Tuesday, March 28, 2017
$12 Million Judgment Upheld Based on Inadequate Record
By a MetNews Staff Writer
The Court of Appeal for this district yesterday affirmed a judgment in favor of a plaintiff based on the defendant producing an inadequate record on appeal—an occurrence that would not be unusual except that the amount awarded by the jury amounted to more than $12 million.
In a brief opinion, which was not certified for publication, Presiding Justice Lee Smalley Edmon said that appellant Armen Petrosyan cannot prevail because there is no reporter’s transcript of the trial.
Petrosyan, a Tarzana art dealer (also known as Armin Roberts), was sued by Alex Raskin, who purchased paintings from the defendant for more than $6 million. The plaintiff contended the value of the art works was grossly exaggerated by the seller.
A jury in the courtroom of Los Angeles Superior Court Judge Victor Chavez awarded Raskin $5,648,000 for intentional and negligent misrepresentation and intentional concealment, punitive damages in the same amount, and contract damages of $825,000.
On appeal, Petrosyan argued that the action was barred in light of the parties having executed a general release and that imposition of punitive damages was improper inasmuch as there was an inadequate showing as to his financial condition.
“Both of defendant’s appellate claims,” Edmon wrote, “suffer from the same defect—namely, that defendant has not provided us with an adequate appellate record to allow us to assess his claims of error.”
She went on to say that the contentions relate to “the sufficiency of the evidence to support the jury verdict” and that without a transcript, it could not be ascertained whether Rankin did or did not present adequate evidence that the settlement was fraudulently procured and whether there was or wasn’t adequate evidence as to the defendant’s finances.
Appellate Lawyers Comment
One leading appellate attorney, Marc Poster of Greines, Martin, Stein & Richland LLP, commented that as far as he knows an inadequate record on appeal in a high-stakes case is “ not at all common,” explaining:
“That’s because when so much is at stake, litigants usually hire appellate counsel at the start to make sure they have designated an adequate record.”
Poster, who is a past president of the California Academy of Appellate Lawyers and a fellow of the American Academy of Appellate Lawyers, remarked:
“I don’t know what happened in this case, but it appears that the appellant did not substitute in his current counsel on appeal until long after his opening brief was due.”
The notice of appeal was filed Oct. 27, 2015, and on Aug. 5, 2016, Petrosyan substituted in Phillip A. Baker of Baker, Keener & Nahra as his attorney on appeal. Baker is a past president of the Association of Southern California Defense Counsel and the Los Angeles Chapter of the American Board of Trial Advocates.
Baker said that “[T]here unfortunately was not a trial transcript.”
Retired U.S. District Court Judge George P. Schiavelli, now an appellate lawyer with Clark Trevithick, said the failure to produce a reporter’s transcript was “very surprising” under the circumstances.
“Anyone familiar at all with appellate rules knows it is the duty of the appellant to provide the reviewing court with a record sufficient to permit it to properly evaluate and rule upon issues raised on appeal,” he observed.
He pointed out that, as set forth in Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, at 186:
“In lieu of a reporter’s transcript, an appellant may submit an agreed or settled statement.”
Douglas J. Collodel, of Sedgwick LLP, termed the failure to produce an adequate record on appeal, under the circumstances, “somewhat unusual.” He added:
“But if one looks strictly at the issue of an appeal being dismissed because the appellant failed to provide the necessary record for the Court of Appeal to assess the appellant’s arguments for reversal (particularly if the appeal is based on a claim of insufficient evidence to support the verdict), then the appellate court’s rejection of the appeal is not that surprising. An outsider looking only at the result may be influenced by the financial aspect of the case and conclude that an injustice may have been committed.
“Yet, reaching such a conclusion likely is unwarranted if the Court of Appeal could not do its job of assessing the claims of error because the appellant foreclosed that opportunity by not following the rules and failing to provide the court with the necessary record.”
Leslie S. McAfee was the attorney on appeal for Raskin.
McAfee did not respond to a request for comment emailed late yesterday.
The case (with Petrosyan’s name being misspelled in the caption, bearing an extra “y”) is Raskin v. Petroysyan, B267798.
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