Case No.

: H039860

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA
Sixth Appellate District
NEIL MUSSALLEM
Appellant
vs.
LINDA MUSSALLEM
Respondent
Superior Court
County of Santa Clara
Case No.: 109FL150138

MOTION TO STRIKE PORTIONS OF APPELLANT'S

REPLY BRIEF
OR TO FILE RESPONSE THERETO

Garrett C. Dailey
SBN: 76180
2915 McClure Street
Oakland, California 94609
Tel: (510)465-3920
Fax: (510)465-7348
Attorney for Respondent
LINDA MUSSALLEM

CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

CJBNS.ORG

In the Court of Appeal

of the State of California
Sixth Appellate District
NEIL MUSSALLEM
Appellant
vs.

LINDA MUSSALLEM
Respondent
MOTION TO STRIKE PORTIONS OF APPELLANT'S REPLY BRIEF
OR TO FILE RESPONSE THERETO

Appellant's Opening Brief was filed on March 20, 2014. Respondent's Brief was
filed on May 13, 2014. Appellant's Reply Brief was filed on June 2, 2014. As set forth in
the declaration of Garrett C. Dailey filed herewith, declarant was out of the country on an
extended pilgrimage (the Camino de Santiago) when the brief was filed and only recently
returned to the office.
Appellant's Reply Brief raises a number of arguments for the first time, including
substantive arguments that should have been made in the Opening Brief such that
Respondent would have an opportunity to respond to them. Evidence of this is found in
the Table of Authorities. Appellant's Opening Brief relied on exactly four published
opinions. His Reply Brief lists three times as many authorities. Respondent requests that

this Court either permit her the opportunity to file this letter brief in response to the new
arguments or simply to disregard them.
The rules regarding raising new arguments in a closing brief are well known:
"Obvious reasons of fairness militate against consideration of an issue
raised initially in the reply brief of an appellant. [Citations.]" (Varjabedian
v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11.) '"[T]he rule is that
points raised in the reply brief for the first time will not be considered,
unless good reason is shown for failure to present them before. [Citations.]'
[Citation.]" (People v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26.) The
argument that appellant was not required to show changed circumstances
was forfeited by her failure to raise it in her opening brief. In any case, the
contention is without merit." (In re Marriage of Khera & Sameer (2012)
206 Cal.App.4th 1467, 1477-1478.)
"Arguments cannot properly be raised for the first time in an appellant's
reply brief, and accordingly we deem them waived in this instance." (Cold
Creek Compost, Inc. v. State Farm Fire & Casualty Co. (2007) 156
Cal.App.4th 1469, 1486.)

Appellant's Opening Brief primarily argued that the trial court was obligated to
"determine or apply the fair market value of the property on the date the community
began funding the improvements" that were made, but failed to cite any evidence as to
what that value was, the dates the improvements were made, or the cost thereof. He
argued that it was the trial court's responsibility to ascertain those values, not his to
introduce the evidence of them. The focus of Respondent's Brief was that Appellant had
failed to preserve any of the records that showed the cost of any of the improvements or
to introduce any evidence of the amount by which they increased the value of the
property when it was 100% his burden to do so.

In his Reply Brief, Respondent attempted to fill those gaps with entirely new
arguments that, for the first time, attempt to quantify the improvements. These arguments
are found in Sections F.2, 3, and 4.
For example, Section F.2. argues that the value of the community-funded
improvements was $2,175,000, based upon the appraisal of Mr. Lefmann, and $1.5
million in "contributory value" based on the appraisal of Mr. Prescott. (ARB, p. 15.) This
is a new argument not made in the Opening Brief.
Section F.3. argues that the trial court had the option of apportioning the property
based upon a formula that he offers for the first time in his Reply Brief.
Section F.4. likewise contains a totally new argument that the court should have
applied a mathematical formula that Respondent proffers for the first time in his closing
brief.
This is sandbagging. These are not responsive arguments, but entirely new ones to
which, since they were not raised in the Opening Brief should not be permitted to be
raised in a Reply Brief. Respondent requests that these arguments be stricken.
If the Court wishes to consider these new arguments, Respondent requests that the
Court consider the following reply.

REPLY TO APPELLANT'S NEW ARGUMENTS IN APPELLANT'S REPLY BRIEF

In Section F.2. of the Reply Brief, Appellant argues that the Trial Court should
have utilized "a modified version of the Moore-Marsden formula" found in Hogoboom &

King's treatise. (RB, p. 14.) This is a totally new argument. The Opening Brief does not
suggest any such formula or even mention Hogoboom & King. He then states the formula
is: "the community interest is calculated as 'the ratio of the community investment to the
total separate and community investment in the property.'" (ARB, pp. 14-15, emphasis
added.) He then argues "[t]he trial court erred by not putting a value on the improvements
paid for by the community." (Ibid, emphasis added.)
Finally, Appellant references Respondent's obvious point that he offered no
evidence as to the "community investment" so as to permit the Court to make the
calculation he faults it for not doing. Appellant attempts to compensate for his failure to
either keep adequate records to establish the amount of the community's contribution or
to present any such evidence at trial by taking a few statements made by Respondent's
experts out of context and arguing that they satisfied his burden to establish the
requirements of Bono v. Clark (2002) 103 Cal.App.4th 1409. They do not. In Bono, the
Court of Appeal stated at page 1435:
"The community interest is calculated by (i) determining the ratio that the
community investment bears to the total investment in the property; then (ii) multiplying
that ratio by the appreciation in the property's equity value during the marriage, excluding
pre-improvement and post-separation appreciation."
At p. 1428, n2, the Court of Appeal gave the following hypothetical formula for
guidance on remand:

Total investment:
+
+

$ 12,500 purchase price

$ 37,500 premarital (pre-improvement) appreciation
$ 77,500 community improvements
$ 127,500 total investment

Appellant attempts to bootstrap this by equating the value of the improvements,

which he also creates out of thin air, with the cost of the community improvements.
Bono's formula starts with a determination of the "total investment" made in the
property. It measures that by "contributions to capital improvements" (Bono v. Clark
(2002) 103 Cal.App.4th 1409, 1423.) Black's Law Dictionary (9th ed. 2009) defines
investment as "An expenditure to acquire property or assets to produce revenue; a capital
outlay." The hypothetical value of improvements is not an investment, it is the result of
an investment.
In addition to not introducing evidence as to the amounts paid for the
improvements, he offered no evidence as to the value of the property on the date that the
improvements were made. For that matter, he offered only very vague dates as to when
the improvements were made and absolutely none on which increased the value of the
property and by how much.
If Appellant desired to argue that Bono applied, it was his burden to produce
evidence of the amount of the community's investment, i.e., the amount paid for the
improvements. (See, e.g. In re Marriage ofGeraci (2006) 144 Cal.App.4th 1278, 1288.)

CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

CJBNS.ORG

He produced no such evidence. In fact, he admitted that it didn't exist - because he

disposed of it. (RT, pp.19/12-20/12, 852/7-13.)
Next, it was his burden to show how much the property appreciated preimprovement. He produced no such evidence. In fact, his only expert's testimony was
expressly not considered. (AR, p.0174.)
Next, he had to show that the "improvements contributed to an increase in the
property's equity value." (Id. at p. 1435.) He failed to show that as well. In fact, the
evidence was that some improvements were sequential remodelings. (RT, pp. 347/19-28,
352/8, 353/14-18, 979/4-7, 980/24-981/13.) Improvements that were subsequently torn
out and replaced added no value. And, the trial court found that "not all of the
improvements enhanced the value of the ranch." (AR, p.0174/15-17.)
He argues for the first time that the Court should have based its calculations on
Mr. Lefmann's testimony that the improvements added $2,175 million in value. (RB,
pp. 15-16.) Then, in section F.3.. he then uses this number to calculate a $183,797.50
"value of improvements" and substitutes that fictive number for the "community
investment" in the Hogoboom & King formula. He treats this as though it were an actual
investment to determine the community's interest as of the date of acquisition - not the
date that the improvements were made. And then applies that ratio to determine the
community's interest in determining Respondent's Fam. Code 2640 reimbursement.

The most obvious problem with this entire argument is that the Trial Court did not
find Mr. Lefmann's opinion to be credible and did not use his numbers. (Statement of
Decision, fn.3.)
Second, Appellant's argument at RB, p. 16 and his application of it to the
Hogoboom & King formula is that he treats all of these "improvements" as though they
were made on the date the property was acquired. He gives the separate property not one
dollar of credit for any appreciation that occurred before they were made. He also fails to
consider that the remodel to seven bedrooms was totally redone many years later. There
was no evidence that it added even one dollar to the value as of the date of trial.
Most importantly, the entire premise is faulty. The experts agreed that the value of
this property is primarily in the land and that improvements generally added little. (RT,
pp.979-981, 1145-1148.) Based upon this, the trial court used its discretion to follow
Bono's dictates and valued the land separately from the improvements. (AR, p. 0174/1923.) Thus, by definition the value of the improvements should not be considered in
apportioning the value of the raw land on the date of the 2005 transmutation. That was
done using a straight Moore/Marsden apportionment on the increase in value of the land.
Instead, the Trial Court treated 100% of the increased value over and above the
value of the land - of which the community received its appropriate share, as community
property. Thus, rather than an apportionment, the community received 100% of the value
of improvements.

In section F.4., Appellant argues for the first time that "the equity at the time the
improvements started ($158,000) would be subtracted from the fair market value
($5,000,000 at date of trial) to determine the appreciation in value during the marriage
(here, $4,842,000)." (RB, p. 17.) Again, he treats all of the improvements as 1) increasing
the value of the property, and 2) as though they were made on the date the property was
acquired. Next, he assumes that 100% of the appreciation was due to the improvements,
when all of the evidence was exactly the contrary.
Appellant's new arguments are without both evidentiary support and legal merit.
Dated:

August 4, 2014

Garrett C. Dailey
Attorney for Respondent

DECLARATION OF GARRETT C. DAILEY IN SUPPORT OF MOTION TO FILE

RESPONSE TO APPELLANT'S REPLY BRIEF

I, Garrett C. Dailey, declare under penalty of perjury that the following is true and
correct:
1. I am an attorney duly licensed to practice law in the State of California and
the attorney for Respondent in the above-entitled action. I am over the age of 18 and
competent to make this declaration.

2.

I was out of the country from May 3, 2014 through July 11, 2014 and on

the 500 mile Camino de Santiago pilgrimage in Northern Spain for most of that time.
During that time I had very limited contact with my office.
3.

I returned to the office on July 14th and was immediately faced with

reviewing a very lengthy trial record (8 days of testimony) and appellate record (in excess
of 2.000 pages of Clerk's Transcript) and rendering a written Evid. Code 730 expert's
report to the Honorable Don R. Franchi of the San Mateo County Superior Court in
Marriage of Papazian, Case Number FAM071764. This required my fulltime attention for
the week, and then I was required to appear and testify in San Mateo for two days the
following week. It was only a few days ago that I was able to review Appellant's Reply
Brief in this matter. Since there is no response required to that brief, there was no urgency
in doing so. When I realized that totally new arguments had been proffered, I drafted the
proposed reply thereto.

Executed in Oakland, California, this 4th day of August, 2014.

Garrett C. Dailey

CALIFORNIA JUDICIAL BRANCH NEWS SERVICE

CJBNS.ORG

PROOF OF SERVICE
L BRENDA K. PORTO, declare as follows:
I am over eighteen years of age and not a party to the within action: my business
address is 2915 McClure Street, Oakland, California 94609; I am employed in Alameda
County, California. I am familiar with my employer's practices for the collection and
processing of materials for mailing with the United States Postal Service, and that practice is
that materials are deposited with the United States Postal Service the same day of office
collection in the ordinary course of business.
On August 4, 2014,1 served a copy of the following document(s): MOTION TO
STRIKE PORTIONS OF APPELLANT'S REPLY BRIEF OR TO FILE RESPONSE
THERETO
On the addressee(s):
X BY MAIL -- by placing a true copy of the above-referenced document(s) enclosed in
a sealed envelope, with postage fully prepaid, in the United States mail at Oakland, California,
addressed as set forth below, on the date set forth above.
BY FACSIMILE -- by transmitting via facsimile the document(s) listed above to the
fax number(s) set forth below, on the date set forth above, before 5:00 p.m.
Michael Masuda
NOLAND, HAMERLY ETIENNE & HOSS
333 Salinas Street
P.O. Box 2510
Salinas, California 93902-2510
David Jay Morgan
Attorney at Law
1900 0'Farrell Street, Suite 190
San Mateo, California 94403
Robert Kligman
Attorney at Law
44 Montgomery Street, Suite 3780
San Francisco, California 94104-4822
Linda Mussallem
[private address)

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct and that this declaration was executed on August 4, 2014, at
Oakland, California.

^S^^oa. \^
Brenda K. Porto

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