Filed 7/23/24 Williams Scotsman v. Gagliardi CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

WILLIAMS SCOTSMAN, INC.,

Plaintiff and Respondent,

v.

PAMELA GAGLIARDI,

Defendant and Appellant.

 D081776

 (Super. Ct. No. 37-2021-

00034299-CU-BC-NC)

APPEAL from a judgment of the Superior Court of San Diego County, 

Robert P. Dahlquist, Judge. Affirmed.

Pamela Gagliardi, in pro. per., for Defendant and Appellant.

Law Offices of Howard Goodman, Howard Goodman; and Dilip Vithlani

for Plaintiff and Respondent.

INTRODUCTION

Pamela Gagliardi appeals from a judgment for replevin and damages. 

The judgment directs her to return a modular office unit to its rightful owner, 

Williams Scotsman, Inc. (WSI), or pay WSI damages of $22,000 for converting 

it to her own use. The judgment further directs Pamela to pay $9,752.40 to 
2

WSI for loss of use during the period WSI was deprived of possession. 

Pamela contends (1) WSI failed to sue her within the statute of limitations, 

(2) WSI lacked standing to sue because it was not the owner of the modular 

office unit, (3) the trial court committed various evidentiary errors during 

trial, (4) the “elements of replevin were not satisfied,” and (5) the trial court 

calculated damages incorrectly. 

Pamela forfeited most of her arguments on appeal by failing to raise 

issues at the trial court level and failing to comply with the rules of appellate 

procedure here on appeal. We address her statute of limitations, standing,

and liability arguments. We see no reason to exercise our discretion to 

address her other forfeited arguments. We affirm the trial court’s judgment

on all points.

PROCEDURAL AND FACTUAL BACKGROUND

I.

WSI’s Modular Office Unit Is Rented by a Third Party and Placed on 

Pamela’s Property

Pamela owned two parcels of land in Bonsall including 30464 North 

River Road. Starting in 2012, a company named Multi Cable Inc. (MCI) 

leased a portion of the 30464 North River Road parcel from Pamela for its 

business operations. 

In 2016, MCI leased a modular office unit from Modular Space 

Corporation (ModSpace). The modular office unit was delivered to Pamela’s 

property at 30464 North River Road. WSI subsequently acquired ModSpace 

and several related companies. The acquisition included all of the companies’

assets including title to the modular office unit. The certificate of title for the 

unit set forth the manufacturer serial number and indicated the unit 

measured 47 feet by 10 feet. 
3

In January 2018, after the Lilac wildfire,1 MCI abandoned Pamela’s 

property, leaving the modular office unit and other personal property behind. 

In April of 2019, MCI stopped paying rent to WSI for the unit. 

On May 25, 2021, a WSI employee went to Pamela’s property and 

ascertained the unit was still there. The employee identified the unit as the 

one belonging to WSI and took a video to memorialize the identification. A 

WSI employee emailed Pamela requesting return of the unit, but the unit

was not returned.

II.

WSI Sues Pamela To Recover the Modular Office Unit

On August 11, 2021, WSI sued MCI, MCI’s president, and Pamela. The 

complaint sought in the alternative (1) the return of the mobile office unit, 

(2) permission to enter Pamela’s property and remove the unit, or 

(3) damages of $25,000 representing the unit’s value. The complaint also 

sought damages for loss of use. 

WSI later dismissed MCI’s president and MCI as defendants to the 

lawsuit. As a result, the remaining counts in the operative complaint alleged 

replevin and conversion causes of action solely against Pamela. 

Pamela answered the complaint on October 13, 2021. Pamela denied 

WSI had an ownership interest in any personal property on the 30464 North 

River Road parcel. Without filing a cross-complaint, Pamela requested 

“storage charges” and “[d]emolition and [d]ump fees” in the amount of 

$107,300 “in the event that [WSI] is the owner of any personal property 

abandoned at 30464 North River Road Bonsall CA 92003 since April of 2019.” 

1 The Lilac Fire was a fire that burned in northern San Diego County, 

California, United States, and the second-costliest one of multiple 

wildfires that erupted in Southern California in December 2017.
4

On January 14, 2022, the trial court issued an order to show cause 

(OSC) why the case should not be dismissed for failure to prosecute. WSI 

responded to the OSC with information about its attempt to settle the case as 

well as other information. 

Unremarkably—but later raised as an issue at trial by Pamela—

counsel for WSI made two errors in the declaration that responded to the 

OSC. Counsel twice stated the parcel was located at “30454” North River 

Road instead of “30464” North River Road. It is obvious these were 

typographical errors. Later in the exact same declaration, counsel correctly 

identified the parcel as 30464 North River Road. The declaration included as 

an exhibit a property report for 30464 North River Road with the correct 

property address highlighted. Another exhibit to the declaration contains a 

proposed stipulated order against Pamela “for possession of the modular 

trailer situated at 30464 North River Road.”2 The operative complaint also 

clearly identified the parcel as 30464 North River Road. 

III.

The Sham Lien Sale

During settlement negotiations, Pamela’s former romantic partner, 

Brian Gagliardi, offered to buy the modular office unit from WSI for $4000. 

Brian had managed and controlled Pamela’s properties since she acquired

them in about 2000 and 2007. Brian used Pamela’s properties to buy, 

refurbish, and rent out modular units and trailers. 

After the negotiations fell through, Brian purported to conduct a 

warehouseman’s lien sale of the modular office unit identified as the unit 

MCI rented from WSI. (Com. Code, § 7210.) At the time of sale, Brian was 

2 WSI offered to dismiss the lawsuit if Pamela allowed WSI to collect the 

unit.
5

aware of the pending litigation and WSI’s claim to title—he had personally 

offered to purchase the unit from WSI—but Brian did not provide notice of the 

sale to WSI. The sale notice asserted Pamela was entitled to a “storage and 

other expenditure lien” in the amount of $134,240 for storage of the unit on 

her property. The sale (which included some other items) was purportedly for 

$500 to Jose Perez, a friend of Brian and Pamela. 

Brian and Perez together registered the purported sale of the modular 

office unit with the Department of Housing and Community Development

(HCD). The application for registration specifically identified the modular 

office unit at issue in the underlying lawsuit by the serial number on WSI’s

title. Counsel for WSI discovered the purported sale less than two weeks 

before trial was set to commence. 

IV.

Trial

The case proceeded to trial on November 29, 2022. WSI relied on

business records authenticated by its recovery and bankruptcy manager and 

custodian of records to present its case in chief.3 The records included the 

certificate of title for the modular office unit showing the unit originally 

belonged to a company named Resun ModSpace, the rental agreement 

between ModSpace and MCI,4 and a Securities and Exchange Commission 

(SEC) Form 10-K Report as well as other documents showing WSI acquired 

all of Resun and ModSpace’s assets. According to the title, the modular office 

3 The manager had additional familiarity with the records because he 

previously worked for ModSpace.

4 WSI produced a written “Offer” to rent that was accepted by MCI via 

signature of its president. The parties then both performed under the 

detailed terms set forth in the offer to rent.
6

unit measured 47-by-10 feet and had been assigned a serial number.5 The 

unit was one that had axles. 

WSI’s manager testified, based on WSI’s business records, that the 

modular office unit had been delivered to “30464 North River Road in 

Bonsall,” and that MCI stopped paying rent in April 2019. The manager 

authenticated the video its employee had taken of the modular office unit on 

May 25, 2021, after attempts to collect back rent failed, and confirmed the 

employee identified the unit as the one belonging to WSI. The manager also 

authenticated an email from WSI to Pamela demanding return of the unit.

 The manager prepared a document that set forth and explained the 

valuation method for the damages sought by WSI, including why, in his view, 

the value of the unit to WSI was not the same as the value would be at 

auction. WSI calculated damages at $25,000 based on replacement value. 

The manager used replacement value instead of market value, explaining:

“[WSI is] a leasing company and whenever a unit goes out on rent it’s at a 

fleet standard. When it gets returned, what we do is we repair it back to our 

fleet standard and put it back on rent, so we reinvest into our assets upon a 

return and put it back on rent, therefore, a unit will have value for us 

depending on the unit for 25 or 30 years of rental experience. . . . So if a unit 

cannot be returned, then we have to go purchase a new one at -- you know, to 

replace that in our fleet.” Selling units was “not a primary business” for WSI. 

It only sold “heavily damaged” units or units at the end of their life cycle that 

can no longer be returned to “fleet standard” and oddly configured units they 

have acquired but cannot successfully rent. The manager further explained, 

5 WSI’s computer system indicated the unit measured 48-by-12 feet. 

According to WSI’s manager, this discrepancy may have reflected the 

difference between interior and exterior measurements. 
7

“[R]ight now our fleet usage is very high so there’s a demand for our units, 

and we do want them back as quickly as possible so we can get them back on 

rent again.”

Pamela testified in support of her defense and called Brian, Perez, and 

a few of her tenants including her daughter. Pamela and her witnesses 

testified that Pamela’s properties were evacuated as a result of the Lilac fire 

in December 2017. MCI left permanently as of January 15, 2018. 

Contractors came on the property afterward and stole things, including two 

trailer units. There was flooding and a mudslide on the property, which 

caused black soot to be deposited on the inside of the one of the units that had 

been occupied by MCI, and that unit was now damaged and uninhabitable. 

In addition, according to Brian, one unit “was completely demolished by the 

flood and the fire, and that was smashed up and thrown in dumpsters.”

Pointing to counsel’s typographical error, Pamela suggested there may 

have been a mix-up with another modular office unit on 30454 North River 

Road. She claimed this other unit might appear to be on her property, but it 

was actually on the neighboring parcel. Brian testified the unit on the 

neighboring parcel was 47-by-10 feet according to measurements he made 

using aerial photos from the internet. Brian and Perez testified further that, 

while MCI did abandon a modular office unit on Pamela’s property, it 

measured 10-by-44 feet, not 10-by-47 feet, and it did not have the serial 

number that appeared on WSI’s title. 

Putting this evidence together, the thrust of Pamela’s defense was that 

there was no unit on her property that measured 47- or 48-feet by 10 feet, nor 

any unit with the serial number on WSI’s title, and there were multiple 

allegedly plausible ways the trailer could have disappeared or been 

misidentified. This defense, however, was obviously in direct conflict with 
8

the lien sale Brian and Perez had purported to conduct a few weeks earlier of 

a modular office unit on Pamela’s property with the same serial number as 

the one on WSI’s title. 

On cross-examination, Brian and Perez admitted they conducted the 

warehouseman’s lien sale. They admitted they knew the serial number 

matched the number on the title to the modular office unit at issue in the 

underlying lawsuit, but they nevertheless attempted to register the sale with 

HCD. They further admitted they intended to sell and register the unit that 

was the subject of the lawsuit without providing notice to WSI, but claimed 

they subsequently learned the unit on Pamela’s property was not the one 

owned by WSI. This was because the unit allegedly either had no serial 

number or had one that was so faded it could not be read. They also claimed 

the unit was three feet shorter than described on WSI’s title. 

Stated another way, Gagliardi and Perez admitted they tried to defraud 

WSI by faking a lien sale, but when they were caught, they claimed the unit 

they intended to steal belonged to someone else. 

V.

The Trial Court’s Ruling and Judgment

The trial court did not believe Pamela, Brian, and Perez. It made the 

following rulings and findings:

“The Court disbelieves the vast majority of the testimony of 

Brian Gagliardi and Jose Perez. In fact, the Court believes 

Brian Gagliardi and Jose Perez were both seeking, in their 

testimony, to affirmatively mislead the Court as to the true 

facts pertaining to the modular unit. The Court believes 

that the true facts are that Brian Gagliardi, with assistance 

from Jose Perez, has concealed the location of the modular 

unit from [WSI] and has otherwise interfered with [WSI’s] 

proper efforts to regain possession of its modular unit.
9

“The Court finds that the purported lien sale conducted by 

Brian Gagliardi was invalid and a sham.

“The Court finds that Brian Gagliardi, at all relevant 

times, was acting on behalf of Pamela Gagliardi in 

connection with the matters at issue in this lawsuit.

“The Court also disbelieves significant portions of Pamela 

Gagliardi’s testimony, primarily because Brian Gagliardi 

was seated next to Pamela Gagliardi during her direct 

testimony and was coaching her on what to say. [¶] . . .[¶]

“The Court denies [WSI’s] request for punitive damages. 

The Court believes that Brian Gagliardi acted with fraud, 

oppression and/or malice, but the Court is not persuaded 

that Pamela Gagliardi authorized or ratified the specific 

wrongful conduct by Brian Gagliardi.” 

The trial court entered judgment granting possession of the modular 

office unit to WSI. The court indicated it would issue a writ of possession in 

favor of WSI and supporting postjudgment orders to enable enforcement of 

the writ should they become necessary. The court found the value of the 

modular office unit to be $22,000. It entered judgment awarding $22,000 to 

WSI “as an alternative to [WSI] regaining possession of the unit.” The court 

awarded compensatory damages of $9,752.40 as the “fair rental value of the 

modular unit for the period that [WSI] has been deprived of possession.”

DISCUSSION

As noted, Pamela contends (1) WSI failed to sue her within the statute 

of limitations, (2) WSI lacked standing to sue because it was not the owner of 

the modular office unit, (3) the trial court committed various evidentiary 

errors during trial, (4) the “elements of replevin were not satisfied,” and 

(5) the trial court calculated damages incorrectly. We uphold the judgment.
10

I.

Statute of Limitations

The statute of limitations for replevin and conversion is three years. 

(Code Civ. Proc., § 338, subd. (c)(1).) The statute of limitations is triggered by 

an act of wrongful taking of property that belongs to someone else. (Eleanor 

Licensing LLC v. Classic Recreations LLC (2018) 21 Cal.App.5th 599, 612 

[replevin]; AmerUS Life Ins. Co. v. Bank of America, N.A. (2006) 143 

Cal.App.4th 631, 639 [conversion].) Our review is for substantial evidence

when the underlying facts are in dispute. (Pacific Shores Property Owners 

Assn. v. Department of Fish & Wildlife (2016) 244 Cal.App.4th 12, 34.)

WSI’s complaint falls squarely within the three-year statute of 

limitations. According to WSI’s business records and the testimony of its 

manager, MCI possessed the modular office unit pursuant to a contract and 

was in compliance with its terms from the time of delivery in 2016 through 

March 2019. MCI breached the contract in April 2019 when it stopped 

paying rent. There is no evidence in the record WSI was aware of any 

interference with its possessory rights by anyone prior to April 2019 when 

MCI defaulted. WSI filed suit two years and four months later on August 11, 

2021. 

Pamela asserts the statute of limitations ran from the time MCI 

abandoned the modular office unit as opposed to when MCI stopped payment. 

She cites to no authority for the proposition that a conversion occurs if a 

party rents property but does not actively use it. We are certain there is 

none. 

Pamela also questions whether WSI’s invoices mistakenly apply to a 

different unit. Pamela did not make this argument during the proceedings 

below. On appeal, she did not include the relevant exhibits in the clerk’s 
11

transcript nor transmit them to us. She included only pictures of portions of 

the exhibits in her reply brief. WSI thus had no opportunity to respond to 

her contentions about alleged discrepancies in its business records. 

Our review, in any event, is for substantial evidence. Here, WSI’s 

manager testified business records show MCI stopped payment for the 

modular office unit in April 2019. “To warrant the rejection of the statements 

given by a witness who has been believed by a trial court, there must exist 

either a physical impossibility that they are true, or their falsity must be 

apparent without resorting to inferences or deductions.” (Bloxham v. 

Saldinger (2014) 228 Cal.App.4th 729, 750 [cleaned up].) That WSI had 

different customer numbers for MCI and contacted MCI at different office 

locations at different times and for different purposes, and that WSI may 

have raised the rent on the unit at some point in time does not make its 

manager’s testimony inherently improbable. WSI’s manager moreover 

specifically explained that customers had both a master file number as well 

as a customer billing number under a “legacy system” that had since been 

changed. Substantial evidence thus supported the trial court’s implied ruling

that the underlying complaint was timely filed. 

II.

Standing

The owner of personal property has standing to sue for replevin and 

conversion. (Burlesci v. Petersen (1998) 68 Cal.App.4th 1062, 1066 (Burlesci); 

see Foster v. Sexton (2021) 61 Cal.App.5th 998, 1020 (Foster) [explaining that 

replevin is a specific type of conversion; the two are no longer separate causes 

of action].) Our review is, again, for substantial evidence. (Piedra v. Dugan 

(2004) 123 Cal.App.4th 1483, 1489 (Piedra).) 
12

Here, WSI authenticated a copy of the certificate of title to the modular 

unit. The certificate specified “Resun ModSpace” as the owner. WSI 

presented testimony and supporting SEC documents to show that WSI 

acquired a group of companies “including ModSpace, Resun, and [others],”

along with all of their assets. Due diligence for the sale included the delivery 

of an audited list of acquired assets. This constitutes substantial evidence to 

support WSI’s standing to sue for replevin and conversion. 

III.

Evidentiary Issues

Pamela contends she objected to the certificate of title on the ground it 

was a copy and “objected vehemently to this and every exhibit and nearly 

every statement of [counsel].” Her arguments are conclusory and 

unsupported by tailored legal authority. They are forfeited. (Janney v. CSAA 

Ins. Exchange (2021) 70 Cal.App.5th 374, 391.) 

In her reply brief, Pamela contends the lease agreement between WSI 

and MCI should have been excluded from evidence for lack of relevance and 

foundation. She also contends the application for registration of the sham 

lien sale by Brian and Perez should have been excluded for lack of 

foundation. While these arguments are more specific and cite to the Evidence 

Code, they are too late. (Eyford v. Nord (2021) 62 Cal.App.5th 112, 126 

[“arguments made in a reply brief for the first time are too late”].) They are 

forfeited, too. 

IV.

Liability for Replevin and Conversion

“Conversion is the wrongful exercise of dominion over the property of 

another.” (Duke v. Superior Court (2017) 18 Cal.App.5th 490, 501 [cleaned 

up].) “The elements of a conversion claim are: (1) the plaintiff’s ownership or 
13

right to possession of the property; (2) the defendant’s conversion by a 

wrongful act or disposition of property rights; and (3) damages.” (Burlesci, 

supra, 68 Cal.App.4th at p. 1066.) Under current California law, the common 

law action for replevin, which seeks the return of converted property as an 

alternative to payment of damages, is codified at Code of Civil Procedure 

section 667 and has technically been subsumed into the tort of conversion. 

(Foster, supra, 61 Cal.App.5th at p. 1020.) Explained another way, replevin 

is a historical label for a particular type of cause of action for conversion, one 

where the plaintiff seeks “ ‘the recovery of specific personal property.’ ” 

(Ibid., quoting Berry v. Bank of Bakersfield (1918) 177 Cal. 206, 209.) 

Our review of the question of liability for replevin and conversion is 

once again for substantial evidence. (Piedra, supra, 123 Cal.App.4th at 

p. 1489.) Under the substantial evidence standard of review, the evidence is 

reviewed in a light most favorable to the prevailing party. (In re Marriage of 

Mix (1975) 14 Cal.3d 604, 614.) 

Pamela contends WSI failed to identify its modular office unit as its 

own with adequate “precision.” She also repeats her trial level argument 

that the unit appears to be located on a neighboring property and there may 

have been a mix-up. Pamela has not complied with the rules governing what 

an appellant must show in order to obtain a reversal for insubstantial 

evidence. Her arguments are forfeited. 

An appellant who challenges the sufficiency of the evidence must set 

forth in her opening brief all of the material evidence on point; this includes 

evidence unfavorable to her position. “An appellant who fails to cite and 

discuss the evidence supporting the judgment cannot demonstrate that such 

evidence is insufficient. The fact that there was substantial evidence in the 

record to support a contrary finding does not compel the conclusion that there 
14

was no substantial evidence to support the judgment. An appellant . . . who 

cites and discusses only evidence in her favor fails to demonstrate any error 

and waives the contention that the evidence is insufficient to support the 

judgment.” (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1408.) In addition, 

an appellant who has misrepresented the record when arguing an issue in 

the opening brief may be deemed to have forfeited that issue. (Perry v. Kia 

Motors America, Inc. (2023) 91 Cal.App.5th 1088, 1095–1096; see also Cal. 

Rules of Court, rule 8.204(a)(2)(C).) 

Pamela fails to accurately represent the record in her briefs. On the 

element of ownership, she claims “[WSI] astonishingly failed to provide an

accurate description of the unit.” This is simply untrue. The certificate of 

title had a unique serial number. WSI’s employee moreover recorded a video

that identified a modular office unit on Pamela’s property as the one it sought 

to repossess. Pamela’s briefs make no mention of the serial number; nor do 

they disclose and discuss the video. 

Pamela also claims, “No assignment of interest was offered as 

evidence.” But she fails to disclose testimony and documentary evidence that 

WSI acquired title when it acquired ModSpace, Resun, and related companies 

and all of their assets. 

On the element of wrongful exercise of dominion and control over the 

unit, Pamela claims, “No demand letter was made or presented by [WSI] 

during the trial.” This is also patently untrue. WSI’s manager authenticated 

WSI’s Exhibit 7 by stating, “This is an email from [WSI’s employee] to 

gogreengagliardi@gmail demanding . . . return of the unit.” But even more 
15

egregious, the opening brief does not reveal nor attempt to explain the sham 

lien sale by Brian and Perez.6 

Despite Pamela’s violation of our fundamental rules, we exercise our 

discretion to address liability for replevin and conversion. We do this to 

ensure our opinion cannot be misread to cast doubt on WSI’s right to recover 

the modular office unit or, if recovery cannot be had, to damages. 

The first element of conversion—ownership—was satisfied. As already 

explained, WSI presented substantial evidence at trial that it was the owner 

of a modular office unit identified by a serial number on a certificate of title. 

The certificate of title was copied and authenticated and admitted into 

evidence at trial, and WSI’s manager testified WSI acquired several related 

corporate entities, including the entity that appeared on the certificate, and 

all of their assets. 

Pamela’s contention that the unit was misidentified is without merit. 

Under the substantial evidence standard of review, we resolve conflicting 

testimony about the unit’s identification—including Brian’s testimony that 

the modular office unit on his property was three feet shorter than stated on 

the title—in favor of supporting the judgment. (Leung v. Verdugo Hills 

Hospital (2012) 55 Cal.4th 291, 308.) But more to the point, the trial court 

specifically found Brian’s testimony about the unit to be incredible: “[T]he 

Court believes that Brian Gagliardi and Jose Perez were both seeking, in 

their testimony, to affirmatively mislead the Court as to the true facts 

6 In response to WSI’s discussion in the respondent’s brief, the reply brief 

unpersuasively and belatedly argues the application for registration of the 

fake lien sale should not have been admitted into evidence and, despite the 

serial number on the application, refers to a different unit. 
16

pertaining to the modular unit.” We defer to the trial court’s assessment of 

credibility. (Catherine D. v. Dennis B. (1990) 220 Cal.App.3d 922, 931.) 

The second element—that Pamela wrongfully converted the modular 

office unit to her own use or disposed of it—was satisfied by overwhelming

evidence. WSI’s manager testified the unit was delivered to Pamela’s 

property at 30464 North River Drive in Bonsall. On May 25, 2021, a WSI

employee located the unit on Pamela’s property, identified it, and videotaped 

it. WSI asked Pamela to allow access to her property to recover the unit and 

sued her when she declined. Instead of returning the unit, or allowing WSI 

access to Pamela’s property to recover the unit, or purchasing the unit at an 

agreed price, Brian conducted a sham lien sale and registered it with the 

HCD in the name of a friend.7 

The third element—damages—was also satisfied. WSI’s manager 

testified WSI continued to seek recovery of the unit (replevin), but provided 

testimony and a worksheet to show damages in the event that recovery could 

not be accomplished (conversion). 

We hold the trial court correctly entered judgment in favor of WSI for 

recovery of the modular office unit and for damages in the event recovery 

cannot be accomplished. 

V.

Damages

Finally, Pamela contends the trial court calculated damages 

incorrectly. The court found “the value of the modular unit is $22,000,” and 

that WSI was in addition “entitled to recover compensatory damages of 

$9,752.40, representing the fair rental value of the modular unit for the 

7 Pamela and Brian both testified Brian acted as Pamela’s agent with 

respect to matters concerning the use of her properties.
17

period that [WSI] has been deprived of possession.” The court did not explain 

how it made these determinations. Pamela moved for a new trial, but not on 

the question of improperly calculated or excessive damages to WSI.

“ ‘A failure to timely 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 by the court.’ ” 

(Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 759.) “ ‘[I]f 

ascertainment of the amount of damages turns on the credibility of witnesses, 

conflicting evidence, or other factual questions, the award may not be 

challenged for inadequacy or excessiveness for the first time on appeal.’ ” 

(Ibid.) “However, it is also established that ‘the failure to move for a new 

trial does not preclude a party from asserting error in the trial of damages 

issues—e.g., erroneous evidentiary rulings, instructional errors, or failure to 

apply the proper measure of damages.’ ” (Ibid.)

Pamela forfeited her contention the trial court’s damages award was 

excessive in light of the auction value for similar units, depreciation of the 

unit, and possible fire and flood damage. Assessing her contention would 

require the resolution of conflicting evidence and she failed to move for a new 

trial on this point. For the same reason, she forfeited her challenge to the 

amount of the court’s award of damages for loss of use. 

As for Pamela’s contention the trial court applied the wrong measure of 

damages, her understanding of the law is incorrect. The measure of damages 

for conversion of personal property is set forth in Civil Code section 3336 and 

it is not restricted to value at the time of conversion:

“The detriment caused by the wrongful conversion of 

personal property is presumed to be:

“First—The value of the property at the time of the 

conversion, with the interest from that time, or, an amount 
18

sufficient to indemnify the party injured for the loss which 

is the natural, reasonable and proximate result of the 

wrongful act complained of and which a proper degree of 

prudence on his part would not have averted; and

“Second—A fair compensation for the time and money 

properly expended in pursuit of the property.” (Civ. Code, 

§ 3336, italics added.)

The indemnification prong of Civil Code section 3336 has been construed in

the context of mobile home units to permit an award for lost profits. (Myers 

v. Stephens (1965) 233 Cal.App.2d 104, 116−117.) In addition, Civil Code 

section 3355 allows plaintiffs to assert and prove that property has a 

“peculiar value” against a “willful wrongdoer”:

“Where certain property has a peculiar value to a person 

recovering damages for deprivation thereof, or injury 

thereto, that may be deemed to be its value against one 

who had notice thereof before incurring a liability to 

damages in respect thereof, or against a willful wrongdoer.” 

(Civ. Code, § 3355.)

(See King v. Karpe (1959) 170 Cal.App.2d 344, 348−349 [ruling that a cow 

could have special value beyond the slaughter value of its meat to a breeder 

who was building up his herd].) 

The trial court did not explain how it calculated the damages award for 

the modular office unit, but it also did not award the full replacement value 

of $25,000 sought by WSI. Given the flexibility of the law in terms of 

permitting damages awards that reflect special value to a victim of willful 

conversion, as well as the indemnification prong of Civil Code section 3336, 

which authorizes the indemnification of “natural, reasonable, and proximate” 

losses, we cannot say on this record the court’s award of $22,000 was based 

on an incorrect measure of damages.
19

DISPOSITION

Judgment is affirmed in all respects. Costs are awarded to WSI. (Cal. 

Rules of Court, rule 8.278(a)(1), (2).)

DO, Acting P. J.

WE CONCUR:

CASTILLO, J.

RUBIN, J.