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 Post subject: FT - Goldberger v. Massoud (10/25/2001)
PostPosted: Thu Feb 19, 2009 11:52 am 

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Ernie Goldberger & Co. v. Massoud,
2001.CA.0001558 (Cal.App. Dist.2 10/25/2001)

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

B146652

2001.CA.0001558

October 25, 2001

ERNIE GOLDBERGER & CO., PLAINTIFF AND RESPONDENT,

v.

ELIE MASSOUD, ET AL., DEFENDANTS AND APPELLANTS.

APPEAL from a judgment of the Superior Court of Los Angeles County, Victor H. Person, Judge. Affirmed. (Super. Ct. No. BC167056)

Jeffrey Alpert for Defendants and Appellants. Neufeld, Jaffe, Levin & Colantuono, Timothy L. Neufeld and Alison E. Maker for Plaintiff and Respondent.

The opinion of the court was delivered by: Hastings, J.

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

Elie Massoud, Chucri Massoud, Aiko Massoud, and Amal Massoud (collectively referred to as appellants) appeal the judgment entered against them in an action brought by respondent Ernie Goldberger & Co. to set aside a fraudulent transfer. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant Elie Massoud (Elie) is married to appellant Amal Massoud (Amal). Appellant Chucri Massoud (Chucri) is married to appellant Aiko Massoud (Aiko). Elie and Amal owned a home on Foothill Drive in Los Angeles (the Foothill residence). Chucri and Aiko owned a home on Clement Drive in Glendale (the Clement residence).

In 1994, respondent Goldberger & Co. (respondent) filed what was essentially a collection action against Elie, Chucri, and the partnership of Elie's Fine Jewelry (Case No. BC119159, Goldberger & Co. v. Massoud, hereinafter referred to as the Underlying Action). On April 26, 1996, trial of the Underlying Action commenced in Los Angeles Superior Court. That day, judgment was ordered in favor of respondent Goldberger against appellants Elie and Chucri in the amount of $516,300.

One week later, on May 3, 1996, Elie transferred his interest in the Foothill residence to Amal, and Chucri transferred his interest in the Clement residence to Aiko. The deeds evidencing these transfers were recorded that day, and both stated that there was no consideration given for the transfers. On May 7, 1996, judgment was entered in the Underlying Action. Respondent then filed this action against appellants (Case No. BC167056, hereinafter referred to as the Fraudulent Conveyance Action) to set aside the transfers of the Clement and Foothill residences. In 1997, both Elie and Chucri then filed separate petitions for relief under the United States Bankruptcy Code, staying the proceedings in the Fraudulent Conveyance Action. The bankruptcy court did not discharge the judgment entered in favor of respondent in the Underlying Action.

Trial of the Fraudulent Conveyance Action did not commence until June 2000. Shortly before the date of trial, the parties submitted a Joint List of Exhibits. Number 204 on that list was described only as "Property Documents." Counsel exchanged the documents listed. At the trial, counsel for appellants attempted to introduce a copy of a homestead declaration purportedly recorded against the Foothill residence by Elie in 1994. Counsel for respondent objected on the grounds that the copy was not certified. Counsel for appellants claimed that a copy of the document had been exchanged with counsel prior to trial and that no objections to the document had been made. Counsel for Goldberger argued that he had voiced his objections when he referred to "proof problems" in his supplemental trial brief. Counsel could not agree whether they had discussed problems with the document prior to trial and the court stated, "Well, you were directed to get together and exchange your exhibits and bring forth to the Court any problems that you perceived of significant evidentiary nature on foundational and connotation matters, so it should have been done between the two of you. But since it wasn't -- and there is no requirement that he make his formal objection prior to trial. I don't think the rules put him in that position necessarily. [] It's a matter of you try to short cut and reduce or eliminate the number of disputes during a trial to speed the trial up. His objection is well taken. You have other means by which to overcome the hearsay? I assume it's a hearsay objection." Counsel for appellants then requested an opportunity to obtain a certified copy. The court then stated, "I'm going to sustain the objection at this point in time. Let's proceed. I'm not receiving that into evidence at this point. It's still marked as an exhibit." The proceedings were then adjourned for the day.

The following day, during examination of witnesses, the attorneys had a bench conference to discuss the marking of exhibits. Again, appellants' counsel requested that the court mark the homestead declaration as page one of Exhibit 204. Again, counsel for respondent objected on the grounds that the copy was not certified. The court then ruled that the objection was sustained. Counsel for appellants requested an opportunity to provide a certified copy. The court then responded: "You had the opportunity. You were given that opportunity yesterday. If you would have had one today, the objection would be overruled. You don't have one today. The objection has been sustained. I'm not going to revisit that issue."

On the third day of trial, after the parties had rested and when the court was expected to rule on the case, counsel for appellants moved to reopen the case in order to present the certified copy of the homestead declaration. The court denied the motion and announced its ruling that the transfers were fraudulent. In his ruling, he stated, "The defense also put forth a contention that, because [Elie] had purportedly filed a homestead declaration, that [Elie] had a complete defense to the fraudulent conveyance accusations because the value of his interest was to be offset by $75,000. This contention must fail for lack of admissible evidence in the record. [] First, [Elie's] counsel failed to include the exhibit in the exchange of exhibits that was ordered for the final status conference. In fact, [appellants'] counsel failed to follow Los Angeles Superior Court Rule 7.9 with respect to the exchange of documents five days prior to the May 25th, 2000, final status conference. [] Further, it failed to heed the court's additional trial procedures order that required all exhibits to be listed or exchanged or suffer the possible consequences of exclusion. As a separate and distinct reason for not considering the argument, the court excluded the offer into evidence of the exhibit as not being a certified copy and thus inadmissible under the applicable provisions of the Evidence Code." Judgment was then ordered to be entered in favor of respondent.

DISCUSSION

Appellants contend that had they been allowed to present evidence of the homestead declaration, respondent would not have been able to establish a fraudulent conveyance, citing Tassone v. Tovar (1994) 28 Cal.App.4th 765. In Tassone, as here, the appellants were defendants in an action for fraudulent transfer of real property. After the lawsuit was filed, the appellants executed and recorded a homestead declaration. They then conveyed their home as a gift to their son and his wife. After a default judgment was entered against appellants in the fraudulent conveyance action, appellants' son and his wife then sold the property to a third party. Respondents sought annulment of the sale and damages for fraudulent transfer and conversion. The trial court found that the conveyance from appellants to their son was fraudulent and awarded appellants damages. On appeal, the judgment was reversed on the grounds that declared homesteads are not subject to the law of fraudulent conveyances. Because respondents did not have a judgment lien on the property, the conveyance of appellants' home to their son left respondents in the same position as they had been before the conveyance. (Id. at p. 769.)

Here, appellants contend that had the proffered homestead declaration been admitted into evidence, respondent could not have prevailed in the Fraudulent Conveyance action pursuant to Tassone. Appellants argue that because judgment in the Underlying Action was not entered until after the property had been conveyed, the conveyance did not affect respondent's rights to the Foothill residence.

Trial courts have wide discretion to rule on the admissibility of evidence. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1176.) This action had been pending since 1997. Appellants thus had three years notice that the issue of the homestead declaration would be litigated.

There was plenty of opportunity for them to obtain a certified copy, especially when it was the basis of a significant defense. They failed to do so timely, even after the trial court had given them an opportunity. It was not an abuse of the trial court's discretion to sustain respondent's objection to the admission of the homestead declaration. (Id. at p. 1176; Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1377.)

DISPOSITION

The judgment is affirmed. The parties are to bear their own costs on appeal.

NOT TO BE PUBLISHED

We concur:

EPSTEIN, Acting P.J.

CURRY, J.


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