Filed 7/9/21 Mahanuntawong v. Kittithanyaphak CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
SIRINARD MAHANUNTAWONG,
Plaintiff, Cross-defendant, and
Respondent, A158610
v. (Alameda County
PHAWEE KITTITHANYAPHAK Super. Ct. No. RG18889990)
ET AL.,
Defendants, Cross-
complainants, and Appellants.
Plaintiff Sirinard Mahanuntawong (Sirinard) and defendants Phawee
Kittithanyaphak (Phawee) and Tassaneeya Pandey (Tassaneeya) entered an
agreement to operate a restaurant through a limited liability corporation.1
Several disputes about the business arose, and Phawee and Tassaneeya
(collectively, appellants) expelled Sirinard from the corporation. After a
bench trial, the trial court found in Sirinard’s favor on her claims for fraud
and breach of fiduciary duty and entered a judgment rescinding the operating
agreement and awarding restitution to Sirinard of $96,000, the amount of her
investment.
Since the parties previously indicated a “strong preference” to be
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referred to by their first names, we do so in this opinion.
1
On appeal, appellants contend that the trial court erred by finding they
committed fraud and by rejecting their affirmative defense of unclean hands
and their cross-claim for breach of fiduciary duty. They also claim that the
court incorrectly calculated the restitution award. We affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
This case is about, as the trial court put it, “a restaurant deal that went
bad.” The story began when Sirinard hired Phawee to work in a San
Francisco restaurant Sirinard owned. The two became friends and in 2017
decided to purchase a Pleasanton restaurant and reopen it as “EaThai.” They
ran their business through a limited liability corporation named Lux Thai,
LLC (Lux Thai), which was a pre-existing entity that Phawee and
Tassaneeya, a close friend of Phawee’s family, had used for an earlier
business enterprise. Before EaThai opened, Sirinard and Phawee made
capital and other investments in the business. The trial court found that
Sirinard contributed $96,000 to the venture, Phawee contributed $75,200,
and both still owed money to the restaurant’s former owner.
A core dispute in this case involved the percentage of ownership
interests in Lux Thai to which the parties agreed. A written operating
agreement signed in late March 2017 set forth a 60-35-5 percent ownership
split between Phawee, Sirinard, and Tassaneeya respectively. Sirinard
testified, however, that she and Phawee agreed to a 50-50 ownership split,
and the operating agreement’s split was meant to be temporary. Specifically,
Sirinard testified the temporary agreement was proposed because Phawee
wanted to be a 60 percent owner on paper “to satisfy requirements for [her] to
qualify for an E2 investment visa for immigration purposes,” and she wanted
Tassaneeya, who had not invested any money in the venture, to be a
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5 percent owner on paper to reflect that Tassaneeya guaranteed the
restaurant’s lease.
Although “EaThai quickly became a success,” the parties’ relationship
deteriorated just as swiftly. Sirinard testified that Phawee wrongly used
funds from the Lux Thai account to pay for a residential lease for her and her
mother, which Sirinard opposed. Not long after the restaurant opened, the
police were called as a result of conflicts between Phawee’s mother and
Sirinard. Phawee, her mother, and her mother’s partner were asked to leave
the premises. After this incident, Phawee stopped processing EaThai’s
payroll and prevented Sirinard from accessing Lux Thai’s bank accounts.
Subsequently, “Phawee and Tassaneeya, acting as the purported majority
owner/members of Lux Thai, . . . expelled Sirinard as a member,” claiming
that Sirinard had skimmed money from the nightly receipts.
This suit followed. In the operative complaint, Sirinard brought claims
for involuntary dissolution of Lux Thai, an accounting, declaratory relief,
conversion, breach of fiduciary duty, fraud, and defamation. Appellants
denied the allegations, asserted affirmative defenses—including one based on
the doctrine of unclean hands—and filed a cross-complaint alleging that
Sirinard breached her fiduciary duties to them.
After a bench trial, the trial court issued a 13-page, single-spaced
tentative ruling that eventually became its final order. The court found in
Sirinard’s favor on her claims for fraud, breach of fiduciary duty, and
declaratory relief, but it concluded she failed to prove her claims for
conversion and defamation. It also found that appellants had not proved
their affirmative defenses or cross-claim.
The trial court granted Sirinard relief, albeit not everything she had
sought. The court ruled that she was entitled to rescission, based on
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appellants’ “breaches of fiduciary duty and fraud in the inducement,” and “to
recover the capital she invested in Lux Thai.” It therefore awarded Sirinard
$96,000 and her costs of suit.
The trial court denied Sirinard’s requests for lost income, a portion of
EaThai’s ongoing profits, and punitive damages. Although the court allowed
Sirinard essentially to “walk away from the [60/35/5] Operating Agreement”
by rescinding it, the court declined to dissolve Lux Thai or order an
accounting while retaining the right to order such relief if necessary to
enforce the judgment. Since the agreement was rescinded, the court also
declined to reinstate Sirinard’s interest in Lux Thai. Finally, the court
declared that Sirinard was “not responsible for the debts or liabilities of Lux
Thai, LLC, including but not limited to any further sums that may be due to
the former owner of [the restaurant].”
None of the parties opposed or sought to correct or clarify the tentative
decision. Judgment was entered on August 30, 2019, and a notice of its entry
was sent to the parties on September 3. The following month, on October 2,
appellants filed a motion to vacate and/or amend the judgment, which
Sirinard opposed. A week later, appellants filed a notice of appeal. Before
the scheduled hearing on the motion to vacate, appellants’ counsel sent a
letter to the trial court suggesting it lacked jurisdiction to hear the motion in
light of the appeal. The court thereafter dropped “the motion from the
calendar as withdrawn by the moving parties,” and no party objected.
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II.
DISCUSSION
A. Substantial Evidence Supports the Trial Court’s Finding of
Fraudulent Inducement.
Appellants claim that the trial court erred by concluding they
fraudulently induced Sirinard to enter the operating agreement. We are not
persuaded.2
1. Standard of review
In conducting our review, we presume the trial court’s judgment is
correct. The general rule is that “ ‘ “[a]ll intendments and presumptions are
indulged to support [the judgment] on matters as to which the record is
silent, and error must be affirmatively shown.” ’ ” (Ketchum v. Moses (2001)
24 Cal.4th 1122, 1140.) Accordingly, “ ‘in reviewing a judgment based upon a
statement of decision following a bench trial, “any conflict in the evidence or
reasonable inferences to be drawn from the facts will be resolved in support
of the determination of the trial court decision. [Citations.]” [Citation.] In a
substantial evidence challenge to a judgment, the appellate court will
“consider all of the evidence in the light most favorable to the prevailing
party, giving it the benefit of every reasonable inference, and resolving
conflicts in support of the [findings]. [Citations.]” [Citation.] We may not
reweigh the evidence and are bound by the trial court’s credibility
determinations. [Citations.] Moreover, findings of fact are liberally
construed to support the judgment.’ ” (Cuiellette v. City of Los Angeles (2011)
194 Cal.App.4th 757, 765.)
2In light of this conclusion, we need not address Sirinard’s contention,
which she reiterated at oral argument, that the trial court’s unchallenged
finding that appellants breached their fiduciary duties provides us with an
independent basis on which to affirm the judgment.
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If a party does not bring “omissions or ambiguities in the statement” of
decision to the trial court’s attention, “that party waives the right to claim on
appeal that the statement was deficient in these regards, and hence the
appellate court will imply findings to support the judgment.” (In re Marriage
of Arceneaux (1990) 51 Cal.3d 1130, 1133–1134, citing Code of Civ. Proc.,
§ 634.) In such circumstances, we “will infer the trial court made every
implied factual finding necessary to uphold its decision, even on issues not
addressed in the statement of decision. The question then becomes whether
substantial evidence supports the implied factual findings.” (Fladeboe v.
American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 48.)
Because we presume that the record contains evidence sufficient to
support the judgment, an appellant has the “burden to demonstrate
otherwise.” (Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333,
368.) The appellant is therefore required to provide a summary of all the
evidence, not merely the appellant’s own evidence, with citations to the
record. (Cal. Rules of Court, rule 8.204(a)(1)(C); see Bernard v. Hartford Fire
Ins. Co. (1991) 226 Cal.App.3d 1203, 1205.) In other words, the appellant
must affirmatively demonstrate that the evidence is insufficient. (Baxter, at
p. 368.)
Appellants argue that we should review the trial court’s fraud ruling de
novo, citing Crocker National Bank v. City & County of San Francisco (1989)
49 Cal.3d 881, 888. The case does not support their argument. Crocker held
that de novo appellate review of a mixed question of fact and law was proper.
(Ibid.) Here, however, appellants claim that (1) Sirinard “failed to prove
justifiable reliance” and (2) the evidence failed to show “that Tassaneeya
actually committed fraud.” These claims require us to review
straightforward factual determinations explicitly or implicitly made by the
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trial court, not questions of law, and Crocker reiterates the well-established
rule that such findings are “reviewed under the substantial-evidence test.”
(Ibid.)
2. Analysis
“The elements of fraud are (a) a misrepresentation (false
representation, concealment, or nondisclosure); (b) scienter or knowledge of
its falsity; (c) intent to induce reliance; (d) justifiable reliance; and
(e) resulting damage.” (Hinesley v. Oakshade Town Center (2005)
135 Cal.App.4th 289, 294.) “Fraud in the inducement is a subset of the tort of
fraud.” (Ibid.) Fraud in the inducement occurs when the promisor knows
what she is signing but her consent is induced by fraud. (Id. at pp. 294–295.)
Mutual assent is present and a contract is formed, but the contract is
voidable by virtue of the fraud. (Id. at p. 295.)
Initially, we reject appellants’ claim that the trial court “did not find
that Tassaneeya actually committed fraud.” Appellants point out that the
court’s order states, without mentioning Tassaneeya, that “Phawee
fraudulently induced Sirinard to sign the Operating Agreement.” But the
order also states that (1) “Sirinard proved her claims for fraud and breach of
fiduciary duties against Defendants by a preponderance of the evidence” and
(2) that “[t]he Court has found that Defendants fraudulently induced Plaintiff
to enter into their agreement to re-tool Lux Thai . . . as the holding company
for the parties’ shared restaurant business.” (Italics added.) These
statements clearly convey the finding that Tassaneeya also committed fraud.
And even if there had been any ambiguity in the court’s order, appellants
forfeited their challenge by not seeking clarification of the tentative decision
below. (See In re Marriage of Arceneaux, supra, 51 Cal.3d at pp. 1133–1134.)
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We are also unpersuaded by the claim that Sirinard failed to prove
justifiable reliance. Appellants argue that “[t]he alleged oral side agreement
was that, if [Sirinard] assisted in defrauding the immigration authorities by
signing the false Operating Agreement, she would actually become half
owner of Lux Thai,” and “[i]t is manifestly unreasonable to rely on
representations based on adherence to an illegal agreement.” But the trial
court did not find that any such agreement existed, and appellants point to
no evidence of an agreement to award Sirinard a 50 percent share only if she
signed the operating agreement. Rather, Sirinard testified that, from the
outset, Phawee proposed that they would be 50-50 equal partners in the
business. Sirinard explained that she agreed to go forward with the business
venture because she and Phawee would invest in, own, and control the
business equally. Moreover, Sirinard testified that notwithstanding the
operating agreement’s 60/35/5 percent split, she was to remain in fact a
50 percent owner of the business. This testimony was corroborated by an
email that Phawee sent to Sirinard reaffirming that their 50-50 deal was the
“fact” and the 60/35/5 percent arrangement was temporary. Thus, there was
ample evidence of an oral agreement “to split the business equally,” and
appellants fail to explain why Sirinard did not justifiably rely on it.
Appellants next argue that the finding of fraudulent inducement
cannot stand because Sirinard “testified that the 60/35/5 arrangement was
supposed to be temporary until Phawee got her business visa,” meaning
Sirinard “admitted at trial that she was not relying on owning a half interest
in Lux Thai immediately; she knew that she actually was getting a 35%
stake, which would be adjusted once Phawee got her business visa.” Again,
however, appellants’ position is thoroughly undermined by the evidence
recited above, which constitutes substantial evidence that Sirinard was
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always supposed to have a 50 percent interest in Lux Thai. As the trial court
found, Sirinard was “fraudulently induced . . . to sign the Operating
Agreement with the understanding that [she] would own the LLC 50/50
notwithstanding the manner in which [the parties] were documenting the
deal differently.” Thus, appellants’ arguments involving justifiable reliance
fail.
Finally, appellants claim that the record lacks evidence that
Tassaneeya ever made “any sort of representation” or failed to disclose
relevant facts, meaning she did not commit fraud. The trial court could have
reasonably inferred, however, that Tassaneeya was aware that her five
percent interest under the operating agreement she signed was “fake,” as she
did not actually invest in the business, and that Sirinard owned more of the
business than the agreement indicated. And by subsequently voting to expel
Sirinard from Lux Thai, Tassaneeya took advantage of this false interest for
her own benefit. Thus, the court could have also reasonably inferred that
Tassaneeya, in concert with her close family friend Phawee, fraudulently
induced Sirinard to enter the operating agreement by failing to disclose that
appellants did not intend to honor Sirinard’s oral agreement with Phawee.
In short, there was substantial evidence to support the court’s finding that
Tassaneeya was also liable for fraud.
B. The Trial Court Did Not Err in Rejecting Appellants’ Defense of
Unclean Hands and Cross-claim for Breach of Fiduciary Duty.
Appellants also claim that the trial court was required, as a matter of
law, to rule in their favor on their defense of unclean hands and their cross-
claim that it was Sirinard, not they, who breached fiduciary duties. Again,
we are not persuaded.
The defense of unclean hands “ ‘demands that a plaintiff act fairly in
the matter for which [the plaintiff] seeks a remedy.’ ” (Michaels v. Greenberg
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Traurig, LLP (2021) 62 Cal.App.5th 512, 533.) It “applies when it would be
unfair for the plaintiff to profit from his or her wrongdoing, even assuming
the defendant might otherwise be liable, at least in part, for the losses
sustained by the plaintiff.” (Stine v. Dell’Osso (2014) 230 Cal.App.4th 834,
844–845.) “ ‘The elements of a cause of action for breach of fiduciary duty are
the existence of a fiduciary relationship, its breach, and damage proximately
caused by that breach.’ ” (Green Valley Landowners Assn. v. City of Vallejo
(2015) 241 Cal.App.4th 425, 441.)
In their briefing, appellants offer a litany of reasons why Sirinard had
unclean hands and breached her fiduciary duties to them. These include
contentions that Sirinard signed the 60/35/5 percent operating agreement for
the illegal purpose of helping Phawee obtain a visa, stole money from the
business in various ways, made improper and illegal payments through the
payroll, conspired to embezzle money from Phawee’s family, inappropriately
paid a contractor, and established a system to siphon money at the point of
customer sales.
To the extent these claims were raised below, the trial court expressly
or implicitly rejected them. It found there was no or insufficient evidence to
prove that Sirinard skimmed cash from the restaurant, paid a general
contractor for unnecessary or incomplete work, diverted funds intended for
the contractor to her personal accounts, breached a duty in issuing payroll
checks, or “did anything wrong in temporarily closing the restaurant.” And it
ruled that “[n]one of [the] further theories [of Sirinard’s alleged wrongdoing]
hold any water,” including appellants’ claim involving an alleged conspiracy
by Sirinard to steal from Phawee’s aunt.
Appellants fail to grapple with the applicable standard of review in
arguing that the trial court was bound to rule in their favor. Again, they
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argue that review is de novo, but most of the court’s findings were based on
contested evidence or depended on credibility determinations. Again, we
must resolve all evidentiary conflicts and accept all reasonable inferences in a
manner supporting the court’s decision. (See Cuiellette v. City of Los Angeles,
supra, 194 Cal.App.4th at p. 765.) While appellants cite some testimony they
believe supports their theories, they have failed to sustain their burden of
“provid[ing] a summary of all of the evidence, not merely [their] own
evidence, with citations to the record.” (Carrington v. Starbucks Corp. (2018)
30 Cal.App.5th 504, 518.) Furthermore, “ ‘[w]here, as here, the judgment is
against the party who has the burden of proof, it is almost impossible for [the
party] to prevail on appeal by arguing the evidence compels a judgment in
[the party’s] favor. That is because unless the trial court makes specific
findings of fact in favor of the losing [party], we presume the trial court found
[that party’s] evidence lacks sufficient weight and credibility to carry the
burden of proof. [Citations.] We have no power on appeal to judge the
credibility of witnesses or to reweigh the evidence.’ ” (Patricia A. Murray
Dental Corp. v. Dentsply Internat., Inc. (2018) 19 Cal.App.5th 258, 270.)
In particular, appellants fail to persuade us that Sirinard’s admitted
conduct required the trial court to apply the doctrine of unclean hands.
Appellants point out that Sirinard admitted to engaging in some questionable
behavior, such as going along with the 60/35/5 percent operating agreement
to help Phawee obtain a visa. But the doctrine of unclean hands “ ‘is not a
legal or technical defense to be used as a shield against a particular element
of a cause of action. Rather, it is an equitable rationale for refusing a
plaintiff relief where principles of fairness dictate that the plaintiff should
not recover, regardless of the merits of [the plaintiff’s] claim. It is available
to protect the court from having its powers used to bring about an inequitable
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result in the litigation before it.’ [Citation.] By the same token, ‘ “[w]henever
an inequitable result would be accomplished by application of the ‘unclean
hands’ doctrine the courts have not hesitated to reject it.” ’ ” (Stine v.
Dell’Osso, supra, 230 Cal.App.4th at p. 844.) The court rejected the vast
majority of appellants’ allegations of Sirinard’s wrongdoing and determined
that any impropriety by Sirinard did not warrant denying rescission of the
parties’ business relationship, concluding that it would be “highly
inequitable” to deny her relief. Appellants offer us no valid reason for
disturbing this conclusion.
C. Appellants Forfeited Their Argument that the Trial Court Erred
in Calculating the Amount of the Restitution Award.
Finally, appellants argue that the trial court miscalculated the amount
of restitution. Specifically, they argue that the court wrongly included
“$25,000 of [their] money that [Sirinard] admitted having received; . . .
overstated the amount that [Sirinard] actually paid to [a contractor; and]
improperly credited [Sirinard] with double payments to the contractor that
she admitted having made.” Sirinard responds that appellants forfeited their
argument by failing to bring the alleged errors to the attention of the court
below. We agree with Sirinard.
“[A] failure to move for a new trial ordinarily precludes a party from
complaining on appeal that the damages awarded were either excessive or
inadequate, whether the case was tried by a jury or a court without a jury.”
(Glendale Fed. Sav. & Loan Assn. v. Marina View Heights Dev. Co. (1977)
66 Cal.App.3d 101, 122.) This rule applies when “the ascertainment of the
amount of damage requires resolution of conflicts in the evidence or depends
on the credibility of witnesses,” although it does not preclude a party from
raising legal errors “such as erroneous rulings on admissibility of evidence,
errors in jury instructions, or failure to apply the proper legal measure of
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damages.” (Ibid.) The reason for this rule is that parties who “first challenge
the damage award on appeal, without a motion for a new trial, . . .
unnecessarily burden the appellate courts with issues which can and should
be resolved at the trial level.” (Schroeder v. Auto Driveway Co. (1974)
11 Cal.3d 908, 919.) “[T]he trial court is in a far better position than the
Court of Appeal to evaluate the amount of damages awarded in light of the
evidence presented at trial.” (County of Los Angeles v. Southern Cal. Edison
Co. (2003) 112 Cal.App.4th 1108, 1121.)
The alleged errors in the restitution award involve evidentiary issues
and credibility questions, not errors of law. Accordingly, appellants forfeited
these claims of error by not bringing them to the attention of the trial court.
While it is true that appellants filed a notice of motion to vacate and/or
amend the judgment in which they objected to the calculation of the
restitution award, the motion was untimely because it was filed a month
after the judgment was entered and served on the parties long past the
applicable 15-day period. (Code Civ. Proc., § 659, subd. (a)(2).) In any event,
the motion was deemed withdrawn after appellants suggested to the court
that it lacked jurisdiction to proceed in light of their appeal. Thus, appellants
forfeited their challenges to the restitution award by not allowing the trial
court to consider those claims in the first instance.
III.
DISPOSITION
The judgment is affirmed. Sirinard is awarded her costs on appeal.
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_________________________
Humes, P.J.
WE CONCUR:
_________________________
Margulies, J.
_________________________
Sanchez, J.
Mahanuntawong v. Kittithanyaphak et al. (A158610)
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