Schrage v. Schrage

• Decision Date: 14 May 2021
• Docket Number: B307539
• Parties: LEONARD SCHRAGE, Plaintiff and Respondent, v. MICHAEL SCHRAGE, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

LEONARD SCHRAGE, Plaintiff and Respondent, v. MICHAEL SCHRAGE, Defendant and Appellant.

B307539

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

May 14, 2021

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BC579623)

APPEAL from an order of the Superior Court of Los Angeles County, Daniel J. Buckley, Judge. Affirmed.

Randall S. Waier for Defendant and Appellant.

Jung & Yuen, Curtis C. Jung, and Elizabeth A. Frye for Plaintiff and Respondent.

____________________

INTRODUCTION

Michael Schrage appeals from a postjudgment order directing the levying officer to seize two of his cars from his residence after his brother, Leonard Schrage, obtained a money judgment against Michael and his other brother, Joseph Schrage. The trial court, after granting the motion and issuing its ruling, ordered counsel for Leonard to submit a proposed order. The proposed order counsel for Leonard submitted to the court and served on counsel for Michael later that day included the trial court's ruling, but added a few provisions the court had not mentioned. Counsel for Michael, however, did not object to the proposed order, and the trial court signed it.

Michael argues that some of the provisions counsel for Leonard added to the proposed order the court ultimately signed are not authorized by the Enforcement of Judgments Law (Code Civ. Proc., § 680.010 et seq.).¹ Because Michael forfeited his arguments by failing to object to the proposed order, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Leonard Seeks To Enforce His $26 Million Judgment Against His Brothers by Seizing Michael's Cars

Leonard filed this action against Michael and Joseph, alleging they mismanaged and misappropriated assets of the family's car dealership business. (See Schrage v. Schrage (Aug. 19, 2020, B288478) [nonpub. opn.].) On March 12, 2019 the trial court entered a net judgment of approximately $26 million infavor of Leonard and against Michael and Joseph. Michael's appeal from the judgment is pending.

On October 22, 2019 Leonard obtained a writ of execution directing the levying officer to enforce the judgment against Michael. On November 18, 2019 a sheriff's deputy attempted to levy on a 2009 Ferrari F430 Leonard believed was at Michael's house. The deputy found two Ferraris at Michael's house, one covered in the driveway and one in a garage. The license plate of the Ferrari in the driveway did not match the one listed in the writ of execution, and a woman at Michael's home refused to give the deputy access to the garage and said Michael was not home. The deputy did not have a probable cause order that would allow him to inspect the property without consent from a homeowner. (See § 699.030.) The deputy left the property and filed a "Notice of Not Found/No Service," notifying Leonard that the deputy failed to take custody of the Ferrari.

On December 31, 2019 Leonard filed an ex parte application for an order under section 699.030, subdivision (b), to direct the levying officer to seize personal property in a private place, namely, the two Ferraris stored at Michael's home in Woodland Hills or at a "car barn" at Michael's residence in Hidden Hills. Leonard stated that Michael had intentionally concealed the cars—the 2009 Ferrari F430 and a 1999 F355 Serie Fiorano—worth approximately $390,000 and that Michael falsely claimed he had sold the 2009 Ferrari and improperly changed the license plate on the car to obfuscate its chain of title. Leonard's application included a vehicle registration report for the 2009 Ferrari that showed the car was still registered to Michael. Regarding the 1999 Ferrari, Leonard stated Michael falsely claimed he had transferred its title to his attorney in lieu ofpayment for attorneys' fees. Leonard's application included an online advertisement dated December 23, 2019, allegedly posted by Michael, listing the 1999 Ferrari for sale. Leonard also submitted a picture of Michael's car barn that ostensibly showed the two Ferraris covered. Leonard argued there was probable cause under section 699.030 for an order giving the levying officer authority to enter Michael's property and seize the Ferraris. The trial court denied the ex parte application without prejudice, but set a January 15, 2020 hearing date for a noticed motion seeking the same relief and ordered Michael not to "sell, transfer, give or conceal the two subject automobiles."

In opposition to Leonard's motion, Michael argued that, prior to the March 2019 judgment, he transferred the title to the 1999 Ferrari to his attorneys pursuant to a "written collateral agreement" regarding Michael's outstanding attorneys' fees; that he sold the 2009 Ferrari two years earlier; and that there was no probable cause to believe the cars were located on Michael's property.

On January 15, 2020 the court set the matter for an evidentiary hearing that the court eventually held on July 15, 2020. In supplemental briefing Leonard provided additional evidence of Michael's ownership and possession of the Ferraris and his continued efforts to conceal the cars from Leonard. Michael continued to deny he owned or possessed the cars and to argue there was no probable cause to support an order authorizing the levying officer to seize the cars from his residence.

B. The Trial Court Grants the Motion for an Order Directing the Levying Officer To Seize the Cars

After a hearing for which Michael did not request a court reporter, the court granted the motion. The court found that Michael still possessed the Ferraris, that "there is probable cause to believe that [Michael] is concealing either of the Ferraris at either of his residences," and that Michael's "attempts to obfuscate the record and argue to the contrary are unpersuasive." The court stated it was "dismayed—but not surprised, given [Michael's] troubling course of misconduct—at the opposition's blatant misrepresentations of the record." The court stated it was "wholly unimpressed by [Michael's] frivolous contention that this Court is 'without jurisdiction' to issue the requested order simply because" Leonard had not shown the levying officer complied with section 699.030. The court continued: "If [Michael] or his counsel were to spend any amount of time reading section 699.030(b), then they would have been aware that this line of argument is completely baseless. Thus, the Court is left to conclude that [Michael] either deliberately sought to mislead this Court or was so careless in drafting his opposition that he neglected to even read the governing statutes. Regardless, neither explanation justifies advancing such a frivolous argument. Indeed, the Court is unsure how such an argument, offered in opposition, is not sanctionable." The court authorized the levying officer to enter Michael's residences in Woodland Hills and Hidden Hills and seize the Ferraris and ordered Michael "to surrender the titles and pink slips of the vehicles to the offices of counsel for [Leonard]." Finally, the court ordered counsel for Leonard to submit a proposed order.

Later that day Leonard filed a notice of ruling, submitted a proposed order (that attached the court's ruling), and served both documents on counsel for Michael. The proposed order also expanded the scope of the court's ruling by adding five new provisions that (1) authorized a "certified independent process server" to seize the Ferraris at either of Michael's residences or from "any other location where the subject Ferraris may be located"; (2) entitled Leonard to the "proceeds and related funds from the sale" of either car by Michael; (3) prohibited Michael and any person under his direction from interfering with the seizures of the Ferraris; (4) required Michael "and/or any of his representatives, agents or employees" to "turnover, surrender and deliver forthwith to [Leonard's] Counsel . . . the original 'pink slips' and signed title registration documents" for the Ferraris on or before July 22, 2020; and (5) prohibited Michael "and/or any of his representatives, agents or employees" from driving, concealing, marketing, advertising, moving, damaging, harming, relocating, or transferring the Ferraris from their current location and from selling, gifting, or pledging as collateral the Ferraris to any person or third party.

Michael did not object to the proposed order. Two weeks later, on July 29, 2020, the court signed it without making any modifications. Michael timely appealed from the July 29, 2020 order.²

DISCUSSION

Michael argues the trial court's July 29, 2020 order does not comply with, and exceeds the trial court's authority under, certain provisions of the Enforcement of Judgments Law. In particular, Michael contests the additional directives Leonard included in the proposed order he submitted on July 15, 2020, which the court signed on July 29, 2020. Leonard contends Michael forfeited all of his arguments concerning the July 29, 2020 order because Michael did not object to the proposed order. Under the circumstances, Michael forfeited his arguments.

A. Applicable Law

In general, an appellant forfeits an issue on appeal by failing to raise it in the trial court. (See Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 912 (Porterville) ["It is axiomatic that a party may not complain on appeal of rulings to which it acquiesced in the lower court."]; In re Stier (2007) 152 Cal.App.4th 63, 74 ["'[F]orfeiture' is . . . the loss of the right to raise an issue on appeal due to the failure to pursue it in the trial court."].) "'"The purpose of this rule is to encourage parties to bring errors to the...