Franecke v. Melkonian CA1/4 ( 2021 )

Filed 8/27/21 Franecke v. Melkonian CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
LOUIS S. FRANECKE,
Petitioner and Appellant,
A160327
v.
RITA MELKONIAN, (Marin County
Super. Ct. No. FL1400242)
Respondent.
Louis S. Franecke appeals from the trial court’s
determination that he failed to establish his entitlement to
reimbursement under Family Code1 section 2640 for claimed
separate property contributions to improvements to a community
property residence. We affirm.
BACKGROUND
This is the third appeal in the parties’ marital dissolution
action regarding division of their community estate. We
summarize here the background and facts pertinent to the issue
presented in this appeal, incorporating where relevant our
All further statutory references are to the Family Code
1
unless otherwise stated.
1
recitation of the facts from our first opinion.2 (In re Marriage of
Franecke (June 28, 2019, A151670) [nonpub. opn.] (Franecke I).)
Franecke and Melkonian entered into a premarital
agreement (PMA) prior to their 1999 marriage. In 1998, the
parties contracted with Masma Construction (Masma) for the
purchase of a lot on Miwok Drive in Novato and construction of a
residence there. In the PMA, the parties agreed that the Miwok
residence was community property.
The course of the house acquisition and construction was
not smooth. In 2001 and 2002, two mechanic’s liens were
recorded against the house, as well as a notice of default. To save
the residence from foreclosure, Franecke, on behalf of himself and
Melkonian, purchased the first and second mortgages and
obtained clear title to the property after successfully bidding at a
public foreclosure sale. Franecke also sued Masma, and that case
settled for a payment by Masma to the parties.
In October 2016, the trial court conducted a bench trial in
this dissolution action on issues related to the PMA and the
residence. In May 2017, the trial court issued a statement of
decision. The court found that (1) pursuant to the PMA,
settlement funds recovered from the Masma lawsuit were
community property; (2) on his section 2640 claim for
reimbursement for separate property contributions for the down
payment on the residence, Franecke was entitled to no more than
2 The second appeal in this matter addressed the trial
court’s ruling on a request by Melkonian for attorney fees and
sanctions. (In re Marriage of Franecke (Oct. 30, 2020, A159776)
[nonpub. opn.] (Franecke II).)
2
$350,000 pursuant to the PMA; (3) by signing the PMA, Franecke
waived his right to section 2640 reimbursement for separate
property contributions to improvements to the residence; (4)
laches barred Franecke’s section 2640 claim for reimbursement
for mortgage, taxes, and insurance payments; (5) Melkonian did
not prove her section 2640 claim for reimbursement for
improvements; and (6) Franecke was not chargeable with the
reasonable rental value of the residence, post-separation. The
court entered judgment on reserved issues, and Franecke
appealed.
This court affirmed the May 2017 judgment on reserved
issues in most respects, but we reversed the judgment in part,
finding that the trial court erred in ruling that Franecke waived
his right to section 2640 reimbursement of separate property
contributions for improvements to the residence. (Franecke I,
supra, A151670.) Noting that Franecke had claimed $362,144 in
separate property contributions to improvements and upgrades to
the residence, we found that the trial court should ascertain on
remand whether he had met his burden of proof on this issue.
(Ibid.) Thus, in our disposition, we remanded “to the trial court
to determine whether Franecke has met his burden of proof with
respect to the $362,144 in claimed separate property
contributions to the Miwok house under section 2640 and to
award Franecke any property he is owed under that statute.”
(Ibid.)
Following remand, the trial court set a hearing and briefing
schedule. The trial court specifically instructed Franecke in his
3
briefing to “cite the court to portions of the record which support
and document [Franecke’s] claimed reimbursements and to
demonstrate that none of his claimed [section] 2640
reimbursements in the sum of $362,144 were already taken into
account in the court’s award of $350,000 in reimbursements per
the parties premarital agreement contained in the May 1, 2017
judgment.”3 Following briefing and a lengthy hearing on
December 5, 2019, the trial court on December 23, 2019 issued an
order finding that Franecke had not met his burden of proof on
the section 2640 reimbursement issue.
In its order, the trial court noted that Franecke claimed, for
the first time on remand, that he was entitled to reimbursement
of $608,616.24 and he advanced arguments “which have never
before been presented to this court or the Court of Appeal, which
exceed the scope of the remand order and which are factually and
legally incorrect.” One of those arguments was that Franecke
was entitled to $85,000 in reimbursement for his loan-financed
3 In the “summary of the appeal and relief sought” in the
beginning of his opening brief, Franecke states the trial court
erred by requiring him to show that none of his claimed
reimbursements were part of the $350,000 down payment
reimbursement. He does not raise this contention elsewhere in
his brief, thus forfeiting it by failing to separately argue the
claim. (Cal. Rules of Court, rule 8.204(a)(1)(B); Pizzaro v.
Reynoso (2017) 10 Cal.App.5th 172, 179–181.) In any event, as
explained in more detail, post, the record indicates that at least
one check that Franecke used to support his claim for
improvement reimbursements may have been a check to Masma
for a deposit that Franecke testified was part of his down
payment, so the trial court had good cause for its order.
4
payoff of mechanics’ liens. The court rejected this claim because,
at trial, Franecke included this item in the amount he sought in
reimbursement for the down payment on the residence, and this
court affirmed the trial court’s decision capping that amount at
$350,000.
Regarding the separate $362,144 for improvements to the
residence that Franecke claimed were reimbursable at trial, the
trial court reasoned that, to prevail on this section 2640 claim,
Franecke had to show that (1) the source of the money spent was
his separate property and trace each payment to a separate
property source; (2) he actually spent the money and that it was
for a capital improvement that improved the value of the real
estate and (3) the improvements actually increased the value of
the property, citing Marriage of Braud (1996) 45 Cal.App.4th
797, 822. The court found, “Because of the terms of the parties’
premarital agreement, the court finds that all monies [Franecke]
may have spent on Miwok after marriage were spent with his
separate funds.” Nonetheless, the court found that Franecke had
not met his burden of proving his expenditures on improvements.
Lastly, the court found that Franecke made no effort to prove
that any of the items on his purported list of expenses actually
increased equity in the residence.
On December 31, 2019, Franecke filed a motion for
reconsideration under Code of Civil Procedure section 1008 and
for relief under Code of Civil Procedure section 473 due to
mistake, inadvertence, or excusable neglect. On February 11,
2020, he filed a supplemental memorandum of points and
5
authorities and a supplemental declaration. On March 11, 2020,
the trial court denied Franecke’s motion for reconsideration
because he did not prove any new facts, circumstances, or law
unavailable to him at the time of the remand hearing. The court
also denied Franecke’s motion for relief under Code of Civil
Procedure section 473 because he made no effort to demonstrate
“mistake, inadvertence, surprise, or excusable neglect.” On
March 19, 2020 and May 15, 2020, Franecke filed a notice of
appeal and an amended notice of appeal.
Meanwhile, Melkonian had moved for attorney fees under
sections 2030 and 2032, as well as sanctions under section 271,
and the trial court denied the motion without prejudice to
Melkonian raising her requests at the end of the case. Melkonian
filed a separate appeal seeking review of the trial court’s order in
March 2020. In an unpublished opinion, this court ordered the
trial court to consider Melkonian’s pendente lite application for
attorney fees and found that, because no judgment had been
entered on the trial court’s section 2640 ruling on remand, the
trial court did not abuse its discretion in electing to consider
Melkonian’s sanctions motion at the end of the case. (Franecke
II, supra, A159776.) After remand, on February 2, 2021, the trial
court entered an amended judgment against Franecke on the
reserved issue of the section 2640 reimbursement.
DISCUSSION
I. Jurisdiction
We first address our appellate jurisdiction (West v. Arent
Fox LLP (2015) 237 Cal.App.4th 1065, 1069) because the
6
existence of an appealable order or judgment is a jurisdictional
prerequisite to an appeal, as is a timely filed notice of appeal.
(Canandaigua Wine Co., Inc. v. County of Madera (2009)
177 Cal.App.4th 298, 302; Eisenberg et al., Cal. Practice Guide:
Civil Appeals and Writs (The Rutter Group 2020) ¶ 3:4.)
Melkonian contends that Franecke’s notice of appeal was
untimely because he filed it over sixty days after notice of entry
of the court’s December 23, 2019 order, and Franecke filed an
invalid motion for reconsideration that did not extend the time
within which to appeal under California Rules of Court, rule
8.108(e)4. Franecke counters that his motion for reconsideration
was valid, rendering his appeal timely. Both parties err in
relying on rule 8.108(e). This rule provides an extension of time
to appeal an appealable order where a party serves and files a
valid motion to reconsider the order under Code of Civil
Procedure section 1008, subdivision (a). (Rule 8.108(e).) Here,
the December 23, 2019 order on remand was not the appealable
judgment. (Eisenberg et al., Cal. Practice Guide: Civil Appeals
and Writs (The Rutter Group 2020) ¶ 2:257.1 [the general rule is
4All further rule references are to the California Rules of
Court unless otherwise indicated.
Rule 8.108(e) provides, “If any party serves and files a valid
motion to reconsider an appealable order under Code of Civil
Procedure section 1008, subdivision (a), the time to appeal from
that order is extended for all parties until the earliest of: [¶] (1)
30 days after the superior court clerk, or a party serves an order
denying the motion or a notice of entry of that order; [¶] (2) 90
days after the first motion to reconsider is filed; or [¶] (3) 180
days after entry of the appealable order
7
a statement of decision is not the appealable judgment].) Thus,
rule 8.108(e) does not apply.
We nonetheless have jurisdiction over this appeal.
Following remand after the second appeal in this case, the trial
court reduced its December 23, 2019 order to an amended
judgment on reserved issues, and we exercise our discretion to
treat Franecke’s notice of appeal prior to entry of the amended
judgment as an appeal from that judgment. (Wolf Metals, Inc. v.
Rand Pac. Sales, Inc. (2017) 4 Cal.App.5th 698, 702, fn. 1;
Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs
(The Rutter Group 2020) ¶¶ 2:264, 3:54.)
II. Section 2640 Reimbursement
A. Additional Background
At trial, Franecke supported his claim for section 2640
reimbursement with his testimony and exhibits 3 and 25.
Franecke testified that exhibit 3 was a “flow sheet” of costs
associated with construction of the residence. He said that,
“[m]ore or less” contemporaneously, “what I was doing was,
within a reasonable degree of accuracy, was recording what I was
paying and for what to keep track of it.” When asked whether he
created exhibit 3 to document the improvements he claimed to
have made to the residence, Franecke answered, “No.” Rather,
“[t]he original purpose of the ledger or flow sheet was to
document for my own information and frankly for [Melkonian’s]
the expenditures I was making on a house that we were buying
and putting money in. I wanted to know what it was gonna cost.”
Regarding the entries on exhibit 3, the court asked Franecke, “Do
8
you have a receipt, canceled check, credit card bill, or invoice to
back up each and every one of these?” He responded, “Yes.” He
further testified, “Exhibit 3 is accurate as to when what I
recorded was spent. Even that doesn’t have everything that I
spent on it. But I’m willing to live with it.”
After Melkonian’s counsel stated that she had not seen
back-up for certain items in exhibit 3, the court took a long recess
to allow Franecke to collect the back-up documentation. After
the recess, Franecke stated that he could not find raw data or
checks to back up the requested entries.
Later in trial, Franecke proffered exhibit 25. When asked
what exhibit 25 was, he said, “The initial flow sheet that’s been
marked, I believe, Exhibit 3, has all of the payments that were
made at the time, entered more or less at the time that I made
them. [¶] In trying to reconstruct what they were for, in addition
to that flow sheet—because the flow sheet is the real key
document—now, 15 years later, I kept trying to dig out things in
a way that would at least back up what—at least some of what
shows in the flow sheet. [¶] So I then put this in an order that
was a bit more readable. And that is, is that in the beginning
pages—you’ll see the upper right-hand corner there are page
numbers—Pages 1 through 40 contain what I circled as being
costs for the house, for the construction of the house, that I put
in. . . . [¶] But the second part, Pages 41 through 60, are copies of
checks that I was able to locate that all are the backup of checks
of monies that I paid to construct the house.” Exhibit 25,
Franecke confirmed, “corroborates the flow sheet that has the
9
numbers on it of what was expended by me for the house.”
Franecke clarified of exhibit 25, “[T]his is not all of the
expenditures. The flow sheet shows what actually was spent.”
When asked by his counsel whether he had been unable to find
all back-up statements or checks, Franecke replied, “Not back
that far. I couldn’t find all of them.”
Respondent’s counsel cross-examined Franecke about a
number of circled credit card charges in exhibit 25, and Franecke
conceded that he assumed certain entries were for improvements
or that he could not verify certain entries. In response to cross-
examination regarding three checks to Scott Smith and one check
to Holt & Collins, Franecke said that the check to Holt & Collins
“just happened to be” included in Exhibit 25 and was an
investment in stock that he was no longer claiming as a
reimbursable item, and he did not remember who Scott Smith
was, but, due to a “Masma” notation on one check, “obviously it
was something having to do with either Masma’s work and
Masma construction and/or improvements on the house.” The
following day, Franecke proffered exhibit 30, which was a list of
twenty credit card charges in exhibit 25 for which he withdrew
his claim for reimbursement because he reviewed this exhibit
again and was unsure what the charges were for.
On the issue of whether Franecke had established that he
spent the money listed in exhibit 3, the trial court found in its
order on remand as follows: “Trial Exhibit 3 is a handwritten
document. [Franecke] describes it as a running total of Miwok
expenditures and receipts. It is difficult to follow, in that some
10
entries are made in a column headed ‘BILLED,’ and some in a
column headed ‘PAID,’ with no apparent attempt to correlate the
two. Entries for which [Franecke] claims [section 2640]
reimbursement include such undeniably non-capital items as
delivery and moving services, cleaning, repairs, gardeners, and
household contents. [¶] [Franecke] also made no attempt to
correlate the line items in Exhibit 3 with actual payment of any
bills. At trial, when [Melkonian] questioned whether [Franecke]
could prove that he had actually paid the line items in Exhibit 3,
he proffered Exhibit 25. This exhibit has little relationship to
Exhibit 3. [¶] [Franecke] included in Exhibit 25, as evidence of
reimbursable expenses, such items as: [¶] 1. check to Holt and
Collins in the sum of $25,040.61. That item does not appear on
Exhibit 3 at all, and [Franecke] now admits it was a check to his
investment advisors. [¶] 2. A Citibank credit card charge to
Teatro Zinzanni in the sum of $260.50. Teatro Zinzanni was a
dinner theater in San Francisco. [¶] Many of the pages on Exhibit
25 are blank in the column where the vendor is supposed to be
listed.”5 The court continued, “The case of Exclusive Florists, Inc.
v. Kahn (1971) 17 Cal.App.3d 71[1], is instructive. In that case a
florist sued to recover for flowers used at a wedding. The plaintiff
florist proffered a clear and concise compilation or summary of
the charges, based upon his business records. The testimony of
the company’s vice-president was found sufficient, because each
5 The court’s reference to a $25,040.61 check to Holt &
Collins appears to be a typographical error; exhibit 25 shows a
check to Holt & Collins in the amount of $45,040.61.
11
item was documented and tallied to purchase orders and invoices
maintained by the business. [Franecke] did none of that in this
case, either at trial or on remand.”
B. Governing Legal Principles and Standard of Review
Under section 2640, a spouse has a right to reimbursement
at the time of dissolution for any separate property payments for
contributions to the acquisition of community property, unless
there has been a written waiver. (§ 2640, subd. (b); In re
Marriage of Cochran (2001) 87 Cal.App.4th 1050, 1056–1057.)
Section 2640 states that “ ‘contributions to the acquisition of
property . . . include down payments, payments for
improvements, and payments that reduce the principal of a loan
used to finance the purchase or improvement of the property.’ ”
(§ 2640, subd. (a).) The statute specifically excludes from
reimbursement “payments of interest on the loan or payments
made for maintenance, insurance, or taxation of the property.”
(§ 2640, subd. (a).) The party seeking reimbursement has the
burden of proof. (§ 2640, subd. (b); In re Marriage of Cochran, at
pp. 1057–1058.)
Where, as here, the trier of fact has expressly concluded
that the party with the burden of proof did not carry the burden
and that party appeals, “ ‘it is misleading to characterize the
failure-of-proof issue as whether substantial evidence supports
the judgment . . . . [¶] Thus, where the issue on appeal turns on a
failure of proof at trial, the question for a reviewing court
becomes whether the evidence compels a finding in favor of the
appellant as a matter of law. [Citations.] Specifically, the
12
question becomes whether the appellant’s evidence was (1)
“uncontradicted and unimpeached” and (2) “of such a character
and weight as to leave no room for a judicial determination that
it was insufficient to support a finding.” ’ ” (Dreyer’s Grand Ice
Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838.)
This is “an onerous standard” (Ajaxo, Inc. v. E*Trade
Financial Corporation (2020) 48 Cal.App.5th 129, 164), and one
that is “almost impossible” for a losing plaintiff to meet, “because
unless the trial court makes specific findings of fact in favor of
the losing plaintiff, we presume the trial court found the
plaintiff’s evidence lacks sufficient weight and credibility to carry
the burden of proof. [Citations.] We have no power on appeal to
judge the credibility of witnesses or to reweigh the evidence.”
(Bookout v. State of California ex rel. Department of
Transportation (2010) 186 Cal.App.4th 1478, 1486 (Bookout).)
Furthermore, we “must resolve all conflicts in the evidence
in favor of the prevailing party and must draw all reasonable
inferences in support of the trial court’s judgment.” (Leung v.
Verdugo Hills Hospital (2012) 55 Cal.4th 291, 308 [affirming jury
verdict].) “ ‘ “ ‘Conflicts and even testimony which is subject to
justifiable suspicion do not justify the reversal of a judgment, for
it is the exclusive province of the trial judge or jury to determine
the credibility of a witness and the truth or falsity of the facts
upon which a determination depends.’ ” ’ ” (Bloxham v. Saldinger
(2014) 228 Cal.App.4th 729, 750.) Indeed, “the [trier of fact] is
not required to believe the testimony of any witness, even if
13
uncontradicted.” (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d
1012, 1028.)
C. Analysis
As explained below, Franecke’s evidence was not
unimpeached and of such character and weight as to leave no
room for the trial court’s determination that he had failed to
satisfy his burden of proof.
Starting with exhibit 3, Franecke testified this was a
handwritten “flow sheet” of costs associated with construction of
the residence. Exhibit 3 is four pages in length with a total of
nearly 150 line item entries. Franecke’s testimony was that
exhibit 3 was not specific to improvements and was instead a
running tally of costs related to the residence’s construction. The
trial court observed the exhibit contained entries for non-capital
items such as delivery and moving services, cleaning, repairs,
gardeners, and household contents. Further, exhibit 3 contains
“billed” and “paid” columns, but those columns are not
consistently populated, and, where they are, for certain entries
the two amounts do not match. Franecke did not explain the
discrepancies. Indeed, the trial court remarked that there was
“no attempt to correlate” the “billed” and “paid” columns.
Franecke next introduced exhibit 25 to try to “reconstruct”
what the entries in exhibit 3 were for. This is a one-hundred and
twenty-seven page document. Franecke testified that the first
forty pages included circled costs “for the construction of the
house” on credit card statements, followed by approximately
twenty pages of “copies of checks” that he testified were “the
14
backup of checks of monies that I paid to construct the house.”
But cross-examination cast doubt on whether numerous circled
credit card entries in exhibit 25 in fact represented charges for
improvements.
After cross-examination on exhibit 25, Franecke drafted
exhibit 30 to withdraw the credit card charges that he could not
say were for improvements, but that did not cure all the issues
with exhibit 25. Franecke testified that the remainder of the
documents within exhibit 25 supported what he “put into the
house . . . . I’m telling you . . . that these were moneys that were
expended on the house for its construction, other than what I
have just testified that I am not claiming at this point.” Yet,
cross-examination showed there were remaining credit card
entries that Franecke could not link specifically to improvements.
Franecke conceded, for example, that he did not have specific
recollections of what he bought at Orchard Supply and Spectrum
Home Furnishings, but he assumed the charges were for the
residence. Certain circled credit card entries do not appear in or
match line items in exhibit 3. And, as the trial court observed,
the area in the credit card statements on a number of pages in
exhibit 25 that would presumably show the vendor associated
with a circled charge is inexplicably blank.
There were additional discrepancies in exhibit 25. For
example, there are three checks to Scott Smith, one with a
“Masma” notation, but Franecke could not remember who Smith
was; he testified only that such checks were “obviously” for
“Masma’s work and Masma construction and/or improvements on
15
the house.” There is also a check to the Marin Superior Court, a
check to the Marin County Recorder, and a number of checks
seemingly to title companies. A number of the check charges do
not appear in exhibit 3, such as a check to Melkonian for $10,100,
two title company checks, and a $10,000 check to 3C
Construction. Franecke testified that another $12,000 check to
Masma marked “deposit” may have been part of the amount he
sought as the down payment. Exhibit 25 also contains invoices to
“House Construction” for $7,100, marked “paid” in the amount of
$4,000 with a “balance due” of $3,100, and Franecke matched
these to a check for $7,100. When asked about the discrepancy
between the invoice paid and due amounts and the $7,100 check,
Franecke did little to clarify the matter. Finally, exhibit 25
contains only copies of check fronts without the backs showing
the endorsements. In sum, the evident discrepancies in exhibit
25 provided cause for the trial court to doubt its reliability as a
whole.
Next, Franecke relies on photographic evidence in trial
exhibits 19, 20, and 316. He claims that they show the
improvements for which he seeks reimbursement, but these
exhibits were not introduced for this purpose. Franecke
identified exhibit 19 as a compilation of pictures of the residence
taken before Melkonian moved out in 2014, and exhibit 20 as
“photographs for purposes of showing what the condition of the
house was before [Melkonian] took the things she took, and the
condition after she took the things she took.” Franecke
submitted these exhibits to support his disagreement with
16
Melkonian’s appraiser’s opinion of the rental value of the
residence. The testimony regarding exhibits 19 and 20 that
Franecke points to does not specifically link any item pictured to
a cost incurred by Franecke. And, although Franecke states that
he provided “a detailed list of what claimed items paid by
Franecke are identified in the photographs,” he submitted his list
after our remand, so this list was not part of the trial evidence.
Exhibit 316 is an analysis of the fair market rental value of the
residence for 2014 to 2016, and, while it mentions the “good”
condition and “excellent quality construction” of the residence, it
does no more. These exhibits do not prove Franecke’s claim as a
matter of law.
The same is true for Franecke’s trial testimony, which
lacked specific detail. Franecke did not go through exhibit 3 to
identify each line item that he contended constituted an
improvement; he did not match each back-up document in exhibit
25 to the entries in exhibit 3 at trial;6 he did not specifically
6 Franecke attempted to correlate certain entries in exhibit
3 to documents in exhibit 25 in his supplemental papers in
support of his motion for reconsideration and relief under Code of
Civil Procedure sections 1008 and 473. Franecke states in the
introductory “summary of the appeal and relief sought” in his
opening brief that the trial court wrongly found that his
supplemental papers were untimely, but he forfeited any
challenge to this ruling by failing to separately brief and argue
the issue. (Rule 8.204(a)(1)(B); Pizzaro v. Reynoso, supra,
10 Cal.App.5th at pp. 179–181.) In any event, his claim would
not result in reversible error given that he fails to challenge the
trial court’s substantive rulings that he did not prove any new
facts, circumstances or law that were unavailable to him at the
time of the remand hearing, and that he made no effort to
17
testify what each claimed charge, check, and invoice in exhibit 25
was for; and he did not testify to how he maintained the
purported back-up documentation submitted, saying instead,
“[N]ow, 15 years later, I kept trying to dig out things in a way
that would at least back up what—at least some of what shows in
the flow sheet.” Because the trial court did not make specific
findings of fact in favor of Franecke in its order in remand, we
presume that it found that his evidence, including his testimony
regarding the costs of alleged improvements he paid for, lacked
the weight and credibility necessary to satisfy his burden.7
(Bookout, supra, 186 Cal.App.4th at p. 1486.)
demonstrate “mistake, inadvertence, surprise, or excusable
neglect.”
7 Review of Franecke’s post-remand briefing in the trial
court is illustrative of the questions his evidence raises. Adding
together the amounts listed in demonstrative exhibit O, which is
the “check and invoice history” that Franecke submitted with his
opening brief on remand, and subtracting the $45,040.61 check to
Holt & Collins, the total is approximately $325,244. Yet
Franecke listed a total “checks and invoices” claim for $299,017
in his opening brief. Adding together the credit card charges in
Franecke’s demonstrative exhibit P, the total is more than
$64,000, yet Franecke told the court that this claim was for
$62,460. In his reply brief below, Franecke revised his
reimbursement claim to $388,712.24, which purportedly
consisted of “Flow sheet payments supported [by] credit card and
checks and invoices testimony and exhibits.” Even if we
speculate that Franecke included in the $388,712.24 claim the
$42,000 initial Masma deposits (which he had previously testified
were actually part of his down payment) and subtract that
$42,000 figure, his total claim was $346,712.24 in his reply brief,
whereas his total claim in his opening brief was $361,447. These
discrepancies are not explained in the post-remand briefing, let
alone in the previous trial testimony. The trial court was left to
18
This is not a case where there was no room for a judicial
determination that the evidence was of insufficient weight and
credibility to satisfy Franecke’s burden of proof. Indeed, during
trial, the court stated that the fact that Franecke had not
proffered or organized back-up documentation correlated to the
line items in exhibit 3 and the fact that he did not withdraw in
exhibit 30 entries that he conceded should not have been included
in exhibit 25, such as the check to Holt & Collins, went to the
weight of the evidence. And, while Franecke claims that
Melkonian admitted the claimed items in exhibit 25 were
installed and made a part of the residence by her failure to testify
otherwise, that is not how the burden of proof works. That
Melkonian produced no contradictory evidence on an issue where
Franecke bore the burden of proof does not mean that Franecke
carried his burden.8
Finally, Exclusive Florists, Inc. v. Kahn (1971)
17 Cal.App.3d 711, 714, relied on by Franecke, which found
summaries of business records to be properly admitted under the
“voluminous writing” doctrine of former section 1509 of the
Evidence Code, does not compel a different result. The issue here
speculate regarding which charges in exhibit 25 were included in
Franecke’s claims.
8 Franecke asserts many times in briefing that Melkonian
paid nothing for any improvements and admitted that she paid
nothing. We note that, in doing so, Franecke does not
substantiate his assertions, either providing no cite to the record
at all or citing to the court’s inapposite finding in its May 2017
statement of decision that Melkonian did not pay one-half the
mortgage, taxes, or insurance on the residence.
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is not admissibility of summaries of business records, and it is
the sole province of the trial court to assess the weight and
credibility of the evidence before it. (Bookout, supra,
186 Cal.App.4th at p. 1486.)9
III. The Mechanics’ Liens
On remand, Franecke expanded his request for
reimbursement under section 2640 from $362,144 for alleged
improvements to over $600,000, including a request for $85,000
financed by loans that he states paid off mechanics’ liens on the
residence. The trial court rejected Franecke’s claim for $85,000,
ruling as follows: “For the first time on remand, [Franecke]
claims that he is entitled to [section] 2640 reimbursements for
improvements and upgrades in the sum of $608,616.24 (see
[Franecke’s] reply brief at 17:16). In so doing, [Franecke]
advances arguments which have never before been presented to
this court or to the Court of Appeal, which exceed the scope of the
remand order, and which are factually and legally incorrect. This
court will not entertain them.” Specifically addressing the
$85,000 claim, the trial court further stated, “At trial, [Franecke]
included this item in his claim that he was entitled to $524,704 in
down payment reimbursements. The Court of Appeal found that
[Franecke’s] reimbursement entitlement for the down payment
on Miwok was limited to $350,000, by the terms of the parties’
premarital agreement.”
9Given our resolution of this issue, we need not address
Franecke’s assertion of error with respect to the trial court’s
ruling that he was required, but failed, to show that any alleged
improvement actually increased equity in the residence.
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Franecke fails to show error in the trial court’s ruling.
(Case v. State Farm Mutual Automobile Ins. Co., Inc. (2018)
30 Cal.App.5th 397, 401–402 [a judgment of the lower court is
presumed correct, and appellant bears the burden of establishing
error on appeal].) In the prior appeal, we recognized that, apart
from his claim for reimbursement for a $524,704 down payment,
Franecke sought $362,144 under section 2640 as reimbursement
for “improvements and upgrades” to the residence. We reversed
the ruling below that Franecke had waived this $362,144
reimbursement claim, and we remanded the matter for the
limited purpose of requiring the trial court to decide whether
Franecke had met his burden of proof on his $362,144 claim for
reimbursement related to improvements. The trial court then
denied Franecke’s $85,000 request because it was a new claim for
reimbursement for improvements and because he previously
included this item as part of the $524,704 down payment. On
appeal, Franecke does not address the court’s finding that he had
not previously presented his claim for reimbursement for
principal payments of $85,000 on a loan used to finance
improvements, and he mentions only in his reply brief the court’s
finding that he had included the item in his claim for
reimbursement of his down payment. He thus does not establish
reversible error on appeal. (See Case v. State Farm Mutual
Automobile Ins. Co., Inc., at pp. 401–402; SCI California Funeral
Services, Inc. v. Five Bridges Foundation (2012) 203 Cal.App.4th
549, 573, fn. 18 [appellant cannot salvage a forfeited argument by
addressing it belatedly in a reply brief].) If there were $85,000 in
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payments made to reduce the principal on a loan that financed
improvements, this situation could fall within the listed
reimbursable items in section 2640. In his argument related to
the $85,000, however, Franecke merely says he is owed $85,000
rather than using record evidence to show he made that amount
in payments that reduced the principal of a loan. Similarly, in
his reply brief on appeal, he claims that the down payment was
only $440,000 (without citation to portions of the record that
actually support this contention), yet he specifically argued below
and in the earlier appeal that the down payment was $524,704 or
$524,705.
DISPOSITION
The judgment is affirmed.
BROWN, J.
WE CONCUR:
STREETER, ACTING P. J.
TUCHER, J.
Franecke v. Melkonian (A160327)
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