Price v. Certain Rolls Royce Corniche etc. CA2/8 ( 2014 )

Filed 9/3/14 Price v. Certain Rolls Royce Corniche etc. CA2/8
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
DONALD B. PRICE, B250494
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SC108084)
v.
THAT CERTAIN 2000 ROLLS ROYCE
CORNICHE VIN NO.
CAZK29E3YCX68097,
Defendant,
CHARLES A. SWACK,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County. Richard
A. Stone, Judge. Affirmed.
Miles Archer Woodlief for Plaintiff and Respondent Donald B. Price.
Pollak, Vida & Fisher, Michael M. Pollak and Daniel P. Barer, for Defendant and
Appellant Charles A. Swack.
__________________________________
A Florida car dealer purported to sell or transfer the same Rolls Royce to two
unrelated individuals, Donald Price and Charles Swack. After Price took possession of
the car it was impounded in California. Price filed an in rem complaint for “turn over,
quiet title, [and] declaratory relief.” Swack cross-complained for conversion, replevin,
and quiet title. Following a bench trial, the trial court concluded Swack was the rightful
owner of the car, but the court rejected his claim for damages. On appeal, Swack
challenges the trial court ruling denying him loss of use damages in connection with his
replevin claim. We find no error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2009, Swack purchased a 2000 Rolls Royce Corniche (the Corniche)
from Cars Internationale, a Florida dealership, for $120,000.1 Swack drafted a list of
items that needed to be fixed on the Corniche; Cars Internationale was to keep the car and
make the necessary repairs before delivering possession to Swack. Swack received a bill
of sale and he insured the car. In February 2010, when Swack went to Cars
Internationale to check on the car, he discovered the dealership had not done any of the
required work. Although Swack drove the Corniche and kept it over the weekend, he
returned it so the repairs could be made. In April 2010, someone from the dealership
called Swack and told him the car was missing. Swack demanded the dealership get the
car back or return his money. Eventually Swack reported the car stolen to the Fort
Lauderdale police and his insurance company. At the end of April 2010, Swack learned
the car was listed for sale on eBay, by a seller in Van Nuys. Swack contacted the Fort
Lauderdale police again; law enforcement in California confiscated the car.
As it turned out, in November 2009, Cars Internationale was also dealing with
Price. In November 2009, Price agreed to sell a 2000 Rolls Royce Silver Seraph through
the dealership on consignment. After selling the car, Cars Internationale owed Price
$60,000. Price was told the dealership was waiting for the money to pay him.
1 To fund the purchase Swack traded in two other cars, paid some cash, and
financed the remainder of the $120,000 purchase price.
2
Several weeks passed. While Price was waiting to be paid, one of the dealership
principals, Danny Swan, offered to sell Price a 2002 Rolls Royce Silver Seraph. Price
agreed to buy the 2002 Silver Seraph and paid Cars Internationale an additional $16,500.
However, in December 2009, after Price took possession of the 2002 Silver Seraph, Swan
called Price to report there were problems with the title on the car. Swan represented that
the DMV needed to inspect the car personally. Price also wanted Cars Internationale to
make a few repairs on the car, so he allowed the dealership to take it back. The
dealership never returned the 2002 Silver Seraph. Price was told the dealership was
unable to secure “clean title” on the car and it would refund his money. However, the
dealership did not refund the money. In January 2010, the dealership issued Price a
check for over $75,000 and asked him to wait a few days before depositing it. After a
few days, Price called the issuing bank and learned the bank would not honor the check.
At trial, Price testified that by February 2010, he was concerned about the
situation but thought it might be remedied. Swan suggested Price might be interested in
the Corniche. Price agreed to buy the Corniche, even though he preferred to have his
money back. Cars Internationale gave Price the title to the Corniche, but Price did not
take possession of the car for several months. Price testified he was still hoping to get his
money back.
However, the evidence at trial established that in mid-February 2010, Price sent
the dealership an e-mail asserting it had engaged in “criminal fraud.” According to the e-
mail, Cars Internationale sold Price’s 2000 Silver Seraph and received money for it;
“traded him into” a 2002 Silver Seraph and collected $16,450 from him; took the 2002
Silver Seraph back and never returned it; returned the 2002 Silver Seraph to the original
owner without Price’s approval; wrote him a bad refund check for $75,840; and when
Price demanded a refund, the dealership gave him title to the 2000 Corniche and a bill of
sale in the amount of $76,000 “as security for the soon return of my money.” The e-mail
asserted three weeks had passed and $76,000 had not been deposited in Price’s attorney’s
trust account, as the dealership had promised. Price demanded that the dealership either
return his money or immediately deliver the 2000 Corniche to him.
3
In March 2010, a Cars Internationale mechanic alerted Price that the dealership
was attempting to sell the Corniche. Price then took possession of the car. Price turned
the Corniche over to another dealer or reseller who gave him $60,000 for the car.2 The
reseller transferred the Corniche to another party to attempt a retail sale. Within a few
weeks, police had impounded the car in California.
In April 2010, Price filed a complaint against Cars Internationale, Swan, and
related individuals. In May 2010, Price filed an in rem complaint for “turn over,” quiet
title, and declaratory relief. Price sought a judicial declaration that he was the lawful
owner of the car. Subsequently, Price sought and received a trial court order releasing
the Corniche to Price’s counsel. In early June 2010, Swack filed a cross-complaint in the
in rem action, alleging causes of action for conversion and quiet title. Swack filed an
amended complaint later that month which included a claim for replevin. After Price’s
failure to post a bond so that the Corniche could remain in his counsel’s custody, the car
was instead stored at a “neutral party storage facility.” The parties filed competing
motions for summary adjudication regarding ownership of the Corniche. According to
representations made in Swack’s motion, “[c]ounsel agreed that they would file cross-
motions for summary adjudication to be heard July 29, 2010, and that the side that then
prevails will take possession of the car.” After the court granted Price’s motion for
summary adjudication, it declared Price the owner of the Corniche, but upon Swack’s
motion for an order restraining Price from selling the car until a motion for
reconsideration was heard, the court issued an order restraining any sale of the car. In
September 2010, the parties agreed Price would store the Corniche. In November 2010,
the trial court granted Swack’s motion for reconsideration and denied both motions for
summary adjudication.
2 Price testified he never negotiated the $60,000 check because he still hoped he
would be able to “get the money.”
4
The court conducted a bench trial in late January 2013. Both Price and Swack
sought a determination of the ownership of the car. Swack additionally sought $594,000
in loss of use damages, calculated as the reasonable rental value of the Corniche for 33
months.3 In a written ruling, the trial court concluded Swack was a bona fide purchaser
of the Corniche in November 2009, and was the car’s legal owner. As to Price, the court
found the evidence established Price was on notice of Swan’s willingness to lie and cheat
customers, including Price. The court reasoned that based upon Price’s knowledge “at
the time he interrupted the sale of the [Corniche] to a different purchaser, and took
possession himself to cover [Cars Internationale’s] debt to him, the court finds that Price
was not an ‘innocent’ bona fide purchaser for value, so the car belongs to Swack.”
However, the court rejected Swack’s claim of “damages for Replevin based upon
his inability to use his car for the last 3 years while this case has been in litigation.” The
court explained: “Mr. Price did not possess the car when the case was initiated. In fact,
the case was originally set to allow Mr. Price to recover the car that had been impounded
due to the theft report. From that moment on, the court has been in constructive
possession of the vehicle. Although Mr. Price has better access to the car, neither side
has been entitled to use or operate the vehicle while it has been in the court’s possession.”
The court entered judgment for Swack and further ordered: “The plaintiff [Price] is
ordered to release the vehicle to Mr. Swack as part of the judgment at a mutually
convenient time, but no later than March 31, 2013. All previously imposed conditions
remain, until Mr. Swack takes possession of the vehicle.” Swack timely appealed.
DISCUSSION
I. The Trial Court Rejected Swack’s Replevin Claim and Did Not Err in
Denying Related Damages
Swack’s sole argument on appeal is the trial court erred in refusing to award him
loss of use damages in connection with his replevin claim, which he now calculates as
3 Swack offered expert testimony that the rental value of a 2000 Rolls Royce in the
Miami area was $18,000 to $20,000 per month.
5
$846,000. Swack asserts the trial court ruled in his favor on his replevin claim, but
improperly declined to award him commensurate damages to which he was entitled.
Price counters that the court did not, in fact, find Swack prevailed on the replevin claim.
We conclude the trial court rejected Swack’s replevin claim.
Florida law provides a statutory claim for replevin. Under Florida Statute section
78.01, “[a]ny person whose personal property is wrongfully detained by any other person
or officer may have a writ of replevin to recover said personal property and any damages
sustained by reason of the wrongful taking or detention as herein provided.” The Florida
Supreme Court has described the cause of action as follows: “The action lies to recover
possession of personal chattels that are unlawfully detained, and for damages for the
detention. And to sustain replevin the defendant must have actual or constructive
possession or control of the property, and the plaintiff must be entitled to the immediate
possession thereof when the action is brought.” (Evans v. Kloeppel (Fla. 1916) 73 So.
180, 183 (Evans).)4
4 In the trial court, the parties agreed Florida law governed the dispute; they agree
again on appeal that Florida law governs. We therefore need not consider the choice of
law issue discussed in appellant’s brief; to the extent any party could have contended
California law applied the issue is forfeited. (AICCO, Inc. v. Insurance Co. of North
America (2001) 90 Cal. App. 4th 579, 595; Riley v. Fitzgerald (1986) 178 Cal. App. 3d 871,
[where party actively agreed in trial court that Texas law applied, party could not argue
on appeal that California law applied].) Moreover, we agree that the law in Florida and
California is the same in all aspects relevant to this case. (Kearney v. Salomon Smith
Barney Inc. (2006) 39 Cal. 4th 95, 107-108 [first step in choice-of-law analysis is to
determine if the relevant law is the same or different in the affected jurisdictions].)
Although in Florida the cause of action is called “replevin,” in California the equivalent
is an action for possession or recovery of personal property, known as an action for claim
and delivery. (Berry v. Bank of Bakersfield (1918) 177 Cal. 206, 209 [“The action was
one for the recovery of specific personal property, the code equivalent of common-law
writ of replevin.”].) As in Florida, the action is “to enforce plaintiff’s right to the present
possession of the chattels against a defendant who detains them without right . . . To
sustain the action the plaintiff must have the right to the immediate and exclusive
possession of the property at the commencement of the action. It is not essential that the
plaintiff should be the absolute owner, provided he is entitled to the immediate
possession.” (Commercial & Sav. Bk. v. Foster (1930) 210 Cal. 76, 79.) The action is
6
In Senfeld v. Bank of Nova Scotia Trust Co. (Cayman) (Fla.App. 1984) 450 So. 2d
1157, the court elaborated, while contrasting replevin with conversion: “It is well settled
that a conversion is an unauthorized act which deprives another of his property
permanently or for an indefinite time . . . . [T]he essence of conversion is not the
possession of the property by the wrongdoer, but rather such possession in conjunction
with a present intent on the part of the wrongdoer to deprive the person entitled to
possession of the property, which intent may be, but is not always, shown by demand and
refusal.” (Id. at. pp. 1160-1161, fn. omitted.) “Unlike conversion, the essence of an
action for replevin is the ‘unlawful detention of personal property from plaintiff at the
commencement of the action, regardless of whether defendant acquired possession
rightfully or wrongfully . . . .’ [Citations.] Thus, the cause of action for replevin first
arises with the refusal to return the property upon demand.” (Id. at p. 1161, fn. 5, italics
added; see also Brown v. Reynolds (Fla. App. 2004) 872 So. 2d 290, 294 (Brown).)
These authorities set forth two propositions relevant to this case. To establish a
replevin claim, “the defendant must have actual or constructive possession or control of
the property,” (Evans, at p. 183), and there must be “unlawful detention of personal
property from plaintiff at the commencement of the action.” (Brown, supra, 872 So.2d at
p. 294.) Similarly, Florida Jurisprudence Second explains with respect to the proper
defendant in a replevin action: “A person who does not have either actual or constructive
possession of the goods or chattels sought in replevin is neither a necessary nor a proper
party defendant in a replevin action even though he or she claims an interest in the
property.” (12 Fla.Jur.2d (2014) Conversion and Replevin, § 56.) A Florida treatise
likewise explains: “The person who has actual or constructive possession of the property
is the proper defending party. If the property has been taken by a sheriff, he is the proper
defending party, not the person who caused the sheriff to take possession of it.”
distinct from conversion: An action for the possession of personal property “lies for the
recovery of the property itself, with damages for the wrongful detention of it,” while an
action for conversion lies “for the recovery of damages for the wrongful conversion of
[personal property].” (Peterson v. Sherman (1945) 68 Cal. App. 2d 706, 711.)
7
(Trawick, Fla. Prac. & Proc. (2011-2012 ed.) § 34:1; see also Main v. Miami Money
Store, Inc. (Fla.App. 1995) 655 So. 2d 148, 149-150 (Miami Money Store) [statute
authorizing action for replevin and attorney fees against a secondhand dealer in
possession of stolen goods did not apply where city had seized diamond from store and
secondhand dealer was neither in actual, physical possession of diamond, nor had
constructive possession of diamond]; Brescher v. Associates Financial Services Co., Inc.
(Fla.App. 1984) 460 So. 2d 464, 465-467 [after default by debtor, secured party may seek
replevin from sheriff who has taken possession of the property under valid execution].)5
These propositions concern the essential elements of a replevin claim—not the question
of permissible damages flowing from a successful replevin claim.6
5 Henry P. Trawick Jr.’s Florida Practice and Procedure is a commonly cited
authority in Florida courts on general principles of Florida procedure and practice. (See
e.g., S.W. Florida Paradise Prop v.Warner (Fla.App. 2013) 111 So. 3d 268; Guarantee
Ins. Co. v. Worker’s Temp. Staffing, Inc. (Fla.App. 2011) 61 So. 3d 1233, 1235, fn. 2;
Myers v. Myers (Fla.App. 1995) 652 So. 2d 1214, 1216.) Likewise, Florida Jurisprudence
Second has been described as “the standard Florida legal encyclopedia[.]” (Pino v. Bank
of N.Y. Mellon (Fla.App. 2011) 57 So. 3d 950, 956, dis. opn. of Polen, J.)
6 See also 66 American Jurisprudence Second (2014) Replevin, section 18:
“An action of replevin can be maintained only against one in actual or constructive
possession of the property sought to be recovered at the time of the commencement of the
action. A party demanding possession cannot maintain a replevin action against a
defendant who, at the time the action is instituted, is not in possession of or cannot
exercise control over the property sought. Thus, replevin cannot be maintained where the
property has been delivered to a third party. . . . The reason for the rule that the property
must be in the possession of the defendant is that the defendant, if judgment is rendered
against him or her, must deliver the property to the plaintiff. In other words, replevin lies
only against a person from whose possession the sheriff can take the property and to
whose possession it can be returned, and accordingly, an action is not maintainable
against one who, prior to the institution of the action, was deprived of the possession of
the property by legal process.” In addition, see Law v. Heiniger (1955) 132 Cal.App.2d
Supp. 898, 899-900 [action to recover possession of personal property will not lie unless
at the time the action is commenced defendant has possession of the property or the
power to deliver it, unless defendant wrongfully gave possession to another].)
8
As such, we understand the trial court’s conclusion that Swack was not entitled to
replevin damages because Price did not have constructive possession of the Corniche to
be a rejection of the replevin claim itself.7 As Swack acknowledges, “[t]he meaning of a
court order or judgment is a question of law within the ambit of the appellate court.”
(In re Ins. Installment Fee Cases (2012) 211 Cal. App. 4th 1395, 1429, citing Mendly v.
County of Los Angeles (1994) 23 Cal. App. 4th 1193, 1205 (Mendly).) “ ‘The true
measure of an order . . . is not an isolated phrase appearing therein, but its effect when
considered as a whole. [Citations.] In construing orders they must always be considered
in their entirety, and the same rules of interpretation will apply in ascertaining the
meaning of a court’s order as in ascertaining the meaning of any other writing. If the
language of the order be in any degree uncertain, then reference may be had to the
circumstances surrounding, and the court's intention in the making of the same.’
[Citations.]” (Mendly, at pp. 1429-1430.)
In addition, “[o]n appeal, a judgment of the trial court is presumed to be correct.
[Citation.] Accordingly, if a judgment is correct on any theory, the appellate court will
affirm it regardless of the trial court’s reasoning. [Citations.] All intendments and
presumptions are made to support the judgment on matters as to which the record is
silent. [Citation.] We presume the trial court followed applicable law. [Citation.] When
no statement of decision is requested and issued, we imply all findings necessary to
support the judgment.” (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal. App. 4th
939, 956.)
With these principles in mind, we must reject Swack’s interpretation of the trial
court’s ruling. Swack insists the trial court “granted replevin,” but inexplicably denied
loss of use damages based on an incorrect theory that a lack of possession disentitled
7 With respect to the terms “replevin” and “damages,” the court’s language in its
written ruling was as follows: “Mr. Swack is seeking damages for Replevin based upon
his inability to use his car for the last 3 years while this case has been in litigation. The
court will not award such damages. Mr. Price did not possess the car when the case was
initiated.” As set forth in full in our factual recitation, the court then analyzed Price’s
lack of actual or constructive possession of the Corniche.
9
Swack to such damages, even though Swack prevailed on the essential elements of the
claim. We find the far more reasonable interpretation of the order is that the court in fact
rejected the replevin claim itself. As explained above, under Florida law, a replevin
action cannot be sustained against a defendant who does not have actual or constructive
possession of the property to be replevied when the action is commenced. The trial
court’s analysis focused on Price’s lack of actual or constructive possession. The above
Florida authorities indicate the defendant’s lack of actual or constructive possession of
the property to be replevied bars a plaintiff from sustaining a replevin claim against that
defendant. Thus, when considered as a whole, it is clear the trial court was in fact
rejecting the replevin claim itself, and it did not grant the replevin claim but deny
attendant damages. The court’s conclusion was consistent with the above authorities,
which explain that a replevin action cannot be sustained against a defendant who does not
have actual or constructive possession of the property to be replevied when the action is
commenced.
We note substantial evidence supported the trial court’s conclusion that at the time
the action was commenced, Price did not have actual or constructive possession of the
Corniche. Price instituted the legal proceedings precisely because he had been deprived
of actual and constructive possession of the Corniche when law enforcement in California
impounded the car. After the car was impounded, Price did not have actual or
constructive possession of the car, including at the time Swack amended his cross-
complaint to add a replevin claim. While the Corniche was for a time released to Price’s
counsel, this was pursuant to court order and court-ordered restrictions.
Swack asserts Price’s actions which led to police impounding the Corniche—
taking possession of the car and turning it over to a reseller—were all that was needed to
render him liable for replevin damages to Swack. This argument is inconsistent with
Florida law. As explained above, to sustain a replevin claim against a defendant under
Florida law, the defendant must have actual or constructive possession of the property at
the commencement of the action. It was not enough that Price asserted an interest in the
Corniche, or that Price took possession of the Corniche well before any litigation began.
10
(See Miami Money Store, supra, 655 So.2d at pp. 149-150; Brown, supra, 872 So.2d at
p. 294.) As the court explained in Bush v. Belenke (Fla.App. 1980) 381 So. 2d 315, 316,
“in a replevin action, although possession by the defendant of the subject property is
essential, actual manual possession is not necessary. It is sufficient if a defendant has
constructive possession, that is has such control over the property that he may deliver the
possession of it, if he so desires, as for example, where an agent holds property for his
principal.” Before any litigation, and before Swack asserted a replevin claim against
Price, Price had lost actual and constructive possession of the Corniche. The car was first
impounded, then subject to court orders, such that the evidence supported the court’s
determination that at no period relevant to the litigation was Price free to deliver
possession of the Corniche to Swack.8
Bringley v. C.I.T. Corp. (Fla. 1935) 160 So. 680, does not suggest a different
result. In Bringley, the plaintiff filed a replevin action against two individual defendants
to recover possession of a vehicle. The defendants sought to substitute Bringley as a
defendant on the ground that they were only bailees of the property and “claimed no title
or right of possession to it except through Bringley.” (Id. at p. 531.) Although a lower
court granted the motion, and later found Bringley was entitled to possession of the
vehicle at the time the action was instituted, the Florida Supreme Court concluded it was
error to allow the substitution of Bringley. (Id. at p. 538.) The court’s conclusion was
based on the distinction between rights to possession and title or ownership. The court
explained a “plaintiff must have a right to the present possession of the property at the
time the action is commenced. A temporary right to possession may prevail against an
8 See also 66 American Jurisprudence Second (2014) Replevin, section 20: “As a
general rule, a replevin action for the recovery of the possession of a specific personal
property is not maintainable where it appears that the defendant has lost or parted with
the possession of the property prior to the institution of the action. This general rule has
been conditioned on the showing of good faith of the defendant in parting with the
possession of the property. Thus, where the defendant has in good faith parted with the
possession of the property, the mere fact that he or she had had possession thereof is not
sufficient.”
11
absolute legal title to the property where that title and the right of immediate possession
have become separated. [Citations.] [¶] . . . If the person in possession claims the right
to such possession adversely to the asserted claim of a third person it in no wise affects
the issue as between the defendant and the plaintiff who must establish his right to the
immediate possession of the property. So it is generally held that third persons who
claim an interest in the property, but have no possession, are neither necessary nor
proper parties defendant. [Citations.] [¶]. . . [¶] . . . [W]hether Bringley was the owner
of the property sought to be recaptured or not was not the question presented by the
action brought as it related only to the plaintiff’s right to the possession of it when the
action was brought. By the substitution of Bringley as defendant the issue was sought to
be shifted from the question vel non of plaintiff’s right to immediate possession when the
action was brought to a question of ownership of the chattel which was incidental only.”
(Id. at pp. 536-538, italics added.)
Thus, although Bringley had an ownership interest in the subject car he did not
have possession of it, and therefore was not a proper defendant in the replevin action.
While Swack correctly asserts the Bringley court indicated the focus of a replevin claim
is on the plaintiff’s right to immediate possession, he ignores that the issue to be decided
was whether Bringley, as the alleged owner of the car but not its possessor, was a proper
party in the replevin action. The Bringley court concluded he was not. Here, Price was
in a similar position to Bringley. He asserted an ownership interest in the Corniche, but
he could not deliver immediate possession to Swack because the car was no longer under
his control. We can find no error in the trial court’s rejection of the replevin claim.
Finally, Swack argues the court must have granted his replevin claim because
Price was ordered to turn the car over to Swack. We disagree that this order mandates the
conclusion that the trial court found Swack’s replevin claim meritorious. The court
quieted title in the Corniche, as both Swack and Price had requested. (See Ellis v. Dixie
Highway Special Road & Bridge Dist. (Fla. 1931) 138 So. 374, 375 [under exceptional
circumstances, quiet title may be used for personal property where there is no adequate
remedy at law]; see e.g., DGG Development Corp. v. Estate of Capponi (Fla.App. 2008)
12
983 So. 2d 1232, 1234-1235 [analysis of “bona fide purchaser for value” in connection
with quiet title claim]; Pacific American Ins. Co. v. Red Door Motors, Inc. (Fla.App.
1986) 497 So. 2d 721 [action to quiet title in a vehicle].) Under Florida law, a court may
issue a judgment awarding possession of the property as relief in a quiet title action. (Fla.
Stat. Ann. § 65.061(1); Price v. Tyler (Fla. 2004) 890 So. 2d 246, 252 [by Florida statute,
court has jurisdiction to enter judgment quieting title and awarding possession to the
party entitled thereto]; see e.g., Top Dollar Pawn Too, Inc. v. King (Fla.App. 2003) 861
So. 2d 1264, 1265 [trial court quieted title in car and authorized sheriff to give possession
of it to successful plaintiff].) We assume the court’s order that Price release the Corniche
to Swack as part of the judgment was such an order.9
Under the circumstances of this case, we reject Swack’s assertion that “[a] party
who not only wants to clear title on property, but also get the property back, must resort
to replevin rather than merely an action to quiet title.” In a case such as this one, where
there are two parties claiming exclusive ownership in the same property, they plead and
seek to prove competing quiet title claims, but the court is in constructive possession of
the property at the commencement—and for the duration—of the litigation, replevin
against the other party seeking to quiet title in the property is not available. Swack could
not “get the property back” from Price, since Price did not have actual or constructive
possession of the Corniche. In a case such as this, an order awarding possession to the
party in whom the court quiets title is appropriate.10
9 To the extent Swack now argues the trial court could not grant a quiet title claim,
or remedies associated with a quiet title claim, because, as he states, “[u]nder Florida law,
suits to quiet title to personal property may be brought only where, owing to exceptional
circumstances, there is no adequate remedy law,” he both invited any error by
affirmatively pleading and prosecuting a quiet title claim, and forfeited any claim of error
by failing to withdraw the claim or otherwise object. (Van Sickle v. Gilbert (2011) 196
Cal. App. 4th 1495, 1528; Conservatorship of Joseph W. (2011) 199 Cal. App. 4th 953,
968-969.)
10 We also again note that, according to Swack’s earlier representations in the record,
in June 2010, “[c]ounsel agreed that they would file cross-motions for summary
13
In light of the requirements of a replevin action, it is apparent the trial court
rejected the replevin claim, not simply one form of damages. Substantial evidence
supported the court’s conclusions rejecting the replevin claim. Swack demands that we
construe the trial court’s order and judgment so as to find error, when no such
construction is warranted. We decline to do so, consistent with the fundamental principal
of appellate review that “[a] ruling by a trial court is presumed correct, and ambiguities
are resolved in favor of affirmance.” (Winograd v. American Broadcasting Co. (1998) 68
Cal. App. 4th 624, 631.) We thus find no error in the trial court’s denial of loss of use
damages in connection with the replevin claim.
DISPOSITION
The trial court judgment is affirmed. Respondent shall recover his costs on
appeal.
BIGELOW, P.J.
We concur:
RUBIN, J.
GRIMES, J.
adjudication to be heard July 29, 2010, and that the side that then prevails will take
possession of the car.” In the same motion, Swack represented: “Based on the stipulation
of counsel, upon the granting of this motion, Mr. Swack will be entitled to possession of
his car.” These representations suggest the parties had at least at one point agreed that
once a judicial determination was made as to title and lawful ownership, the parties
would forego further legal process in order to recover actual possession of the Corniche.
14