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ALI ABOU ARABI, Plaintiff and Appellant, v. BAHAA ELMASRY et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Plaintiff Ali Abou Arabi (plaintiff) appeals from the judgment entered for defendants Bahaa Elmasry and Lillian Elmasry (defendants) pursuant to Code of Civil Procedure section 631.8 after plaintiff rested in a court trial.1 The trial court correctly found plaintiff did not prove his claims for fraudulent transfer, intentional interference with prospective economic advantage and negligent interference with prospective economic advantage, and we affirm the judgment.
DISCUSSION
A judgment granted under Code of Civil Procedure section 631.8 will be affirmed if substantial evidence supports the entry of judgment for defendant. (Charles C. Chapman Building Co. v. California Mart (1969) 2 Cal.App.3d 846, 853.) Viewed in the light most favorable to the judgment, the facts are these. Plaintiff had past business dealings with a third party, another defendant who is not part of this appeal, Mohammed Yunes (Yunes). More specifically, Yunes bought a commercial property from plaintiff. Shortly thereafter, plaintiff sued Yunes for fraud based on the property sales transaction. A jury returned a verdict in favor of plaintiff in his lawsuit against Yunes on June 22, 2004, and judgment was entered on July 30, 2004, but that judgment was later vacated. After further proceedings, eventually plaintiff obtained a new judgment against Yunes two years later in June 2006.
Before plaintiff obtained a final judgment against Yunes, defendants bought the real property from Yunes. Before the purchase, plaintiff told defendant Bahaa Elmasry he had obtained a favorable jury verdict, he intended to collect the judgment against the real property, and he did not want defendants to buy the real property from Yunes. Despite this, defendants concluded their purchase of the property a little over a month after the jury returned its verdict for plaintiff in his case against Yunes.
The trial in this case was most notable for the lack of evidence to support plaintiff's claims against defendants. The only evidence in support of the first cause of action for conspiracy to fraudulently transfer the property was that plaintiff had sued Yunes before Yunes sold the property to defendants. There was no evidence of any of the other elements of a fraudulent transfer as defined in Civil Code section 3439.04. There was no evidence that: (1) Yunes sold the property to an insider; (2) Yunes retained possession or control of the property after the sale to defendants; (3) the sale to defendants was concealed; (4) the transfer was of substantially all of Yunes' assets; (5) Yunes absconded; (6) Yunes removed or concealed assets; (7) Yunes sold the property to defendants for less than it was worth; 2 (8) Yunes was insolvent or became insolvent shortly after the sale; (9) Yunes sold the property to defendants shortly before or after a substantial debt was incurred; 3 or (10) Yunes transferred the essential assets of a business to a lienholder who transferred the assets to an insider. Thus, of the 11 statutory factors demonstrating actual intent to hinder, delay or defraud, plaintiff offered evidence of only one factor, that he sued Yunes before Yunes sold the property to defendants. Given this, we find there was substantial evidence to support the trial court's finding that plaintiff did not prove defendants conspired with Yunes in a fraudulent transfer of the property.
The only evidence in support of the second cause of action for intentional interference with prospective economic advantage and the third cause of action for negligent interference with prospective economic advantage was that defendants frustrated plaintiff's intent to execute the Yunes judgment against the property because they bought it before plaintiff could satisfy his judgment. There was substantial evidence to support the trial court's findings that there was no evidence of interference with a prospective business advantage. The defendants had no obligation to forego their purchase because plaintiff might someday obtain an enforceable judgment. We agree with the trial court's conclusion as a matter of law that plaintiff's right to collect on a judgment against Yunes is insufficient to prove a prospective business relationship that supports an interference claim. (See Roth v. Rhodes (1994) 25 Cal.App.4th 530, 546 [“an essential element of the tort of intentional interference with prospective business advantage is the existence of a business relationship with which the tortfeasor interfered”].) We also agree with the trial court that defendants' purchase of the property from Yunes was not wrongful. (See Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 393 [interference with prospective economic relations requires proof of “conduct that was wrongful by some legal measure other than the fact of interference itself”].)
The trial court also found the two causes of action for tortious interference with prospective economic advantage were barred by the two year statute of limitations in Code of Civil Procedure section 339. The trial court correctly found the statute began to run on the day Yunes sold the property to defendants. Plaintiff had both actual and constructive knowledge of the recorded sale of the property. The deed of sale was recorded July 29, 2004. Plaintiff filed this lawsuit July 24, 2007. It is well settled the two year statute of limitations applies to a cause of action for intentional or negligent interference with business relations. (See McFaddin v. H.S. Crocker Co. (1963) 219 Cal.App.2d 585, 591.)
Plaintiff argues the trial court should have permitted him to reopen the case to offer additional evidence to defeat the motion for judgment. Plaintiff has waived that argument on appeal because he never asked the trial court to reopen the case, and he never made an offer to prove any additional facts. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185; In re Aaron B. (1996) 46 Cal.App.4th 843, 846.)
We will briefly address plaintiff's claim the trial court erred in refusing to accept his lawyer's withdrawal as counsel of record after the first day of trial. The determination of whether to grant or deny a motion to withdraw as counsel lies within the sound discretion of the court. (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) Here, the trial lasted two days. The parties had estimated a three day trial on the day they reported ready for trial. However, at the end of the first day, plaintiff's counsel sought to withdraw because he had other business to attend to later that week. The trial court did not abuse its discretion in refusing to let counsel withdraw, and plaintiff has demonstrated no prejudice by the continued representation of his counsel on the second day of trial.
DISPOSITION
The judgment is affirmed. Defendants are to recover their costs on appeal.
We concur:
GRIMES, J. O'CONNELL, J.3
FOOTNOTES
FN1. Defendants moved for nonsuit, which was technically incorrect, since they made their motion in a court trial, not a jury trial, after plaintiff had presented all his evidence. This mistake is treated on appeal as one of form, not substance. It is well established the granting of a motion for nonsuit in such cases is treated on appeal as a motion under Code of Civil Procedure section 631.8. (Commonwealth Memorial, Inc. v. Telophase Society of America (1976) 63 Cal.App.3d 867, 869, fn. 1.). FN1. Defendants moved for nonsuit, which was technically incorrect, since they made their motion in a court trial, not a jury trial, after plaintiff had presented all his evidence. This mistake is treated on appeal as one of form, not substance. It is well established the granting of a motion for nonsuit in such cases is treated on appeal as a motion under Code of Civil Procedure section 631.8. (Commonwealth Memorial, Inc. v. Telophase Society of America (1976) 63 Cal.App.3d 867, 869, fn. 1.)
FN2. Plaintiff offered expert testimony that the property was worth $1,265,000 at the time of the sale to defendants, but plaintiff did not offer evidence of the price defendants paid Yunes, and without that information, plaintiff could not prove the property was sold for less than “reasonably equivalent ․ value.” (See Civ.Code, § 3439.04, subd. (b)(8).). FN2. Plaintiff offered expert testimony that the property was worth $1,265,000 at the time of the sale to defendants, but plaintiff did not offer evidence of the price defendants paid Yunes, and without that information, plaintiff could not prove the property was sold for less than “reasonably equivalent ․ value.” (See Civ.Code, § 3439.04, subd. (b)(8).)
FN3. Plaintiff argued the jury verdict for $35,000 was a substantial debt. The trial court found the verdict was for a substantial sum but since the judgment on that verdict was vacated, the debt represented by the verdict and judgment was also vacated. A new judgment was not entered until almost two years later, which was not “shortly ․ after” the sale. (See Civ.Code, § 3439.04, subd. (b)(10).). FN3. Plaintiff argued the jury verdict for $35,000 was a substantial debt. The trial court found the verdict was for a substantial sum but since the judgment on that verdict was vacated, the debt represented by the verdict and judgment was also vacated. A new judgment was not entered until almost two years later, which was not “shortly ․ after” the sale. (See Civ.Code, § 3439.04, subd. (b)(10).)
FN3. Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.. FN3. Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
BIGELOW, P. J.
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Docket No: B216434
Decided: September 30, 2010
Court: Court of Appeal, Second District, California.
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