Pasternack v. McFarland

Full title: LAWRENCE PASTERNACK, Cross-complainant and Appellant, v. DAVID MCFARLAND…

Court: COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Date published: Aug 17, 2018

D073283 (Cal. Ct. App. Aug. 17, 2018)

Opinion

D073283

08-17-2018

LAWRENCE PASTERNACK, Cross-complainant and Appellant, v. DAVID MCFARLAND, et al., Cross-defendants and Respondents. LAWRENCE PASTERNACK, Plaintiff and Appellant, v. MACO EQUIPMENT RENTALS, INC., Defendant and Appellant.

Hatton, Petrie & Stackler, Arthur R. Petrie, II, John A. McMahon and Gregory M. Hatton for Plaintiff, Cross-complainant and Appellant. Nethery/Mueller/Olivier, Martin A. Mueller, Jacqueline E. Bailey and D. Martin Nethery for Defendant, Cross-defendant and Respondent David McFarland. Graves & King, Dennis J. Mahoney and Michael D. Sargent for Defendant and Appellant Maco Equipment Rentals, Inc.

McCONNELL, P. J.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. INC065760, INC10009154 ) APPEALS from a judgment and postjudgment orders of the Superior Court of Riverside County, John G. Evans, Judge. Affirmed in part; reversed in part; dismissed in part as moot. Hatton, Petrie & Stackler, Arthur R. Petrie, II, John A. McMahon and Gregory M. Hatton for Plaintiff, Cross-complainant and Appellant. Nethery/Mueller/Olivier, Martin A. Mueller, Jacqueline E. Bailey and D. Martin Nethery for Defendant, Cross-defendant and Respondent David McFarland. Graves & King, Dennis J. Mahoney and Michael D. Sargent for Defendant and Appellant Maco Equipment Rentals, Inc.

Lawrence Pasternack purchased a $7 million home in Bighorn, a luxury residential community and golf club in Palm Desert, California. The home was developed and sold by Vision West Investments, LLC (Vision West). Pasternack discovered what he believed were serious construction defects in the home, and this complex multiparty litigation ensued.

Pasternack asserted various causes of action, including fraud, against Vision West; its principals David McFarland and Curtis Dunham; the general contractor Easton Builders Corporation (Easton Builders; owned by Dunham); the grading subcontractor Maco Equipment Rentals, Inc. (Maco; partially owned by McFarland); the real estate brokerage Bighorn Properties, Inc. (Bighorn Properties); its broker Carl Cardinalli; the master developer Bighorn Development, LLC (Bighorn Development); the Bighorn Homeowners Association, Inc. (Bighorn HOA); and others. In addition to direct personal liability, Pasternack asserted several theories of vicarious liability, including based on conspiracy, joint venture, and alter ego.

The trial court held a multiphase trial on Pasternack's claims. It empaneled a jury to hear Pasternack's legal claims in an initial phase, including his conspiracy and joint venture allegations. It held a bench trial on Pasternack's alter ego allegations and a further bench trial on various equitable claims. A number of parties reached settlement agreements with Pasternack prior to or during trial. Vision West declared bankruptcy shortly before the jury trial and did not participate. Only McFarland and Maco saw the trial through to completion.

During the jury phase, the trial court granted in part motions for nonsuit filed by McFarland and Maco, including against Pasternack's theory of vicarious liability based on conspiracy. The jury found Pasternack had proved his claims against Vision West for construction defect, breach of contract, negligence, intentional misrepresentation, fraudulent concealment, false promise, and real estate nondisclosure. It awarded more than $4 million in damages. It also found Vision West had acted with malice, oppression, or fraud. However, the jury found against Pasternack on the two claims he asserted against McFarland, for intentional misrepresentation and fraudulent concealment. The only remaining claims against Maco were based on its vicarious liability as a joint venturer, which the jury also rejected.

In the next phase, the trial court found that Vision West was not McFarland's alter ego, and it rejected Pasternack's claims against Vision West, McFarland, and Maco under the Unfair Competition Law (UCL; Bus. & Prof. Code, § 17200 et seq.). The court entered judgment accordingly, denied Pasternack's motions for a new trial and judgment notwithstanding the verdict, and awarded attorney fees to McFarland and Maco.

Pasternack and Maco appeal. Pasternack argues (1) the trial court erred by granting partial nonsuit in favor of McFarland and Maco; (2) the court erred by excluding evidence of municipal setbacks and soil subsidence; (3) the special verdict form used by the court misstated the law regarding joint venture liability; (4) the court erred by denying Pasternack's postjudgment motions based on alleged inconsistencies in the jury's verdict; (5) the court erred by finding that Vision West was not McFarland's alter ego; and (6) the court erred by awarding attorney fees to McFarland and Maco. Maco argues that the court abused its discretion in its attorney fee award because the award was unreasonably low.

We conclude Pasternack's first argument has merit, in part. Pasternack presented evidence that would support a verdict against Maco based on the theory that it conspired with Vision West to defraud Pasternack. The trial court therefore erred by granting partial nonsuit to Maco on that allegation. The trial court also erred by prematurely granting nonsuit on Pasternack's alter ego allegation against Maco during the jury trial, when alter ego issues were reserved for the later bench trial. Pasternack's remaining arguments are unpersuasive. We will therefore reverse the judgment in part as to Maco, but otherwise affirm. In light of this disposition, Maco's appeal challenging its attorney fee award is moot.

FACTUAL AND PROCEDURAL BACKGROUND

The Bighorn Development and Vision West's Acquisition of the Property

Vision West was formed by Dunham and McFarland in 2005 for the purpose of developing and selling luxury homes in Bighorn. Dunham had experience building luxury homes through his company, Easton Builders. McFarland had existing relationships with Bighorn through Maco, which did grading there, and his other company ProSeed Landscape Services (ProSeed), which handled the landscaping in the community. McFarland owned both companies with his son, Todd Besant. Dunham and McFarland were close friends and brothers-in-law. They each owned 50 percent of Vision West.

McFarland worked with representatives of Bighorn Development to identify an appropriate lot for Vision West's first project. They settled on 1018 Cahuilla Falls, which was located among a row of empty lots that Bighorn Development intended to consolidate and enlarge. The lot was bordered on the west by an empty lot owned by Bighorn Development, on the east by an empty lot owned by an individual, and on the north by the Bighorn golf course. To the south was the street, Cahuilla Falls.

McFarland enlisted Suzanne Marney, a friend of Bighorn Development owner R.D. Hubbard, to help him obtain a lot on favorable terms. McFarland promised Marney a third of any profits earned by Vision West on the eventual sale of luxury homes on lots procured with Marney's assistance.

Bighorn Development sold the lot at 1018 Cahuilla Falls to McFarland for $1.7 million. McFarland and Dunham each contributed $50,000 towards a down payment. For the balance of the purchase price, McFarland agreed to carry a promissory note secured by a deed of trust on the property. McFarland also agreed to use Bighorn Properties to sell the property after the home was completed. McFarland later transferred ownership of the lot to Vision West.

Bighorn Development proceeded to reconfigure the lots surrounding 1018 Cahuilla Falls. As part of this reconfiguration, the western lot line of 1018 Cahuilla Falls was shifted westward. Other lots were also enlarged, and one of the surrounding lots was eliminated to accommodate the changes. At Bighorn's request, Maco moved several earthen berms that divided the lots to match the new lot lines. ProSeed landscaped the berms.

Bighorn is governed by written covenants, conditions, and restrictions (CC&R's), which are enforced by the Bighorn HOA. The CC&R's incorporate the Bighorn Architectural and Landscaping Design Guidelines (Design Guidelines), which describe the design philosophy for the development. The Architecture and Landscape Control Committee (ALCC) of the Bighorn HOA is tasked with implementing the Design Guidelines and approving landscaping and improvements at Bighorn. Cardinalli, the Bighorn Properties broker, was a longtime member of the Bighorn HOA and the ALCC. He was also a senior executive at Bighorn Development.

The Design Guidelines cover aesthetic, functional, and environmental matters related to the architecture and landscaping of lots and improvements in Bighorn. For example, to preserve the feeling of privacy at Bighorn, the Design Guidelines suggest that any improvements be confined to a portion of the lot (the building envelope) and be surrounded by natural areas that mask the presence of those improvements. Each lot has a corresponding homesite diagram identifying the building envelope and the surrounding natural areas. The Design Guidelines recognize, however, that deviations from the specified building envelope may be approved by the ALCC.¹

1 Cardinalli later testified that he believed the ALCC had unlimited discretion to approve the placement of improvements if they were generally consistent with Bighorn's design concepts, even if they deviated from the building envelope as delineated in a lot's homesite diagram. Cardinalli said variances from the Design Guidelines "are the rule and not the exception." For example, Cardinalli explained that 80 percent of homes in the area of 1018 Cahuilla Falls have a wall built near their property lines. Approximately 50 percent of homes have pools that are built outside their specified building envelope. Similarly, McFarland said he believed that a developer could deviate from the Design Guidelines as long as it was approved by the ALCC.

The homesite diagram for 1018 Cahuilla Falls, before its enlargement, described the following natural areas outside the building envelope: a 20-foot strip along the northerly property boundary, 10-foot strips on the easterly and westerly property lines, and a 25-foot strip in the front bordering the street. It does not appear that the diagram was updated to reflect the enlarged lot.

Vision West and its architect submitted plans and drawings to the ALCC for approval. McFarland handled Vision West's dealings with the ALCC. The ALCC provided numerous comments on Vision West's plans and their consistency with the Design Guidelines. Where relevant, the ALCC's specific comments will be discussed below.

The Construction of 1018 Cahuilla Falls

Vision West obtained a loan from a local bank, not to exceed $2.9 million, to fund construction. The loan was secured by the property. McFarland and Dunham also personally guaranteed repayment of the loan. Bighorn Development agreed to subordinate its deed of trust to the bank's interest in the property to facilitate the loan.

Vision West engaged Dunham's company, Easton Builders, to act as the general contractor for the project for $50,000. At trial, Dunham testified that the fee for a general contractor would normally be higher for such a project. Easton Builders' job superintendent for the project was Luis Gonzales, who was paid as an independent contractor by Vision West. This setup was unusual.

Easton Builders hired a number of subcontractors to construct the home and improvements, including Maco. Easton Builders initially contracted with Maco to perform grading and other activities for $16,000. McFarland signed the contract on behalf of Maco. It appears, as part of this initial work, Maco shifted the berm on the west side of the property to reflect the expanded lot lines. Maco also demolished and rebuilt a portion of the berm on the east side to accommodate construction at the site. The eastern berm lay almost entirely on the east side of the property line, i.e., on the neighboring lot. McFarland directed his landscaping company, ProSeed, to landscape the eastern berm, on property belonging to both 1018 Cahuilla Falls and the neighboring lot. ProSeed (or other workers at the site) connected irrigation for all the landscaping, on both lots, to the water supply at 1018 Cahuilla Falls. Vision West also constructed a wall along the eastern berm, less than 10 feet away from the property line. McFarland directed placement of the wall.

Later, Maco returned to the site and performed additional work. McFarland directed Maco to reduce the elevation of the pad behind the house by 24 inches to improve the aesthetics of the pool area. It appears, as part of this work, Maco extended the pad northward onto the golf course property. This redesign was McFarland's idea. Gonzales testified that, around this time, he heard McFarland say that he needed to talk to Bighorn Properties because he needed "more land" to accommodate the pool area. The change in elevation was not part of the precise grading plan approved by the City of Palm Desert. It was part of the approved pool plan, however.

The pool was eventually constructed by a different subcontractor. As constructed, the pool's edge was approximately six inches from the northern property line. McFarland and Dunham knew during construction how close the pool was to the property line. McFarland testified that he went to the ALCC and obtained approval for its location. Later, during escrow, the ALCC sent a letter to McFarland with its formal approval. The letter specifically recited the six-inch distance between the pool and the property line.

McFarland used paint to sketch out on the ground near the pool where a spa, seating area, and surrounding landscaping would be placed. At that time, and throughout the project, the lot lines of the property were marked with stakes. Subsequent surveys showed that a lawn to the north of the pool, as well as a portion of the seating area and a concrete walkway, encroached on property owned by the golf course. These encroachments were not part of the approved pool plan. Either Maco or ProSeed likely graded the lawn area north of the pool. McFarland testified that he depended on his subcontractors to make sure the improvements he sketched out were within the property lines.

The home and improvements were completed in October 2006, after approximately nine months of construction. Cardinalli walked through the house and gave it the ALCC's approval. He saw both the pool and the lawn extending northward toward the golf course.²

2 Cardinalli denied knowing where the pool area improvements were in relation to the lot's property lines. He denied knowing about any encroachments at the time of the transaction. When Cardinalli found out about the golf course encroachment, he asked an engineer to prepare a lot line adjustment. Bighorn Properties offered Pasternack an adjustment, at no cost, that would add the golf course encroachments to his property. The golf course later made the same offer. Pasternack did not accept the offer. Dunham testified it would have cost Easton Builders approximately $1,500 to remove the lawn and $3,500 to $4,000 to remove the other encroachments.

After construction, Vision West's surveyor went to the property and drafted an "as-built" record drawing showing the location of the home, the landscaping, the pool, and other features in relation to the property lines. The surveyor noted a number of changes from the initial plan, including the location of the pool and surrounding improvements. The as-built drawing showed that a portion of the seating area near the pool, as well as parts of other improvements, were placed on the golf course side of the northern property line. The surveyor sent copies of the as-built drawing to Easton Builders a little more than a week before the close of escrow. McFarland testified he did not see the as-built drawing until litigation began, but he was impeached by deposition testimony in which he admitted he saw the drawing "at the end of the job." Dunham denied seeing the as-built drawing until after the close of escrow. Cardinalli likewise denied seeing the as-built drawing until the litigation.

The Sale and Its Aftermath

Pasternack was interested in buying a house in Bighorn to use while he constructed a larger home in the development. He toured the newly completed house at 1018 Cahuilla Falls and decided to make an offer to purchase it the same day. During the tour, Pasternack later testified, Dunham told him that his property line would be on the other side of the eastern berm, i.e., the berm would be Pasternack's property.³

3 Dunham testified that he could not remember what he said to Pasternack during the tour. But he said he did not intend to tell Pasternack anything untrue.

The parties settled on a purchase price of $7.065 million, which included construction of an additional bedroom, and opened escrow. Bighorn Properties and its agent Jacquie Burns represented both Vision West and Pasternack in the transaction.

During escrow, McFarland and Dunham signed a seller's disclosure statement on behalf of Vision West. The disclosure statement stated that the seller was unaware of "[a]ny encroachments, easements or similar matters that may affect your interest in the subject property," "[a]ny zoning violations, nonconforming uses, violations of 'setback' requirements," "any significant defects/malfunctions" in the major structures and systems of the house, any "[m]atters affecting the title of the Property," and any "[m]aterial facts or defects affecting the Property not otherwise disclosed to Buyer." Burns signed the disclosures as the seller's agent, and Cardinalli initialed each page. At trial, McFarland and Dunham denied knowing any of their representations were untrue at the time.

Escrow closed successfully after 30 days. Of the purchase price, approximately $2.7 million was distributed to the bank to satisfy its construction loan (including interest), approximately $1.7 million was distributed to Bighorn Development to retire its promissory note (including interest), $350,000 was distributed to Bighorn Properties for its commission, and approximately $2.2 million went to Vision West. Soon afterwards, Vision West issued checks to Marney, Easton Builders, and Maco for approximately $600,000 each. For Maco, the check's "memo" line read "consultant fee," and for Easton Builders it read "[r]eimbursement lot 6."⁴ Vision West also issued checks to Dunham and McFarland for $50,000 each, representing reimbursement for their contributions to the purchase price of the lot. Dunham testified that McFarland decided how to distribute the proceeds of the sale.⁵

4 "Lot 6" was the designation of 1018 Cahuilla Falls following its enlargement.

5 McFarland testified that he "directed" his third of the profits from the sale to Maco, and Dunham "directed" his third of the profits to Easton Builders. He was impeached by deposition testimony in which he admitted Maco received a share of the profits for contributing McFarland's services to the project and Easton Builders received its share for constructing the house.

Pasternack discovered what he believed to be pervasive construction defects in the house. He communicated with Dunham and McFarland in an effort to have the defects addressed, but he was not satisfied with their response. Pasternack eventually notified Dunham and McFarland that he no longer wanted their personnel on his property.

The Underlying Litigation

After Vision West and Easton Builders filed suit against Pasternack to force payment of funds held in escrow for construction of the additional bedroom (and certain utility charges), Pasternack filed his own cross-complaint against them, eventually adding the Bighorn HOA, Bighorn Development, Bighorn Properties, Cardinalli, Burns, Dunham, and McFarland as defendants. He also filed his own complaint alleging similar causes of action against Easton Builders (again), Maco, Hubbard, and Marney. Taken together, the operative cross-complaint and complaint allege a scheme by the defendants to defraud Pasternack through misrepresentations and concealment of material construction defects in the home; encroachment of improvements onto neighboring properties; and violations of the CC&R's, Design Guidelines, building codes, and setback requirements. Pasternack alleged that the defendants were joint venturers, alter egos, and coconspirators who were each vicariously liable for the full extent of his damages. Pasternack also specifically alleged that McFarland, Dunham, and Maco were Vision West's alter egos and were therefore liable for his claims against Vision West.

Most of the defendants settled Pasternack's claims against them. Easton Builders and Dunham settled his claims for $2.25 million, plus a portion of any recovery by Easton Builders against its subcontractors. Marney settled Pasternack's claims against her by paying Pasternack her share of the proceeds of the sale of 1018 Cahuilla Falls, or $598,000. Bighorn HOA, Bighorn Development, Bighorn Properties, and Cardinalli settled Pasternack's claims by purchasing 1018 Cahuilla Falls from Pasternack for $4 million. Pasternack dismissed Hubbard, and Burns was no longer involved by the time of trial.

As noted above, the trial court bifurcated trial into a legal (jury) phase and an equitable (court) phase. Vision West, Maco, and McFarland remained. Shortly before the jury trial began, Vision West declared Chapter 7 bankruptcy. It was unrepresented at trial.⁶

6 In federal bankruptcy court, Pasternack obtained relief from the automatic stay to pursue his claims against Vision West. However, the court prohibited Pasternack from enforcing any judgment directly against Vision West. The court ordered that Pasternack could enforce the judgment only "against third parties other than [Vision West], including, but not limited to, insurers."

The jury trial lasted almost three months. Pasternack pursued claims directly against Maco for construction defects and vicariously for construction defects, breach of contract, negligence, real estate nondisclosure, intentional misrepresentation, negligent misrepresentation, fraudulent concealment, and fraud by a fiduciary. Pasternack pursued claims directly against McFarland for intentional misrepresentation and fraudulent concealment and vicariously for construction defects, breach of contract, negligence, real estate nondisclosure, intentional misrepresentation, negligent misrepresentation, fraudulent concealment, false promise, and fraud by a fiduciary.

Pasternack offered evidence of Vision West's formation; its acquisition of the lot from Bighorn Development; and its engagement of Easton Builders, Maco, and other subcontractors. He went through the design and construction of the house, including Vision West's correspondence with the ALCC, McFarland's redesign of the pool area, Maco's grading activities, and ProSeed's landscaping. Pasternack called McFarland, Dunham, Gonzales, and Cardinalli, among others, as witnesses. Pasternack told the jury about his purchase of the home and his subsequent discovery of various defects and encroachments. Expert witnesses testified that the home suffered from serious construction defects. Another expert opined that it would cost more than $2.5 million to repair the defects. An appraiser testified that 1018 Cahuilla Falls was worth only $2 million at the time Pasternack purchased it.

At the close of Pasternack's case-in-chief, Maco and McFarland moved for nonsuit on all of his claims. Maco argued that the claims all relied on theories of vicarious liability that had no basis in the evidence. Maco asserted arguments against Pasternack's alter ego theory, although it acknowledged alter ego issues had "potentially been reserved." McFarland argued that the evidence did not establish his personal liability for fraud or his vicarious liability for any of the other claims against him. He expressly declined to address alter ego issues. Pasternack opposed both motions. He did not mention the alter ego portion of Maco's argument.

In a minute order, the trial court granted Maco's nonsuit motion as to "the [first] Cause of Action for Construction Defects," "the issue that Maco is the alter ego of any individual defendant," "the issue of vicarious liability based upon a conspiracy theory," and "the [eighth] Cause of Action for Fraud by a Fiduciary." In all other respects, Maco's motion was denied. The court granted McFarland's nonsuit motion as to "the issue of vicarious liability based upon a conspiracy theory" and "the [eighth] Cause of Action for Fraud by [a] Fiduciary." In all other respects, McFarland's motion too was denied.

Maco and McFarland presented their defense cases, including testimony by Burns, Besant, and various experts. The court instructed the jury on Pasternack's claims, including construction defect (directly against Vision West), breach of contract (directly against Vision West), negligence (directly against Vision West), intentional misrepresentation (directly against Vision West and McFarland), fraudulent concealment (directly against Vision West and McFarland), false promise (directly against Vision West), negligent misrepresentation (directly against Vision West), and real estate nondisclosure (directly against Vision West). The court also instructed the jury on the existence of a joint venture, which Pasternack alleged imposed vicarious liability on Maco.⁷

7 The court used CACI No. 3712 regarding joint ventures, modified as follows: "Lawrence Pasternack claims that Easton Builders Corp., Maco Equipment Rentals, Inc. and Suzanne Marney entered into a joint venture in this case. [¶] Each of the members of a joint venture, and the joint venture itself, are responsible for the wrongful conduct of a member acting in furtherance of the venture. [¶] You must decide whether a joint venture was created in this case. A joint venture exists if all of the following have been proved: [¶] 1. Two or more persons or business entities combined their property, skill, or knowledge with the intent to carry out a single business undertaking; [¶] 2. Each has an ownership interest in the business; [¶] 3. They have joint control over the business, even if they agree to delegate control; and [¶] 4. They agree to share the profits and losses of the business. [¶] A joint venture can be formed by a written or an oral agreement or by an agreement implied by the parties' conduct."

In closing arguments, Pasternack requested $5.065 million in damages based on the difference between the purchase price of 1018 Cahuilla Falls and its value at the time of purchase. He also sought over $685,000 in out-of-pocket expenses caused by defendants' fraud. Maco, for its part, denied that it had formed a joint venture with anyone and therefore denied liability. It argued that it was simply a subcontractor and did not have any ownership interest in or ability to control the project. McFarland acknowledged that Vision West had sold Pasternack a defective house and urged the jury to award an appropriate amount against Vision West based on the defects. However, he denied that he was personally liable for fraud on any theory.

Following deliberations, the jury found against Vision West on Pasternack's claims for construction defects, breach of contract, negligence, and real estate nondisclosure. It also found against Vision West on Pasternack's fraud claims, i.e., intentional misrepresentation, fraudulent concealment, and false promise. It awarded several measures of damages: $3,565,000 based on the difference between the value of 1018 Cahuilla Falls and the purchase price; $1,480,354 based on the total cost to repair construction defects at the house; $125,000 based on the reasonable cost to investigate and identify such defects; and $479,500 in out-of-pocket damages spent in reasonable reliance on Vision West's negligence and fraud.⁸

8 The jury found against Pasternack on his negligence misrepresentation claim against Vision West. Although it found Vision West had made a false representation of an important fact to Pasternack, the jury determined that Vision West did not honestly believe the representation was true. In essence, the jury found that the misrepresentation was intentional, not negligent.

The jury found McFarland had not committed fraud, however. It determined that he did not make a false representation of an important fact to Pasternack (intentional misrepresentation) or intentionally fail to disclose an important fact to Pasternack that he did not know and could not reasonably have discovered (fraudulent concealment). Given these determinations, the jury did not consider the other elements of each fraud claim again McFarland.

The jury was asked a series of questions regarding joint venture liability in Verdict Form No. 11. The questions recited the elements of joint venture liability and asked if they had been satisfied as to each involved party, i.e., Easton Builders, Marney, Maco, and Vision West. The jury found that most, but not all, elements had been satisfied as to Maco. Specifically, it found that all four parties combined their property, skill, or knowledge with the intent to carry out a single business enterprise of developing and selling the property at 1018 Cahuilla Falls; that Easton Builders, Maco, and Vision West (but not Marney) had an ownership interest in the enterprise and agreed to share the profits and losses of the enterprise; and that Easton Builders and Vision West (but not Marney or Maco) had joint control over the enterprise.

Because of an error in the verdict form, the jury was also asked, "If you find that [Maco] was in a joint venture with another, and answered Question 7 in Verdict No. 5 and/or Question 6 in Verdict No. 7 "Yes", did David McFarland engage in this conduct in the course and scope of his ownership or office with [Maco]?" The two verdict forms referenced in question covered McFarland's personal liability for intentional misrepresentation and fraudulent concealment. Even though the jury did not find all of the elements of joint venture liability established for Maco, and even though the jury did not answer the referenced questions regarding McFarland, it still answered "No" to the question.

Following a discussion with counsel, the court noted that the question asked the jury to make a finding it should not have been asked to make. It provided a revised Verdict Form No. 11, which clarified that the jury should not answer that question (and two related questions) if it had not made certain determinations. After deliberating on the revised Verdict Form No. 11, the jury returned with the same answers, except as to the questions that were subject to the court's clarification.

The court rejected a separate objection by Pasternack that the question regarding joint control was incomplete because it did not include the concept of delegated control. Both the initial and revised Verdict Form No. 11 asked two questions about control. The first question asked, "Did any two or more of the following persons or entities have joint control over the business undertaking, even if they agreed to delegate control of developing and selling the property located at 1018 Cahuilla Falls: Easton Builders Corp., Suzanne Marney, Maco Equipment Rentals, Inc. and/or Vision West Investments LLC?" In each form, the jury answered "Yes." The second question asked, "Which of the following do you find had joint control over the business undertaking of developing and selling the property located at 1018 Cahuilla Falls?" As noted, the jury answered affirmatively for Easton Builders and Vision West, but negatively for Marney and Maco.

The jury found Vision West acted with malice, fraud, or oppression in connection with Pasternack's intentional misrepresentation and fraudulent concealment claims. The parties agreed to have the court determine the amount of punitive damages due Pasternack. The court awarded one dollar.

After discharging the jury, the court set a bench trial on the issue of alter ego liability, i.e., whether Vision West was merely an alter ego of McFarland. The parties agreed the court should consider the evidence from the jury trial in the alter ego bench trial as well. Pasternack and McFarland also presented additional evidence of Vision West's activities and finances. This evidence will be summarized below. (See pt. V, post.)

After considering the evidence and counsel's arguments, the trial court found that Vision West was not McFarland's alter ego. In a lengthy statement of decision, it explained that Vision West's owners had not comingled or diverted funds, Vision West's assets were separate from its owners' assets, Vision West complied with corporate formalities, Vision West was not a mere shell or conduit for a single venture, and Vision West had not been formed with the intent to improperly avoid personal liability. While the court found that Vision West was likely undercapitalized, it concluded this fact was insufficient to establish it was the alter ego of its owners. The court also found that Pasternack had not shown an inequitable result would follow if Vision West were not treated as McFarland's alter ego.

The trial court held a further bench trial on Pasternack's UCL claims against Vision West, Maco, and McFarland. In another statement of decision, the court found against Pasternack and in favor of the defendants. As to Vision West, the court found that Pasternack had an adequate remedy at law and was not entitled to restitution. As to McFarland and Maco, the court found that they were not actual perpetrators of any UCL violations. The court believed that Pasternack had not shown Maco or McFarland violated the Bighorn CC&R's or any setback requirements. The court also found that McFarland and Maco were not secondarily liable for any UCL violations by Vision West. The court wrote, "There was no evidence that McFarland and/or Maco actively personally participated in any unfair, unlawful or fraudulent act by Vision West. The evidence was to the contrary. . . . There was no evidence that McFarland or Maco knowingly encouraged a UCL violation or provided substantial assistance in the perpetration of a UCL violation."

The court entered a final judgment for the consolidated actions that incorporated its nonsuit rulings, the jury's verdict, and the court's equitable determinations. After applying various settlement setoffs, the court found that Pasternack earned a net recovery of approximately $550,000 against Vision West. The court entered judgment against Pasternack and in favor of McFarland and Maco on all claims against them, including those based on vicarious theories of liability.

Pasternack filed motions for partial judgment notwithstanding the verdict and a new trial. In his motion for partial judgment notwithstanding the judgment, Pasternack argued the evidence compelled findings that McFarland committed intentional misrepresentation and fraudulent concealment and that Maco was a joint venturer in the business enterprise of constructing and selling 1018 Cahuilla Falls. In his motion for a new trial, Pasternack argued, among other things, that the court erred by excluding evidence of municipal setbacks and soils reports, the jury's verdict was inconsistent because it found Vision West committed fraud but McFarland did not, the court's revision of Verdict Form No. 11 deprived Pasternack of a fair trial, and the court erred in granting partial nonsuit to Maco and McFarland. The court denied both motions.

McFarland and Maco moved for awards of attorney fees. The court awarded approximately $1 million each in fees to McFarland and Maco. (The court also awarded Pasternack approximately $3 million in fees against Vision West.)

Pasternack appeals the judgment and postjudgment orders. Maco appeals the postjudgment order awarding it attorney fees.

DISCUSSION

I

Orders Granting Partial Nonsuit

A

"A motion for nonsuit allows a defendant to test the sufficiency of the plaintiff's evidence before presenting his or her case. Because a successful nonsuit motion precludes submission of plaintiff's case to the jury, courts grant motions for nonsuit only under very limited circumstances." (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838 (Carson).) " '[C]ourts traditionally have taken a very restrictive view of the circumstances under which nonsuit is proper. The rule is that a trial court may not grant a defendant's motion for nonsuit if plaintiff's evidence would support a jury verdict in plaintiff's favor. [Citations.] [¶] In determining whether plaintiff's evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give "to the plaintiff['s] evidence all the value to which it is legally entitled, . . . indulging every legitimate inference which may be drawn from the evidence in plaintiff['s] favor . . . ." ' " (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1214 (Castaneda).)

"In an appeal from a judgment of nonsuit, the reviewing court is guided by the same rule requiring evaluation of the evidence in the light most favorable to the plaintiff. 'The judgment of the trial court cannot be sustained unless interpreting the evidence most favorably to plaintiff's case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.' [Citations.] [¶] Although a judgment of nonsuit must not be reversed if plaintiff's proof raises nothing more than speculation, suspicion, or conjecture, reversal is warranted if there is 'some substance to plaintiff's evidence upon which reasonable minds could differ . . . .' " (Carson, supra, 36 Cal.3d at p. 839.) In other words, we may affirm a judgment of nonsuit only where the evidence would be insufficient to sustain a verdict in the plaintiff's favor, i.e., no substantial evidence would support such a verdict. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.) "We review an order granting a nonsuit de novo." (Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC (2010) 185 Cal.App.4th 1050, 1060.)

B

Pasternack contends the court erred by granting McFarland's and Maco's motions for nonsuit on "the issue of vicarious liability based upon a conspiracy theory." In this context, Pasternack claims that McFarland, Maco, and Vision West were coconspirators or aiders and abettors in a scheme to defraud him.

Although Pasternack references aiding and abetting in his briefing in this court, it does not appear that Pasternack asserted a theory of aiding and abetting at trial or that the trial court considered it in connection with the motions for nonsuit. The trial court's nonsuit order and its later judgment reference only conspiracy. Pasternack's pleadings do not allege aiding and abetting against McFarland or Maco, except in connection with his claim for breach of fiduciary duty. Although McFarland references this absence in his respondent's brief, Pasternack does not respond. Based on our review of the record, we conclude the trial court did not grant nonsuit on any allegation of aiding and abetting except as encompassed by Pasternack's claim for breach of fiduciary duty. Pasternack's contention that the court erred in granting nonsuit based on aiding and abetting in connection with the other claims must therefore fail. We need not further consider it.

"Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. [Citation.] By participation in a civil conspiracy, a coconspirator effectively adopts as his or her own the torts of other coconspirators within the ambit of the conspiracy. [Citation.] In this way, a coconspirator incurs tort liability co-equal with the immediate tortfeasors." (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511 (Applied Equipment).)

" ' "[T]he basis of a civil conspiracy is the formation of a group of two or more persons who have agreed to a common plan or design to commit a tortious act." [Citations.] The conspiring defendants must also have actual knowledge that a tort is planned and concur in the tortious scheme with knowledge of its unlawful purpose. [Citations.] [¶] However, actual knowledge of the planned tort, without more, is insufficient to serve as the basis for a conspiracy claim. Knowledge of the planned tort must be combined with intent to aid in its commission.' [Citation.] Knowledge and intent ' "may be inferred from the nature of the acts done, the relation of the parties, the interest of the alleged conspirators, and other circumstances." ' " (Favila v. Katten Muchin Rosenman LLP (2010) 188 Cal.App.4th 189, 206 (Favila).)

While knowledge and intent may be found as a result of reasonable inferences based on the evidence, " ' "[c]onspiracies cannot be established by suspicions. There must be some evidence. Mere association does not make a conspiracy." ' " (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1582.) " 'Bare' allegations and 'rank' conjecture do not suffice for a civil conspiracy." (Choate v. County of Orange (2000) 86 Cal.App.4th 312, 333.)

An important limitation on conspiracy liability arises where an agent is alleged to have conspired with his or her principal. The "agent's immunity rule" states that, in general, "duly acting agents and employees cannot be held liable for conspiring with their own principals." (Applied Equipment, supra, 7 Cal.4th at p. 512.) Under this rule, while agents and employees may be liable for their own torts (see, e.g., Bock v. Hansen (2014) 225 Cal.App.4th 215, 230 (Bock)), they cannot be liable for their principal's torts under a theory of conspiracy. Its rationale is that "an agent or employee who is acting within the scope of his authority is (in the eyes of the law) one and the same 'person' as the corporation." (Everest Investors 8 v. Whitehall Real Estate Limited Partnership XI (2002) 100 Cal.App.4th 1102, 1109.)

Pasternack alleges that McFarland conspired with Vision West to defraud him. Only McFarland's liability for Vision West's torts is at issue here; Pasternack's claims against McFarland for his own torts were not part of the court's nonsuit order. Because McFarland was acting as Vision West's agent in connection with the development and sale of 1018 Cahuilla Falls, he is shielded by the agent's immunity rule from liability for Vision West's torts. (See Applied Equipment, supra, 7 Cal.4th at p. 512.) The court therefore did not err in granting McFarland's motion for nonsuit on this theory.

In his opening brief, Pasternack acknowledges the agent's immunity rule but argues "the agent who is the actor in the tortious conduct of the principal is liable for the principal's torts on an agency theory." Pasternack misstates the rule. Under agency law, a principal may be liable for the torts of its agent. (Civ. Code, §§ 2338, 2339; Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 810, 812.) Pasternack attempts to articulate why McFarland would be liable under a theory of conspiracy notwithstanding the agent's immunity rule, but he provides no legal authority to support his attempt and he abandons the argument in his reply brief. We may therefore treat this issue as waived. (See Overstock.com, Inc. v. Goldman Sachs & Co. (2014) 231 Cal.App.4th 513, 530, fn. 11 [failing to maintain an argument on reply may waive the issue]; Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 (Cahill) [failure to provide reasoned legal argument and authority may waive the issue].) And, in any event, he has not shown the court erred.

Maco does not argue it is protected by the agent's immunity rule. We will therefore examine whether Pasternack presented sufficient evidence to support the allegation that Maco conspired with Vision West to defraud him. In this context, the evidence must show Maco knew that Vision West intended to defraud Pasternack, Maco agreed with Vision West to defraud Pasternack, and Maco intended to aid Vision West in the fraud. (See Favila, supra, 188 Cal.App.4th at p. 206.) There is ample support for the fraud itself and the resulting damages, as the jury's verdict attests.

Viewed in the light most favorable to Pasternack, the evidence shows the following: Vision West and Maco were related companies with overlapping ownership. McFarland was heavily involved in the activities of both companies. He had a close personal and professional relationship with Dunham, the other owner of Vision West. He also had a close personal and professional relationship with Besant, the other owner of Maco. On behalf of Vision West, McFarland directed the design of the grounds and landscaping surrounding the house at 1018 Cahuilla Falls. Importantly, McFarland redesigned the pool area, extending the actual pool to within six inches of the property line and laying out other improvements that encroached on golf course property. Based on evidence that the property line was marked by stakes throughout construction, and Gonzales's testimony that McFarland acknowledged he needed to contact Bighorn Properties because he needed "more land" for the pool, a jury could reasonably find that McFarland knew he was placing encroachments on property Vision West did not own. On behalf of Maco, McFarland directed it to prepare the pad for the placement of the pool and off-site encroachments, such as the lawn. In contrast to Maco's initial work on the site, there was no written contract or other record of Maco's subsequent work. McFarland claimed that Maco was paid with the right to use the dirt from the grading, but a jury could reasonably disbelieve that claim.

Maco moved the berm on one side of the lot to accommodate the reconfiguration, but it was placed almost entirely on the neighboring lot. Maco demolished and reconstructed at least a portion of the berm on the other side to facilitate construction. This reconstructed berm, too, was located on a neighboring lot. McFarland acknowledged that he directed the placement of landscaping on berms (again, located on neighboring lots) and his workers connected that landscaping to the irrigation system at 1018 Cahuilla Falls.

McFarland received confirmation of the encroaching improvements when Vision West surveyor drafted the "as-built" record drawing. McFarland admitted he received the drawing at the end of the project, which a jury could conclude was before escrow closed on Pasternack's purchase of 1018 Cahuilla Falls.

A jury could reasonably find that McFarland's activities were intended to make the property appear larger and more private than it actually was and thereby mislead any future buyers regarding the size of the property and Vision West's ability to sell the land underlying the encroaching improvements in the rear and the side yards. Given McFarland's involvement in this fraud, his activities on-site with Vision West, and his close relationship with Dunham, it would not be unreasonable for a jury to believe that McFarland's fraud and Vision West's fraud (led by Dunham, regarding the house itself) were related. Indeed, Pasternack testified that Dunham told him that his property extended beyond the actual property lines on the side yard. A jury could infer based on this testimony that Dunham's and McFarland's activities were part of a single fraudulent scheme. A jury could reasonably find that McFarland knew of the whole scheme, agreed with its object, and intended to aid the fraud through misrepresentations and concealment of material adverse conditions outside the house.

McFarland had control over Maco and directed its activities at the site, at least in part. He signed Maco's contract with Easton Builders for its initial work at the site, and he directed its subsequent work in the pool area. Moreover, a jury could reasonably find (as did the jury here) that Maco was not a mere subcontractor. It combined its skill and knowledge with Vision West and others for the purpose of developing and selling 1018 Cahuilla Falls, it had an ownership interest with Vision West in the business enterprise of developing and selling 1018 Cahuilla Falls, and it agreed with Vision West to share the profits and losses from the endeavor.

Based on McFarland's knowledge of and intent to aid Vision West's fraud, his controlling position in Maco, Maco's work to facilitate the fraud, its involvement and ownership interest in the business enterprise of developing and selling the property, its agreement to share in the profits of the enterprise, and its subsequent receipt of those profits, a reasonable jury could find the elements of civil conspiracy against Maco: Maco knew of Vision West's fraud, agreed with its goal (which would benefit Maco as well), and intended to aid its commission. The court therefore erred in granting nonsuit to Maco on this issue.

Resisting this conclusion, Maco relies heavily on Besant's trial testimony. But Besant testified in the defense case, so his testimony cannot be used to challenge the nonsuit order. (See Castaneda, supra, 41 Cal.4th at p. 1214; see also Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2017) ¶ 12:250.) And, in any event, Besant's testimony does not foreclose the reasonable inferences in favor of Maco's involvement in a conspiracy outlined above. Maco also focuses on evidence and inferences in its favor, rather than in favor of Pasternack, contrary to the standards governing motions for nonsuit. (See Carson, supra, 36 Cal.3d at pp. 838-839.) For example, Maco claims McFarland did not direct any of Maco's work, it argues that Maco was not involved "in any way" in the business of constructing and selling the property, and it credits McFarland's explanation that Vision West's payment to Maco was merely his reimbursement for loans Maco made to him. Based on the evidence described above, a reasonable jury could draw the opposite conclusions. And, with respect to the latter two contentions, the jury here expressly did so. It rejected Maco's position in its verdict concerning the joint venture elements of combination, ownership, and profit sharing. For these reasons, we conclude the court erred by granting Maco's motion for nonsuit on the issue of conspiracy.

C

Pasternack next contends the court erred by granting McFarland's motion for nonsuit on his cause of action for breach of fiduciary duty. (He does not challenge the court's order granting nonsuit to Maco on this cause of action.) Pasternack claims that McFarland conspired with Bighorn Properties to breach its fiduciary duty to Pasternack or aided and abetted Bighorn Properties in the same breach.

Pasternack's claim depends on an underlying breach of fiduciary duty by Bighorn Properties. "A broker has a fiduciary duty to its client." (Michel v. Moore & Associates, Inc. (2007) 156 Cal.App.4th 756, 762.) "A fiduciary must tell its principal of all information it possesses that is material to the principal's interests. [Citations.] A fiduciary's failure to share material information with the principal is constructive fraud, a term of art obviating actual fraudulent intent." (Ibid.) " ' "Constructive fraud is a unique species of fraud applicable only to a fiduciary or confidential relationship." [Citation.] [¶] "[A]s a general principle constructive fraud comprises any act, omission or concealment involving a breach of legal or equitable duty, trust or confidence which results in damage to another even though the conduct is not otherwise fraudulent. Most acts by an agent in breach of his fiduciary duties constitute constructive fraud. The failure of the fiduciary to disclose a material fact to his principal which might affect the fiduciary's motives or the principal's decision, which is known (or should be known) to the fiduciary, may constitute constructive fraud. Also, a careless misstatement may constitute constructive fraud even though there is no fraudulent intent." ' " (Assilzadeh v. California Federal Bank (2000) 82 Cal.App.4th 399, 415.)

Pasternack argues that Bighorn Properties breached its fiduciary duties by not disclosing that Vision West "was selling [Pasternack] property on adjoining lots that Vision West did not own" and that "[t]he property was built in violation of the architectural guidelines incorporated verbatim in Bighorn's CC&Rs." Viewing the evidence most favorably to Pasternack and drawing all reasonable inferences in his favor, as we must, we nonetheless conclude the evidence would not support a finding that Bighorn Properties was aware of either fact at the time Pasternack purchased 1018 Cahuilla Falls.

As to the first claim, there was no evidence that Bighorn Properties (or its agents Cardinalli and Burns) had actual knowledge that Vision West had constructed improvements on the golf course property or neighboring lots or that Vision West intended to mislead Pasternack into believing he was purchasing those improvements. While Cardinalli was aware through his participation in the ALCC that the pool was constructed within six inches of the golf course property line, the pool was not an encroaching improvement. And, although Cardinalli visited the property, the timing and extent of his visit is unclear. There is no evidence that the property lines were pointed out to him or that Cardinalli acknowledged the encroachments. It is speculation to believe that Cardinalli subjectively realized during that tour that improvements placed near the pool were outside the property line. Similarly, the wall approved by the ALCC was near the property line, not over it. And, because the berms at Bighorn were generally landscaped, Cardinalli would have no reason to believe the landscaping on the berms near 1018 Cahuilla Falls were part of a fraudulent scheme to make the property appear larger than it actually was.

As to the second claim, the evidence did not support a finding that Bighorn Properties knew the property was built in violation of the Design Guidelines or the CC&R's. Cardinalli, who testified in Pasternack's case-in-chief, explained that the ALCC had the discretion to approve improvements as long as they complied with the spirit of the Design Guidelines, even if the improvements deviated from their stated requirements. He explained that most properties at Bighorn deviated from the requirements of the Design Guidelines. Indeed, the Design Guidelines themselves recognize that the ALCC may approve deviations under appropriate circumstances. Thus, although Pasternack claims the ALCC notified Vision West of deviations from the Design Guidelines, in many instances the ALCC formally approved such deviations. And the evidence was undisputed that the ALCC approved the property as-built based on Cardinalli's visit. The property therefore complied with the Design Guidelines and the CC&R's, per the ALCC's approval. Given this evidence, it would be speculation to believe that the ALCC did not approve 1018 Cahuilla Falls as-built. And, while the ALCC could not approve the encroachments, of course, there is no evidence Cardinalli (or Bighorn Properties) was aware of the encroachments before escrow closed and this litigation began, as explained above.

Given our conclusion that the evidence would not support a finding that Bighorn Properties perpetrated a constructive fraud, it follows logically that Bighorn Properties did not perpetrate an actual fraud either. Liability for fraud, here intentional misrepresentation or fraudulent concealment, requires that Bighorn Properties knowingly made a false statement of material fact or intentionally concealed a material fact. (See Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166; Levine v. Blue Shield of California (2010) 189 Cal.App.4th 1117, 1128.) For the reasons explained above, Pasternack has not shown the evidence would support findings in his favor on either of these elements.

Because the evidence would not support a finding that Bighorn Properties breached its fiduciary duty to Pasternack on any ground, McFarland cannot be liable for aiding and abetting such a breach or conspiring with Bighorn Properties to commit a breach. The court did not err by granting nonsuit on this issue.⁹

9 We acknowledge the general rule that a nonfiduciary cannot conspire with a fiduciary to breach a fiduciary duty based on constructive fraud. (See, e.g., Kidron, supra, 40 Cal.App.4th at p. 1598.) This rule provides an alternate ground, in part, on which to affirm the nonsuit. Given our conclusion, we need not consider whether other grounds might also support affirmance of other aspects of the nonsuit order.

D

Pasternack also contends the court erred by granting Maco's motion for nonsuit on his claim that Maco was the alter ego of Vision West. Pasternack argues that the order granting nonsuit was premature because alter ego issues were reserved for a future phase of trial. For reasons we will explain, we agree.

During Pasternack's case-in-chief, the parties and the court agreed that alter ego issues would be considered by the court in a bench trial after the conclusion of the jury trial. When Maco moved for nonsuit, it explicitly acknowledged that alter ego issues "ha[d] potentially been reserved," but it argued that Pasternack's alter ego theory was impermissible as a matter of law. Maco claimed that Pasternack was improperly trying to hold Maco liable for McFarland's wrongdoing, which was impermissible outside reverse piercing of the corporate veil. (See Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 513 (Greenspan).) In his responsive argument, Pasternack did not address alter ego issues. (McFarland, arguing his motion for nonsuit directly afterwards, said he was not going to talk about alter ego because that would be tried later in a bench trial.) The court granted Maco's motion "[a]s to the issue that Maco is the alter ego of any individual defendant."¹⁰

10 We requested and received supplemental briefing regarding the significance, if any, of the phrase "individual defendant" and whether it excluded Vision West. Both Pasternack and Maco agree that the phrase includes Vision West.

A motion for nonsuit may be granted "[o]nly after, and not before, the plaintiff has completed his or her opening statement, or after the presentation of his or her evidence in a trial by jury . . . ." (Code Civ. Proc., § 581c, subd. (a).) "Generally speaking, it is error to grant a nonsuit, except when predicated upon the opening statement, before the plaintiff has closed his case." (Dineen v. City and County of San Francisco (1940) 38 Cal.App.2d 486, 492 (Dineen).) "There are certain exceptions to the general rule [citation] where it appears that whatever other evidence might be brought before the court, the result would be the same." (King v. Associated Construction Corp. (1960) 183 Cal.App.2d 818, 821; see Ritschel v. City of Fountain Valley (2006) 137 Cal.App.4th 107, 114 (Ritschel); Skelton v. Schacht Motor Car Co. (1913) 22 Cal.App. 144, 146.)

Here, because the parties and the court agreed to handle alter ego issues at a future bench trial, Pasternack had neither presented his opening statement nor completed his presentation of evidence on those issues. The court's nonsuit order on alter ego was therefore premature and erroneous. (See Dineen, supra, 38 Cal.App.2d at p. 492.)

Based on the current record, we cannot say that the error was harmless. Pasternack was deprived of his opportunity to put on evidence to support his alter ego allegation. Given the substantial connections between Maco and Vision West, we cannot say that Pasternack's allegation could not have been supported by the evidence if he had been given the opportunity to present his case. It is therefore not clear that Maco would have been entitled to nonsuit if it had made a procedurally proper motion. (Cf. Ritschel, supra, 137 Cal.App.4th at p. 114 [affirming nonsuit where trial court had already heard the bulk of evidence relating to plaintiff's claim and the court specifically found that the additional evidence plaintiff intended to offer would be insufficient to support the claim].)

Maco argues here, as in the trial court, that Pasternack's alter ego claim against Maco involves impermissible reverse veil piercing. It contends that Pasternack's alter ego claim involves a two-step process, from Vision West to McFarland and then from McFarland to Maco. The step from McFarland to Maco would involve reverse veil piercing, and Maco is correct it is impermissible. (See Greenspan, supra, 191 Cal.App.4th at p. 513.) But Pasternack's claim does not involve such a two-step process. Instead, Pasternack argues that Maco is the alter ego of Vision West directly. Under certain circumstances, an entity may be an alter ego of another entity. (See, e.g., Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 297, 300 (Mesler); Las Palmas Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220, 1249-1250 (Las Palmas).) Maco's argument is therefore unpersuasive.¹¹

11 Maco also argues that Pasternack was not authorized by the bankruptcy court to pursue alter egos of Vision West. We disagree. The order granting relief from the automatic stay states that Pasternack may enforce any judgment against Vision West against "third parties other than [Vision West], including, but not limited to, insurers." Maco is a third party other than Vision West, so the order by its plain language authorizes Pasternack's attempt to enforce the judgment against it. Maco points out that the bankruptcy court crossed out "contractual indemnitors, or alter egos of [Vision West]" from the order, but that deletion did not change the generality of the bankruptcy court's order. The transcript of a bankruptcy court hearing discussing the order confirms this interpretation.

Because we reverse the nonsuit order solely because it was premature, and Pasternack was not given the opportunity to present his evidence on this issue, we express no opinion regarding whether the evidence in the record, in and of itself, would support a finding that Maco is the alter ego of Vision West. A procedurally proper motion for nonsuit may well have merit. But we cannot say with sufficient certainty that such a motion would be granted. Reversal of the court's nonsuit order on this issue is therefore appropriate.

II

Evidentiary Issues

Pasternack appears to contend the trial court erred by excluding two categories of evidence. He does not cite any legal authorities regarding admission of evidence or our standard of review. We may therefore properly treat his contentions as waived. " 'Appellate briefs must provide argument and legal authority for the positions taken. "When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived." ' [Citation.] 'We are not bound to develop appellants' argument for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived.' " (Cahill, supra, 194 Cal.App.4th at p. 956.) We will, however, discuss Pasternack's contentions on the merits, to the extent possible.

Pasternack first argues the court erred by excluding evidence that municipal ordinances at the time of the purchase required setbacks of at least 25 feet between houses. We need not consider whether the trial court erred because, even assuming error, Pasternack still has the burden of establishing prejudice. "[I]t is the burden of appellants to show that it is reasonably probable that they would have received a more favorable result at trial had the error not occurred." (Christ v. Schwartz (2016) 2 Cal.App.5th 440, 447.) Pasternack has not shown it is reasonably probable he would have obtained a more favorable result at trial. He has cited no evidence, for example, that McFarland knew the house was built in violation of the then-existing municipal setbacks. He has not explained why the jury would have found that McFarland concealed such a violation when it absolved him of similar allegations of concealment based on the placing of improvements in the rear and side yards. He also does not address his own testimony, where he appears to acknowledge he believed at the time of the purchase that the applicable setbacks were not 25 feet, but only five feet. Pasternack asserts that he would have obtained more damages had evidence of setback violations been admitted, but he neither substantiates a cause of action based on setback violations nor justifies with evidence or cogent legal argument that an increase in damages would be warranted based on such violations.

In his reply brief, Pasternack makes a number of assertions that are unsupported by references to the record, except for blanket citations to more than 500 pages of his briefing in the trial court. Such unfocused citation is improper. (See Cal. Rules of Court, rule 8.204(a)(1)(B).) We will disregard any factual assertions without proper citations to the record, there and elsewhere in Pasternack's briefing. (Millan v. Restaurant Enterprises Group, Inc. (1993) 14 Cal.App.4th 477, 485.) "It is not the duty of a reviewing court to search the record for evidence on a point raised by a party whose brief makes no reference to the pages where the evidence can be found." (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1011 (ComputerXpress).)

Pasternack next argues the court erred by excluding certain expert testimony regarding hydrocollapse and subsidence potential. His substantive argument consists of the following sentence: "The record establishes a scientific basis for the testimony, including a history of flash flooding on the subject property." The sentence is supported only by a blanket citation to almost 1,100 pages of the reporter's transcript. Such cursory treatment is obviously insufficient. (Cahill, supra, 194 Cal.App.4th at p. 956; ComputerXpress, supra, 93 Cal.App.4th at p. 1011.)

For the foregoing reasons, Pasternack has not shown the judgment should be reversed based on any alleged evidentiary errors. We need not consider the parties' remaining contentions regarding these issues.

III

Verdict Form No. 11

Pasternack contends the special verdict form submitted to the jury misstated the law and conflicted with the court's jury instructions by omitting the concept of "delegated control" from one of its questions regarding joint venture liability. The court instructed the jury on this element of joint venture liability as follows: "[The alleged joint venturers] have joint control over the business, even if they agree to delegate control." Verdict Form No. 11 covered this element in two questions. The first question asked, "Did any two or more of the following persons or entities have joint control over the business undertaking, even if they agreed to delegate control of developing and selling the property located at 1018 Cahuilla Falls: Easton Builders Corp., Suzanne Marney, Maco Equipment Rentals, Inc. and/or Vision West Investments LLC?" The jury answered "Yes." The second question asked, "Which of the following do you find had joint control over the business undertaking of developing and selling the property located at 1018 Cahuilla Falls?" The jury answered affirmatively for Easton Builders and Vision West, but negatively for Marney and Maco.

Pasternack claims the second question misstates the law. On de novo review, we disagree. "[T]he members [of a joint venture] must have joint control over the venture (even though they may delegate it) . . . ." (Orosco v. Sun-Diamond Corp. (1997) 51 Cal.App.4th 1659, 1666.) Joint control is the required element; delegated control is merely a form of joint control that a joint venturer may choose. The challenged question, which referenced "joint control," therefore properly articulated the required legal element.

Moreover, even if the court erred by not including the concept of delegated control in the second question, we conclude Pasternack has not shown prejudice. " ' "Article VI, section 13 of the California Constitution provides that error in instructing the jury shall be grounds for reversal only when the reviewing court, 'after an examination of the entire cause, including the evidence,' concludes that the error 'has resulted in a miscarriage of justice.' The test of reversible error has been stated in terms of the likelihood that the improper instruction misled the jury. [Citation.]" [Citations.] Thus, if a review of the entire record demonstrates that the improper instruction was so likely to have misled the jury as to become a factor in the verdict, it is prejudicial and a ground for reversal. [Citation.] "To put it another way, '[w]here it seems probable that the jury's verdict may have been based on the erroneous instruction prejudice appears and this court "should not speculate upon the basis of the verdict." ' [Citations.]" [¶] "The determination whether, in a specific instance, the probable effect of the instruction has been to mislead the jury and whether the error has been prejudicial so as to require reversal depends on all of the circumstances of the case, including the evidence and the other instructions given. No precise formula can be drawn." ' " (Scott v. County of Los Angeles (1994) 27 Cal.App.4th 125, 152 (Scott).)

The court provided jury instructions that told the jury that delegated control was a form of joint control. The first question on joint control in Verdict Form No. 11 likewise referenced the principle that joint control included delegated control. "Absent some contrary indication in the record, we presume the jury follows its instructions [citations] 'and that its verdict reflects the legal limitations those instructions imposed' [citation]." (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 803-804.) Given the repeated references to delegated control as being included in the element of joint control, there is no reasonable likelihood the jury misunderstood the second question to exclude delegated control from that element for purposes of that question only. (See J.P. v. Carlsbad Unified School Dist. (2014) 232 Cal.App.4th 323, 341.)

The authorities on which Pasternack relies are distinguishable. In Scott, supra, 27 Cal.App.4th at page 151, the court found prejudicial error where the verdict form asked the jury to apportion liability according to negligence instead of fault. Because negligence is a more restrictive term than fault, Scott held that the error misled the jury into excluding intentional wrongdoers from its apportionment. (Id. at pp. 151-152.) Here, the term used in the special verdict ("joint control") was not narrower than the omitted term ("delegated control"). The term used in the special verdict form was broader. In Byrum v. Brand (1990) 219 Cal.App.3d 926, 938, the court found prejudicial error in a special verdict form that imposed additional elements that were contrary to law. Here, the verdict form did not impose an additional element. At most, it failed to fully explain an element, but that explanation was reflected in the court's jury instructions and the portion of the special verdict form immediately above. Pasternack has not established prejudice.¹²

12 We likewise do not agree that the jury's decision to answer the series of erroneously worded questions in the initial Verdict Form No. 11 established prejudice. Although one predicate to these questions was that the jury find that Maco was a joint venturer, the initial verdict form expressly told the jury to answer each question unconditionally. Indeed, one question had as its predicate that the jury have answered certain questions regarding McFarland's fraud liability affirmatively. Even though the jury did not answer those questions at all, it still answered the erroneous question because it was directed to do so. We cannot infer based on the jury's decision to answer these questions that it found Maco was a joint venturer.

IV

Inconsistencies in the Special Verdicts

Pasternack contends the jury's special verdicts finding Vision West liable for fraud but exonerating McFarland are inconsistent. Based on this inconsistency, Pasternack seeks either judgment in his favor against McFarland or a new trial. We note initially that Pasternack does not provide any legal authority regarding inconsistent verdicts or any cogent legal argument why such inconsistency would require judgment in his favor or a new trial. He has therefore waived his argument in this court. (See Cahill, supra, 194 Cal.App.4th at p. 956.) Even were we to consider the merits of Pasternack's argument, we would conclude judgment in Pasternack's favor is not an available remedy, and Pasternack has not shown he is entitled to a new trial.

" 'The inconsistent verdict rule is based upon the fundamental proposition that a factfinder may not make inconsistent determinations of fact based on the same evidence. The rule finds parallel expression in the law relating to court findings: "Where the findings are contradictory on material issues, and the correct determination of such issues is necessary to sustain the judgment, the inconsistency is reversible error." ' [Citations.] An inconsistent verdict may arise from an inconsistency between or among answers within a special verdict [citation] or irreconcilable findings." (City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 682 (City of San Diego).)

"A special verdict is inconsistent if there is no possibility of reconciling its findings with each other." (Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 357 (Singh).) "The standard of review for inconsistency in a special verdict is de novo." (Trejo v. Johnson & Johnson (2017) 13 Cal.App.5th 110, 124.)

The remedy for an inconsistent verdict is a new trial on all of the affected claims. (Singh, supra, 186 Cal.App.4th at p. 359.) "Where there is an inconsistency between or among answers within a special verdict, both or all the questions are equally against the law. [Citation.] The appellate court is not permitted to choose between inconsistent answers." (City of San Diego, supra, 126 Cal.App.4th at p. 682.) "[One party] is no more entitled than [the other] to have the favorable verdict credited and the unfavorable one disregarded." (Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1346.)

Pasternack claims the jury's fraud verdicts against Vision West and in favor of McFarland are inconsistent because McFarland signed the seller's disclosure forms on behalf of Vision West and an agent is always responsible for his or her own torts. (Civ. Code, § 2343, subd. (3); Bock, supra, 225 Cal.App.4th at p. 230.) But Pasternack omits the fact that Dunham signed the same forms on behalf of Vision West as well. Pasternack has not shown that the verdict against Vision West could not be based solely on Dunham's wrongdoing.

Pasternack argues that McFarland must be responsible for at least part of Vision West's fraud, based on the following reasoning: "There is nothing in the record to support a conclusion that McFarland was ignorant of all of the matters enumerated above when he signed the false disclosure statements. Nor is there anything in the record to support the conclusion that the matters enumerated above are 'unimportant,' or that they do not affect the desirability of value of the property." The matters Pasternack references include the encroachments on the back and side yards, violations of the Design Guidelines and CC&R's, noncompliance with soils reports, noncompliance with the precise grading plan, and the existence of fill soils on the property.

In making this argument, Pasternack appears to move past the allegedly inconsistent verdicts to claim that he was entitled to judgment as a matter of law based on the evidence presented at trial. The trial court denied Pasternack's motion seeking such relief. On appeal, "[a]s in the trial court, the standard of review is whether any substantial evidence—contradicted or uncontradicted—supports the jury's conclusion." (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.) We cannot weigh the evidence or judge the credibility of witnesses. (Hauter v. Zogarts (1975) 14 Cal.3d 104, 110.) " 'A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied.' " (Ibid.)

Thus, to determine whether Pasternack is entitled to judgment as matter of law, we must review the evidence in the light most favorable to McFarland. In this sense, our standard of review is essentially the opposite of our review of the trial court's nonsuit orders, where we reviewed the evidence in the light most favorable to Pasternack. (See pt. I, ante.)

Pasternack has not shown that he is entitled to judgment as a matter of law. He does not mention the elements of his fraud claims or explain how the jury could not have found in favor of McFarland. He does not explain, for example, why the jury could not have credited McFarland's denials that he knew of any adverse conditions or why the jury could not have found that any conditions McFarland did know about were not material or did not cause damage. Pasternack criticizes "McFarland's self-serving testimony," but even self-serving testimony by the prevailing party is generally sufficient to support a jury verdict. (See Minnegren v. Nozar (2016) 4 Cal.App.5th 500, 513-514.) Pasternack has not shown otherwise.¹³

13 Pasternack appears to believe that the jury's verdict combined with the state of the evidence compels entry of judgment in his favor. He is incorrect. The two circumstances are legally distinct and must be evaluated separately.

V

Alter Ego Findings

A

Pasternack contends the court erred by finding that Vision West was not McFarland's alter ego. "Whether a party is liable under an alter ego theory is normally a question of fact." (Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 811 (Zoran).) "It is the plaintiff's burden to overcome the presumption of the separate existence of the corporate entity. [Citation.] The issue is one for the trier of fact and is reviewed on appeal according to the usual standards for sufficiency of the evidence to support the conclusion." (Mid-Century Ins. Co. v. Gardner (1992) 9 Cal.App.4th 1205, 1212-1213 (Mid-Century Ins.).) We will therefore state the relevant evidence in the light most favorable to the court's finding, resolving all conflicts in favor of upholding the court's decision. (See Kasparian v. County of Los Angeles (1995) 38 Cal.App.4th 242, 259.)

The evidence showed that Vision West was a duly organized limited liability company under California law. McFarland and Dunham were its sole members. They each owned half the company and were issued certificates memorializing their membership interests. Vision West held regular member meetings with recorded minutes. Vision West shared office space and a bookkeeper with Easton Builders, but it maintained separate books, records, and accounts. Vision West engaged accountants to help manage the books when a property was sold and prepare its tax returns. Vision West generally had no assets other than its cash on hand and the lots it was developing, though the lots were highly leveraged with purchase money loans and construction loans.

McFarland and Dunham contributed $70,000 in initial capital and provided additional funds and loans as needed. As Vision West conducted its business, the balance of Dunham's and McFarland's capital accounts dwindled from $70,000 to approximately $41,000 at the end of Vision West's first year. The next year, their capital accounts went negative. By the end of Vision West's existence, their capital accounts were approximately $500,000 in negative territory.

After 1018 Cahuilla Falls, Vision West developed and sold three more homes at Bighorn. It received over $26 million from the sale of these homes, though most of the proceeds went to Vision West's lenders, who provided capital for the purchase of the lots and construction of the homes. The remaining income was paid out to various individuals and entities, such that Vision West itself did not report any significant profits in its financial statements or tax returns. For example, following the sale of 1018 Cahuilla Falls, Vision West paid approximately $600,000 each to Easton Builders, Maco, and Marney. Vision West's financial statements for that year characterized the payments as "consulting fees," which it categorized as a business expense. Based in large part on those expenses, Vision West reported a loss for that year in its financial statements and tax returns. Similarly, the next year, Vision West's earnings were reduced by approximately $837,000 in consulting fees. Vision West again reported losses in its financial statements and tax returns. Over its five years in business, Vision West reported a profit in only one year, and that profit was approximately $10,000. The K-1 statements provided to McFarland and Dunham are consistent with these returns; they likewise reflect only one year in which profits were distributed to them as Vision West's members.

In testimony, McFarland explained that Vision West did make profits (or "net proceeds"), despite their characterization in its financial statements and tax returns. For example, the $600,000 payments to Maco and Easton Builders represented McFarland's and Dunham's share of the profits following the sale of 1018 Cahuilla Falls to Pasternack. Similarly, the $600,000 payment to Marney represented her share of Vision West's profits on that sale.

In addition to the approximately $600,000 payment following the sale of 1018 Cahuilla Falls, McFarland and Maco received approximately $700,000 in payments from Vision West over the first four years of its existence. These were either distributions or loan repayments. According to Vision West's financial records, it had significant positive equity at the time of each of the payments, except for the last $33,333 distribution, when Vision West had negative equity of approximately $9,000. On net, McFarland and Maco received approximately $900,000 from Vision West over the years.

McFarland kept his personal assets separate from Vision West and did not comingle any funds. He did not use any Vision West funds to purchase assets on his own behalf. He did not hold himself out as personally financially responsible for any of Vision West's construction activities.

McFarland believed that Vision West was covered under Easton Builders' general liability insurance policy, which had a limit of $1 million. Although McFarland was aware of Pasternack's claims, he did not believe they would exceed $1 million. Vision West did not reserve any funds to cover potential claims by Pasternack.

Vision West declared bankruptcy in June 2012, shortly before trial in this litigation. It had approximately $31,000 in assets and $580,000 in liabilities. Its liabilities included a $30,000 loan to Dunham, an $18,000 loan to McFarland, a $409,000 loan to Easton Builders, and $123,000 in legal and mediation fees (all amounts are approximate). Pasternack's claim against Vision West was identified, but an amount was not listed. Despite the bankruptcy, there was no evidence that any suppliers, contractors, or other creditors were not paid for their work in connection with the four houses Vision West developed.

In its statement of decision, the trial court concluded that Pasternack had not shown such a unity of interest between Vision West and McFarland that their separate legal personalities should be disregarded. The court organized its analysis according to the factors described in Associated Vendors, Inc. v. Oakland Meat Co. (1962) 210 Cal.App.2d 825 (Associated Vendors).¹⁴ It found that Vision West's finances had been handled by bookkeepers and accountants, it maintained adequate financial and corporate records that were separate from its members, it did not disregard legal formalities, and it did not conceal its ownership or corporate activities. There was no comingling or unauthorized diversion of funds. The court found that Vision West's payments to Marney and Hubbard were proper expenses, paid according to Vision West's agreements with them. As for McFarland and Dunham, the court explained, "The large payments made to McFarland and Dunham were simply earned profits despite how they were characterized in the financial records. There was no evidence the transfers were fraudulent or meant to evade taxes. There was no evidence that the manner in which the payments were characterized created any detriment to any creditor." McFarland and Dunham did not treat Vision West's assets as their own and did not represent that they were personally liable for Vision West's debts.

14 Associated Vendors identified the following nonexclusive list of factors: "Commingling of funds and other assets, failure to segregate funds of the separate entities, and the unauthorized diversion of corporate funds or assets to other than corporate uses [citations]; the treatment by an individual of the assets of the corporation as his own [citations]; the failure to obtain authority to issue stock or to subscribe to or issue the same [citations]; the holding out by an individual that he is personally liable for the debts of the corporation [citations]; the failure to maintain minutes or adequate corporate records, and the confusion of the records of the separate entities [citations]; the identical equitable ownership in the two entities; the identification of the equitable owners thereof with the domination and control of the two entities; identification of the directors and officers of the two entities in the responsible supervision and management; sole ownership of all of the stock in a corporation by one individual or the members of a family [citations]; the use of the same office or business location; the employment of the same employees and/or attorney [citations]; the failure to adequately capitalize a corporation; the total absence of corporate assets, and undercapitalization [citations]; the use of a corporation as a mere shell, instrumentality or conduit for a single venture or the business of an individual or another corporation [citations]; the concealment and misrepresentation of the identity of the responsible ownership, management and financial interest, or concealment of personal business activities [citations]; the disregard of legal formalities and the failure to maintain arm's length relationships among related entities [citations]; the use of the corporate entity to procure labor, services or merchandise for another person or entity [citations]; the diversion of assets from a corporation by or to a stockholder or other person or entity, to the detriment of creditors, or the manipulation of assets and liabilities between entities so as to concentrate the assets in one and the liabilities in another [citations]; the contracting with another with intent to avoid performance by use of a corporate entity as a shield against personal liability, or the use of a corporation as a subterfuge of illegal transactions [citations]; and the formation and use of a corporation to transfer to it the existing liability of another person or entity [citations]." (Associated Vendors, supra, 210 Cal.App.2d at pp. 838-840.) --------

The court recognized that Vision West was undercapitalized and did not reserve any funds for contingent liabilities, including Pasternack's claims. But it found that Vision West had a positive cash balance throughout the majority of its existence and remained a viable entity until it filed for bankruptcy. It found persuasive the evidence that Easton Builders was supposed to include Vision West as an additional insured. Easton Builders' subcontractors also carried their own insurance against construction defects. The court concluded that a reasonable businessperson could not have predicted the massive litigation that followed the construction of 1018 Cahuilla Falls and would not have provided for a contingency to cover Pasternack's claims. The court noted that Vision West had met its obligations to the purchasers of its other three homes, and Pasternack himself had received $2.3 million in settlements from Easton Builders and its subcontractors. Evidence of Vision West's undercapitalization did not persuade the court to find a unity of interest between Vision West and McFarland.

In addition, the court found that Pasternack had not shown an inequitable result would follow if Vision West's separate existence were respected. It explained, "Not getting paid is not tantamount to an inequitable result."

B

"The alter ego doctrine arises when a plaintiff comes into court claiming that an opposing party is using the corporate form unjustly and in derogation of the plaintiff's interests. [Citation.] In certain circumstances the court will disregard the corporate entity and will hold the individual shareholders liable for the actions of the corporation: 'As the separate personality of the corporation is a statutory privilege, it must be used for legitimate business purposes and must not be perverted. When it is abused it will be disregarded and the corporation looked at as a collection or association of individuals, so that the corporation will be liable for acts of the stockholders or the stockholders liable for acts done in the name of the corporation.' " (Mesler, supra, 39 Cal.3d at p. 300.)

"There is no litmus test to determine when the corporate veil will be pierced; rather the result will depend on the circumstances of each particular case. There are, nevertheless, two general requirements: '(1) that there be such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist and (2) that, if the acts are treated as those of the corporation alone, an inequitable result will follow.' " (Mesler, supra, 39 Cal.3d at p. 300.)

"The essence of the alter ego doctrine is that justice be done. 'What the formula comes down to, once shorn of verbiage about control, instrumentality, agency, and corporate entity, is that liability is imposed to reach an equitable result.' [Citation.] Thus the corporate form will be disregarded only in narrowly defined circumstances and only when the ends of justice so require." (Mesler, supra, 39 Cal.3d at p. 301.)

"The corporate entity is disregarded to prevent fraud or an injustice, not to inflict an obligation on an innocent corporation. [Citation.] The fraud or inequity sought to be eliminated must be that of the party against whom the alter ego doctrine is invoked, and 'such party must have been an actor in the course of conduct constituting the "abuse of corporate privilege." ' " (American Home Ins. Co. v. Travelers Indemnity Co. (1981) 122 Cal.App.3d 951, 966 (American Home).)

" 'Certainly, it is not sufficient to merely show that a creditor will remain unsatisfied if the corporate veil is not pierced, and thus set up such an unhappy circumstance as proof of an "inequitable result." In almost every instance where a plaintiff has attempted to invoke the doctrine he is an unsatisfied creditor. The purpose of the doctrine is not to protect every unsatisfied creditor, but rather to afford him protection, where some conduct amounting to bad faith makes it inequitable, under the applicable rule above cited, for the equitable owner of a corporation to hide behind its corporate veil.' " (Mid-Century Ins., supra, 9 Cal.App.4th at p. 1213.)

As noted, we review the trial court's findings for substantial evidence. (Mid-Century Ins., supra, 9 Cal.App.4th at p. 1213.) And, because alter ego is an equitable doctrine, it is "particularly within the province of the trial court." (Stark v. Coker (1942) 20 Cal.2d 839, 846.)

C

Viewing the record in the light most favorable to McFarland, and drawing all reasonable inferences in his favor, as we must, we conclude the evidence supports the trial court's findings. Vision West enjoyed a separate existence from its owners, including McFarland. It was duly constituted under California law; it respected its corporate formalities; and it maintained separate books, records, and accounts. It conducted business in its own name, including taking title to the lots under development, obtaining construction loans, and engaging a general contractor and other professionals. It was a viable business that operated over a period of years to develop and sell four luxury homes. Aside from Pasternack, Vision West fulfilled its obligations to the purchasers of these homes and all the lenders, contractors, and suppliers involved in their construction. The business was also profitable. Although Vision West's tax returns do not reflect this profit, it made substantial payments to its members when its revenues exceeded the costs of developing the homes. Given this evidence, the trial court could reasonably find that Vision West and McFarland did not have a unity of interest such that Vision West was McFarland's alter ego.

Pasternack argues that the evidence does not support the court's finding because Vision West was undercapitalized and because McFarland (and others) improperly diverted Vision West's funds to themselves. We note, as an initial matter, that no single factor is determinative in the alter ego analysis. (Zoran, supra, 185 Cal.App.4th at p. 812.) " '[I]nstead a court must examine all the circumstances to determine whether to apply the doctrine.' " (Ibid.) For example, while undercapitalization is an important factor (Automotriz del Golfo de California S. A. de C. V. v. Resnick (1957) 47 Cal.2d 792, 798), courts have specifically cautioned that it should not be relied upon too heavily in isolation (Mid-Century Ins., supra, 9 Cal.App.4th at p. 1213). The court's finding that Vision West was undercapitalized therefore does not compel the conclusion that Vision West was McFarland's alter ego in light of all the evidence, including McFarland's reasonable belief that Vision West would be covered by Easton Builders' insurance policy.

McFarland's alleged diversion of funds presents a more nuanced question. Vision West's failure to report any profits in its tax returns and K-1 statements to McFarland and Dunham, while apparently actually earning millions of dollars in profits, raises reasonable suspicions about the propriety of the payments to McFarland and Maco. But McFarland specifically testified that the payments represented his share of Vision West's profits, which he directed in part to Maco. The trial court could reasonably find that Pasternack had not shown that McFarland was responsible for the mischaracterizations on Vision West's tax returns or that these mischaracterizations resulted in underpayment of taxes. Under these circumstances, the nature of the payments presented a classic credibility question, which the trial court was entitled to resolve in McFarland's favor. Similarly, the trial court could reasonably find that the payments to Marney and Hubbard were for legitimate business purposes, i.e., their assistance in obtaining lots to develop on favorable terms.

Pasternack argues that Vision West's tax returns and the K-1 statements issued to McFarland, which described no substantial profits, were binding on McFarland and could not be contradicted. The authorities Pasternack cites support the proposition that the tax returns and K-1 statements are admissible as evidence. (See Evid. Code, §§ 1220-1222; Shenson v. Shenson (1954) 124 Cal.App.2d 747, 752; Balkema v. Deiches (1949) 90 Cal.App.2d 427, 430; Heck v. Heck (1944) 63 Cal.App.2d 470, 474; see also Greenspan, supra, 191 Cal.App.4th at p. 525.) But Pasternack does not cite any authority, and we are aware of none, that would preclude McFarland from providing contrary evidence regarding the characterization of Vision West's payments to him and others.

Pasternack also argues that the payments made to McFarland violated Vision West's operating agreement. The operating agreement allows for distributions to members of "Profits" and "Available Cash," both of which are terms defined in the operating agreement. Setting aside Profits, the operating agreement defines Available Cash as "all net revenues from the Company's operations, including net proceeds from all sales, refinancings, and other dispositions of Company property that the Manager, in the Manager's sole discretion, deems in excess of the amount reasonably necessary for the operating requirements of the Company, including debt reduction and Reserves." The operating agreement provides that Available Cash shall be promptly distributed to the members. Pasternack claims Vision West did not have any Available Cash to distribute because, according to its tax returns, its revenues only exceeded operating expenses in one year. But, as explained above, the trial court was entitled to credit McFarland's characterization of Vision West's finances rather than the figures in its tax returns. Under McFarland's characterization, which is supported by the evidence, Vision West earned substantial sums by selling the homes it developed for more than its costs. Vision West then distributed these sums to McFarland and others. While Vision West's financial statements and tax returns characterized these distributions as "consulting fees," the trial court could reasonably find that they were in fact profits from Vision West's business activities. Pasternack has not shown that the payments to McFarland violated Vision West's operating agreement. For the same reasons, Pasternack has not shown that McFarland treated the assets of Vision West as his own.

Pasternack claims that payments to other individuals, in total, constitute looting of Vision West's assets. But in order to invoke the alter ego doctrine against McFarland, Pasternack must show that McFarland was involved in the activities constituting abuse of the corporate privilege. (See American Home, supra, 122 Cal.App.3d at p. 966.) Pasternack has not done so.

Pasternack claims that McFarland's bad faith is shown by his decision (along with Dunham) to have Vision West declare bankruptcy prior to trial and by his counsel's closing argument, which asked the jury to return an appropriate verdict against Vision West for construction defects. We disagree that these facts show bad faith or that they required the trial court to find a unity of interest between Vision West and McFarland. The court could reasonably find that Vision West's bankruptcy reflected its insolvency and the timing of the bankruptcy filing was not in bad faith. And, during the trial, McFarland did not improperly use Vision West's bankruptcy as a shield. Instead, McFarland encouraged the jury to return a verdict consistent with McFarland's view of the facts, i.e., that Pasternack's claims for breach of contract and construction defect were valid but his claims for fraud were not. McFarland was not required to take an all-or-nothing position on Pasternack's lawsuit.

Turning to the second element, inequitable result, we conclude Pasternack has not shown that the evidence did not support the trial court's finding here either. This element requires the trial court to find that, if the acts are treated as those of Vision West alone, an inequitable result will follow. (See Mesler, supra, 39 Cal.3d at p. 300.) The trial court here found that Pasternack had not carried his burden of establishing this element. It noted, "Not getting paid is not tantamount to an inequitable result." The trial court's observation is well supported by the case law. (See, e.g., Mid-Century Ins., supra, 9 Cal.App.4th at p. 1213.)

Relying on Relentless Air Racing, LLC v. Airborne Turbine Ltd. Partnership (2013) 222 Cal.App.4th 811 (Relentless Air), Pasternack argues that the record establishes an inequitable result as a matter of law. Relentless Air is distinguishable. In that opinion, the abuse of the corporate form was shown to be severe: " 'Money is freely transferred from the businesses to [its owners]. There is some disregard for the legal formalities. Corporate entities are used to procure labor and services for the benefit of [its owners] and their other businesses . . . . Most compelling, was the [the owners'] demeanor at trial during which they portrayed their business ventures as their personal efforts, benefits, responsibilities and liabilities." (Id. at p. 815.) "[The owners] used [the business's] funds to pay their personal debts." (Id. at p. 816.) Importantly, the owners continued to operate the business, and the reviewing court noted it was unlikely ever to have assets sufficient to satisfy the judgment while under their control. (Ibid.) There was no evidence that the plaintiff had obtained any recovery from any other responsible parties. (Id. at p. 813.) The reviewing court therefore concluded "it would be inequitable as a matter of law to preclude [the plaintiff] from collecting its judgment by treating [the business] as a separate entity." (Id. at p. 816.) Here, Vision West is no longer a viable entity, so McFarland does not benefit from its continued operation. And, unlike the plaintiff in Relentless Air, Pasternack has been able to obtain significant relief in the form of settlements with other parties. On this record, we cannot say that the trial court was required to find an inequitable result as a matter of law.

We reiterate that our role in this appeal is to determine whether the evidence supported the trial court's findings, i.e., whether the trial court could reasonably find that Pasternack had not met his burden of showing the alter ego doctrine should apply. For the reasons we have stated, Pasternack has not shown that the trial court's decision was unreasonable or unfounded. Whether we would have made the same determination as the trial court in the first instance is irrelevant.

VI

Attorney Fee Awards

Pasternack challenges the court's attorney fee awards in favor of Maco and McFarland. Because we reverse in part the underlying judgment in favor of Maco, the attorney fee award in Maco's favor must be reversed as well. (Merced County Taxpayers' Ass'n. v. Cardella (1990) 218 Cal.App.3d 396, 402.) Maco's appeal challenging the amount of the award is therefore moot. (Venturi & Co. LLC v. Pacific Malibu Development Corp. (2009) 172 Cal.App.4th 1417, 1424.)

The attorney fee award in favor of McFarland was based on the real estate purchase agreement between Pasternack and Vision West. Although McFarland was not a signatory to the purchase agreement, he was entitled to attorney fees because Pasternack sought to hold him liable based on the alter ego doctrine for Pasternack's claims against Vision West, including claims based on the purchase agreement. (See Brown Bark III, L.P. v. Haver (2013) 219 Cal.App.4th 809, 823 ["It is well settled a breach of contract claim based on an alter ego theory is still a claim on the contract and a nonsignatory that successfully defends against the claim may recover its attorney fees under [Civil Code] section 1717."].)

Pasternack claims that McFarland was not entitled to attorney fees based on the purchase agreement because Vision West did not comply with the agreement's mediation provisions before making a claim against Pasternack. The agreement provides, in relevant part, "Buyer and Seller agree to mediate any dispute or claim arising between them out of this Agreement, or any resulting transaction, before resorting to arbitration or court action. . . . If, for any dispute or claim to which this paragraph applies, any party commences an action without first attempting to resolve the matter through mediation . . . then the party shall not be entitled to recover attorney fees, even if they would otherwise be available to that party in any such action." Pasternack seeks to attribute Vision West's failure to pursue mediation to McFarland. He provides no cogent legal argument or authority why McFarland should be prevented from seeking attorney fees for defending Pasternack's claim because Vision West failed to pursue mediation in asserting a different claim against Pasternack. We may therefore treat Pasternack's argument as waived. (See Cahill, supra, 194 Cal.App.4th at p. 956.) Moreover, we are not persuaded that McFarland should be penalized for Vision West's failure to pursue mediation. Pasternack sued McFarland as an individual. McFarland, individually, is not a party to the purchase agreement and is not bound by its terms. While Vision West may have been prohibited from seeking attorney fees by the terms of the agreement, that prohibition does not extend to McFarland. Pasternack has not shown the court erred by awarding attorney fees to McFarland.

DISPOSITION

The judgment involving Maco is reversed in part as to Pasternack's claims for construction defects, breach of contract, negligence, real estate nondisclosure, intentional misrepresentation, negligent misrepresentation, and fraudulent concealment based on theories of conspiracy and alter ego liability. The award of attorney fees in Maco's favor is reversed. In all other respects, the judgment and postjudgment orders involving Maco are affirmed. Maco's appeal is dismissed as moot.

The judgment and postjudgment orders involving McFarland are affirmed.

In the interests of justice, the parties shall bear their own costs on appeal.

McCONNELL, P. J. WE CONCUR: BENKE, J. DATO, J.