Kamell v. Yassa
| Decision Date | 19 August 2019 |
| Docket Number | B286632 |
| Parties | RAFIK KAMELL, Plaintiff and Appellant, v. NASSER YASSA, Defendant; SHAWNEE SAAS, Third Party Claimant and Respondent. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. VC053460)
APPEAL from a judgment of the Superior Court of Los Angeles County, Lori Ann Fournier, Judge. Affirmed.
Rafik Kamell, in pro. per., for Plaintiff and Appellant.
The Law Office of Herb Fox and Herb Fox for Third Party Claimant and Respondent.
____________________ Plaintiff Rafik Kamell appeals from a judgment entered in favor of Shawnee Saas following a bench trial on Saas's third party claim. Saas filed her claim after Kamell obtained a writ of execution to enforce a judgment against defendant Nasser Yassa and levied funds in Saas's bank account. Kamell asserted Yassa and Saas were married, and the funds were therefore community property. The trial court found Saas met her initial burden to show her entitlement to the funds, and the burden shifted to Kamell to show a superior interest. Kamell presented witness testimony and circumstantial documentary evidence to prove Yassa and Saas were married. The court found Kamell had not carried his burden to prove a legal marriage between Yassa and Saas.
On appeal Kamell contends the trial court erred by depriving him of the opportunity to cross-examine Saas at the hearing and relying on the hearsay declarations of Yassa and Saas. Although Kamell is correct the declarations of Yassa and Saas were hearsay, any error by the trial court in considering the declarations was harmless. We affirm.
On June 21, 2011 the trial court entered a judgment enforcing a settlement agreement between Kamell and Yassa, under which Yassa was required to pay Kamell $80,000 in three payments.1 The judgment ordered Yassa to make the final payment on which he had defaulted, for $40,000 plus interest.
On May 11, 2017 Kamell obtained a writ of execution for $63,982.88 on the unpaid judgment, including statutory costs and accrued interest. The sheriff issued a notice of levy on bank accounts held by Kamell and Saas, based on Kamell's declaration he was "informed and believe[d] that Shawnee Saas aka Shawnee Meeks is the spouse of Judgment Debtor Nasser Yassa, and therefore, under [Code of Civil Procedure section] 695.020, the levy is appropriate."2
On May 24, 2017 Saas filed a verified third party claim asserting her account funds had been wrongfully levied because the funds were her property alone, and she was not married to Yassa. Saas attached a declaration stating she was "a single woman, not married and not anyone's registered domestic partner," and she was not married to or the spouse or registered domestic partner of Yassa. Saas attached a letter from her bank's financial center operations manager Jesse Hernandez-Flores, which stated Saas opened the subject account and "is the sole owner of [the] account with no other signers."
On June 8, 2017 Kamell filed a petition and ex parte application requesting a hearing on Saas's third party claim.3 The trial court set a hearing for July 20, with Kamell's opposition due by July 11 and Saas's reply due by July 17.
On July 12 Kamell served his opposition on Saas's counsel, in which he argued Saas could not meet her burden to show she was not married to Yassa. Kamell attached his own declaration and one from Ashraf Riad. Kamell and Riad both declared Yassa had told them in 2010 he had married Saas and adopted Saas's daughter. Kamell also attached documents showing Yassa and Saas made three donations to the Menlo Park-Atherton Education Foundation as "Shawnee and Nasser Yassa."
In her reply, Saas asserted she had met her burden to show her entitlement to the account funds because the account was in Saas's name alone, and the funds were her sole property. Saas argued it was Kamell's burden to show she was married to Yassa, which Kamell failed to do because his evidence did not satisfy the legal requirements to prove a marriage pursuant to the Family Code. Saas attached a declaration, in which she declared she was "a single woman" and "the sole owner of [the levied bank] account and no one but [Saas] has signing authority." Saas declared she had "legally changed [her] daughter's name to have the surname Yassa" because Yassa had "assumed the role of her father inprinciple, even though he is not her biological father," and "he has not legally adopted [Saas's] daughter." Saas attached as an exhibit the letter from her bank's operations manager stating she was the sole owner of the account.
Yassa submitted a declaration in support of Saas's third party claim, stating, "I am not now and have never been married to Saas, in any fashion whatsoever." Yassa also disclaimed any "any right, title and/or interest of any nature" in the levied account funds. He denied ever telling Kamell and Riad he was married to Saas.
On July 20, 2017, the day of the hearing on Saas's third party claim, Kamell filed two motions in limine to exclude the declarations of Yassa and Saas filed in support of Saas's reply. Kamell argued he was entitled to a bench trial on Saas's claim, and the declarations were inadmissible hearsay.
Yassa and Saas were each represented by counsel at the hearing, but neither personally appeared.4 The attorneys for Yassa and Saas argued Kamell was not entitled to call witnesses because during the June 8 hearing on his ex parte application Kamell's prior counsel had stipulated to the third party claimbeing decided on the briefing and declarations.5 Kamell's counsel denied Kamell had waived his right to call witnesses at the hearing.
The trial court overruled Kamell's objections to the declarations of Yassa and Saas. Relying on the letter from the bank's operations manager, the trial court found Saas had met her initial burden to show her entitlement to the account funds. The trial court found the burden therefore shifted to Kamell, and it directed him to call his witnesses. Kamell's counsel protested that Saas was not present at the hearing: "I believe . . . you are depriving us of our opportunity to cross-examine the claimant." The court responded, "You could have subpoenaed her if that's what you wanted to do."
Riad and Kamell testified on Kamell's behalf. Riad testified he previously lived with Kamell and Yassa, until Yassa moved to San Francisco. On July 19, 2010, the date on which Yassa and Kamell entered into the underlying settlement agreement, the three men had dinner at their former residence. During the meal, Yassa told Riad, 6Riad understood Yassa was married to a woman named Shawnee. On cross-examination Riad acknowledged he had not seen a marriage license between Yassa and Saas. Yassa said he had moved to San Francisco to get married, and to Riad's knowledge, Yassa was still living there. Riad did not know the exact location of the wedding or who attended or performed the ceremony.
Kamell testified he had lived with Yassa until 2009, when Yassa left to move in with Saas. In 2010 Yassa told Kamell he was "living with [Saas] in [her] house along with his adopted daughter." Yassa twice told him he had married Saas. Yassa told Kamell the marriage was a secret from Saas's ex-husband.
Kamell hired a private investigator in his effort to collect on the judgment. According to Kamell, the investigator located a declaration by Saas filed in a civil action in San Mateo County in 2013 regarding a change of name for Saas's daughter.7 The investigator also located documents showing Saas ran a marathon two months earlier using the name "Shawnee Yassa," and Yassa and Saas made several donations to the school of Saas's daughter in the names "Nasser and Shawnee Yassa." The trial court took judicial notice of the roster of participants in themarathon and the donation records, all of which were taken from public websites.8 Kamell's investigator was not able to locate a marriage license issued to Yassa and Saas, despite searching for a license in "three counties within or around the San Francisco area."
In closing, Kamell's counsel argued Saas had not met her burden of proof with admissible evidence, and Kamell's counsel was "disappointed that [he] did not have the opportunity to cross-examine the witnesses . . . ." Kamell's counsel concluded, "I think there is an incomplete picture here that was short circuited by how this proceeding went down . . . ."
The trial court ruled in favor of Saas, finding Kamell had not met his burden to show a valid marriage between Yassa and Saas. The court explained, The court noted the evidence presented by Kamell...
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