Hicks/Park v. Park CA2/5 ( 2013 )

Filed 3/18/13 Hicks/Park v. Park CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FIVE
HICKS/PARK LLP et al., B237526
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC458632)
v.
GARY W. PARK et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of the County of Los Angeles,
Stephen J. Kleifield, Judge. Affirmed.
Hicks/Gaumer, James B. Hicks, and Christie Gaumer for Plaintiffs and Appellants.
Law Office of Steven R. Lovett, Steven R. Lovett for Defendants and
Respondents.
INTRODUCTION
Plaintiffs James Hicks, an attorney (Hicks), and Hicks/Park LLP (HP) sued
Hicks‟s former law partner in HP, Gary Park (Park); Park‟s wife; HP‟s chief financial
officer, Casey Park; and others for various causes of action related to the alleged
conversion of funds from Hicks‟ and Park‟s law practice. Plaintiffs sought a temporary
restraining order and preliminary injunction to enjoin defendants from transferring funds
and other assets pending trial to prevent fraudulent transfers of significant partnership
assets during the pendency of the litigation. The trial court denied preliminary injunctive
relief. Plaintiffs appeal from that denial.
BACKGROUND
Plaintiffs filed an action against Park, Park‟s wife, Park‟s relatives, and other
entities in which the Parks allegedly had an interest. Plaintiffs alleged that Hicks and
Park established the HP law firm in which Hicks had a 60 percent ownership interest and
Park a 40 percent ownership interest, although they later agreed to split the profits evenly.
They opened an office at 824 Wilshire Boulevard in Los Angeles, an office building
owned by Park‟s family members. Casey Park acted as the office manager. According to
plaintiffs, Park and Casey Park “began embezzling money” from HP. Hick suffered a
stroke. Park prepared to start his own law firm and diverted clients and assets from HP.
Plaintiff Hicks and HP sought up to $5,000,000 in damages and punitive damages
and alleged the following causes of action: Hicks against Park and Casey Park for
conversion, fraud against Park and Casey Park for breach of contract, undue influence,
and violation of Business and Professions Code section 17200; both plaintiffs against
Park for breach of fiduciary duties. Plaintiffs sought a constructive trust, accounting and
injunctive relief against all the defendants.
2
Plaintiffs filed 10 lis pendens on a number of properties in which defendants
allegedly had an interest. Defendants moved to expunge all the lis pendens on the
grounds that claims were either not real property claims or not pleaded with specificity.
Following defendants‟ demurrer and motion to strike, plaintiffs filed an amended
complaint substituting a cause of action called “constructive contract” for the
constructive trust cause of action and specified properties over which plaintiffs requested
a lien, added a cause of action for declaratory relief, and eliminated one defendant. The
theory alleged “constructive contract” cause of action was that HP was, in effect, a lender
and thus entitled to a security interest in the properties.
While the motions to expunge lis pendens were pending, plaintiffs, in a relatively
perfunctory manner, sought a temporary restraining order and preliminary injunction to
prevent the transfer of properties then subject to a lis pendens. The trial court granted the
motions to expunge lis pendens and awarded attorney fees. During the hearing on the
motions to expunge lis pendens, plaintiffs orally sought leave to amend to add a cause of
action for fraudulent transfer. But the trial court said there was no reason to delay a
ruling on the motions to expunge because plaintiffs had two opportunities to plead it.
The trial court denied the application for a temporary restraining order and order to show
cause re preliminary injunction.
Plaintiffs filed a notice of appeal from that order. Plaintiffs refer to various
documents filed after the order by the trial court that is the subject of this appeal and after
the notice of appeal. Those documents are disregarded.
DISCUSSION
Plaintiffs claim that the trial court should have enjoined defendants from
transferring real property and other assets in order to secure plaintiffs “against the
millions of dollars in stolen money from disappearing.” Moreover, plaintiffs assert that
the trial court erred in denying injunctive relief to prevent fraudulent transfers and to
safeguard partnership assets while the litigation is pending.
3
A. Standard of Review
A denial of a preliminary injunction must be affirmed unless the trial court abused
its discretion in denying the preliminary injunction. (IT Corp. v. County of Imperial
(1983) 35 Cal.3d 63, 69-70.)
B. No Abuse of Discretion
At the outset, we observe that plaintiffs do not in their opening brief cite to the
record in connection with most of the criteria for determining whether or not to grant
preliminary injunctions—irreparable injury if a preliminary injunction is not granted and
the relative balance of harms that will likely result from the granting or denial of interim
injunctive relief. (See White v. Davis (2003) 30 Cal.4th 528, 554.) Plaintiffs also do not
cite to the record setting forth all relevant evidence concerning the likelihood of
prevailing on the merits. (King v. Meese (1987) 43 Cal.3d 1217, 1226.) An appellant is
required to provide “a summary of significant facts limited to matters in the record.”
(Cal. Rules of Court, rule 8.204(2)(c).) Most citations are to filings after the trial court‟s
order that is the basis for the appeal. Moreover, plaintiffs do not set forth sufficiently
reasoned arguments with appropriate legal citations. On appeal, we begin with the
presumption that the order of the trial court is correct. (In re Marriage of Arceneaux
(1990) 51 Cal.3d 1130, 1133.) An appellant must show reversible error by an adequate
record and with citations to the record to direct the court to the relevant evidence or other
matters in the record that show reversible error. (Ballard v. Uribe (1986) 41 Cal.3d 564,
574; Cal. Rules of Court, rule 8.204(a)(1); Guthrey v. State of California (1998) 63
Cal.App.4th 1108, 1115.) “An appellate court is not required to search the record to
determine whether or not the record supports appellants‟ claim of error. It is the duty of
counsel to refer the reviewing court to the portions of the record which support
appellants' position. [Citations.]” (Green v. City of Los Angeles (1974) 40 Cal.App.3d
819, 835.)
“„“[E]very brief should contain a legal argument with citation of authorities on the
points made. If none is furnished on a particular point, the court may treat it as waived,
4
and pass it without consideration. [Citations.]” (9 Witkin, Cal. Procedure, (3d ed. 1985)
Appeal, § 479, p. 469 …)‟ (People v. Stanley (1995) 10 Cal.4th 764, 793 [42 Cal.Rptr.2d
543, 897 P.2d 481].)” (People v. Hovarter (2008) 44 Cal.4th 983, 1029; see People v.
Dougherty (1982) 138 Cal.App.3d 278, 283.) Also, plaintiffs did not include in the
record all of the operative pleadings, which can result in our considering the record
inadequate.
In connection with the motion to expunge the lis pendens, plaintiffs submitted
evidence that defendants Park and Casey Park “embezzled” funds and that the funds
ended up in real properties in which defendants had an interest. Plaintiffs asserted that
defendants “are trying to divest these properties right now through either real or collusive
sales.” The evidence (based on requests for judicial notice) to support that assertion is a
“Zillow.com sales listing for a residential house, and grant deeds showing transfers of
properties by Casey Park to presumably Park relatives. But there is evidence that the
listing was removed. And the properties in question were acquired before the law
partnership was formed, thus suggesting that the monies in question were not used to
acquire the properties. The evidence cited may suggest that the alleged embezzled funds
were used to improve those properties. Using “ill-gotten proceeds” to improve the
property, however, does not justify a lis pendens on the property. (See Burger v.
Superior Court (1984) 151 Cal.App.3d 1013, 1018.)
The trial court granted the motions to expunge the lis pendens based on the
proposition that this case did not affect title or possession of the real properties. (See
Campbell v. Superior Court (2005) 132 Cal.App.4th 904, 913.) A party may not record a
lis pendens “„to freeze the real property as a res from which to satisfy a money
judgment.‟” (Id. at p. 918.)
Plaintiff sought the injunctive relief pending the decision on the motions to
expunge and in the event the motions were granted. There is no showing that award of
monetary damages were not adequate. Such a showing is necessary to obtain injunctive
relief. (See 6 Witkin, Cal. Procedure (5th ed.2008) Provisional Remedies, § 294, pp.
234-235.) Moreover, the trial court reasonably could conclude that plaintiffs have not
5
shown the risk of irreparable harm if the relief is not granted or that a threatened act
would render any judgment “ineffectual.” (Code Civ. Proc., § 526, subd. (a)(2), (3).)
Plaintiffs point to no evidence as to the financial condition of defendants. The trial court
also could have concluded that there was no showing that plaintiffs will obtain eventual
relief that will result in the transfer of title or possession of real property. (See Heckmann
v. Ahmanson (1985) 168 Cal.App.3d 119, 136-138 [constructive trust].) Based on the
allegations of plaintiffs‟ amended complaint, plaintiffs do not seek such relief.
In Wind v. Herbert (1960) 186 Cal.App.2d 276, 283 (Wind) the court dealt with
the requirement of irreparable injury for injunctive relief. In Wind, the plaintiffs claimed
that a member of their limited partnership had violated the terms of the partnership
agreement by setting up bank accounts that allowed him to make withdrawals without
any additional signatures. The plaintiffs also alleged that the defendant had taken
unauthorized amounts from the partnership. (Id. at pp. 280-282.) The trial court issued
an injunction ancillary to a dissolution proceeding and accounting, prohibiting the
defendant from using bank accounts without the added signatures. With respect to the
contention that the plaintiffs failed to show irreparable injury because the alleged harm
could be compensated for in damages after trial, the court found that the wrongs
complained of “were obviously of a „repeated and continuing character‟” and that
injunctive relief was therefore justified in order to maintain the status quo. (Id. at pp.
285-286.) Unlike in the instant case, the plaintiffs in Wind had made a showing of
tangible harm such that the trial court “could, and undoubtedly did, weigh the probable
injury which would ensue to plaintiffs by denying the temporary relief as against the
absence of probable injury which would accrue to the defendants by granting it.” (Id. at
p. 284.) Moreover, the trial court in Wind “could further have determined that [the
allegedly improper] disbursements could not be adequately traced and that the accounting
ordered by the court incident to dissolution of the partnership might not fully disclose the
damages suffered by plaintiffs.” (Id. at p. 285.) Plaintiffs have not established such a
danger in the instant case.
6
When, as here, “a trial court denies an application for a preliminary injunction, it
implicitly determines that the plaintiffs have failed to satisfy either or both of the „interim
harm‟ and „likelihood of prevailing with the merits‟ factors.” (Cohen v. Board of
Supervisors (1985) 40 Cal.3d 277, 286.) We may imply these findings in a summary
denial of a preliminary injunction. Based on the record, we hold that there is no showing
that the trial court abused its discretion in denying the application for a preliminary
injunction.
An order granting or denying preliminary relief reflects nothing more than the trial
court‟s evaluation of the controversy on the record before it at the time of its ruling; the
order “is not an adjudication of the ultimate merits of the dispute.” (People ex rel. Gallo
v. Acuna (1997) 14 Cal.4th 1090, 1109; Cohen v. Board of Supervisors, supra, 40 Cal.3d
at p. 286.) Plaintiffs are entitled to proceed to trial to prove the allegations of their
complaint. (Butt v. State of California (1992) 4 Cal.4th 668, 678, fn. 8.) We hold only
that the plaintiffs have not established in their briefs or by the record that the trial court
abused its discretion in denying the request for a preliminary injunction.
7
DISPOSITION
The order denying a preliminary injunction is affirmed. Respondents shall recover
their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MOSK, J.
We concur:
ARMSTRONG, Acting P. J.
KRIEGLER, J.
8