Rosilho v. Young

• Decision Date: 17 December 2014
• Docket Number: B249011
• Court: California Court of Appeals Court of Appeals
• Parties: MAURICIO ROSILHO, Plaintiff and Respondent, v. DAVID LI-MIN YOUNG, Defendant and Appellant.

MAURICIO ROSILHO, Plaintiff and Respondent, v. DAVID LI-MIN YOUNG, Defendant and Appellant.

B249011

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

December 17, 2014

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BC457174)

APPEAL from an order of the Superior Court of Los Angeles County, Robert L. Hess, Judge. Affirmed.

Law Office of Steven P. Chang, Gene H. Shioda and Berk W. Nelson for Defendant and Appellant.

Duane Morris, Cyndie M. Chang, Yvette D. Roland, and Christopher B. Yeh for Plaintiff and Respondent.

INTRODUCTION

David Li-Min Young appeals from a pretrial order granting a preliminary injunction prohibiting him from accessing bank accounts and selling real property, pending trial of respondent Mauricio Rosilho's claims against him for fraud. He contends there was insufficient evidence to support the grant of the preliminary injunction, and that the injunction was overbroad. Following issuance of the preliminary injunction, a trial was held at which the jury found appellant liable for fraud and awarded respondent $941,250 in damages and punitive damages. Thereafter, the trial court awarded respondent prejudgment interest in the amount of $843,599.90, and entered a judgment containing a new preliminary injunction.

Respondent contends the instant appeal is moot, as the initial preliminary injunction is no longer in effect. Alternatively, respondent argues the trial court did not abuse its discretion in granting the preliminary injunction. We conclude the appeal is not moot, but discern no reversible error in the court's issuance of the initial preliminary injunction. Accordingly, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On July 20, 2011, respondent, a resident of Brazil, filed a first amended complaint against appellant Young, Jimmy C. M. Chen, and various Roe defendants.¹ The complaint alleged that respondent and appellant were joint owners of two parcels of real property located in Los Angeles County. It further alleged that on or about August 29, 2003, appellant caused respondent's interest in the two properties to be conveyed to himself by executing two grant deeds purporting to contain respondent's signature. It was alleged that Chen notarized the forged deeds despite actual knowledge that respondent had not signed thedocuments. The complaint noted that the grant deeds had signatures and printed names for "Rosilho Mauricio," although respondent's actual name is "Mauricio Rosilho." Appellant then allegedly sold the properties on or about September 23, 2003, for an amount not less than $2,030,000. The complaint alleged that because defendants fraudulently concealed the facts from respondent, he did not learn of the improper transfer of his interest in the properties until July 2010. The complaint sought damages of not less than $676,666 (respondent's share of the sale proceeds), a declaration that the grant deeds were void and should be set aside, disgorgement, restitution, punitive damages, attorney fees and costs, and any other relief deemed just and proper.

On March 5, 2013, respondent filed an ex parte application for a temporary restraining order (TRO) and preliminary injunction to freeze appellant's assets. Respondent sought to enjoin appellant, his employees and agents, his corporate entities, and all other persons acting in concert with appellant, (1) from withdrawing, transferring, or disposing of any money obtained in any bank or accounts, and (2) from selling, transferring, encumbering or disposing of any assets or real property owned and/or controlled by appellant, including, without limitation, (a) real property located at 5043 Sereno Drive, Temple City, California, and (b) real property located at 1085 San Marino Avenue, San Marino, California. Respondent noted that aside from the two identified properties, he had been unable to identify any other California properties owned by appellant. According to respondent, good cause existed for a TRO because appellant, a resident of Brazil, "appears to [be] in the process of divesting his California assets in order to be judgment-proof in the event [respondent] obtains a judgment against [appellant] in this action. As recently as February 8, 2013, [appellant] was present at the 5043 Sereno Drive property, where he forced his 96-year-old mother and his nephew,both current residents, to move out of the property, and told relatives who were present that he was doing so in order to sell the property as soon as possible, by March, due to this lawsuit." Respondent contended that he was entitled to a preliminary injunction because (1) it was likely respondent would prevail on his claims against appellant, and (2) the interim harm respondent would suffer if an injunction were not issued outweighed the interim harm appellant would suffer if the injunction were issued.

In support of the application, respondent submitted declarations from three of appellant's relatives. Marina Chung, appellant's sister-in-law, stated that appellant had evicted her son (Jonathan Chung-Young) and appellant's mother, who was 96 years old and suffering from dementia, from the Sereno Drive property on February 8, 2013. Appellant's nephew, Chung-Young, stated that he was present during the eviction process. Teresa Landis, appellant's niece, stated that appellant informed her he had moved his mother out of the house in which she had been living for the last 16 years because he intended to sell it. Appellant also told Landis he needed to sell the Sereno Drive property as soon as possible, as he was involved in a lawsuit. He already had moved some of his mother's belongings to storage. All three declarants stated that appellant was present at the house on February 8.

Concurrent with the application, respondent moved for discovery sanctions. In the motion for sanctions, respondent contended that appellant had improperly hindered respondent's efforts to take his deposition in Los Angeles. Respondent noted that on February 8, 2013, respondent's counsel told the court that appellant could not afford to travel to the United States to have his deposition taken in Los Angeles, and said appellant could not be reached because of a "time difference." In fact, appellant was in Los Angeles County, evicting his mother from the SerenoDrive property. Respondent sought sanctions in the amount of $31,242 for reimbursement of fees and costs.

Appellant opposed the TRO application. He argued that respondent's application was effectively a broad writ of attachment not in compliance with the attachment statute. In a declaration, appellant admitted he was in Los Angeles from January 30 through March 1, 2013, but contended he was in the United States to assist his mother. He stated that his mother had called him to say she was being abused by Marina Chung and Jonathan Young-Chung, and he had promised to take care of her immediately. He denied that his mother had dementia. Appellant further stated that he had arranged for his mother's admission into a care facility, and for movers to come to the property on February 8, 2013. He denied telling anyone he was planning to sell the Sereno Drive property. He argued there was no credible evidence that he was divesting his assets. He stated that the monies in the bank accounts were to pay for his mother's expenses, and that neither the Sereno Drive property nor the San Marino property were listed for sale. Finally, appellant argued that respondent would likely not prevail on the claims against him, as there was no evidence he had forged respondent's signature, and the statute of limitations barred recovery.

Respondent filed a reply, arguing that appellant's factual assertions lacked credibility. Respondent noted that appellant claimed to have learned of the abuse of his mother in December 2012, but did not come to Los Angeles to assist her until a month later. Respondent further observed that if appellant had sought to protect his mother from abuse by Chung and her son, he could easily have evicted them, while permitting his mother to remain in the house she had occupied for 16 years. Chung filed a further declaration, disputing the claims of elder abuse and attaching pictures of the medications appellant's mother was taking for herdementia. Landis also filed a further declaration, stating, "I specifically remember that on February 8, 2013, David Young told me that he needed to sell off of [sic] his properties in the United States, including the 5043 Sereno Drive property, and he said he had already sold 1085 San Marino Ave. property, because of this lawsuit."

At the March 6, 2013 hearing on the TRO application, the trial court noted its surprise at learning that appellant had been in the United States on February 8, the day his counsel (Berk W. Nelson) led the court to believe appellant was in Brazil. Nelson responded that he had been told appellant was in Brazil. The court noted, "[I]t is apparent to me that things that were apparently conveyed to you by your client were either omitted, material things, or they were inaccurate." When asked by the court what harm would occur if the TRO were granted, counsel stated appellant would be denied access to his assets for his "financial well-being." The court rejected the argument, noting that appellant's counsel previously had represented that appellant had assets outside the United States. It granted the TRO and set the hearing on the motion for a preliminary injunction for March 29, 2013.

At the March 29, 2013 hearing, attorney Stephen Chang appeared for appellant. When the trial court brought up the prior representation by attorney Nelson that appe...