the property of another.
The elements of a conversion claim are: (1) the plaintiff’s ownership or right to
possession of the property; (2) the defendant’s conversion by a wrongful act or
disposition of property rights; and (3) damages.”’ (Los Angeles Federal Credit Union v.
Madatyan (2012) 209 Cal.App.4th 1383, 1387.)
The terms of the lease termination agreement gave Prend the right to the inventory
after Trans World defaulted, and Trans World defaulted by failing to make its first
payment on July 1, 2015 (and all payments thereafter). Accordingly, regardless of
whether Prend restricted Trans World’s access to the inventory or sold it without notice,
his actions did not amount to conversion—the property belonged to him, and he could do
whatever he wanted with it. Trans World’s insistence that White and the broker agreed
Trans World would have exclusive control of the inventory does not create a material
factual dispute. As we have discussed, even if that were a term of the agreement, it does
not address what would happen upon Trans World’s default.
Trans World also argues that there was a triable issue as to whether it defaulted,
because the broker promised that Prend would be flexible with payment dates. But Trans
World did not raise this as a triable issue in its opposition brief in the trial court. It has
therefore forfeited the argument on appeal. (DiCola v. White Brothers Performance
Products, Inc., supra, 158 Cal.App.4th at p. 676; Saville v. Sierra College, supra, 133
Cal.App.4th at pp. 872-873.)
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D. Breach of Contract and Breach of the Implied Covenant of Good Faith and
Fair Dealing
Trans World contends that there were numerous triable issues of fact as to the
causes of action for breach of contract and breach of the implied covenant of good faith
and fair dealing. There are several problems with its arguments.
First, Trans World failed to raise almost all the claimed triable issues in its brief
opposing summary judgment, so it has forfeited the arguments. Second, Trans World has
forfeited many of its contentions by failing to support them with reasoned argument and
authority. (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1303; Badie v.
Bank of America (1998) 67 Cal.App.4th 779, 784.) As just one example, Trans World
asserts that there was “a triable issue of fact as to the first day of payment.” Trans World
follows that with a single conclusory sentence, and no citation to authority, stating that it
was unreasonable to require the first payment one day after relocating the inventory.
Trans World does not explain why that would be unreasonable or how it might show that
Prend breached the lease termination agreement. And we have no duty to develop
appellants’ arguments for them. (Cahill v. San Diego Gas & Electric Co. (2011) 194
Cal.App.4th 939, 956.)
Third, the only argument that Trans World has arguably preserved is meritless. In
the trial court, Trans World argued that Prend breached the implied covenant of good
faith and fair dealing by restricting Trans World’s access to its inventory, which it needed
to sell to meet its payment obligations under the lease termination agreement. On appeal,
Trans World argues that Prend breached the lease termination agreement by preventing
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Trans World from accessing its inventory. It cites White’s declaration that Prend claimed
ownership of the inventory almost immediately after the move and refused Trans World
access.
That evidence does not show a disputed material fact as to breach of the
agreement. Rather, it is merely a description of Prend’s authorized actions. Prend
claimed ownership of the inventory almost immediately after the inventory’s relocation
because that is when Trans World’s default occurred and his right to the property became
effective.
E. Unfair Competition, Unfair Business Practices, and Tortious Interference with
Prospective Economic Advantage
Trans World claims that there are “multiple” material facts in dispute as to the
causes of action for unfair competition and unfair business practices, arguing that Prend
confiscated its property and illegally sold it below cost. But as we have explained, the
lease termination agreement authorized Prend’s actions. The opening brief relies on
conclusory assertions that Prend’s illegal or wrongful conduct must be unfair. It contains
no reasoned argument or citations to authority demonstrating that a party’s execution on
its contractually authorized security interest amounts to unfair competition or an unfair
business practice. Trans World has thus forfeited its argument that there were triable
issues of fact on these causes of action. (Cahill v. San Diego Gas & Electric Co., supra,
194 Cal.App.4th at p. 956; Sporn v. Home Depot USA, Inc., supra, 126 Cal.App.4th at
p. 1303; Badie v. Bank of America, supra, 67 Cal.App.4th at p. 784.)
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The argument is forfeited for the additional reason that it contains no citations to
evidence in the record. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108,
1115.) For instance, Trans World repeatedly asserts that its inventory was worth
$395,000, and Prend therefore sold the inventory below cost, but Trans World does not
direct us to evidence in the record that would support such a sum. We are not required to
independently search the record in support of claimed errors. (Ibid.)
As to the final cause of action for tortious interference with economic advantage,
Trans World’s argument fails for the same reasons. Its argument consists of the assertion
that there are material facts in dispute and a reference to the allegations of its FAC. The
failure to cite evidence in the record, cite and apply relevant authority, and overall make a
reasoned argument means that Trans World has forfeited the contention. Moreover,
nowhere in its brief does Trans World cite evidence of any conduct by Prend that would
constitute tortious interference. The undisputed facts show that Prend did nothing more
than exercise his contractual rights.
F. Remaining Forfeited Contentions
Trans World raises two more arguments, but it fails to relate them to any particular
cause of action. First, it contends that the lease termination agreement is unenforceable
because the conditional bill of sale could not be severed from it. Trans World does not
explain how the bill of sale rendered the lease termination agreement unenforceable, what
evidence supports that argument, or what authorities support it. Moreover, Trans World
did not raise the conditional bill of sale in its brief opposing summary judgment. For all
of these reasons, the argument is forfeited.
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Second, Trans World argues that the lease termination agreement contains an
unenforceable liquidated damages clause under Civil Code section 1671. The argument
is forfeited because Trans World did not raise it in the brief opposing summary judgment
and cites no evidence to support it (which would have to include evidence supporting the
claim that the inventory was worth $395,000).
In sum, all of Trans World’s arguments are either forfeited or fail to demonstrate a
triable issue of material fact. Accordingly, we affirm the judgment for Prend.
II. Order Amending the Attorney Fees Order Nunc Pro Tunc
Trans World argues that the trial court abused its discretion by awarding attorney
fees to RDP Ventures and Prend in his capacity as trustee. Trans World contends that the
moving defendants did not comply with the lodestar method in calculating their fees and
did not show that the requested fees were reasonable.
Those are arguments that Trans World should have made in opposition to the
attorney fees motion in the trial court. But it failed to oppose the motion, appear for the
hearing on the motion, or appeal from the order granting the attorney fees motion. The
order granting the motion has long been final, and Trans World’s belated challenges to
the merits of that order are thus forfeited. (Dakota Payphone, LLC v. Alcaraz (2011) 192
Cal.App.4th 493, 509 [party who fails to timely appeal from an order cannot belatedly
challenge it on appeal from a subsequent order].)
The issue properly before us is whether the court erred by granting the motion to
amend the attorney fees order nunc pro tunc. The defendants moved under section 473,
subdivision (d), which states: “The court may, upon motion of the injured party, or its
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own motion, correct clerical mistakes in its judgment or orders as entered, so as to
conform to the judgment or order directed.” The court has the power to correct clerical
errors “‘whether made by the clerk, counsel or the court itself, so that the records will
conform to and speak the truth.’” (Ames v. Paley (2001) 89 Cal.App.4th 668, 672.) The
trial court determined that the attorney fees order did not accurately reflect its ruling,
because it inadvertently omitted the amount of fees. The court therefore had the power to
correct the mistake by including the exact fees in the order. Trans World fails to show
that the court erred under section 473, subdivision (d).
DISPOSITION
The judgment and the order amending the attorney fees order nunc pro tunc are
affirmed. Respondents shall recover their costs of appeal. (Cal. Rules of Court, rule
8.278(a)(1).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J.
We concur:
RAMIREZ P. J. SLOUGH J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the summary judgment in favor of the defendant, holding that the lease termination agreement authorized the defendant to sell the inventory upon the plaintiff's default, and affirmed the trial court's order amending the attorney fees award to correct a clerical error.
Issues
Whether the trial court erred in granting summary judgment where the lease termination agreement authorized the defendant to dispose of inventory upon default.
Whether the plaintiff demonstrated triable issues of material fact regarding fraud, conversion, or breach of contract.
Whether the trial court properly exercised its authority under Code of Civil Procedure section 473, subdivision (d) to correct a clerical error in an attorney fees order.
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“The trial court may grant summary judgment if there is no triable issue of material fact and the issues raised by the pleadings may be decided as a matter of law.”