Reich v. Hashem CA2/8

Opinion

Filed 9/24/26 Reich v. Hashem CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

JACOB REICH, B322326

Plaintiff and Respondent, Los Angeles County Super. Ct. No. 19STCV20062 v.

MANSOUR HASHEM,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Jon R. Takasugi, Judge. Affirmed. Louis P. Dell for Plaintiff and Respondent. Jeff Dominic Price for Defendant and Appellant. ____________________ Jacob Reich and Mansour Hashem agreed to improve a property owned by Reich and to share the profits. Hashem did not fulfill his part of the bargain, and a jury awarded Reich damages. We affirm the jury’s results, as well as the trial court’s decision not to disturb those results. I We construe facts in the light favorable to the judgment. (David v. Hernandez (2014) 226 Cal.App.4th 578, 581.) In 2018, Reich and Hashem made an oral agreement about the Atlanta Drive property Reich owned. As contractor, Hashem would improve the property so it could be sold for gain. Reich would fund the improvements. The deal required Hashem to pay Reich half the costs of the improvements and half the value of the property by February 2019. The property value would be the amount of a purchase offer Reich had declined at Hashem’s behest, minus the value of the property as of February 2019. Reich and Hashem would then be equal co-owners of the property. They expected Hashem’s improvements would allow them to sell the property for more than the declined offer. The two planned to divide the proceeds from this anticipated sale. Later that year, Reich wanted to memorialize the agreement, so the men wrote down the monetary terms and signed a one-page document. It included the amount of the declined purchase offer, how Hashem’s eventual payment was to be calculated, and how he would obtain the funds to pay it. Hashem botched the job. His concrete deck collapsed, and making things right would cost over $300,000. Hashem also refused to make his contractual payments. Reich sued Hashem. The operative complaint is the third amended complaint, filed April 12, 2021. No reporter transcribed the trial testimony. The parties created daily joint summaries of the trial evidence. Each daily summary was a few pages long. The record includes summaries for the following trial days:

2 1. March 22, 2022 2. March 23 (incorrectly dated March 24, but continues where March 22 left off and leaves off where the following March 24 continues) 3. March 24 4. March 27 Excluding cover pages, our record contains about eight pages of notes describing the testimony given and listing the exhibits admitted. The final settled statement provided for the record in this appeal includes these daily joint summaries, but no other recitation of findings of fact. According to the “Agreed and Contested Jury Instructions”, the parties agreed on almost all the jury instructions before trial. The parties’ stipulations revised the special verdict forms into a single form. The jury found for Reich, delivering a special verdict that a contract was formed, that Hashem had breached it, and that specified the damages Hashem owed Reich. Hashem moved for a new trial or a judgment notwithstanding the verdict. The trial court denied this motion. Hashem appeals this ruling. II We address Hashem’s requests for a new trial and for judgment notwithstanding the verdict. The two standards of review vary slightly. A Motions for a new trial based on insufficiency of the evidence are within the sound discretion of the trial court. We review the trial court’s fact finding for substantial evidence, while 3 we independently review conclusions of law. (Hernandez, supra, 226 Cal.App.4th at p. 589.) The trial court succinctly explained the verdict’s sound logic. “First, the damages awarded for breach of contract are adequately supported by evidence and law. Defendant argues that the jurors failed to follow the proper measure of damages here because the jury verdict is in excess of the purchase price as provided for in the agreement, and failed to take the value of the real property retained by the seller as an offset. However, the Joint Jury Instruction No. 3903 clearly set forth the formula for how the jurors were to calculate contract damages: [($620,000 + all expenses paid on the property from 7/1/2018-2/15/2019) – the fair market value of the property on 2/15/2019] / 2. Plaintiff introduced evidence to argue $117,281.08 in corrective expenses, and an appraiser was called as an expert witness to testify as to the value of the property. The appraiser testified that the value of the property on 2/15/2019 was $477,000.00. Accordingly, Plaintiff introduced evidence which could show that he was entitled to, at most, $130,140.54 (($620,000 + 117,281.08 - 477,000)/2.) Jurors awarded $117,281.08. As such, the evidence indicates that jurors followed the Joint Jury Instruction in calculating damages, and awarded an amount that was within the range supported by evidence.” “Second […] the damages awarded for negligent construction and unpaid loans were similarly supported by adequate evidence. As for the [negligent construction], Plaintiff introduced a number of photo exhibits to show the construction damage to the home, introduced evidence that he had already incurred $81,430.16 in repair costs, and called an expert witness 4 that testified that the cost of remaining repairs would total $309,096. As such, the jury’s award of 390,526.86 ($309,096 + $81,430.16) is supported by adequate evidence. As for the [unpaid loans], Plaintiff testified that he lent a total of $35,000, and introduced nine checks into evidence that totaled $34,200.00. The [jury] awarded $34,200, and thus the Court finds that award supported by adequate evidence.” The trial court’s analysis includes one mistake in the numbers – the jury actually awarded a smaller amount for the negligent construction – but this mistake was inconsequential because the jury’s award was within the range supported by the evidence. The trial court had a firm grip on the case and convincingly explained the evidentiary basis for the jury’s rational action. This is model trial court decisionmaking. B The moving party may appeal from the judgment or from the order denying the motion for judgment notwithstanding the verdict, or both. (Code Civ. Proc., § 904.1, subd. (a)(4) [making such an order appealable].) The standard of review is whether substantial evidence supported the jury’s conclusion. (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.) As we have seen, substantial evidence supported the jury’s findings. Hashem disputes this evidence, which on appeal is a vain effort. The jury was entitled to believe Reich’s proof. (Cf. Estate of Fain (1999) 75 Cal.App.4th 973, 992 [we presume the judgment is correct when there is no reporter's transcript and no error is apparent on the face of the record].) C Hashem also faults the jury instructions and the special verdict form. As stated, the parties agreed on almost all the jury 5 instructions, including those Hashem now challenges, before the trial. The trial court also memorialized the fact the parties reached an agreement as to the final form of the jury instructions and the special verdict form before these were given to the jury. Hashem’s first claim on this subject is that jury instruction CACI 328, “Breach of Implied Duty to Perform with Reasonable Care –– Essential Factual Elements” was misleading and prejudicial. The instruction as given read, in part, “The parties’ contract requires that Mansour Hashem negligently constructed a deck on the Atlanta Dr. property.” We read this language together with the rest of the instruction. It goes on to say Reich “claims Mansour Hashem breached this implied condition” and describe the elements required to establish the claim, including that Reich must establish the parties entered into a contract at all. Hashem’s second jury instruction claim is the jury received the wrong instruction concerning how to assess damages for Hashem’s negligent construction of the deck which collapsed. He says that the correct instruction would have been CACI 354, “Owner’s/Lessee’s Damages for Breach of Contract to Construct Improvements on Real Property”, which provides that to recover damages for breach of a contract to construct improvements on real property, the plaintiff must prove the reasonable cost to plaintiff of completing the work. Reich did provide evidence of this cost: as noted in our description of the facts, an expert witness opined it would cost over $300,000 to remove and properly replace the collapsed deck. There is no indication Hashem objected to any of these instructions at trial. It appears he agreed to all of them.

6 To simplify matters, however, we will assume there was legal error in the instructions. Even so, there was no miscarriage of justice. The jury found contracts existed, found Hashem had breached them, and specified the resulting damages. This was an eminently sensible result. There was no prejudice. Regarding the special verdict form, Hashem asserts it lacked specificity as to the findings necessary to support the judgment. Hashem tells us this form was insufficiently specific. Now he claims it should have required more findings. Hashem, however, forfeited this argument by agreeing to this verdict form in the trial court. (E.g., Behr v. Redmond (2011) 193 Cal.App.4th 517, 529–530.) D Hashem’s final contention is the judgment must be reversed as to the claim for negligent construction because that claim was subject to a demurrer for failure to state facts in the operative complaint sufficient to support the claim. He acknowledges he did not demur at the trial court, but says he need not have demurred because “[t]he objection that a complaint does not state facts sufficient to constitute a cause of action may be raised at any stage of the proceedings and, even for the first time on appeal.” (McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 283 (McAllister).) Hashem’s briefing cites the fact McAllister quotes here from Horacek v. Smith (1948) 33 Cal.2d 186, 191 (Horacek). Horacek goes on to note that, because material facts may be alleged on information and belief, any failure more specifically to state the circumstances is one of uncertainty or ambiguity that 7 could have been cured if brought to the trial court’s attention. “In the absence of a demurrer, such a defect is waived.” (Ibid.) Had Hashem demurred to the cause of action for negligence, Reich would have had the opportunity to correct pleading deficiencies. Hashem cannot wait until after trial to attack the pleadings. This conduct forfeits this argument. DISPOSITION We affirm the order and award costs to Reich.

WILEY, ACTING P. J.

We concur:

VIRAMONTES, J.

SCHERB, J.