Judge: Maurice A. Leiter, Case: 23STCV09928, Date: 2023-08-30 Tentative Ruling

Case Number: 23STCV09928    Hearing Date: February 28, 2024    Dept: 54

Hearing Date: February 28, 2024

Department 54, Judge Maurice A. Leiter

Motion for New Trial;

Motion for Judgment Notwithstanding the Verdict

Moving Party: Defendants Loretta Markarian and Alico Markarian

Responding Party: Plaintiff Abnos Boghosian

T/R:      DEFENDANTS’ MOTION FOR NEW TRIAL IS CONDITIONALLY GRANTED AS TO DAMAGES UNLESS PLAINTIFF CONSENTS WITHIN 30 DAYS TO A REDUCED DAMAGE AWARD OF $328,000.00.

DEFENDANTS’ MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT IS DENIED.

DEFENDANTS TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing. 

The Court considers the moving papers, opposition, and reply.

BACKGROUND

On May 3, 2023, Plaintiff Abnos Boghosian sued Defendants Loretta Markarian and Alico Markarian, asserting causes of action for elder abuse, conversion, and quiet title. Plaintiff alleges Defendants wrongfully obtained Plaintiff’s real property.

On January 10, 2024, the jury found for Plaintiff on the cause of action for financial elder abuse and awarded him a total of $900,000 in economic damages, for loss of Plaintiff’s personal property. (The jury awarded $500,000 as to Defendant Loretta, and $400,000 as to Defendant Alico.[1]) The jury also found for Plaintiff against Alico on the cause of action for isolation and awarded an additional $25,000.

The jury found for Defendant Loretta on the cause of action for isolation, and for both Defendants on the causes of action for fraud and conversion. The jury awarded Plaintiff no money for loss of use of real property or for noneconomic damages. The jury found that Defendants did not act with malice, oppression, or fraud; it did not award punitive damages.

On February 16, 2024, the Court issued its final statement of decision on the equitable causes of action for quiet title and declaratory relief. The Court found for Plaintiff on the cause of action for quiet title and ordered Plaintiff to pay Defendants $178,215.98 for improvements and property taxes. The Court found for Defendants on the declaratory relief cause of action.

ANALYSIS

A. Motion for New Trial

“The principal statutory authority for new trial motions is CCP § 657. “The right to a new trial is purely statutory, and a motion for a new trial can be granted only on one of the grounds enumerated in the statute.” (Fomco, Inc. v. Joe Maggio, Inc. (1961) 55 Cal.2d 162, 166.)  The grounds enumerated in CCP § 657 include:

1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.

2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors.

3. Accident or surprise, which ordinary prudence could not have guarded against.

4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.

5. Excessive or inadequate damages.

6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.

7. Error in law, occurring at the trial and excepted to by the party making the application.

(CCP § 657.)

Defendants move for new trial on the grounds that there is insufficient evidence to support the jury’s damage award and that the damage award is excessive.

The Jury answered Special Verdict Question No. 18, which reads, "Economic damages: loss of use of real property. Enter the amount below if you find that Defendant [LORETTA and/or ALICO] is liable to Plaintiff Abnos Boghosian for such damages and specify the legal theories support this element of damages." The Jury found in favor of both Defendants with respect to this element of damages.

The Jury answered Special Verdict Question No. 19, which reads, "Economic damages: loss of Plaintiff's personal property. Enter the amount below if you find that Defendant [LORETTA and/or ALICO] is liable to Plaintiff Abnos Boghosian for such damages and specify the legal theory or all the legal theories supporting this element of damagers." With respect to Question No. 19, the Jury found for the Plaintiff and against both Defendants and determined that Defendant LORETTA MARKARIAN must pay $500,000 in damages to the Plaintiff and that Defendant ALICO MARKARIAN must pay $400,000 in damages for the Plaintiff's loss of personal property.

Defendants argue there was no evidence to support a $900,000.00 award for Plaintiff’s loss of personal property. Defendants speculate that the jury was attempting to award Plaintiff the value of the real property. Defendants assert this is improper because Plaintiff did not pray for these damages. Defendants also argue that, because the Court awarded ownership of the property to Plaintiff, a damage award for the property’s value would be duplicative.

In opposition, Plaintiff argues that the award represents lost rental income and the loss of a $28,000.00 personal injury settlement. (The property is a multi-unit home.) Plaintiff calculates lost rental income as between $187,000.00 and $275,000.00 based on Plaintiff’s testimony of rental income before Defendants’ wrongful conduct occurred. Defendants dispute this interpretation, arguing any rental income would have been awarded under the “loss of use of real property,” rather than “loss of personal property.”

Jury Instruction No. 35 provided the definition of “Loss of Use of Real Property.” It states: “If you find that plaintiff Abnos Boghosian remains the owner of the real property at 326 W. California Avenue, Glendale, California, he would be entitled to damages for the loss of use of plaintiff Abnos Boghosian’s real property. To recover damages for the loss of use, Abnos Boghosian must prove the reasonable cost to rent similar property for the time when he could not use his own property or the benefits obtained by Defendant Loretta Markarian or Alico Markarian or both, because of such wrongful occupation. If there is evidence of both, Abnos Boghosian is entitled to the greater of the two amounts.”

Put another way, Plaintiff would suffer loss of use if he was unable to use his own property and was required to rent another property. This definition does not include loss of rental income (that is, income Plaintiff would have received for renting portions of the property to others). It is undisputed that Plaintiff occupied the real property for the relevant period and was not required to rent other property. The jury found Plaintiff did not incur damages due to any loss of use of the property.

Any loss of rental income properly would be awarded as loss of personal property. This is what the jury found. But there is not sufficient evidence to support a $900,000.00 award for loss of personal property. Applying all inferences in favor of what the jury could have awarded consistent with the evidence, the evidence supports at most $275,000.00 in rental income and $28,000.00 in a personal injury settlement, for a total of $303,000.00. Defendant Loretta’s pro rata share would be 55.5% of this amount, or $168,165.00, and Defendant Alico’s would be 44.5%, or $134,835.00. The Court finds this amount reasonable; the Court also finds that a new trial limited to the issue of damages would be proper.

The Court leaves in place the $25,000 the jury awarded against Alico on the cause of action for isolation.

To remedy the discrepancy in damages, the Court invokes CCP § 662.5, which provides, “In any civil action where after trial by jury an order granting a new trial limited to the issue of damages would be proper, the trial court may in its discretion... If the ground for granting a new trial is excessive damages, issue a conditional order granting the new trial unless the party in whose favor the verdict has been rendered consents to the reduction of so much thereof as the court in its independent judgment determines from the evidence to be fair and reasonable.”

The Court CONDITIONALLY GRANTS the motion for new trial unless Plaintiff consents within 30 days to the reduction of damages from $900,000.00 to $328,000.00.

B. Motion for Judgment Notwithstanding the Verdict

The trial court has limited discretion to grant a motion for judgment notwithstanding the verdict; it may grant it only when there is no substantial evidence to support the verdict. (Teitel v. First Los Angeles Bank (1991) 231 Cal.App.3d 1593, 1603. Campbell v. Cal-Gard Surety Services, Inc. (1998) 62 Cal.App.4th 563, 570.)

Defendants move for judgment notwithstanding the verdict on the same grounds as the motion for new trial. As the Court has determined there was evidence of loss of personal property, this motion cannot be granted.

The Court DENIES Defendants’ motion for judgment notwithstanding the verdict.