Camp v. Ortega

• Decision Date: 07 November 1962
• Citation: 25 Cal.Rptr. 873,209 Cal.App.2d 275
• Court: California Court of Appeals Court of Appeals
• Parties: Richard E. CAMP, Plaintiff and Appellant, v. Anthony ORTEGA, Defendant and Respondent. Civ. 20082.

Page 873

25 Cal.Rptr. 873

209 Cal.App.2d 275

Richard E. CAMP, Plaintiff and Appellant, v. Anthony ORTEGA, Defendant and Respondent.

Civ. 20082.

District Court of Appeal, First District, Division 1, California.

Nov. 7, 1962.

Hearing Denied Jan. 3, 1963.

Harry C. Rogers, San Francisco, for appellant.

Robert H. Blumenthal, San Francisco, for respondent.

SULLIVAN, Justice.

In this action for damages for conversion plaintiff appeals from a judgment, after a nonjury trial, in his favor and against the defendant Anthony Ortega. The issues on appeal are confined to the amount of damages awarded.

Plaintiff was a motion picture cameraman, recording engineer and electronics technician. In February 1959 he formed with one Hecht a partnership known as the Hecht-Camp Productions. Hecht and the plaintiff then leased from the defendant Ortega certain premises on Jones Street in San Francisco. After a few months there was a disagreement between them, Hecht left and the plaintiff continued the business alone with hope of finding a new associate. In view of the present issues, the subsequent events need not be set forth in detail. It is sufficient to note that in the latter part of August and just when plaintiff thought that he had secured a new associate, the defendant locked the plaintiff out of the leased premises and claimed all of the property contained therein as his own. Included among such property was personal equipment of the plaintiff which is the subject of the present action. Plaintiff's demands for the return of this were met with refusal. Shortly thereafter defendant formed a partnership with Hecht in order to continue the business.

The trial court found and concluded that on or about August 24, 1959, the plaintiff owned and possessed certain specifically described tools, recordings, photographic, office and miscellaneous equipment of a reasonable value of $8,000; that such equipment was subject to the lien of a chattel mortgage in the sum of $4,600 held by a person other than the defendant; that on or about August 24, 1959, the defendant unlawfully lawfully and wrongfully took the described property and converted it to his own use; that the defendant refused to return it; that the plaintiff was indebted to the defendant in the sum of $275 for rent; and that the plaintiff was entitled to judgment in the sum of $3,125. Judgment was rendered accordingly. ¹

Plaintiff makes two contentions on appeal: (1) That the finding that the reasonable value of the converted property was $8,000 is not supported by the evidence, the uncontradicted evidence showing such value to be in excess of $25,000; and (2) the court erred in deducting from the reasonable value of the property, the amount of the lien of the chattel mortgage thereon. We discuss these in the above order.

The converted property as listed in the findings of the court consists of 102 items. Evidence of its value, introduced by plaintiff, falls into three categories: the plaintiff's own testimony, expert opinion evidence of the witness Jack Rochlin, and valuations shown in a cinema supply catalog. The defendant introduced no evidence of value.

The plaintiff testified as to the value of each of the 102 items on the list. Such testimony on its face produced a total value for all in the sum of $28,642. He was cross-examined at length and in detail. It is apparent to us that the purpose of this cross-examination was not only to show that the plaintiff's statements as to value were exaggerated and inaccurate but to directly attack the plaintiff's credibility by showing that under the circumstances he could not have acquired property of such great value. From our reading of the record, including the character as well as the content of the plaintiff's answers, it is fair to say that plaintiff's claims of valuable property could have well taken on a new appearance when examined by the trier of fact under the spotlight of such interrogation.

We note some of the salient points. On direct examination, plaintiff testified item by item as to the value he placed thereon. At the outset of the cross-examination on this subject, it became apparent that plaintiff had acquired his property over a period of time. He was thereupon asked how much he had spent for it during the three-year period immediately preceding August 1959, the date of the alleged conversion. His answer was that he had spent $6,000 to $10,000 'with trades.' However it also appeared that during this three-year period the plaintiff had operated at a loss. When asked to explain the source of the $10,000, he claimed that he obtained it from an inheritance. In the light of these financial circumstances, a subsequent inquiry as to the source of funds necessary to defray living expenses brought the answer that plaintiff had actually received some of the equipment as gifts and had survived the financial crisis which the above answers import by the expedient of loans of several thousand dollars from friends. We of course have no way of reproducing here plaintiff's appearance during these and other inquiries and the manner in which he responded to them, all of which was before the trier of fact.

The testing of plaintiff's claims as to the valuable character of his property was then applied to the period from 1949 or 1950 to 1956. Although at first claiming that he could not state how much he had spent during these years, he later testified that 'twenty to thirty thousand dollars' worth was obtained through trade and cash.' Subsequent inquiries were directed to the question whether his income during such period would permit expenditures of such magnitude. Plaintiff's first replies on this point were to the effect that he couldn't remember. He was ordered to produce copies of his income tax returns and such copies of federal individual returns for nine calendar years from 1950 through 1958 were admitted in evidence. These documents were admitted in evidence over plaintiff's objection on the sole ground of their materiality. They showed that although plaintiff had but one exemption, his own, he paid no tax at all in five of the years and inconsequential amounts in the remaining four.

The cross-examination sought verification of value in other ways. Inquiries were made to verify cost. As to some items, plaintiff responded that he had no written verification since he paid for the equipment in instances in sizeable amounts with currency. No receipts were produced, plaintiff claiming that he did not know where they were, that some were in storage and that some, as he believed, were on the Jones Street premises. Nor did plaintiff produce records showing the value of the property in controversy for personal property taxation. His testimony as to the amounts of personal property taxes he paid over the years would appear to be vague and inconclusive. A so-called 'floater policy' of insurance issued in May 1959 was introduced in evidence during the direct examination of plaintiff. Plaintiff's property which was scheduled for the policy appears to have a total value of $13,500, was considered by the trial judge to have a total scheduled value of $15,000. Plaintiff testified that only part of his equipment was covered by such insurance issued to Hecht-Camp Productions and that the policy had been taken out prior to the time he had brought his equipment on the premises.

The schedules of depreciation in plaintiff's tax returns, copies of which were in evidence, were also brought to the court's attention. In the return for 1958, the year before the conversion of the property, the schedule lists 'Lathe & presses' acquired in 1951 at a cost of $775 and 'Misc. equipment' acquired in 1952 at a cost of $500. The above amounts appear in all of the other returns except 1954 when apparently no depreciation was taken. Plaintiff claimed that this schedule on his 1952 return, which described his business as 'General precision repairs,' did not represent all his personal property, since his business then was designing and building photographic equipment and that he was merely accumulating equipment for his contemplated motion picture business. However, his 1958 tax return showed his occupation to be 'Cameraman & instrument repairman.' The trial court considered the value of the property as shown on the income tax returns to be $500.

The second category of plaintiff's evidence on value consisted of the opinion evidence of Jack Rochlin who had been engaged in the business of selling new and used photographic equipment and supplies for approximately 15 years. Such experience included recording equipment. Rochlin testified as to the value of 19 of the 102 items of converted property, his testimony producing on this record an aggregate value for such items of from $13,039 to $13,289. He had seen the equipment in the basement of the Jones Street premises two days before he was called as a witness. He testified that he 'found a lot of photographic equipment and miscellaneous equipment piled in a heap,' that '[i]t was very difficult to actually see the exact piece of equipment * * *' and that 'it was very difficult to observe the actual condition * * *.' In instances, the witness, when giving his opinion as to value, assumed that the item was in good condition and upon cross-examination, admitted that all of his estimates as to value were based on the assumption that all of the equipment was in good working condition. Despite the fact that he had given statements of value, the witness testified on cross-examination that he himself would not offer to buy a certain camera unless he thoroughly examined it, that assuming it was in 'perfect working condition' he would probably offer $400 to $600 (although he had given a value of $1,000 on direct examination) and that he would not bid on the photographic equipment which he had seen 'unless I thoroughly examined each piece.'

The third category of evidence on value consisted of prices taken...