Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. GIC836347, Patricia Y. Cowett, Judge.
NARES, Acting P. J.
This action arises out of the 1994 purchase for $550,000 of a four-story office building (the building) in San Diego by plaintiff David Oranen and his mother Diane Bruckman. In March 2004 Bruckman sold the building for $2,925,000 without Oranen's knowledge or consent. When Oranen discovered the sale and demanded one-half of the sale price, Bruckman denied that he had any interest in the property and refused to provide him any proceeds from the sale.
Oranen sued Bruckman for breach of contract and fraud. A jury found in favor Oranen and awarded him (1) $1,462,500 (one-half of the sale price of the building), (2) $100,000 for additional funds that he had loaned Bruckman and that she had not paid back, and (3) $200,000 in punitive damages.
On appeal, Bruckman asserts that the court erred by (1) granting several motions in limine that excluded testimony relevant to the honesty and veracity of the witnesses testifying at trial, and (2) denying her motion for new trial based upon irregularity in the proceedings and insufficiency of the evidence. We affirm.
FACTUAL BACKGROUND
A. Background on Bruckman and Oranen's Relationship
Oranen never knew his father and was estranged from Bruckman for most of his childhood. Bruckman placed Oranen in an orphanage when he was eight years old and they did not see or communicate with each other for several years. After leaving the orphanage, Oranen resided in several foster homes before moving to his grandmother's house early in his teenage years.
When Oranen was approximately 15 years old he spoke by telephone with his mother for the first time in several years, and eventually they met again in person. When Oranen was 16 years old, he moved back to San Diego to live with Bruckman. However, their reunion lasted only about six months because of Bruckman's "temper."
Oranen dropped out of school and moved to Montclair, California, to live with an uncle. He eventually obtained his GED, attended San Diego State University, and in 1984 graduated from chiropractic school.
Oranen moved to Sacramento in the late 1980's to open his own chiropractic clinic. Oranen's practice was successful and, as a result, he was able to save a substantial amount of money.
B. 1994 Building Purchase
In the early 1990's, Oranen was living in Sacramento and Bruckman lived in San Diego. Oranen testified that in 1993 Bruckman approached him about investing in what was then a depressed San Diego real estate market. Oranen agreed, and Bruckman selected the building as their target investment.
Oranen testified he insisted, and Bruckman agreed, that they pay cash for the building so there would be no mortgage. The purchase price was $550,000, with Oranen and Bruckman each contributing $275,000. Oranen's contribution came from money he had saved from his chiropractic practice and Bruckman's contribution came primarily from the refinancing of properties she owned in San Diego. At the time of the building's purchase, Bruckman and Oranen orally agreed to hold the building as a long-term investment and to share the proceeds equally when it was eventually resold.
Bruckman's testimony concerning the circumstances surrounding the purchase of the building differed significantly from Oranen's. According to Bruckman, it was her idea to purchase the building and Oranen's only contribution toward the purchase price was a small "loan" that she fully repaid within a few months. Bruckman claimed the "loan" from Oranen was for approximately $100,000.
Escrow on the purchase of the building closed in late January 1994 and title was initially recorded in Bruckman's name alone. However, in February 1994, Bruckman delivered a grant deed to Oranen stating that he had a "50 percent undivided interest" in the building (February 1994 deed). According to Oranen, he did not record the February 1994 deed because Bruckman insisted he hold it unrecorded. Oranen testified that he did not feel further written documentation of the agreement with his mother was necessary because he had the February 1994 deed as evidence of his 50 percent interest in the building.
Bruckman admitted at trial that she delivered the February 1994 deed to Oranen in February 1994. However, she claimed the February 1994 deed was collateral for the loan Oranen had provided. She claimed that after she paid back the loan she verbally requested that he return the February 1994 deed, but he claimed he could not find it.
C. Oranen Records the February 1994 Deed
On March 7, 1996, Oranen recorded the February 1994 deed. According to Oranen, after the February 1994 deed was recorded, Bruckman did not voice any objection or assert that Oranen lacked an ownership interest in the building. The only concern she expressed to Oranen was that the real property taxes would increase as the result of the perceived transfer of ownership. She applied for a parent/child exclusion from reappraisal so the building would not be reappraised and the taxes on the building would not be raised. The claim for parent/child exclusion from reappraisal that Bruckman prepared, signed, and filed with the County of San Diego stated that a "50 [percent]" interest in the building had been transferred from Bruckman to Oranen.
D. Oranen Transfers His Interest in the Building to WAN, Inc.
In 1995 or 1996 Oranen formed WAN, Inc., a Nevada Corporation (WAN). In March 1999 Oranen recorded a grant deed (March 1999 deed) transferring his 50 percent interest in the building to WAN. At the same time, Oranen claims he mailed a copy of the March 1999 deed to Bruckman. Bruckman admitted she received a copy of the March 1999 deed and that she did not challenge the transfer.
E. June 2000 Deed
According to Oranen, in June 2000 Bruckman approached him and asked him to have WAN transfer its 50 percent recorded interest in the building back to her. Bruckman told him that she would save money on insurance premiums for the building if she held title in her name alone. In exchange, Bruckman promised Oranen she would give him a new deed for a 50 percent interest, but requested that he not record it.
According to Oranen, he and Bruckman went to the law office of William McClain, located on the second floor of the building. McClain was an attorney and notary and had formerly been married to Bruckman. Although Bruckman and McClain had legally divorced in late 1995, in June 2000 they still shared a residence Bruckman had created on the fourth floor of the building. In June 2000 Bruckman and McClain were, according to Bruckman, on "sort of" friendly terms.
The transaction involved two transfers. On June 29, 2000, Oranen, on behalf of WAN, executed a quitclaim deed transferring WAN's 50 percent interest to Bruckman (WAN deed). Oranen then handed the WAN deed to Bruckman. Bruckman then executed and handed to Oranen a grant deed transferring a 50 percent interest in the building back to Oranen (June 2000 deed).
The June 2000 deed from Bruckman to Oranen was not introduced into evidence at the trial. According to Oranen, it was either lost or stolen. However, at trial Oranen introduced McClain's original notary book that contained both his and Bruckman's signatures. Line 1 in McClain's notary book states that Bruckman executed a grant deed on June 29, 2000. Line 2 confirmed that Oranen, as authorized agent for WAN, executed a quitclaim deed on June 29, 2000.
Oranen also introduced the transcript of McClain's deposition in which he had authenticated a detailed declaration he (McClain) had executed before a notary in January 2004. In the declaration he stated that WAN transferred its interest to Bruckman in exchange for a grant deed transferring a 50 percent interest from Bruckman back to Oranen. McClain's declaration was read to the jury. McClain's deposition was taken because he was in the advanced stages of ALS, also known as Lou Gehrig's Disease. McClain passed away before the trial began.
As further evidence that he had a 50 percent interest in the building, Oranen introduced a marital settlement agreement (MSA) from Bruckman's divorce from McClain. The list of Bruckman's separate property assets in the MSA included the building. As to the building, the MSA stated: "Wife's son from a prior marriage, DAVID ORANEN, is the owner of one-half of the title to the office building. He contributed one-half of the purchase price of the office building." Oranen also introduced an asset summary that Bruckman and McClain filed with the family court. As to the building, this document stated, "W's son David Oranen has 1/2 interest." The asset summary represented the value of the building in late 1995 to be "$900,000" and specifically identified Oranen's share of the stated value as being "$450,000."
Oranen's friend, Andre Zeehandelaar, drove him to McClain's office on June 29, 2000. After completing the transaction, Oranen left the building and returned to Zeehandelaar's van, where he showed Zeehandelaar the June 2000 deed and then placed it in the glove compartment. Shortly thereafter, Oranen returned to Sacramento, accidentally leaving his June 2000 deed behind.
The WAN deed was recorded on July 7, 2000.
Bruckman's version of the events that transpired on June 29, 2000, conflicted dramatically from Oranen's. Initially, she said she could not recall whether it was Oranen or McClain who called and asked that she come to McClain's third floor office to execute "a deed toward [Oranen]." She testified that when she arrived at McClain's office, she was told Oranen had already executed a quitclaim deed transferring WAN's 50 percent interest in the building to her. However, Bruckman did not see the WAN deed until she received a copy in the mail a few weeks later.
According to Bruckman, McClain presented her with a "partially completed grant deed" which would have transferred a 50 percent interest in the building from Bruckman to Oranen. Bruckman testified that she never signed that and tore it up. However, Bruckman authenticated her signature on line 1 of McClain's notary book, evidencing the fact she transferred a grant deed. When asked why she signed her name in the notary book on a line that indicated a grant deed had been executed and notarized, if she had in fact destroyed the partially completed deed, she stated, "I don't know." Bruckman also could not explain why Oranen, whom she claimed had already signed the WAN quitclaim deed before she arrived at McClain's office, signed McClain's notary book on line 2, and she signed on line 1.
F. Oranen Requests that Bruckman Sell the Building
Oranen stopped working as a chiropractor in 1998. He then invested approximately $600,000 with Sacramento-based Audio Visual Management Services (AVMS) and was receiving income from this investment as a means of support. In late 2002 Oranen made a "major mistake in [his] life" by becoming involved in drugs. Additionally, according to Oranen, at the end of 2003, his partner at AVMS stopped making payments to Oranen in breach of their agreement, leaving Oranen with no source of income. In late 2003, the Internal Revenue Service (IRS) began to exert pressure on Oranen to settle a long-standing tax debt.
In October 2003 Oranen wanted to sell the building to fund a lawsuit against AVMS and to pay off the IRS. He called Bruckman to inquire about selling the building and her response was, "Well, show me the grant deed." That response made Oranen suspicious and he began to believe that perhaps Bruckman had stolen the June 2000 deed because he was the only one who knew he could not find it. He then began an unsuccessful search for the June 2000 deed which included contacting Zeehandelaar and having him conduct an exhaustive search of his van. That search was unsuccessful.
G. Bruckman Sells the Building
In March 2004 Bruckman sold the Building to Reza Mashayekhi for $2,925,000. Bruckman admitted that she did not tell Oranen the building was for sale.
Mashayekhi was originally a defendant in action, but was dismissed prior to the trial.
Mashayekhi recorded his grant deed on March 19, 2004. Approximately two hours after Mashhayekhi recorded the grant deed, Bruckman sent Oranen an e-mail, telling him, "[M]y psychologist and Al-Anon has [sic] suggested that we do not be in contact with one another for a while." The e-mail also discussed Oranen's problems with drugs and alcohol, and his financial problems, and stated, "Yes, David. I could give you more money. . . . But this would prevent you from reaching your bottom . . . . [¶] . . . [¶] . . . I hope you understand the above message and know that it is sent with tough love."
Oranen learned of the building's sale in April 2004. When Oranen confronted Bruckman, she denied the existence of any agreement to divide the proceeds of the sale with her son and refused to provide him with his 50 percent share of the sale price.
PROCEDURAL BACKGROUND
In September 2004 Oranen filed and served a complaint against Bruckman, stating causes of action for accounting, waste, money had and received, conversion, fraud, declaratory relief and quiet title.
A. The Relevant Motions In Limine
Trial began on October 3, 2005. Prior to jury selection, the trial court considered and ruled on 15 motions in limine filed by Oranen, and seven motions in limine filed by Bruckman, including several that form the basis of this appeal.
Oranen's motion in limine No. 1 sought to exclude evidence that in 1997 he pled guilty and nolo contendere to three misdemeanor charges involving alleged insurance fraud related to his chiropractic practice, as those misdemeanor convictions were discharged in December 2000 pursuant to Penal Code section 1203.4.
The court granted this motion, noting that the guilty pleas were "all misdemeanors" and stating:
"The authority seems to say as to felony convictions, that felonies can be used—and I am not sure there is a difference any longer to felonies and misdemeanors. But as to the section that relates to felonies, it says if the felony—that the felony may be used to attack a witness' credibility—and these charges certainly do go to truth and veracity, but it says you can use those except if the accusatory pleading has been dismissed under [Penal Code section] 1203.4. [¶] So even as to felonies, they can't be used to attack credibility if they have been expunged. And this misdemeanor—these misdemeanors appear to have been expunged. On top of that, it's the relevance of those facts to his—to the issues in this case and the prejudice—the weight against the prejudicial effect. [¶] My tentative would be to exclude these misdemeanors, former convictions that have now been expunged. [¶] . . . [¶] . . . I mean, I agree with you that if these were felonies that—if these were misdemeanors or felonies that had not been expunged, I think you could use them. But I think the expungement is, according to the Evidence Code section, related to felonies would mean that felonies can't be used; so [if] felonies couldn't be used, then the misdemeanor couldn't be used. [¶] . . . [¶] So I am ruling that the misdemeanors may not be used to attack the credibility of plaintiff under [Evidence Code section] 352. And because of Evidence Code section 788, that precludes expunged convictions from being used for that purpose."
Oranen's motion in limine No. 2 sought to exclude any reference to Bruckman's allegation that Oranen had broken into her residence. Bruckman testified in her deposition that her San Diego residence was broken into, personal effects were stolen, and she believed Oranen was involved. However, Bruckman admitted during her deposition that she had no evidence Oranen was in any way involved with any break-in at her home. Oranen denied any involvement. During argument on this motion counsel for Bruckman also alleged that Zeehandelaar went into Bruckman's home and made copies of documents related to the sale of the building. Oranen argued that was irrelevant as Zeehandelaar was not the plaintiff in this action. The trial court granted the motion, finding there was "insufficient evidence that [Oranen] had anything do with this break in."
Oranen's motion in limine No. 3 sought to exclude any reference to Bruckman's claim that Oranen had previously engaged in "money laundering." Bruckman testified in her deposition that McClain had told her that Oranen had "launder[ed] money," but Bruckman also admitted that she had no personal knowledge as to whether the allegations were true. The trial court inquired as to what the alleged money laundering "ha[d] to do with the property in question." The trial court then granted the motion, stating, "I don't see its relevance. I will sustain the objection on [Evidence Code section] 352 grounds, so I will grant the motion."
Oranen's motion in limine No. 4 sought to exclude references to Oranen's relationship with proposed defense witness Lahoma Caudhill. Oranen and Caudhill had lived together for several years and together had two children. During discovery, Bruckman made numerous references to Oranen's relationship with Caudhill, and the fact that she (Bruckman) did not think Oranen was a good father. After listening to the arguments of counsel, the court ruled that Caudhill could testify about any statements made by Oranen that would constitute admissions against interest about "facts related to this case," including Oranen's "ownership or lack thereof in the building," but that testimony going to "the details of whether they are or are not actually married, or any of the child support issues that might exist between them," or Oranen's former drug use, was not relevant. When Bruckman's counsel argued that evidence of the fact Oranen and Caudhill were never married should be allowed, the trial court explained that the nature of their relationship "has nothing to do with whether or not he has an interest in this building." The trial court granted the motion with the exception that "if [Caudhill] has got facts related to admissions he may have made to her regarding his interest in this building," she would be allowed to testify as to those facts, and also ruled that Caudhill could be examined to establish she was the mother of Oranen's two children.
Oranen's motion in limine No. 7 sought to exclude defense witnesses David Brown, Sandra Joyce Goldman and Joy Harris from testifying at trial. At the trial readiness conference, Bruckman's counsel represented that David Brown, Sandra Joyce Goldman and Joy Harris would be testifying on her behalf as "character" witnesses.
In ruling on the motion the trial court stated, "The fact that . . . the credibility of every witness is always an issue in every case does not mean that every witness is allowed to call a character witness." The trial court found that Bruckman would only be entitled to introduce such evidence if "plaintiff puts defendant's character in issue . . . ." The trial court also noted that the claims made by Oranen in this case—that Bruckman defrauded him, made certain promises, and said certain things—by themselves, did not put Bruckman's character in issue. The court ruled that it would wait to see if Oranen placed Bruckman's character in issue before deciding the motion.
On the third day of trial, when Oranen rested his case-in-chief, defense counsel was asked to identify the witnesses he intended to call. In response, counsel for Bruckman raised the issue of character witnesses again:
"Mr. Wildman: . . . . The main witness is Jim Jungsten, and Lahoma Caudhill may be a witness. Richard Derosset.
"The Court: Who is Richard Derosset?
"Mr. Wildman: And this is kind of tangential. He was involved in this altercation with Mr. Zeehandelaar, and I am not so sure how much we want to talk about that.
"The Court: Okay. All right.
"Mr. Wildman: And depending on whether or not character is at issue, we have a couple of character witnesses, Mr. Brown and one other - possibly just Mr. Brown."
On the last day of testimony, Bruckman's counsel revisited the issue of character witnesses:
"Mr. Wildman: Mr. Brown was going to testify about Ms. Bruckman's character and Mr. Zeehandelaar's character.
"Mr. Williams: I object to those on [the basis] it's character evidence and impermissible evidence at trial.
"The Court: Sustained."
No argument or offer of proof was made that Bruckman's character had been put in issue by Oranen during the trial.
Oranen's motion in limine No. 9 sought to exclude evidence that witness Zeehandelaar had previously been disbarred as an attorney. Oranen argued this was improper character evidence and noted that Zeehandelaar had never acted as an attorney for Oranen. Bruckman's counsel admitted Zeehandelaar never held himself out as an attorney in this case. However, Bruckman argued that because Zeehandelaar had assisted Oranen by writing demand letters that Oranen sent to Bruckman prior to the lawsuit being filed, the fact that Zeehandelaar had been disbarred was relevant to discrediting him as a witness. The trial court granted Oranen's motion, while leaving open the possibility of reconsidering the ruling if Bruckman's counsel showed her "something that shows [Zeehandelaar] was acting as a lawyer in this case."
Oranen's motion in limine No. 11 sought to prevent Bruckman and/or Oranen's former business partner at AVMS, Jim Jungsten, from testifying at trial that Oranen illegally entered the AVMS offices in Sacramento and about litigation between him and Jungsten concerning that business. Oranen denied any illegal entry had occurred and argued the litigation was irrelevant to the current proceedings.
During arguments on this motion Oranen's counsel explained that Oranen had, at one time, been an officer of AVMS and on one occasion when Oranen entered the AVMS offices, his partner Jungsten asserted that he should not be there. However, no police report or other charges were ever filed. He also argued the litigation between Oranen and Jungsten was irrelevant to this action. Counsel for Bruckman then conceded, "[Y]es, Your Honor. We—I think we covered the break-in issue. The court has ruled on that so I don't think that's an issue." Thus, the court denied that motion.
Oranen's motion in limine No. 12 sought to exclude any reference to Bruckman's Granite Bay house. Oranen lived in the house for a short period of time and, based on a line of questioning at his deposition, Oranen believed Bruckman was intending to testify at trial that Oranen failed to pay rent and caused damage to the home. Oranen argued that this matter had no bearing on the issues at trial. After listening to counsels' arguments, the court granted the motion.
B. Jury's Verdict
On October 18, 2005, the jury returned a verdict in favor of Oranen. The jury found unanimously that (1) Oranen had provided one-half of the original purchase price for the building, (2) Oranen and Bruckman had an agreement to equally divide the proceeds upon the sale of the building, and (3) Oranen was entitled to damages in the amount of $1,462,500, one-half the building's sale price. The jury awarded Oranen an additional $100,000 in damages based on its findings that he had provided additional money to Bruckman that had not been entirely repaid. The jury also awarded Oranen $200,000 in punitive damages based on the jury's finding that Bruckman had deceived Oranen by selling the building without telling him, and that, in doing so, had acted with oppression, fraud or malice.
C. Motion for New Trial
Following the jury's verdict, Bruckman filed a motion for new trial. In that motion, Bruckman argued that it was error for the court to allow counsel for Oranen to refer to Bruckman as a "liar" and allowing Oranen to "stare down" Bruckman when she was testifying. Bruckman asserted that she suffered from panic attacks and these tactics caused her to lose her composure while testifying, and lose credibility with the jury. Bruckman also asserted there was insufficient evidence to support the verdict as she did not receive $2,825,000 from the sale of the building, but a promissory note from the purchaser. Bruckman argued the verdict was contrary to the law because the jury found Bruckman engaged in concealment, a cause of action not pleaded by Oranen. Bruckman also contended that the court erred in granting the motions in limine, discussed, ante.
Oranen opposed Bruckman's motion for new trial. Oranen argued that there were no irregularities in the proceedings as Bruckman provided no evidence counsel called her a liar and that there was no grounds for granting a new trial based upon Oranen "staring" at her. Oranen argued there was substantial evidence to support the verdict, noting that Bruckman never objected to the special verdict form, and the jury properly awarded Oranen one-half of the sale price of the building. Oranen asserted the jury verdict was not contrary to law as Bruckman never objected to the verdict form and concealment was descriptive of the type of fraud Bruckman committed. Oranen also argued that the court did not err in its rulings on the motions in limine.
The court denied the motion for new trial.
On January 11, 2006, Bruckman filed a timely notice of appeal.
DISCUSSION
I. MOTIONS IN LIMINE
A. Standard of Review
A trial court's ruling on the admissibility of evidence "'will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.'" (People v. Thuss (2003) 107 Cal.App.4th 221, 234.) Moreover, "'"it is appellant's burden to establish an abuse of discretion."'" (Geffcken v. D'Andrea (2006) 137 Cal.App.4th 1298, 1307, italics omitted.)
B. Analysis
1. Character evidence
"Character" evidence is evidence of a person's propensity or tendency to act in a certain way under certain circumstances and is only relevant when there is a particular character trait directly at issue in the case. (See, e.g., People v. McAlpin (1991) 53 Cal.3d 1289, 1305; People v. Shoemaker (1982) 135 Cal.App.3d 442, 446-447.) With certain exceptions, "evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." (Evid. Code, § 1101, subd. (a).) "Section 1101 excludes evidence of character to prove conduct in a civil case for the following reasons. First, character evidence is of slight probative value and may be very prejudicial. Second, character evidence tends to distract the trier of fact from the main question of what actually happened on the particular occasion and permits the trier of fact to reward the good man and to punish the bad man because of their respective characters. Third, introduction of character evidence may result in confusion of issues and require extended collateral inquiry." (Cal. Law Rev. Com. com., 29B West's Ann. Evid. Code (1995 ed.) foll. § 1101, p. 438.)
All further statutory references are to the Evidence Code unless otherwise specified.
Under limited circumstances, character evidence may be allowed to support or attack the credibility of a witness. For example, section 1101, subdivision (b) provides that "[n]othing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."
Moreover, evidence having a tendency to prove or disprove the truthfulness of the witness's testimony; i.e. evidence of the specific character trait of a witness's character for truth or veracity, will be allowed. (§§ 780, subd. (e), 786.) However, "evidence of specific instances of his conduct relevant only as tending to prove a trait of his character is inadmissible to attack or support the credibility of a witness." (§ 787.)
Furthermore, "[e]vidence of the good character of a witness is inadmissible to support his [or her] credibility unless evidence of his [or her] bad character has been admitted for the purpose of attacking his [or her] credibility." (§ 790.) A witness's character is not impeached simply by the admission of contradictory testimony. It is only when the witness's character for truth and veracity is attacked that evidence of the witness's "good" character may be introduced. (People v. Taylor (1986) 180 Cal.App.3d 622, 630.)
Finally, even if character evidence is admissible, it is still subject to discretionary exclusion under section 352, which provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
As we shall explain, post, the evidence the court excluded concerning Oranen and witness Zeehandelaar was inadmissible character evidence, whereby Bruckman sought to show, based upon their previous allegedly fraudulent, improper or illegal actions, that they acted in the same manner as to Bruckman. In other words, as Bruckman acknowledges in her appellate brief, she sought to demonstrate that, consistent with their character as dishonest persons as shown by their prior bad acts, they attempted to defraud Bruckman in this case. Thus, the excluded evidence was not admissible under section 1101, subdivision (b), as it was not relevant to prove some fact such as "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident." As will further be demonstrated post, the proposed evidence was also not subject to any exception, was subject to exclusion on additional grounds, and in many instances its very existence has not been supported by any citation to the record. Further, the testimony of Bruckman's witnesses who were to testify as to her "good character" was properly excluded as Bruckman has not shown that her own character was placed in issue by Oranen's witnesses.
1. Motion in limine No. 1
Section 788 provides:
"For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he [or she] has been convicted of a felony unless: [¶] (a) A pardon based on his innocence has been granted to the witness by the jurisdiction in which he [or she] was convicted. [¶] (b) A certificate of rehabilitation and pardon has been granted to the witness under the provisions of Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code. [¶] (c) The accusatory pleading against the witness has been dismissed under the provisions of Penal Code Section 1203.4 , but this exception does not apply to any criminal trial where the witness is being prosecuted for a subsequent offense. [¶] (d) The conviction was under the laws of another jurisdiction and the witness has been relieved of the penalties and disabilities arising from the conviction pursuant to a procedure substantially equivalent to that referred to in subdivision (b) or (c)." (Italics added.)
As Witkin explains, "It was originally held that, if the witness had been given probation and subsequently obtained a dismissal of the charge under [Penal Code section] 1203.4 [citation], the conviction could not be used to impeach. [Citations.] [Penal Code section] 1203.4 was amended to permit impeachment of a defendant witness in a criminal case. [Citations.] Hence, an ordinary witness in a civil or criminal trial cannot be impeached with such a conviction, but a defendant in a criminal trial who takes the stand can be. [Citation.]" (3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 293, p. 367.) Evidence Code section 788 superseded earlier civil cases discussing when prior convictions could be admitted to impeach a witness's credibility. (Robbins v. Wong (1994) 27 Cal.App.4th 261, 274.)
The policy behind section 788's bar on using expunged convictions to attack a witness's credibility is simple, they are not relevant to that issue: "[T]he very fact of expungement prevents a prior conviction from being relevant evidence on the issue of one's credibility. '"Relevant evidence" means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.' [Citation.] A prior conviction is relevant to one's credibility if the conviction involves moral turpitude. [Citation.] The legislative purpose behind expungement is that 'no convicted person discharged after probation thenceforth should be regarded as one possessed of the degree of turpitude likely to affect his credibility as a witness.' [Citation.]" (People v. Field (1995) 31 Cal.App.4th 1778, 1790.)
Perhaps acknowledging that section 788 is fatal to her claim that the court erred in granting Oranen's motion in limine No. 1, Bruckman, in both her opening and reply briefs, fails to even mention section 788, much less attempt to argue it does not apply in this case. "A failure to cite any relevant authority in support of an assertion results in a waiver of the right to appellate review of that assertion." (People v. Foote (2001) 91 Cal.App.4th Supp. 7, 12 (Foote).) Accordingly, Bruckman has waived the right to have this asserted error reviewed on appeal.
Moreover, even if we were to address this claim on the merits, Evidence Code section 788 bars use of the prior misdemeanor convictions to attack Oranen's credibility. It is undisputed that the relevant convictions were expunged under Penal Code section 1203.4. Further, although section 788 only references felony convictions, surely the policy which bans the use of expunged felonies applies equally, indeed to a greater extent, to expunged misdemeanor convictions. As with felony convictions, an expunged misdemeanor conviction is simply irrelevant to the issue of a witness's credibility. The court did not err in granting Oranen's motion in limine No. 1.
2. Motions in limine Nos. 2 and 11
As detailed, ante, as to motion in limine No. 2, the court found that there was no evidence Oranen was involved in a break-in at Bruckman's residence, and counsel for Bruckman withdrew his opposition to motion in limine No. 11. In her opening brief, Bruckman provides no evidence or authority demonstrating the court erred in making those rulings. Accordingly, Bruckman has waived the right to raise the issue on appeal. (Foote, supra, 91 Cal.App.4th at p. Supp. 12.) Further, Bruckman, as at trial, cites to nothing in the record supporting the contention that Oranen was involved in any break-in at her residence or AVMS. Accordingly, she cannot demonstrate that the court abused its discretion in granting motions in limine Nos. 2 and 11.
3. Motion in limine No. 3
As to this motion, Bruckman argues that the court erred in excluding evidence she suspected Oranen of money laundering because counsel made an offer of proof of Oranen's "tax avoidance strategies, offshore accounts, and $1.2 million of checks run through ORANEN's company [WAN] despite ORANEN's testimony that WAN had no assets." However, Bruckman provides no argument or authority as to the admissibility of such evidence, and, more importantly, cites no evidence in the record that Oranen engaged in such activities. Accordingly, Bruckman has waived the right to assert the court erred in excluding this evidence. (Foote, supra, 91 Cal.App.4th at p. Supp.12.)
This evidence is also improper character evidence, designed to elicit prior allegedly fraudulent acts to show that, consistent with this character trait, Oranen acted fraudulently in his dealings with Bruckman on the building.
Further, the court did not abuse its discretion in denying this motion under section 352. To allow such an accusation would have created a trial within a trial over what exactly Oranen did or did not do with his money, and proof of the legal consequences, if any, of such actions. It is undisputed that Oranen's alleged "money laundering" had nothing to do with the purchase of the building. As counsel for Bruckman admitted during argument on this motion, "[W]e are not trying to show that he used ill-gotten gains to supposedly purchase the building because we are denying that he paid half the purchase price of the building." Thus, the evidence had little relevance, and the court did not abuse its discretion in determining under section 352 that any probative value of this evidence was outweighed by its capacity to cause prejudice or confuse the issues at trial.
4. Motion in limine No. 4
As to motion in limine No. 4, Bruckman again merely cites the court's ruling that evidence of Lahoma Caudhill's proposed testimony concerning her marital status to Oranen, child support issues, or his drug use were not relevant, but that Caudhill could testify as to any admissions Oranen made against his interest regarding facts relating to this case. The only argument made by Bruckman regarding an alleged error by the court is that counsel for Bruckman, in arguing against the motion, had "mentioned a statement by ORANEN that he was unable to pay child support, though he testified differently in his deposition."
However, Bruckman cites nothing in the record that such conflicting evidence actually exists, nor does she analyze the relevance of such evidence or why the court's ruling constituted an abuse of discretion, other than the bare statement that the evidence "goes directly to his own credibility and his financial condition reflects on his motivation to effectuate these various schemes and the veracity of his claims that he gave BRUCKMAN undocumented funds." However, "evidence of specific instances of his [or her] conduct relevant only as tending to prove a trait of his [or her] character is inadmissible to attack or support the credibility of a witness." (§ 787.) Rather, it is inadmissible character evidence. Bruckman has not demonstrated the court abused its discretion in excluding evidence of Oranen's relationship with Caudhill.
5. Motions in limine Nos. 2, 9 and 11 (character evidence regarding Zeehandelaar)
As discussed, ante,the court granted motion in limine No. 9, which sought to exclude evidence that witness Zeehandelaar had been disbarred as an attorney. As to motions in limine Nos. 2 and 11, Bruckman asserts that the court erred in granting these motions as to Zeehandelaar because he was also involved in burglaries at Bruckman's residence and at the AVMS office.
As to the alleged burglaries, as we have discussed, ante, with respect to motions in limine Nos. 2 and 11, Bruckman has provided no evidence that Zeehandelaar was involved with a break-in at her home or the offices of AVMS. Further, Bruckman withdrew her opposition to motion in limine No. 11.
On appeal, Bruckman also alludes to Zeehandelaar's testimony at trial concerning an incident where he obtained a copy of the promissory note from the sale of the building. Zeehandelaar testified that he was invited into her home and was allowed to take a copy of that document. Bruckman asserts that she was "precluded from offering testimony to refute that claim and establish a wrongful intrusion on the part of Zeehandelaar." However, Bruckman cites to nothing in the record showing that she attempted to so testify, but was precluded by the court from doing so.
Bruckman alleged that Zeehandelaar had been disbarred as a result of allegedly "fraudulent conduct." Because Zeehandelaar never acted as an attorney for Oranen related to this matter, and he was not disbarred as a result of any actions related to this matter, that proposed evidence was improper character evidence, designed to show that he acted in a similar manner as to Bruckman. In fact, Bruckman argues in her brief that this evidence was "directly relevant to Zeehandelaar's character."
Bruckman asserts that this evidence was relevant to his "credibility" and to his "propensity for veracity." However, Bruckman points to nothing in the record showing that Zeehandelaar's credibility came into question during his testimony; that, for example, he lied concerning a particular matter. As discussed, ante, a witness's character for truth or veracity is only admissible to prove or disprove the truthfulness of a witness's testimony at trial. (§§ 780, subd. (e), 786.)
6. Motion in limine No. 7
Motion in limine No. 7 concerned Bruckman's attempt to elicit testimony from witnesses as to her "good" character. However, "[e]vidence of the good character of a witness is inadmissible to support his [or her] credibility unless evidence of his [or her] bad character has been admitted for the purpose of attacking his [or her] credibility." (§ 790.)
Bruckman asserts that her character was attacked by Oranen. However, as detailed above, the court withheld a ruling on this motion, finding that her decision would be determined by whether Oranen placed Bruckman's character in issue. During the trial of this matter, however, Bruckman's counsel never argued that such testimony had become relevant because Oranen had placed Bruckman's character at issue. Accordingly, Bruckman cannot raise this issue on appeal. (Sperber v. Robinson (1994) 26 Cal.App.4th 736, 742 [any action by which a party acquiesces in alleged error results in waiver of right to raise issue on appeal].)
II. MOTION FOR NEW TRIAL
Bruckman asserts that the court erred in denying her motion for new trial because (1) it erroneously excluded admissible evidence; (2) Oranen caused irregularities in the court proceedings by referring to her as a liar, attempting to "stare her down," and other improper conduct by Oranen's counsel; (3) the jury verdict improperly contained a concealment claim when none was alleged; and (4) there was insufficient evidence to support the judgment as Oranen was only entitled to the "proceeds" from the sale and there was no evidence on that issue. We reject these contentions.
A. Standard of Review
"A trial court has broad discretion in ruling on a motion for a new trial, and there is a strong presumption that it properly exercised that discretion. '"The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears."'" (People v. Davis (1995) 10 Cal.4th 463, 524; People v. Williams (1997) 16 Cal.4th 635, 686.)
"Misconduct of counsel as a ground for new trial presents a matter primarily committed to the trial court. [Citation.] The judge who presides over the trial, who hears the testimony and the arguments, and whose own experience gives him [or her] a fine sense of the general atmosphere of trial proceedings, is in a far better position than appellate judges to evaluate the effect of disputed argument." (Henninger v. Southern Pacific Co. (1967) 250 Cal.App.2d 872, 881.)
"When reviewing a discretionary . . . denial of a motion . . ., an appellate court must presume that the decision of the trial court is correct. '"All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown."' [Citation.] . . . The burden is on the party challenging the trial court's decision to show that the court abused its discretion. [Citation.] Thus, even if there is no indication of the trial court's rationale . . ., the court's decision will be upheld on appeal if reasonable justification for it can be found. 'We uphold judgments if they are correct for any reason, "regardless of the correctness of the grounds upon which the court reached its conclusion."' [Citation.]" (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443.)
"When the trial court has resolved a disputed factual issue, the appellate courts review the ruling according to the substantial evidence rule. If the trial court's resolution of the factual issue is supported by substantial evidence, it must be affirmed. [Citation.]" (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) "[W]hen two or more inferences can reasonably be deduced from the facts, a reviewing court lacks power to substitute its deductions for those of the trial court." (In re Marriage of Connolly (1979) 23 Cal.3d 590, 598, italics added.)
However, "a special verdict's correctness must be analyzed as a matter of law." (Mendoza v. Club Car, Inc. (2000) 81 Cal.App.4th 287, 303; Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 285.) Other principles governing review of a claim of inconsistency in a verdict depend on the type of verdict rendered. When a special verdict is involved, as here, a reviewing court does not imply findings in favor of the prevailing party. (Trujillo v. North County Transit Dist., supra, 63 Cal.App.4th at p. 285; Mendoza v. Club Car, Inc., supra, 81 Cal.App.4th at p. 303; Myers Building Industries, Ltd. v. Interface Technology, Inc. (1993) 13 Cal.App.4th 949, 960 (Myers).) This rule stems from the nature of a special verdict and its "'recognized pitfalls,'" namely, that it requires the jury to resolve all of the controverted issues in the case, unlike a general verdict which merely implies findings on all issues in one party's favor. (Myers, supra, 13 Cal.App.4th at pp. 959-960; Falls v. Superior Court (1987) 194 Cal.App.3d 851, 854-855; Code Civ. Proc., §§ 624, 625.) Under these circumstances, "'"the possibility of a defective or incomplete special verdict, or possibly no verdict at all, is much greater than with a general verdict that is tested by special findings . . . ."'" (Myers, supra, 13 Cal.App.4th at p. 960; Falls v. Superior Court, supra, 194 Cal.App.4th at p. 855.)
B. Analysis
1. Evidentiary issues
Bruckman first asserts that the court erred in denying her motion for new trial because it "confirmed its erroneous exclusion of admissible evidence." However, as we have already concluded that the court did not err in granting Oranen's motions in limine, this contention is unavailing.
2. Irregularities in court proceedings
A new trial may be granted on the basis of "[i]rregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial." (Code Civ. Proc., § 657, subd. 1.)
Bruckman asserts a new trial should have been granted on this ground because at trial Oranen attempted to "discredit" her testimony, which caused her "ever-increasing anxiety" during trial, and that anxiety affected her composure and ability to testify. Specifically, Bruckman asserts that Oranen repeatedly referred to her as a "liar" and attempted to "stare her down with an angry glare as she was testifying." Bruckman also points to various actions by counsel for Oranen that she asserts were meant to intimidate or discredit her and her testimony.
However, proof of her alleged "anxiety" and Oranen's attempts to "stare her down" are contained only in a declaration Bruckman filed in support of her motion for new trial. There is nothing in the trial record to support such claims, nor an objection to any such actions by Oranen or his counsel during trial. Further, the references to Oranen calling her a "liar" that Bruckman cites were simply him responding to questions from his counsel as to whether certain statements by Bruckman relating to this case were true or false:
"[Mr. Williams]: Now, we heard in the defendant's opening statement that [Bruckman] told you in the fall . . . of 2003—that she was going to sell the building. [¶] Is that a true statement?
"[Oranen]: That's a lie."
Similarly:
"[Mr. Williams]: Are you aware of you mother's earlier testimony that she never gave you a deed?
"[Oranen]: That would be a lie."
And the last reference:
"[Mr. Williams]: And your mother's testimony was that she completed the notary book prior to actually signing the grant deed; correct?
"[Oranen]: That's a lie."
None of this testimony was objected to by Bruckman, thus precluding her from arguing that it supported granting a new trial. (Sperber v. Robinson, supra, 26 Cal.App.4th at p. 744.) Further, Oranen was simply disputing Bruckman's testimony as to what occurred related to the transactions at issue.
The other cited example was when counsel for Oranen made the comment, "[a] lie is a lie," when objecting to Bruckman's testimony as being inconsistent with her testimony previously in the trial. While that comment may have been improper, the court immediately struck it from the record, and it thus does not support the granting of a new trial.
Bruckman also cites Oranen's "constant characterizations of innocent actions as malicious perjury." However, the cited questioning by counsel merely involved questions concerning whether, after she sold the building, she had ever represented that she still had an ownership interest in it. Bruckman responded that she had not. Counsel for Bruckman impeached this testimony with a declaration signed after that date in a lawsuit against a tenant of the building wherein she stated that she still owned the building. Similarly, Bruckman points to questioning where she admitted that she lied in another declaration.
That questioning was not objected to at trial, and, as Bruckman admittedly made false statements under penalty of perjury, it could hardly be characterized as falsely characterizing her "innocent" actions.
Bruckman also contends Oranen's counsel, on cross-examination, tried to intimidate her by "making attempts to confuse her and retrieve small inconsistencies." However, Bruckman cites nothing in the record to support this contention.
Finally, Bruckman asserts that counsel "relied on mischaracterizations of [her] testimony to further discredit her and berate her credibility." However, in support of this contention Bruckman cites only to counsel for Oranen's questions to Bruckman concerning discrepancies between her deposition and trial testimony. While Bruckman may believe that there were no discrepancies, or that at most they were minor, counsel was entitled to enquire into such matters on cross-examination, and such questioning was not improper. The court did not err in denying Bruckman's motion for new trial based upon irregularities in the court proceedings.
C. Alleged Errors in Verdict Form
Bruckman asserts the special verdict form was defective because questions Nos. 10, 11 and 15 on the special verdict form contained the words "conceal" or "concealed," and no cause of action for concealment was alleged in the complaint. We reject this contention.
1. Background
Question No. 10 of the special verdict form asked, "Did [Bruckman] conceal from [Oranen] in or about March 2004 that she was selling [the building] to [Mashayekhi]?" Question No. 11 asks, "At the time [Bruckman] concealed from [Oranen] that she was selling [the building] to [Mashayekhi], was [Oranen] entitled to any of the proceeds from the sale?" Question No. 15 asked, "Was [Bruckman's] concealment of the sale of [the building] a substantial factor in causing [Oranen's] harm?"
2. Analysis
Although Bruckman asserts she objected to the special verdict form because Oranen had not pleaded a cause of action for concealment, she does not cite to the record to support this claim. A review of the record shows that she only objected to the verdict form containing a cause of action for "false promise," alleging Oranen had not alleged such a cause of action in his complaint.
Because Bruckman never objected to use of the terms "conceal" and "concealed" in the verdict form, that issue has been waived and cannot be raised on appeal. (Sperber v. Robinson, supra, 26 Cal.App.4th at p. 744; Greer v. Buzgheia (2006) 141 Cal.App.4th 1150, 1158-1159 [waiver rule applies to defective verdict].)
D. Award of On-Half of Sales Price
Bruckman asserts that the jury verdict was improper because question No. 2 on the verdict form asks whether there was "an agreement, either oral or implied, to divide the proceeds from the sale of [the building] upon its sale" (Italics added.) Bruckman asserts that because she did not receive $2.9 million in cash from the sale of the building, but a $100,000 down payment and a promissory note, Oranen should have been entitled to only one-half the down payment, plus one-half the value of the promissory note. Bruckman asserts that is one-half of the "proceeds" of the sale. Bruckman asserts that this error occurred because the court excluded evidence of the promissory note and down payment based upon Oranen's motion in limine. This contention is unavailing.
1. Background
Oranen's motion in limine No. 6 sought to exclude evidence of the promissory note between Bruckman and Mashayekhi, which called for a down payment and payments over time. Oranen argued that the amount of the purchase price and amount of the note were relevant, but the terms of the note were not. Oranen sought to exclude this evidence to prevent Bruckman from influencing the jurors to award something less than one-half of the sales price.
The court agreed with Oranen, finding that the only relevant issue was the value of the note or the total amount of the note, not the terms under which Bruckman was being paid.
2. Analysis
It appears that Bruckman is arguing that the jury should have had the opportunity to award Oranen something less than one-half of the sale price because she in fact did not receive $2.9 million in "proceeds" from the sale, but a promissory note to be paid over time. At oral argument, counsel for Bruckman argued that in Oranen's complaint, he was seeking one-half of the "proceeds of the sale" of the building, not one-half of the sales price. However, Bruckman provides no authority for the principle that an individual who breaches a contract to share in the profits a sale of real estate, and engages in fraud related to that transaction, may limit the plaintiff's damages to something less than was bargained for based upon the terms of her sale to a third party. Oranen was entitled, per their agreement, to one-half of the sales price, which amounted to $1,462,500.
"Damages awarded to an injured party for breach of contract 'seek to approximate the agreed-upon performance.' [Citation.] The goal is to put the plaintiff 'in as good a position as he or she would have occupied' if the defendant had not breached the contract. [Citation.] In other words, the plaintiff is entitled to damages that are equivalent to the benefit of the plaintiff's contractual bargain." (Lewis Jorge Const. Management, Inc. v. Pomona Unified School Dist. (2004) 34 Cal.4th 960, 967-968.) Thus, in determining the proper measure of damages, we must look to the agreement of the parties.
Contrary to appellant's arguments, Oranen was consistent both in his complaint and at trial that the agreement was that he would receive one-half of the value of the property, i.e., the sales price. He did not allege or argue that the agreement was that upon a sale of the building he would receive one-half of whatever Bruckman negotiated and/or received.
In his verified complaint, Oranen alleged the parties' agreement as follows: "Diane promised David that upon the sale of the Building (which required both David and Dianne's approval) she [Diane] would pay David all back rents owned [sic] to him, along with any equity or appreciation in the Building." (Italics added.) In her verified answer, Bruckman did not assert that the agreement had different terms, but rather denied that Oranen had any interest in the building or that there was an agreement whatsoever.
Thus, contrary to counsel for Bruckman's statements at oral argument, Oranen was not claiming one-half of what they received from the sale, but one-half of the "equity" of the building. As there was no mortgage on the property, one-half of the equity would be one-half of the sales price: $1,462,500. Moreover, Oranen asserted that any sale would require his prior approval, and, thus, her sale to a third party on terms to which he did not agree was itself a breach of the agreement. Under the law of contracts, he is entitled to damages that reflect what the parties agreed to, one-half the sale price of the property, not what Bruckman unilaterally agreed to with a third party.
At trial, Oranen was also consistent in his claim to one-half of the sales price of the building. In his opening statement Oranen argued the evidence would show he and Bruckman had an agreement that "when the building was sold, they would split the equity." Elsewhere in his opening statement counsel for Oranen stated that at the end of the case he would be asking for "one-half of the sales price, one-half of $2,925,000." Bruckman, by contrast, did not deny there was any agreement to share in the profits, but rather argued that Oranen had no interest in the property as he had only loaned Bruckman some money, which she paid back.
In closing argument, Oranen again argued he was entitled to "one-half the purchase price of the building, and that one-half is the sum of $1,462,500." In explaining Oranen's burden of proof on the contract claim, counsel told the jury: "Now, one of the things that we have to prove is whether they had an agreement to divide half of the equity [upon] the sale." In explaining what the evidence showed Oranen's expectation was, counsel stated, "He will receive his one-half of the sales price once it's eventually sold . . . ." In summarizing the evidence at trial, counsel argued: "When you look at this, ladies and gentlemen, we have more than sufficiently met our burden that David not only contributed 50% of the purchase price, but they had an agreement that upon the sale of the building, he would receive half the—half of the sales price." Later, counsel argued to the jury, regarding damages: "Ms. Bruckman testified that the building sold in March 2004 for $2,925,000. David contributed 50% of the purchase price. He is entitled to 50% of the equity. There [was] no debt on the building when it was sold so he [is] owed at this time . . . $1,462,500."
In Bruckman's closing argument, her counsel did not dispute that Oranen was claiming one-half of the sales price: ""[H]e said that [the] oral agreement was, 'We purchased the property together. We pool our funds. We purchased the property, and she rents out the building. And I get paid half the rents. And when the building [sells], I get half the sales price of the building.' [¶] That was the agreement? I don't agree that was the agreement, but take Mr. Oranen at his word." Counsel did not dispute Oranen's version of the terms of the agreement, only arguing that Oranen had no interest in the property and there was no agreement to share in the proceeds of a sale.
Thus, although the jury verdict described the agreement as being to "divide the proceeds from the sale of the building," it was clear from the pleadings and argument of counsel that this meant one-half of the sales price, not what Bruckman had bargained for with a third party. Indeed, in instructing the jury on damages, the court stated that Oranen was seeking one-half the sales price of the building: "David Oranen must also prove the amount of his damages according to the following instructions. He does not have to prove the exact amount of damages. You must not speculate or guess in awarding damages; however, David Oranen claims damages for one-half the sales price of the building." (Italics added.)
The definition of "proceeds," although probably not the best choice of words, could support either an award of one-half of the sales price or one-half of what Bruckman negotiated with the buyer. It has been defined as "something that results or accrues" or "the total amount derived from a sale or other transaction." (1.1 Random House Unabridged Dict. (2006) [as of Oct. 15, 1007].)
Case law discussing the measure of damages where there is a joint venture agreement to divide the profits of a condominium project supports Oranen's right to recover that for which he bargained: one-half the sales price of the building. In GHK Associates v. Mayer Group, Inc. (1991) 224 Cal.App.3d 856 (GHK), a partnership conveyed unimproved real property to a development company, with the agreement that the development company would build condominiums on the property and pay the partnership 40 percent of the profits from sales of the condos. Instead, the development group transferred the property to a series of related entities, constructed an apartment building on the property instead of condominiums, and thereafter denied the existence of any agreement to share profits with the partnership. (Id. at pp. 862-863.) The trial court found that the development company had breached its agreement with the partnership and engaged in fraud by (1) transferring the property without the partnership's consent; (2) encumbering the property without its consent; (3) failing to develop the property as condominiums and sell them to third parties; and (4) failing to pay the partnership 40 percent of the profits. (Ibid.) The court awarded the partnership damages consisting of 40 percent of the profits of the apartment project. (Id. at p. 863.)
On appeal, the development company asserted that it was improper to award damages based upon the profits of the apartment building as they were only to share profits from a condominium project. The Court of Appeal rejected this argument, holding that because of the defendants' wrongful activities, it would be impossible to calculate what the profits would have been from a condominium project, and therefore the court did not abuse its discretion in selecting that measure of damages. (GHK, supra, 224 Cal.App.3d at pp. 873-875.)
The development company also asserted that the trial court should have deducted from the award of damages interest payments on a loan the development company incurred on the project. (GHK, supra, 224 Cal.App.3d at p. 876.) The Court of Appeal rejected this argument in part because "the loan itself constituted a breach of the agreements." (Id. at p. 877.)
Likewise, in this case Bruckman cannot try to limit Oranen's damages to something different or less than what he bargained for based upon her own wrongful activities in selling the building without his knowledge or consent. Because Bruckman sold the building without his consent, she cannot complain that he sought precisely what the parties bargained for, one-half of the sales price of the building. Thus, the court did not abuse its discretion in allowing Oranen to recover that amount of damages.
There are also practical and equitable considerations in limiting Oranen's damages to what Bruckman negotiated with a third party. If we hold that he is only entitled to one-half the down payment, one-half the interest payments when they become due, and one-half the balloon payment when it becomes due, and direct the court to enter judgment accordingly, we will be forcing him to become partners again with a person who has defrauded him. Further, we would be forcing him to accept the risk (a risk to which he did not agree) that the buyer might default on the agreement, and he might get less than what he bargained for. Indeed, because of the way Bruckman structured the deal, with a small down payment and interest only payments for 10 years, it would be very easy for the buyer, who has been receiving the rents on the building during this time, to walk away from the deal.
For all the foregoing reasons the court did not err in allowing the jury to award Oranen damages according to the terms of the parties' agreement.
Bruckman also asserts, again without authority, that this allowed the jury, in considering punitive damages, to have an improper perception of her worth, believing that she had received $2.9 million in cash. However, in arguing punitive damages to the jury, Oranen did not argue that the jury should consider the fact she had received $2.9 million in cash, but rather only referenced her net worth of $4 million, to which she testified at trial.
DISPOSITION
The judgment is affirmed. Oranen shall recover his costs on appeal.
WE CONCUR: HALLER, J., McINTYRE, J.