Capitol Indemnity Corp. v. Topolewski CA2/4

Filed 8/23/23 Capitol Indemnity Corp. v. Topolewski CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
CAPITOL INDEMNITY B320636
CORPORATION,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. 19CHCV00314)
v.
GARY G. TOPOLEWSKI, et al.,
Defendants and
Appellants.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Melvin D. Sandvig, Judge. Affirmed in part
and reversed in part.
Blut Law Group and Elliot S. Blut for Defendant and
Appellant Gary G. Topolewski.
Law Office of Howard Goodman and Howard Goodman for
Plaintiff and Respondent.
Respondent Capitol Indemnity Corporation (Capitol)
obtained a judgment against appellant Gary Topolewski in 2008
in an unrelated matter. In 2018, Topolewski filed an
acknowledgment of satisfaction of judgment, falsely stating that
the judgment had been satisfied in full. A few months later,
Topolewski obtained a grant deed in his name to a parcel of real
property. He paid for the property with money provided by
Northern Resources, Inc. (Northern). Two months after that,
Topolewski transferred the property by quitclaim deed to
Northern.
Capitol brought an action against Topolewski and
Northern, alleging claims for fraudulent conveyance and
conspiracy. Capitol alleged that absent the fraudulent
satisfaction of judgment, it would have obtained a lien on the
property for the amount of its judgment during the time
Topolewski held it in his name. Instead, Capitol alleged that
Topolewski and Northern conspired to avoid the lien by filing the
satisfaction of judgment and then transferring the property to
Northern. Capitol sought to set aside the property transfer and
impose the lien. Capitol also sought punitive damages.
Following a bench trial, the court entered judgment in
favor of Northern, finding that it was a bona fide purchaser of the
property. As such, the court declined to set aside the transfer of
the property to Northern. As to Topolewski, the court entered
judgment against him and in favor of Capitol, finding that
Topolewski had filed and recorded the fraudulent satisfaction of
judgment in order to avoid Capitol’s lien on the property. The
court awarded Capitol the amount of its prior judgment, plus
interest, as well as punitive damages against Topolewski.
2
Topolewski appeals. He argues that the court erred in
finding for Capitol on its fraudulent conveyance claim,
contending that the property never belonged to him and therefore
Capitol never had a right to a lien on it. He argues that Capitol
did not prove any damages on the same basis. We find no error
as to these claims. However, we agree with Topolewski that
Capitol failed to present sufficient evidence of his financial
condition to support the award of punitive damages. We therefore
reverse the award of punitive damages and otherwise affirm the
judgment.
FACTUAL AND PROCEDURAL HISTORY
I. The Complaint
Capitol filed a complaint against Topolewski and Northern
in April 2019, alleging claims for fraudulent transfer and
conspiracy. Capitol alleged that Northern was a corporation
doing business in Nevada and that Topolewski was a
“shareholder, officer, and/or director” of Northern.
Capitol alleged that in 2008, it obtained entry of judgment
in Los Angeles Superior Court based on a Nevada judgment
entered against Topolewski (the underlying matter).1 Capitol
renewed the judgment in 2017 in the amount of $71,067.60 and
recorded an abstract of judgment with the Los Angeles County
Recorder in January 2018. Capitol attached copies of these
documents to the complaint.
The complaint further alleged that on May 2, 2018,
Topolewski filed a false acknowledgment of satisfaction of
judgment (the satisfaction of judgment) in the underlying matter,
1 The judgment was entered against Gary and Mark
Topolewski. Mark Topolewski is not a party to this appeal.
3
stating that the judgment had been satisfied in full.2 Capitol
attached a copy of the satisfaction of judgment to its complaint.
The cover page states that Topolewski requested the recording of
the satisfaction of judgment. The satisfaction of judgment lists
Capitol as the filing party, with an address on Lurline Avenue in
Chatsworth, California. The document bears an illegible
signature. The following page is a notary’s certificate, stating
that the document was signed by Angelo Mastantuono, an
individual.3
As detailed in the copies attached to the complaint, in July
2018, Topolewski acquired by grant deed a parcel of real property
on Tuba Street in Northridge, California (the Tuba Street
property). That grant deed was recorded in August 2018. On
September 26, 2018, Topolewski executed a quitclaim deed
conveying title to the Tuba Street property to Northern for no
consideration. The quitclaim deed was recorded on October 5,
2018.
Capitol also alleged that in February 2019, the court in the
underlying matter granted Capitol’s motion to vacate the
satisfaction of judgment. As such, Capitol remained a creditor of
Topolewski.
In the first cause of action to set aside the fraudulent
transfer, Capitol alleged that the satisfaction of judgment was
“false and fraudulent” and that Topolewski and Northern
2 Topolewski claimed below that he did not file or cause to be
filed the false satisfaction of judgment. However, he does not
challenge on appeal the trial court’s finding to the contrary. It is
undisputed that the judgment has not actually been satisfied.
3 Topolewski testified at trial that he knew Mastantuono, but
denied that Mastantuono was employed by Topolewski’s
company, Metal Jeans, Inc.
4
prepared, executed, and recorded the fraudulent satisfaction of
judgment “to prevent the attaching of a judgment lien” to the
Tuba Street property. The complaint further alleged that
Topolewski’s transfer of his interest in the Tuba Street property
to Northern and the preparation and recording of the fraudulent
acknowledgment of satisfaction of judgment were “made with an
actual intent to hinder, delay, and defraud all of the current and
future creditors” of Topolewski, including Capitol, in violation of
the Uniform Fraudulent Transfer Act, Civil Code section
3439.04.4 Capitol further sought $50,000 in punitive damages,
alleging that Topolewski and Northern acted “intentionally,
willfully, fraudulently, and maliciously” to defraud Topolewksi’s
creditors and to deprive those creditors “of a real property which
could be liened [sic] or levied to satisfy [Capitol’s] judgment.”
In the second cause of action for conspiracy, Capitol alleged
that Topolewski and Northern conspired to hinder Capitol’s
collection of its judgment through the recording of the
satisfaction of judgment and the transfer of the Tuba Street
property. Capitol alleged that it had been damaged in the
amount of its unsatisfied judgment, along with accrued interest.
The complaint sought to have the transfer set aside and
declared fraudulent and void to the extent necessary to satisfy
Capitol’s judgment, a temporary restraining order prohibiting
Topolewski and Northern from transferring or disposing of the
4 The Uniform Voidable Transactions Act (UVTA), formerly
known as the Uniform Fraudulent Transfer Act (see Stats. 2015,
ch. 44, § 2, p. 1456 (Sen. Bill No. 161 (2015–2016 Reg. Sess).)),
“permits defrauded creditors to reach property in the hands of a
transferee.” (Mejia v. Reed (2003) 31 Cal.4th 657, 663 (Mejia).)
All further statutory references are to the Civil Code unless
otherwise indicated.
5
Tuba Street property, imposition of a lien on the Tuba Street
property, and exemplary and punitive damages of $50,000.
II. Court Trial
The matter proceeded to a court trial on February 7, 2022.
The parties stipulated to the admission of the exhibits, including
the documents detailed in Section I post. In addition, the
following witnesses testified.
Pat Framke works as a senior claims specialist for Capitol.
She testified that Capitol had not received any payment in
satisfaction of the judgment. She also testified that the
satisfaction of judgment was not authorized by Capitol, was not
filed by Capitol’s attorney, and the Chatsworth address listed for
Capitol on the form was not an address ever used by Capitol.
Topolewski testified that he was entitled to satisfaction of
judgment because he felt the judgment was fraudulent. He
denied preparing or filing the acknowledgement of satisfaction of
judgment. He acknowledged that the Chatworth address listed
for Capitol on the satisfaction of judgment was an address for his
company, Metal Jeans, Inc.
Topolewski also testified that he had been doing business
with Northern for 20 years. At the time he purchased the
property in July 2018, Topolewski testified that he was not an
officer, shareholder, employee, or director of Northern. The
parties stipulated that Northern retained Topolewski as its agent
to search for and acquire the Tuba Street property. Topolewski
testified that he found the Tuba Street property and showed it to
Northern. He received a wire transfer of $880,000 from Northern
on July 30, 2018. He paid $875,000 for the purchase of the
property and kept the remaining $5,000 as a finder’s fee.
6
Topolewski testified that he acquired title to the Tuba
Street property in his own name. When asked why he did not
acquire the deed directly for Northern, he stated that he was not
a Northern employee, so “I just did it personally.” He stated that
he did not know whether, in the absence of the recorded
satisfaction of judgment, a judgment lien in favor of Capitol
would have attached to the Tuba Street property when he
recorded the grant deed. According to Topolewksi, he understood
that “it was always Northern’s property,” and he just signed it
over to them.
Topolewski never told Northern about the satisfaction of
judgment. At the time in 2018, he was not insolvent and had
assets greater than the amount of the judgment.
Topolewski also testified relevant to the punitive damages
claim. He had earned approximately $100,000 from sales of a
book he had written. He is sole owner of Metal Jeans, Inc., which
had been operating for about 30 years selling jeans. He earned
approximately $25,000,000 in 2020 and 2021 from sales of
products from Metal Jeans. Metal Jeans currently had “a couple
million dollars” in its bank account.
III. Decision
Topolewski and Northern moved for a directed verdict at
the close of Capitol’s case. The court granted the motion for
Northern but denied it for Topolewski. At the conclusion of all
testimony, counsel for Capitol requested punitive damages of
$500,000.
The court indicated it was finding for Capitol on the first
cause of action, which alleged that recording of the satisfaction of
judgment was a fraudulent conveyance pursuant to section
3439.04. Regarding punitive damages, Topolewski’s counsel
7
argued that Capitol did not suffer any damages as a result of the
filing of the satisfaction of judgment, given the court’s finding
that the transfer to Northern was not fraudulent and that
Capitol never had the right to a lien against the Tuba Street
property. Capitol’s counsel argued that absent the fraudulent
recording of the satisfaction of judgment, “Capitol would have
had a judgment lien against the property and would have
recovered its judgment.”
The court found that the satisfaction of judgment was
fraudulently entered and would be set aside. The court also
awarded $100,000 in punitive damages and ordered Capitol to
prepare a judgment.
On February 7, 2022, Topolewski filed a “second amended
request for statement of decision,” seeking a statement of
decision on eight issues.5
Capitol filed and served a proposed judgment on February
10, 2022. On February 14, 2022, Topolewski submitted objections
to the proposed judgment. He objected that the court had not
issued a statement of decision pursuant to Code of Civil
Procedure, section 632 as he requested. He also objected that the
judgment purported to supersede the 2017 judgment in the
underlying matter, which was “not stated by the Court nor
briefed, nor is there any authority for superseding the prior
judgment.”
In a minute order on February 23, 2022, the court stated
that it had reviewed the proposed judgment and Topolewski’s
opposition, and ordered Capitol to prepare and serve a proposed
statement of decision within 10 days. Capitol filed a proposed
statement of decision on February 28, 2022. Topolewski filed an
5 There is no earlier request in the record.
8
objection on March 4, 2022, on the basis that the proposed
statement of decision “does not provide a statement as to the
categories identified” in his request for a statement of decision.6
The court signed the proposed judgment, entering it as the
judgment on February 23, 2022. In the judgment, the court
found that Northern “was a bona fide purchaser for value when it
acquired title to [the Tuba Street property] by quitclaim deed
recorded on October 5, 2018.”
Accordingly, the court declined to order attachment of a
judgment lien in favor of Capitol against the Tuba Street
property. The court further found that Topolewski was not acting
as Northern’s agent and Northern was therefore not liable for
fraudulent acts committed by Topolewski.
With respect to Topolewski, the court found that he
“orchestrated the preparation, execution, filing and recording of a
fraudulent acknowledgment of satisfaction of judgment for the
purpose of avoiding a judgment lien in [the underlying matter]
from attaching to his title to [the Tuba Street property] when a
grant deed in his favor was recorded on August 20, 2018.” The
court further found that Capitol “suffered substantial harm from
the fraudulent recording of the acknowledgment of satisfaction of
judgment orchestrated by Gary G. Topolewski which prevented
the attachment of a judgment lien on August 20, 2018.” The
court found that the current balance owed on the judgment was
$71,067.60, plus interest, for a total of $102,044.37.
Turning to punitive damages, the court found that
Topolewski’s conduct in preparing, filing, and recording the
fraudulent satisfaction of judgment “constituted fraud,
6 There is no indication in the record that the court signed or
issued a statement of decision.
9
oppression and malice and that punitive and exemplary damages
should be awarded” against Topolewski in the amount of
$100,000. Based on evidence regarding Topolewski’s earnings
and assets, the court found that Topolewski “possessed
substantial wealth from his 100% interest in Metal Jean[s], Inc.
and from sales of a published book.”
The court accordingly entered judgment for Northern,
against Capitol, with costs. The court also entered judgment for
Capitol, against Topolewski, for the current amount of the
judgment, $102,044.37, plus $100,000 in punitive damages. The
court ordered that the judgment “shall supersede the judgment
entered” in the underlying matter.
Topolewski timely appealed from the judgment.
DISCUSSION
I. Standard of Review
In reviewing a judgment following a bench trial, “‘we
review questions of law de novo. [Citation.] We apply a
substantial evidence standard of review to the trial court's
findings of fact. [Citation.] Under this deferential standard of
review, findings of fact are liberally construed to support the
judgment and we consider the evidence in the light most
favorable to the prevailing party, drawing all reasonable
inferences in support of the findings.’” (Lopez v. La Casa De Las
Madres (2023) 89 Cal.App.5th 365, 378, quoting Thompson v.
Asimos (2016) 6 Cal.App.5th 970, 981 (Thompson).)
A single witness’s testimony may constitute substantial
evidence to support a finding. (Thompson, supra, 6 Cal.App.5th
at p. 981, citing Citizens Business Bank v. Gevorgian (2013) 218
Cal.App.4th 602, 613.) It is not our role as a reviewing court to
reweigh the evidence or to assess witness credibility. (Niko v.
10
Foreman (2006) 144 Cal.App.4th 344, 364.) “‘A judgment or order
of a lower court is presumed to be correct on appeal, and all
intendments and presumptions are indulged in favor of its
correctness.’” ( Thompson, supra, 6 Cal.App.5th at p. 981, quoting
In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.)
Under Code of Civil Procedure, section 632, upon a party’s
request after trial, the court must issue a statement of decision
“explaining the factual and legal basis for its decision as to each
of the principal controverted issues at trial.” Here, although
Topolewski requested a statement of decision, there is no
indication in the record that the court issued one. However, that
error is harmless where, as here, the court made the requisite
factual and legal findings in its judgment. (See F.P. v. Monier
(2017) 3 Cal.5th 1099, 1115 [“we have consistently held that
factual findings and legal conclusions in the judgment satisfied
the statutory requirements”].) We note that because Topolewski
preserved his right to a statement of decision by requesting one,
we will not apply the doctrine of implied findings, which “requires
the appellate court to infer the trial court made all factual
findings necessary to support the judgment.” (Fladeboe v.
American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58.)
II. Analysis
A. Fraudulent conveyance
Topolewski contends that the trial court erred in finding for
Capitol on its first cause of action for fraudulent conveyance. We
find no error.
Under the UVTA, “a transfer made or obligation incurred
by a debtor is voidable as to a creditor, whether the creditor’s
claim arose before or after the transfer was made or the
obligation was incurred, if the debtor made the transfer or
11
incurred the obligation,” as relevant here, “with actual intent to
hinder, delay or defraud any creditor of the debtor.” (§ 3439.04,
subd. (a); see also Yaesu Electronics Corp. v. Tamura (1994) 28
Cal.App.4th 8, 13 [“A fraudulent conveyance is a transfer by the
debtor of property to a third person undertaken with the intent to
prevent a creditor from reaching that interest to satisfy its
claim.”].)
Topolewski relies heavily on the trial court’s findings in
favor of Northern, arguing that because the court found Northern
was a bona fide purchaser of the Tuba Street property, that
meant Capitol never had any right to the property. He further
points to the undisputed evidence that he acted on behalf of
Northern and purchased the property with Northern’s funds. As
a result, he contends that “there was no voidable transfer or
incurring of an obligation,” and Capitol failed to establish the
elements of a claim under section 3439.04.
There is no dispute that, given the court’s finding that
Northern was a bona fide purchaser, the transfer of the Tuba
Street property from Topolewski to Northern was not voidable
under the UVTA. (See Annod Corp. v. Hamilton & Samuels
(2002) 100 Cal.App.4th 1286, 1294 [“if a transfer is made both in
good faith and for a reasonably equivalent value, then the
transfer is not a fraudulent transfer under section 3439.04”].) The
trial court found, however, that Topolewski’s fraudulent filing of
the satisfaction of judgment, which he undertook in order to
prevent attachment of Capitol’s lien after he purchased the Tuba
Street property, qualified as a fraudulent transfer under the
statute.
“On its face, the [UVTA] applies to all transfers. Civil Code,
section § 3439.01, subdivision [(m)] defines “[t]ransfer” as “every
12
mode, direct or indirect, absolute or conditional, voluntary or
involuntary, of disposing of or parting with an asset or an
interest in an asset, and includes payment of money, release,
lease, license, and creation of a lien or other encumbrance.”
(Mejia v. Reed (2003) 31 Cal.4th 657, 664 [quoting former section
3439.01, subd. (i), now subd. (m)].) Further, the statute defines
“asset” as “property of a debtor” (§ 3439.01, subd. (a)), and
“property” as “anything that may be the subject of ownership”
(§ 3439.01, subd. (j)). The potential remedies for creditors include
not only “[a]voidance of the transfer or obligation to the extent
necessary to satisfy the creditor’s claim,” but also an attachment
“against the asset transferred or other property of the
transferee,” an injunction against further disposition of the asset
or other property, appointment of a receiver, and “[a]ny other
relief the circumstances may require.” (§ 3439.07, subd. (a).)
Topolewski appears to argue that the court’s conclusion
was error because the filing of the satisfaction of judgment was
not a “transfer of real property.” He also contends that because
the court did not void the transfer of the property to Northern,
the UVTA did not apply. But, as detailed above, the statute is far
broader than he suggests. Topolewski provides no authority or
further explanation why the trial court erred in concluding that
his fraudulent filing and recording of the satisfaction of judgment
qualified as a fraudulent transfer in order to avoid attachment of
Capitol’s lien during the time Topolewski held the Tuba Street
property by grant deed. He therefore has forfeited any further
argument. (See, e.g., County of Butte v. Emergency Medical
Services Authority (2010) 187 Cal.App.4th 1175, 1196, fn. 7
[contention not supported by citation to legal authority is
forfeited as improperly presented]; In re S.C. (2006) 138
13
Cal.App.4th 396, 408, citation omitted [“Where a point is merely
asserted by appellant’s counsel without any argument of or
authority for the proposition, it is deemed to be without
foundation and requires no discussion by the reviewing court.”].)
Even if Topolewski’s actions did not qualify as a fraudulent
transfer under the UVTA, Capitol adequately established a
claim for fraud. “The essential elements of fraud, generally, are
(1) a misrepresentation; (2) knowledge of falsity; (3) intent to
induce reliance; (4) justifiable reliance; and (5) resulting
damage.” (City of Industry v. City of Fillmore (2011) 198
Cal.App.4th 191, 211, citing Lazar v. Superior Court (1996) 12
Cal.4th 631, 638.) Topolewski challenges only the last element,
arguing that Capitol suffered no damages because it “never had a
right to a lien against the Property.” We reject this contention.
Topolewski asserts that the court found that Northern,
“and not Topolewski, was the purchaser.” This misstates the
court’s findings. The court found that Northern “was a bona fide
purchaser for value when it acquired title to [the Tuba Street
property] by quitclaim deed recorded on October 5, 2018.” But
the court also found that Topolewski obtained the property by
grant deed in his name, which he recorded on August 20, 2018.
Moreover, the court found that Topolewski’s recording of the
fraudulent satisfaction of judgment prevented the attachment of
Capitol’s lien to the Tuba Street property when Topolewski took
title.
Topolewski ignores these findings. Other than his
assertion, contrary to the trial court’s findings, that Capitol never
had the right to a lien on the property, Topolewski offers no basis
for his claim that Capitol failed to prove it was damaged. We
14
therefore affirm the court’s judgment in favor of Capitol on its
cause of action for fraudulent conveyance against Topolewski.
B. Punitive damages
In addition, Topolewski contends that the court’s award of
punitive damages was not supported by sufficient evidence of his
financial condition. We agree.
Civil Code section 3294, subdivision (a) permits an award of
exemplary or punitive damages “for the breach of an obligation
not arising from contract, where it is proven by clear and
convincing evidence that the defendant has been guilty of
oppression, fraud, or malice.” The purposes of punitive damages
are to punish the defendant for the conduct that harmed the
plaintiff and deter the commission of future wrongful acts. (Civil
Code § 3294, subd. (a); Neal v. Farmers Insurance Exchange
(1978) 21 Cal.3d 910, 928, fn. 13 (Neal).) “The ultimately proper
level of punitive damages is an amount not so low that defendant
can absorb it with little or no discomfort [citation], nor so high
that it destroys, annihilates, or cripples the defendant.
[Citations.]” (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 621–
622.)
“[A]n award of punitive damages cannot be sustained on
appeal unless the trial record contains meaningful evidence of the
defendant's financial condition.” (Adams v. Murakami (1991) 54
Cal.3d 105, 109 (Adams).) “[A] plaintiff who seeks to recover
punitive damages must bear the burden of establishing the
defendant’s financial condition” (id. at p. 123); punitive damages
may not be based on speculation (id. at p. 114).
The Supreme Court has not “prescribe[d] any rigid
standard for measuring a defendant’s ability to pay.” (Adams,
supra, 54 Cal.3d at p. 116, fn. 7.) “Accordingly, there is no one
15
particular type of financial evidence a plaintiff must obtain or
introduce to satisfy its burden of demonstrating the defendant's
financial condition. Evidence of the defendant's net worth is the
most commonly used, but that metric is too susceptible to
manipulation to be the sole standard for measuring a defendant's
ability to pay.” (Soto v. BorgWarner Morse TEC Inc. (2015) 239
Cal.App.4th 165, 194 (Soto).) “Yet the ‘net’ concept of the net
worth metric remains critical.” (Ibid.) “‘Thus, there should be
some evidence of the defendant’s actual wealth’ [citation], but the
precise character of that evidence may vary with the facts of each
case [citations].” (Id. at pp. 194–195.) “Normally, evidence of
liabilities should accompany evidence of assets, and evidence of
expenses should accompany evidence of income.” (Baxter v.
Peterson (2007) 150 Cal.App.4th 673, 680 (Baxter).) “The
evidence should reflect the named defendant’s financial condition
at the time of trial.” (Soto, supra, 239 Cal.App.4th at p. 195.) We
review the award of punitive damages for substantial evidence.
(See Baxter, supra, 150 Cal.App.4th at p. 681.)
Topolewski argues that there was “no evidence” of his
financial condition “other than that he is the one hundred percent
owner of Metal Jeans which had significant earnings in 2020 and
2021 and that his net worth was in excess of $78,000.” This does
not accurately summarize his testimony on his assets and
earnings. As the trial court found, Topolewski testified that he
had substantial assets and earnings, including approximately
$100,000 from book sales and $25,000,000 from just two years of
sales from Metal Jeans, and that he currently had several million
dollars in the bank account for Metal Jeans.
However, we agree with Topolewski that Capitol did not
satisfy its burden of proving he had the ability to pay a punitive
16
damages award, as Capitol presented no evidence of Topolewski’s
liabilities or expenses. Capitol’s counsel failed to question
Topolewski at trial on the topic and did not ask Topolewski to
produce any documents regarding his net worth. Nor did Capitol
request to conduct discovery about Topolewski’s financial
condition after establishing a prima facie case for punitive
damages. Presenting evidence about Topolewski’s income and
assets, alone, was insufficient to establish his financial condition
or ability to pay $100,000 in punitive damages. (See Soto, supra,
239 Cal.App.4th at p. 195 [reversing punitive damages award
where the evidence of the defendant’s assets “was, at best,
pertinent to only half of [the defendant’s] balance sheet and
therefore was not, standing alone, meaningful evidence of [the
defendant's] financial condition”]; Baxter, supra, 150 Cal.App.4th
at p. 681 [same].) Indeed, the only evidence of Topolewski’s net
worth was his testimony, elicited by his own attorney, that he
was not insolvent and his assets exceeded $70,000. Capitol
asserts that Topolewski’s testimony regarding his assets and
income was sufficient, but it offers no argument regarding the
lack of evidence of his liabilities.
On this record, we must conclude that there was
insufficient evidence of Topolewski’s financial condition to enable
us to make an intelligent assessment of his ability to pay a
punitive damages award. Accordingly, we reverse the award of
punitive damages. Where, as here, a punitive damage award is
reversed based on the insufficiency of the evidence, the plaintiff is
not entitled to a retrial of the issue. (See Soto, supra, 239
Cal.App.4th 165, 198; Baxter, supra, 150 Cal.App.4th at p. 681;
Kelly v. Haag (2006) 145 Cal.App.4th 910, 919-920.)
17
C. Amount of judgment
Topolewski also argues that Capitol failed to offer sufficient
evidence to prove the amount of the judgment and therefore that
the court erred by entering it. Curiously, Topolewski contends
that no proof was offered “other than by exhibit,” and notes that
Capitol’s witness, Framke, did not testify about the amount of the
judgment. As Topolewski acknowledges, Capitol introduced as
exhibits at trial the original 2008 judgment, the renewed
judgment in 2017 with additional interest, and the document
recording the renewed judgment in January 2018. The parties
stipulated to these exhibits at trial and the court accepted them.
Topolewski does not offer any basis to challenge these exhibits on
appeal. Moreover, he raised no objection below to the amount of
the judgment or the calculation of interest, nor does he raise any
specific objection supported by authority here. He has therefore
forfeited the issue. (See Kashmiri v. Regents of University of
California (2007) 156 Cal.App.4th 809, 830, quoting Newton v.
Clemons (2003) 110 Cal.App.4th 1, 11 [“‘Generally, issues raised
for the first time on appeal which were not litigated in the trial
court are waived.’”]; see also County of Butte v. Emergency
Medical Services Authority, supra, 187 Cal.App.4th at p. 1196, fn.
7; In re S.C., supra, 138 Cal.App.4th at p. 408, citation omitted.)
D. Statement of decision
Finally, Topolewski contends that Capitol failed to submit a
proposed statement of decision as ordered by the court. The
record reveals that Capitol submitted a proposed statement of
decision; indeed, Topolewski filed objections to that document.
While it does not appear that the court ever signed or filed a
statement of decision, Topolewski does not raise any claim of
error, other than requesting “such relief as is necessary and
18
appropriate.” As such, Topolewski has forfeited a right to assert
any error from the trial court’s failure to issue a statement of
decision. (See County of Butte v. Emergency Medical Services
Authority, supra, 187 Cal.App.4th at p. 1196, fn. 7; In re S.C.,
supra, 138 Cal.App.4th at p. 408.) We also note that any error
would be harmless, as the judgment included the findings
supporting the court’s decision. (See F.P. v. Monier (2017) 3
Cal.5th 1099, 1115 [“we have consistently held that factual
findings and legal conclusions in the judgment satisfied the
statutory requirements”].)
DISPOSITION
The award of punitive damages is reversed. The remainder
of the judgment is affirmed. The parties shall bear their own
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
CURREY, P.J.
ZUKIN, J.
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