Kamgar v. Kamgar (In re Kamgar)

226 Cal. Rptr. 3d 234, 18 Cal. App. 5th 136
CourtCalifornia Court of Appeal, 5th District
DecidedNovember 17, 2017
DocketG052024
StatusPublished
Cited by23 cases

This text of 226 Cal. Rptr. 3d 234 (Kamgar v. Kamgar (In re Kamgar)) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kamgar v. Kamgar (In re Kamgar), 226 Cal. Rptr. 3d 234, 18 Cal. App. 5th 136 (Cal. Ct. App. 2017).

Opinion

ARONSON, J.

*139Fred Kamgar appeals from a judgment ordering him to pay Moira Kamgar $1,952,056.50 for breach of his spousal fiduciary duties in failing to disclose to her that he risked in options trading an additional $8 million more than the $2.5 million in community assets she agreed he could trade in their investment account. The trial court determined Fred's undisclosed and reckless trading resulted in a loss of almost $4 million, in addition to losing the initial $2.5 million.1 Fred contends the evidence does not support the conclusion he violated his fiduciary duties. Moira in her appeal contends she was entitled to more than the $1.9 million award she received as her community interest in the $4 million loss. But as we explain, the law and the evidence amply support the court's award, and we therefore affirm the judgment.

I

FACTS AND PROCEDURAL HISTORY

Fred and Moira were married in May 1990 and had four children together before they separated in late January 2013. Highly educated, Moira began her studies at Harvard University at 16, then transferred to Sarah Lawrence College, where she received a bachelor's degree in international relations and Russian language studies. She also earned a joint juris doctorate and master's degree in taxation. Moira had not worked outside the home for over 20 years by the date of the couple's separation, but previously held positions at the Depository Trust Company and the law firm of Best, Best and Krieger. Fred earned a bachelor's degree from USC in Electrical Engineering *236and Computer Science, as well as an MBA from UCLA. During their marriage he ran several businesses, the sale of which enabled him to stop working over the last ten years of the marriage.

Beginning in 1999, the parties had their liquid assets professionally managed successively by JP Morgan, Merrill Lynch, and then Bessemer Trust. Tiffany Barbara, who managed the Kamgars' funds at JP Morgan and Bessemer Trust, explained the Kamgars charged her to preserve their wealth, which aligned with the conservative financial strategies she pursued on their behalf at JP Morgan and Bessemer Trust.

Moira did not have much to do with the couple's finances from this point on, and left Fred with the basic management and control of the finances.

*140Moira had not seen bank statements or financial documents since 2003, when Fred rented an office away from home and she did not have time to review the parties' tax returns each year. Fred made the investment decisions for the family during the last five years of their marriage, some of which were discussed with Moira. He occasionally would sign Moira's name to financial documents. Fred stated that he did not involve Moira with the family's finances because she was not interested.

In 2010, Fred began to research options trading, educating himself about the topic by taking investment classes, reading publications, and meeting with other investors. Fred had been investing community funds in Apple, Inc. stocks since 2002 or 2003, in part because he believed the company and its stock performance were predictable. With Moira's consent, Fred opened a self-directed trading account at TD Ameritrade (Ameritrade) and did some practice trades during the last half of 2011. Both Fred and Moira signed the Ameritrade account application and opened the account in the name of Kamgar Trust. Both Fred and Moira's consent was required for any transfer or withdrawal requests.

Fred explained his reasons for using Ameritrade to Moira, which included research showing it was the best platform for trading options and it charged a lower fee for trades; Moira did not object to his proposal. She agreed he could deposit $2.5 million in Apple stock into the account, which she believed represented a "sliver" of their net worth. As Moira later explained in her deposition testimony, Fred was free to use the $2.5 million to "try his hand at doing something that he would find interesting or amusing." red chose this amount, which represented 24 percent of the parties' net worth, because it would create a dramatic profit if it "worked out," but losing the sum would not affect their lifestyle.

Fred's goal was to maximize the return on his trades. He wanted to make enough money so the parties could live for the rest of their lives without needing to work. Fred transferred 6,000 shares of Apple stock, which was worth about $2.43 million, into the Ameritrade account in December 2011. Fred then applied to Ameritrade for a "Portfolio Margin Upgrade Request" to allow enhanced margin trading, which dramatically increased the potential return-and risk of loss-in his option trading by using funds borrowed through the investment account to increase the value of the trades.

As a prerequisite for the upgrade, Ameritrade required Fred and Moira to pass a test demonstrating their financial knowledge and awareness of trading risks. Fred testified that because Moira was not interested, he took the test for her and signed her name to the upgrade application. Moira claimed she never authorized Fred to sign her name to the application. Fred falsely represented *141on the application that *237he and Moira both had extensive options trading experience. Fred also stated the couple's financial goals were growth, income, and conservation of capital, but not speculation. In February 2012, Fred changed the Ameritrade account so he no longer would need Moira's signature to make withdrawals or transfers to the account.

Over the next 13 months, Fred converted the Apple securities in the account to cash and then, without telling Moira, deposited another $8,188,605 in community funds into the account, for a total community investment of $10,618,605. Moira did not know until just before their separation in January 2013 that Fred had replaced their professional financial managers, moving virtually all of the community's liquid assets into the Ameritrade account. The trial court found Moira only authorized Fred to invest up to $2.5 million in the Ameritrade account.

Between the additional deposits and increases in value through options trades, often on margin, the Ameritrade account increased in value from the original $2.43 million in converted Apple stock to $2,691,000 in December 2011, then to almost $13 million at the end of February 2012. The account value declined in March and each of the next four months to an initial low of $10,046,000 in June 2012. Then it jumped slightly in value in July 2012, growing to about $10.5 million. The account value exploded in August 2012, reaching a peak end-of-the month balance of $16,322,000. As the court observed, Fred earlier withdrew more than $3 million, so the total account value likely crested above $19 million. Factoring in the withdrawal and trading losses, the next month saw the account balance decrease to $14,163,000 in September 2012. October was catastrophic, with a $10 million loss dropping the account value to $4,144,000. In November and December it dropped further, to $1,950,000 and $998,000, respectively, before Fred ceased trading in January 2013, with $409,000 left in the account.

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Cite This Page — Counsel Stack

Bluebook (online)
226 Cal. Rptr. 3d 234, 18 Cal. App. 5th 136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kamgar-v-kamgar-in-re-kamgar-calctapp5d-2017.