Aslan v. McHale CA2/4

Filed 12/21/20 Aslan v. McHale CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published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 FOUR
CHARLES ASLAN, B300972
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC674294)
v.
PAULA McHALE,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Richard J. Burdge, Jr., Judge. Affirmed.
Jance M. Weberman for Plaintiff and Appellant.
Stimpert & Ford and Daniel P. Stimpert for Defendant
and Respondent.
INTRODUCTION
Appellant Charles Aslan challenges the trial court’s
grant of respondent Paula McHale’s motion for summary
judgment, following its grant of summary adjudication as to
his cause of action for conversion.1 That cause of action
alleged that McHale converted several hundred ceramic tiles
fashioned by noted early 20th century artist Ernest Allan
Batchelder. On appeal, Aslan acknowledges that the court
granted McHale’s motion because it found he would be
unable to demonstrate the second element of conversion,
viz., that McHale had wrongfully converted the tiles.
Nevertheless, Aslan’s brief is devoted to arguing that he
established a triable issue of material of fact as to the first
element of conversion, viz., whether he had lawful
possession of the tiles. Even after McHale noted in her
respondent’s brief that Aslan had ignored the central issue
on appeal, Aslan failed to file a reply brief. He has,
therefore, waived any argument that the trial court erred in
ruling he would be unable to establish the second element of
1 The trial court also granted summary adjudication as to
Aslan’s remaining causes of action -- intentional and negligent
infliction of emotional distress -- but Aslan does not appeal those
rulings.
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conversion. Moreover, our review of the record supports the
trial court’s ruling. We therefore affirm.2
STATEMENT OF RELEVANT FACTS
In June 2019, McHale moved for summary judgment
on the operative complaint, which alleged three causes of
action against her: conversion, intentional infliction of
emotional distress, and negligent infliction of emotional
distress.3 According to the motion, Aslan alleged in his
complaint that his uncle, Moses Aslan, had given him the
right to lease, manage, and restore the premises located at
217 West Sixth Street, Los Angeles, California (the
Premises), “including the right to remove all items of
personal property he found during the reconstruction
process.” Aslan further alleged that while restoring the
Premises, he discovered boxes containing tiles and murals by
Batchelder worth over $3,000,000.
McHale claimed that Aslan’s conversion cause of action
was based on allegations that she had initiated an action to
evict him from the Premises, had notified the Los Angeles
2 We also note that Aslan’s opening brief failed to comply
with the rules of court by failing to “[s]upport any reference to a
matter in the record by a citation to the volume and page number
of the record where the matter appears.” (Cal. Rules of Court,
rule 8.204(a)(1)(C).) While we decline to strike the brief, we note
the defect. (Cal. Rules of Court, rule 8.204(e)(2)(C).)
3 Aslan failed to include any iteration of the complaint in the
record on appeal.
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Police Department (LAPD) that he had “absconded with
valuable murals and tiles that belonged to her,” had caused
Aslan to be arrested and charged with grand theft, and had
“converted the tiles.” She also claimed his infliction of
emotional distress causes of action were based on her
allegedly false reports to the police that Aslan had stolen the
tiles. McHale argued that any eviction action she initiated,
or any statements she made to the police, were privileged,
and therefore could not be the basis for any of Aslan’s causes
of action. She further argued that she could not be liable for
converting the tiles because they were voluntarily
surrendered by Aslan’s mother, Sophia Aslan, and McHale
was not even present when the surrender occurred.
Filed with McHale’s motion were declarations from
Detective Scott Vostad of the LAPD, Carson Elder, and Tony
Anthony. Detective Vostad declared that, after being
notified by McHale that Moses Aslan believed Charles Aslan
had removed certain ceramic tiles from the Premises, he
“began a thorough investigation” and, after speaking with
numerous individuals, including McHale, Moses Aslan,
Sophia Aslan (Charles’s mother), and Charles Aslan, and
reviewing documents, concluded “there was probable cause
to believe that Charles Aslan had removed and was in
possession of personal property that did not belong to
Charles Aslan.” Detective Vostad further declared that, on
the morning of Aslan’s arrest, he received a call from Sophia
Aslan, stating that she had the tiles in question and wanted
to return them. Detective Vostad asked Carlson Elder, an
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acquaintance of Moses Aslan’s, to accompany him to retrieve
the tiles. Detective Vostad declared that he “repeatedly
made it clear to Sophia Aslan that . . . [he] was there merely
to assist her in voluntarily returning the ceramic tiles with
her consent.” Detective Vostad stated that Sophia Aslan
turned the tiles over to Elder and another individual.
Elder’s declaration substantially corroborated Detective
Vostad’s recitation of events, and identified the other
individual as Tony Anthony. Anthony’s declaration
substantially corroborated Detective Vostad’s and Elder’s
accounts. McHale also filed a declaration from Scott Wells,
who claimed to have known Aslan for several years,
attesting that in April 2016, he agreed to lend Aslan 505
Batchelder tiles that he expected would be returned (the
Wells Tiles). The Wells Tiles were apparently among those
given to the LAPD by Sophia Aslan, and were eventually
returned to Wells.
In opposing McHale’s motion, Aslan did not dispute
that his two remaining causes of action for intentional and
negligent infliction of emotional distress were based on
McHale’s statements to the police.4 However, he claimed his
conversion cause of action was based on the fact that the
Wells Tiles belonged to Wells. With respect to the evidence
that his mother had voluntarily surrendered the tiles, Aslan
4 Nor, according to the trial court’s order, did Aslan raise any
argument regarding these claims in opposition to McHale’s
motion.
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argued only that the declarations attesting to this were not
credible, presenting no contrary evidence of his own.
In August 2019, the trial court granted McHale’s
motion for summary judgment. With respect to Aslan’s
emotional distress causes of action, the court found that
McHale’s alleged eviction lawsuit or reports to the police
could not be the basis of any cause of action, because such
actions were privileged. Regarding Aslan’s conversion cause
of action, the trial court found that McHale had submitted
“evidence establishing that ‘the subject tiles were
surrendered voluntarily by [Plaintiff’s Mother] Sophia Aslan’
to the Los Angeles Police Department,” that McHale was not
present when they were surrendered, and that she was not
the claimant in the criminal filing which precipitated their
return. The court found this evidence “sufficient to negate
the second element of the conversion cause of action—
defendant’s conversion by a wrongful act or disposition of the
property rights—and to shift the burden to Plaintiff to
establish the existence [of] a triable issue of material fact
. . . .” The court further found that while Aslan disputed
the assertion of voluntary surrender and contended the tiles
were stolen from his home, he failed to cite evidence that
either established that the tiles were stolen, or undermined
or rebutted McHale’s evidence. Accordingly, the court found
Aslan had failed to raise a triable issue of fact as to the
voluntary surrender of the tiles, granted McHale’s motion for
summary judgment, and entered judgment in her favor.
Aslan timely appealed.
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DISCUSSION
A. Aslan Has Waived the Only Issue on Appeal
“‘“‘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.’”’” (Lee v.
Hanley (2015) 61 Cal.4th 1225, 1240.) Aslan acknowledges
this in his appellate brief. He also acknowledges that his
appeal arises from “the trial court’s granting of summary
judgment, in favor of defendant, PAULA MCHALE,
(MCHALE) by her alleging material facts that negate the
second element of the conversion cause of action and ‘ ... shift
the burden to Plaintiff to establish the existence of a triable
issue of material fact as to whether defendant can be held
liable.’”
Despite recognizing the legal basis for the court’s grant
of summary adjudication on the conversion cause of action,
Aslan proceeds to ignore this issue in his appellate brief, in
favor of arguing that he established a triable issue of
material fact regarding the first element of conversion, viz.,
whether he had lawful possession of the tiles. Even after
McHale noted in her respondent’s brief that Aslan had
ignored the central issue on appeal, Aslan failed to file a
reply brief addressing the basis for the court’s ruling. “Even
when our review on appeal ‘is de novo, it is limited to issues
which have been adequately raised and supported in [the
appellant’s opening] brief. [Citations.] Issues not raised in
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an appellant’s brief are deemed waived or abandoned.’”
(State Water Resources Control Bd. Cases (2006) 136
Cal.App.4th 674, 836.) By knowingly ignoring the
dispositive issue on appeal, Aslan has waived any argument
that it was wrongly decided. Moreover, as discussed below,
even had he preserved the argument, we would affirm on the
merits.
B. The Court Did Not Err in Granting
Summary Judgment
On a motion for summary judgment, “a defendant
meets its burden of showing that a cause of action has no
merit ‘if that party has shown that one or more elements of
the cause of action . . . cannot be established . . . .’ Once the
defendant meets the foregoing burden, ‘the burden shifts to
the plaintiff . . . to show that a triable issue of one or more
material facts exists as to that cause of action . . . [and] set
forth the specific facts showing that a triable issue of
material fact exists as to that cause of action . . . .’” (Saelzler
v. Advanced Group 400 (2001) 25 Cal.4th 763, 780.) “On
appeal after a motion for summary judgment has been
granted, we review the record de novo, considering all the
evidence set forth in the moving and opposition papers
except that to which objections have been made and
sustained.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th
317, 334.)
As established above, the trial court granted summary
adjudication on the conversion cause of action because
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McHale demonstrated that Aslan could not establish that
she converted the tiles by a wrongful act or disposition of
property rights, and Aslan failed to cite to evidence either
establishing his contention that the tiles were stolen from
him, or rebutting McHale’s evidence. We agree. Detective
Vostad submitted a declaration that Charles’s mother called
him on the day Charles was arrested, and stated that she
had the ceramic tiles in question and wanted to return them.
Detective Vostad, Carson Elder, and Tony Anthony all
submitted declarations establishing that they were present
when Sophia Aslan voluntarily relinquished the tiles. Aslan
points to no contrary evidence.5 Therefore, regardless of
Aslan’s waiver of the only issue on appeal, we find the trial
court did not err in granting summary adjudication on the
conversion cause of action and summary judgment on the
operative complaint.
5 On appeal, Aslan questions the credibility of Detective
Vostad and Anthony (though not Elder), asserting without
citation to evidence that it was “highly unlikely” that Detective
Vostad had numerous telephone conversations with Moses Aslan,
and that a meeting that Anthony claimed occurred around June
15, 2016, did not occur. But “the law is clear that summary
judgment may not be denied solely on the basis of the credibility
of the moving party’s witnesses.” (Ayon v. Esquire Deposition
Solutions, LLC (2018) 27 Cal.App.5th 487, 496.)
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DISPOSITION
The judgment is affirmed. Respondent is awarded her
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS.
MANELLA, P. J.
We concur:
WILLHITE, J.
COLLINS, J.
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