Opinion
B224072
11-07-2011
AMUSEMENT INDUSTRY, INC. et al., Plaintiffs and Respondents, v. BENNY NEWMAN et al., Defendants and Appellants.
Law Offices of Robert B. Mobasseri, PC, Robert B. Mobasseri and David Alan Cooper for Defendants and Appellants. Sragow & Sragow, Allen P. Sragow and Michael O. Libraty, for Plaintiff and Respondent Amusement Industry, Inc. Turner Aubert & Friedman, LLP and Steven Morris for Plaintiffs and Respondents DC Commercial, Inc. and Brian Noh.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. SC092592)
APPEAL from a judgment of the Superior Court of Los Angeles County, Elizabeth A. Grimes, Judge. Affirmed.
Law Offices of Robert B. Mobasseri, PC, Robert B. Mobasseri and David Alan Cooper for Defendants and Appellants.
Sragow & Sragow, Allen P. Sragow and Michael O. Libraty, for Plaintiff and Respondent Amusement Industry, Inc.
Turner Aubert & Friedman, LLP and Steven Morris for Plaintiffs and Respondents DC Commercial, Inc. and Brian Noh.
I. INTRODUCTION
Defendants, Benny and Jasmine Newman, appeal after a court trial of three cross-complaints arising from a failed real estate transaction whereby plaintiff, Amusement Industry, Inc., sought to purchase commercial real property. The property was held by defendants as tenants in common. The proposed sale was handled by DC Commercial, Inc. and Brian Noh, who acted as agents for both the sellers and buyer in the transaction. DC Commercial, Inc. and Mr. Noh are both cross-complainants and cross-defendants. The trial court resolved each of the cross-complaints against defendants. We affirm the judgment in all respects.
II. BACKGROUND
A. The Complaint And The Arbitration Award
This litigation arose after plaintiff sued defendants to enforce the purchase contract when Ms. Newman refused to execute the closing documents. The original complaint, which principally sought equitable relief, is not before us. The original complaint was arbitrated. The complaint filed in this case was replaced by a series of claims submitted to the arbitrator. Ms. Newman was not a party to the arbitration. The complaint was arbitrated and an award of $400,681.75 was returned against Dr. Newman. We affirmed the arbitration award against Dr. Newman in an unpublished opinion. (Amusement Industry, Inc. v. Newman (Aug. 25, 2010, B219130) [nonpub. opn.].)
B. The Cross-Actions Which Are The Subject Of This Appeal
The three cross-complaints are as follows. The first is a declaratory relief cross-complaint filed by Ms. Newman against plaintiff. Ms. Newman requested a determination the sales contract was void pursuant to Family Code section 1102, subdivision (a), which governs execution of instruments conveying interests in realty as community property. We will discuss the details of Ms. Newman's cross-complaint later in this opinion. The second cross-complaint was brought by Dr. Newman against DC Commercial, Inc. and Mr. Noh for alleged violations of various duties. Dr. Newman's cross-complaint contained causes of action for: fiduciary duty breach; negligence; fraud; negligent misrepresentation; and indemnity. The third cross-complaint was brought by DC Commercial, Inc. against defendants for contract breach and fraud for failure to pay a broker's fee under a listing agreement.
C. The Evidence
Dr. Newman, a medical doctor, had been married to Ms. Newman since 1978. In 1998, defendants acquired the property located at 515 South Alvarado Street (the Alvarado property) in a limited partnership form. Defendants were the "general partners" of the limited partnership. There were no limited partners. Dr. Newman denied knowledge of the differences between: a limited partnership; a general partnership; or a limited liability company. The property was purchased from defendants' funds which had been acquired during marriage.
In 2003, Dr. Newman wanted to refinance the property with East West Bank. In connection with the loan, title was taken out of the limited partnership and placed into defendants' individual names, as husband and wife as tenants in common. According to Dr. Newman, he intended the parcel to be held as community property. He thought the escrow company or the bank must have made a mistake in identifying defendants as owning the property as tenants in common. Dr. Newman intended that neither he nor his wife could sell any interest in the property without the other's consent.
DC Commercial, Inc. represented Dr. Newman in 1998 when the property was initially purchased. Dr. Newman received a telephone call from Mr. Noh, who worked for DC Commercial, Inc., sometime in the fall of 2006. Mr. Noh asked if defendants had any interest in selling any properties. Defendants were interested in selling the Alavardo property and two other parcels, one located on Wilshire Boulevard and one in La Puente.
Dr. Newman expressed, in subsequent conversations with Mr. Noh, an interest in selling the Alvarado property. Mr. Noh indicated he could sell the property for a good price. Mr. Noh stated that $6 million was a good price. Dr. Newman denied knowing what the fair market value of the Alvarado property was at that time. Dr. Newman relied on Mr. Noh's analysis. Dr. Newman denied telling Mr. Noh about a prior $4.8 million offer for the Alvarado property at some point and regretting not accepting the proposal.
The Alvarado property was listed for $6.2 million because Dr. Newman wanted to get $6 million. Dr. Newman admitted that it was a good price at the time of the offers. Dr. Newman rejected a $5.8 million offer because he wanted $6 million. Dr. Newman received a second offer on the Alvarado property for $5.8 million, which was rejected because it had a 16-page addendum. When plaintiff made a $5.9 million offer, Dr. Newman signed a counteroffer of $6 million.
According to Dr. Newman, Ms. Newman was his partner and needed to sign the documents. Dr. Newman testified Mr. Noh was advised of this fact. Dr. Newman signed the counteroffer on December 8, 2006. Mr. Noh and Dr. Newman discussed securing Ms. Newman's signature on the counteroffer documents. Mr. Noh said they should proceed and they would get her signature later. Dr. Newman testified Mr. Noh was advised the transaction was proceeding too quickly because of Ms. Newman's reluctance. Dr. Newman denied ever stating that he had the authority to sell the Alvarado property without his spouse's consent. He believed the property was community property and could not be sold without her consent.
Dr. Newman was not told that the $6 million counteroffer could result in an obligation to sell or liability if Ms. Newman refused to sign the pertinent papers. He relied on DC Commercial, Inc. and Mr. Noh to protect his interests. During cross-examination, Dr. Newman feigned a lack of business acumen. For example, at trial he was impeached with his deposition testimony concerning his knowledge that when plaintiff accepted his signed counteroffer, an escrow would open to complete the sale. But, he admitted the Alvarado property is one of several shopping center properties owned by them. Each of the centers has at least 10 or more tenants. In 2007, Dr. Newman began winding down his medical practice so that he could manage the shopping centers. Dr. Newman had an assistant who helped manage the properties. Dr. Newman initially purchased the Alvarado property for $1.8 million. He received a coin laundry with the purchase and sold it shortly afterwards for a "several" hundred thousand dollars. Dr. Newman negotiated the real estate commission from 4.75 percent down to 4 percent in the current action.
Dr. Newman testified that he had taken title to the commercial properties as his sole and separate property for financing purposes. He had "obtained all title [to property] in whatever form to obtain the financing" he desired. If East West Bank had not requested a title change for the Alvarado property, it would have remained in the limited partnership. With respect to a La Puente shopping center, title was taken in his name as his sole and separate property and then conveyed to a limited liability company owned solely by defendants. He denied knowing the limited liability company would limit his personal liability.
Although defendants held title to properties in various forms, they intended all of the parcels to be community property. They shared this information with their accountants but not with DC Commercial, Inc. and Mr. Noh or plaintiff. Defendants had no writing showing an intent that all property owned by them was community property. Defendants denied knowledge (until this litigation began) of any difference between holding title as tenants in common rather than as community property.
Ms. Newman testified she: did not get involved at all in the management of the properties they owned; took no role in the management of the Alvarado property; did not know how many properties they owned; did not know whether they owned 10 or 20 properties; just signed tax documents; and did not examine the books or records. According to Ms. Newman, only Dr. Newman signed the commercial leases with the tenants. Ms. Newman did not know the value of the Alvarado property, which was just an asset to her. Ms. Newman did not know if the Alvarado property was making or losing money. Ms. Newman testified she would not sign the documents because she "just wanted to keep" the Alvarado property. But, she also testified that Dr. Newman never sold property where she did not approve of the transaction. Ms. Newman testified, "Whatever [Dr. Newman] was thinking that is right to do for the financial matters, he would bring the papers and we would just discuss it and I would sign it." Yet, Dr. Newman claimed that Ms. Newman resisted the sale because she was apprised of everything he was doing in connection with the sale of the Alvarado property. This included an attempt to secure a tax free exchange with the sale by purchasing a shopping center in Covina. With respect to the title issues, Ms. Newman testified Dr. Newman decides on how title is held. She signed quitclaim deeds on the properties when he told her to do so. And defendants have no written agreement about ownership interests.
Dr. Newman denied telling Mr. Noh for the first time in January 2007 that the Alvarado property had been undervalued. Dr. Newman did not recall that it was the first time he mentioned Ms. Newman's reluctance to sign the documents was two days later. Mr. Noh stated it was in defendants' interest to complete the Alvarado transaction. Mr. Noh and Dr. Newman discussed whether it was financially wise to complete the Alvarado transaction. Dr. Newman admitted that he was better off selling the Alvarado property. Dr. Newman admitted that he would have been better off because the property had diminished in value.
Mr. Noh, a licensed real estate broker, testified in December 2006, he was a licensed salesperson employed by DC Commercial, Inc. His specialty was commercial retail and office space. He represented the buyer and sellers in the 2006 Alvarado transaction. The dual agency was disclosed to the parties. Mr. Noh cooperated with plaintiff's attorney concerning Dr. Newman's anticipated refusal to complete the purchase. He also admitted not disclosing to plaintiff and defendants that he was trying to sell the Covina property.
In reaching the $6 million listing price, Mr. Noh made a "comparable . . . and replacement" approach. He proceeded with the sale because it was "not very uncommon for a deal when the property is owned by a family" and a spouse will eventually sign the necessary documents. Dr. Newman gave every indication to Mr. Noh that Ms. Newman would do so in the end.
Sometime around January 5 or 6, 2007, Dr. Newman told Mr. Noh about a parcel that was a couple of miles away from the Alvarado property. The property was selling for $8 million. Dr. Newman felt that, if the other parcel was worth $8 million, so was the Alvarado property. A "couple days" later, Dr. Newman told Mr. Noh that Ms. Newman would not sign the papers needed to complete the Alvarado transaction. According to Mr. Noh, this was the first time Dr. Newman indicated that Ms. Newman would not sign the documents. During late January and early February 2007, Dr. Newman proceeded with the transaction as if escrow would close. However, Mr. Noh made contemporaneous notes of the events pertinent to the Alvarado transaction. The notes reflect Dr. Newman was dragging his feet. This was apparently because Dr. Newman thought the property had been undervalued. A note dated February 12, 2007, stated Dr. Newman was willing to sell if plaintiff offered more money.
Alan Wallace, an attorney and real estate broker, testified the conduct of DC Commercial, Inc. and Mr. Noh fell below the standard of care in six ways: they had a duty to advise Dr. Newman that, before they should proceed, Ms. Newman had to sign the listing and purchase agreements; Dr. Newman should not have been allowed to sign the counteroffer and return it to plaintiff without her signature; Ms. Newman's name was taken off of the relevant documents at one point (Mr. Noh claimed it was through inadvertence and was subsequently corrected); the escrow should not have been opened where expenses would be incurred; Mr. Noh cooperated with plaintiff's decision to sue defendants and record a lis pendens on the property; and Mr. Noh failed to advise Dr. Newman to seek counsel when plaintiff began contemplating legal action. In Mr. Wallace's opinion, all liability in this case rested with Mr. Noh and DC Commercial, Inc. for not insisting on Ms. Newman's signature from the beginning. This included failing to consider that Dr. Newman might have lied to Mr. Noh about the reason for backing out of the transaction. It may very well have been that Dr. Newman had his own reasons and instructed Ms. Newman not to sign the papers.
John Karmelich, a real estate appraiser, testified on defendants' behalf as to the value of the Alvarado property. Mr. Karmelich had testified at the arbitration for plaintiff. He appraised the property in January 2007. Mr. Karmelich used three approaches, which he reconciled to reach his result. He valued the property at $6.5 million. Mr. Karmelich thought that $6 million was at the very low end of a reasonable price. He believed $6.5 million was right in the middle of a reasonable range.
Douglas Cancienne testified that he had worked in the real estate business since 1981. He worked as an agent initially and then managed real estate offices. Mr. Cancienne opened his own company in 1992. He owns DC Commercial, Inc. He had closed about 550 transactions as the principal agent and about 1,000 as a supervising broker. Mr. Cancienne had been involved in the sale of mobile home parks, apartment buildings, land amalgamations, development projects, industrial and office buildings, shopping centers and strip malls.
Mr. Cancienne testified that, with commercial real estate, it is more common than not that a designated "lead player" usually signs all listing agreement. Most of the time, escrow opens with just the designated person's signature. Mr. Cancienne had closed transactions with corporations where one person (such as the president) signed the listing agreement and other corporate officers later signed the escrow instructions and deeds. Where a family owned property, one spouse would often be the designated person and sign the listing agreement. The other spouse would subsequently sign the closing documents. Buyers in the commercial context were willing to enter into escrow with one signature. Plaintiff was sent documents including the listing agreement, offer and preliminary title report with Ms. Newman's name but no signature.
Mr. Cancienne was involved in Dr. Newman's acquisition of the Alvarado property. During that transaction, Mr. Cancienne never met Ms. Newman or heard her name. Mr. Cancienne did not know she existed or that Dr. Newman was even married. Dr. Newman never gave Mr. Cancienne the impression the decision to sell the Alvarado property lacked Ms. Newman's consent.
Mr. Cancienne did not think a listing agreement required the signature of all tenants in common. But, he testified the signatures of all tenants in common were required to close escrow. Mr. Cancienne and Mr. Noh went to Dr. Newman's office with the listing agreement. Dr. Newman said he wanted to discuss it with his wife as a courtesy. Dr. Newman said to Mr. Cancienne: "Doug, you did Alvarado with me before, you know I'm the decisionmaker and I'm the one that signs and I make the decision. I'm going to talk to my wife and that's it." The subject of community property never came up in discussions with Mr. Cancienne and Dr. Newman. When the listing agreement was returned, Mr. Cancienne called Dr. Newman about Ms. Newman's signature. Dr. Newman reassured him that the signature was not needed because Ms. Newman had given her approval. Dr. Newman kept pressing about whether the property was being marketed so Mr. Cancienne stopped asking about the signature. Mr. Cancienne believed Dr. Newman's statements that he was the decisionmaker. Mr. Noh conveyed Dr. Newman's counteroffer to plaintiff without Ms. Newman's signature. Mr. Noh did so because he thought he had a fiduciary obligation to do so.
Mr. Cancienne did not think the Alvarado property was undervalued because they made a number of marketing efforts, which included using the Internet. If the Alvarado property had been undervalued, they would have had several offers within minutes or hours. Because of the location, most people were uninterested in the Alvarado property. Only a few offers were made which were between $5.6 and $5.9 million. Mr. Cancienne testified that, in his "expert opinion," because the property sold within 45 days, it was "really priced" correctly.
D. The Trial Court's Decision And Judgment
The trial court made detailed findings concerning the three cross-complaints. The trial court's statement of decision resolved Ms. Newman's cross-complaint in favor of plaintiff. The trial court found she failed to establish title was contrary to record ownership, as tenants in common. The trial court noted defendants admitted their private agreement was not disclosed to plaintiff or the realtors. And, there was no writing between defendants concerning the nature of the Alvarado property. The trial court stated: "There is not a shred of evidence in the record from which any reasonable person might infer otherwise. Certainly, there was no clear and convincing evidence to support [Ms. Newman's] declaratory relief action, but neither was there any evidence to support her claim. [Ms. Newman] seemed to have no personal interest in her cross-complaint. The court finds that she filed and prosecuted her claim solely because her husband wanted her to do so, in an attempt to get some support for his own various claims in this litigation."
The trial court's statement of decision indicated that Dr. Newman was an "unreliable" witness. Because he denied recollection, knowledge and understanding of "so many" facts and basics of commercial real estate investing, the trial court found Dr. Newman was not credible. The trial court noted, however, the main reason for his lack of credibility was the absence of any believable evidence that Ms. Newman had refused to sell the property.
The trial court summarized the evidence leading to its conclusion as follows: "Dr. Newman is a sophisticated commercial real estate investor. He is the principal manager of his properties. He has been managing his shopping center investments full time since 2007. He makes all the tenant choices and he alone signs all the leases. He has held property as his sole and separate property whenever it helped him to get more favorable financing. Dr. Newman testified that he 'does whatever his accountant tells him to do.' He testified that he would take title to property in whatever form was convenient to obtain financing. Dr. Newman completely controlled all decisions concerning the ownership, management, purchase and sale of all of his real estate investments made during marriage. [Ms. Newman] ceded full authority to her husband to make all decisions and will sign any documents that he asks her to sign."
The trial court noted that Ms. Newman did not corroborate Dr. Newman's version of the facts leading up to her refusal to sign the documents on the community property issue. Rather, she had testified that in connection with their investment property, for financial reasons she would agree to do whatever he told her. In that respect, she had no knowledge of the value of any of their properties or whether they made or lost money. Ms. Newman did not know how to value real estate. Ms. Newman did not decide whether to buy any property. She was uninvolved in any of the property management issues which were handled by Dr. Newman and his staff. She did not assist them or review financial records. When they acquired property, Dr. Newman decided how they would hold title. The trial court further stated: "[Ms. Newman] has agreed during her marriage that Dr. Newman may acquire property as his sole and separate property; she has agreed during her marriage to transfer property to her husband as his sole and separate property; and she has agreed during her marriage to hold property in a limited liability corporation. [Ms. Newman] completely trusts her husband in all their real estate transactions. It is inconceivable that [Ms. Newman] would refuse to sell the Alvarado property her husband wanted to sell it [to plaintiff]. The only reason why [Ms. Newman] did not sign the documents to close the sale of the Alvarado property . . . is that Dr. Newman told her he was backing out of the deal and he did not want her to sign the documents."
On the issues related to liability to Dr. Newman based on the conduct of DC Commercial, Inc. and Mr. Noh, the trial court ruled they were not negligent in listing the property for $6.2 million. The trial court cited the market response to the listing, the offers received, Dr. Newman's admissions about the property's value and Mr. Karmelich's testimony that the listing price was at the "'low end of reasonable . . . .'" The trial court also rejected the theory Mr. Noh and DC Commercial, Inc. were negligent in failing to obtain Ms. Newman's signature on the pre-closing documents. The statement of decision states, "To the contrary, the court finds that Dr. Newman repeatedly assured them that [Ms. Newman] would sign the closing documents, and it was reasonable for [DC Commercial, Inc. and Mr. Noh] to believe Dr. Newman."
The trial court also ruled Mr. Noh and DC Commercial, Inc. did nothing to cause harm to defendants. The statement of decision states: "All of the harm that has been visited on the parties in this litigation was caused by Dr. Newman's decisions and dishonest in his dealings with [plaintiff and DC Commercial, Inc. and Mr. Noh]. Dr. Newman backed out of the deal for reasons of his own. Perhaps Dr. Newman backed out because of his discovery of a listing of commercial property on Western for sale at $10 million gave him sellers' remorse, because he couldn't find a suitable property for a 1031 exchange, or because his accountant told him not to go through with the sale, or because he thought [plaintiff] might offer to pay more than $6 million, or due to some combination of these reasons. But the court does not believe that [Ms. Newman] ever refused to sign any documents that Dr. Newman asked her to sign."
Judgment was entered in favor of Mr. Noh and DC Commercial, Inc., against Dr. Newman on the professional negligence cross-complaint. DC Commercial, Inc. was awarded $240,000 plus interest in the amount of $72,000 for a total judgment of $312,000 on its cross-complaint against Dr. Newman. Judgment was entered in favor of plaintiff on Ms. Newman's cross-complaint. Defendants filed this timely appeal.
III. DISCUSSION
A. Standards of Review
The judgment is reviewed for substantial evidence with a presumption the trial court found every fact and drew permissible inferences to support its decision. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133; Vanderkous v. Conley (2010) 188 Cal.App.4th 111, 121.) We also defer to the trial court's extrinsic credibility determinations. (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660; Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 500-501.) To the extent there are questions of law, they are subject to de novo review. (Laswell v. AG Seal Beach, LLC (2010) 189 Cal.App.4th 1399, 1406; Monks v. City of Rancho Palos Verdes (2008) 167 Cal.App.4th 263, 295.)
B. Ms. Newman's Declaratory Relief Cross-Complaint
1. Ms. Newman's cross-complaint and DC Commercial's arbitration award against
Dr. Newman
In her cross-complaint, Ms. Newman alleges: she and her husband owned the Alvarado property as a community interest; Dr. Newman signed a contract to sell the property to plaintiff; but she refused to execute any of the sales documents. Ms. Newman further alleges a controversy arose between plaintiff and her as to whether the sales contract was void pursuant to Family Code section 1102, subdivision (a). Ms. Newman further alleges a controversy existed as to whether she was entitled to a declaration and she was entitled to any relief interest in the Alvarado property including an undivided interest of Dr. Newman. Ms. Newman sought declarations that the sales contract was void and plaintiff was not entitled to any undivided interest belonging to Dr. Newman.
The Family Code section 1102, subdivision (a) defense with respect to Dr. Newman's interest was litigated in an arbitration proceeding between plaintiff and Dr. Newman. This was after plaintiff and Dr. Newman were ordered to binding arbitration on July 27, 2007. Plaintiff dismissed its complaint against Ms. Newman on December 4, 2007. Plaintiff's arbitration complaint sought as remedies specific performance and damages for: contract breach; fraud; and negligent misrepresentation. During the arbitration plaintiff withdrew its specific performance request. An arbitration award in favor of plaintiff against Dr. Newman in the amount of $400,681.75 plus costs was returned. The arbitrator found Dr. Newman breached a valid contract to sell the Alvarado property. The arbitrator rejected Dr. Newman's Family Code section 1102, subdivision (a) defense and ruled defendants held the property as tenants in common. The arbitrator awarded plaintiff contract damages in the amount of $275,000 plus $14,657.50 for transactional work. The arbitrator also awarded plaintiff its attorney fees in the amount of $109,500 plus $1,524.25 in costs. As stated previously, we affirmed the judgment confirming the arbitration award against Dr. Newman on August 25, 2010. (Amusement Industry Inc. v. Newman (Aug. 25, 2010, B219130) [nonpub. opn.].)
2. Ms. Newman is not entitled to a reversal of the judgment against her on her cross-
complaint.
Before relating and reaching the merits of Ms. Newman's contentions, we wish to emphasize several salient facts. Defendants remain in possession of the Alvarado property. Plaintiff dismissed all of its specific performance claims both in the complaint filed in court and in the arbitration against Dr. Newman. No damage award has been returned against Ms. Newman. Ms. Newman's cross-complaint seeks to invalidate the agreement entered into between Dr. Newman and plaintiff. As previously explained, the judgment based on the now final arbitration award has been affirmed by us. The parties have raised no collateral estoppel arguments based on the now final judgment. And how we can undo a now final judgment which was based on an agreement which has been determined to be enforceable is perplexing. Nonetheless, we will address the merits of the arguments posited by the parties.
Ms. Newman argues the judgment in favor of plaintiff in her cross-complaint must be reversed. As noted, Ms. Newman sought a declaration the sales contract signed by her husband was void pursuant to Family Code section 1102, subdivision (a) because the property was a community interest and she did not execute any sale related documents. Ms. Newman also sought a declaration that plaintiff was not entitled to any interest in the property including Dr. Newman's undivided interest. As previously noted, Dr. Newman's interest as a tenant in common was adjudicated against him by binding arbitration and confirmed by a final judgment.
Family Code section 1102, subdivision (a) states: "Except as provided in Sections 761 and 1103, either spouse has the management and control of the community real property, whether acquired prior to or on or after January 1, 1975, but both spouses, either personally or by a duly authorized agent, must join in executing any instrument by which that community real property or any interest therein is leased for a longer period than one year, or is sold, conveyed, or encumbered." (Italics added.) Family Code section 1102, subdivision (a) precludes one spouse from conveying interests in community real property to third parties without the other's joint execution of the deed (or lease exceeding one year). (In re Marriage of Brooks & Robinson (2008) 169 Cal.App.4th 176, 183.) A conveyance in violation of Family Code section 1102, subdivision (a) is generally voidable by the spouse who did not join in the conveyance. (In re Marriage of Brooks & Robinson, supra, 169 Cal.App.4th at p. 183; Andrade Development Co. v. Martin (1982) 138 Cal.App.3d 330, 335-336.) Thus, Ms. Newman's theory of reversal on the cross-complaint is predicated upon the conclusion that her purported community interest in the property allows her to void the sales contract.
In arguing for a reversal, Ms. Newman asserts the trial court improperly relied on the legal theory of transmutation under Family Code section 852, subdivision (a) in reaching its conclusions the Alvarado property was held as a tenancy in common and not as a community interest. Family Code section 852, subdivision (a) provides, "A transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected." Ms. Newman contends, in resolving the community property interest issue against her, the trial court's written findings incorrectly refer to the absence of a written agreement between the Newmans characterizing their property as such. Ms. Newman argues, notwithstanding the absence of a writing, the oral evidence established that the spouses actually intended to hold the property as community property. In addition, she asserts no evidence to the contrary was introduced, i.e., that the parties actually intended to hold title as it was recorded, as tenants in common. For the two reasons stated below, we disagree with Ms. Newman on each of her claims regarding the trial court's rejection of the Family Code section 1102, subdivision (a) defense given the record title.
First, there is no merit to the contention that a reference in the trial court's findings to the absence of a written agreement between the spouses requires a reversal. While the trial court's findings refer to the absence of a written agreement between defendants, it made no specific reference to the transmutation theory. Plaintiff is correct that Ms. Newman never requested any statement of decision much less special findings on the transmutation issue. Accordingly, Ms. Newman has waived her right to any more specific findings on the issue and we presume in favor of the judgment every finding necessary to support the judgment. (Code Civ. Proc., § 632; In re Marriage of Arceneaux, supra, 51 Cal.3d at pp. 1133-1134; Knodel v. Knodel (1975) 14 Cal.3d 752, 761, fn. 12; Ermoian v. Desert Hospital, supra, 152 Cal.App.4th at p. 501; Golde v. Fox (1979) 98 Cal.App.3d 167, 173-174; Nemeth v. Pankost (1964) 224 Cal.App.2d 351, 354-355.) In any event, we are not bound by the trial court's stated reasons because we review the ruling for correctness, not for reasoning. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19; Mendoza v. Town of Ross (2005) 128 Cal.App.4th 625, 631; Travelers Casualty & Surety Co. v. Superior Court (1998) 63 Cal.App.4th 1440, 1450.)
Second, there is substantial evidence no community interest in the Alvarado property existed under the applicable "form of title" standards. When Dr. Newman and plaintiff entered into the sales contract in 2006, title was held as, "Benny Newman and Jasmine Newman, Husband and Wife As Tenants in Common . . . ." There is a presumption that an asset acquired by spouses in joint form (including one held in tenancy in common) is community property. (Fam. Code, § 2581; see also Fam. Code, § 760 [general presumption that property acquired during marriage other than gift or inheritance is community]; In re Marriage of Haines (1995) 33 Cal.App.4th 277, 289-290.) But, this presumption is limited to property division upon marriage dissolution or separation. (In re Marriage of Brooks and Robinson (2008) 169 Cal.App.4th 176, 185; Dorn v. Solomon (1997) 57 Cal.App.4th 650, 652.)
No such community property presumption arose in this case because Ms. Newman's cross-complaint concerned litigation with one spouse and a third party. (See Abbett Electric Corp. v. Storek (1994) 22 Cal.App.4th 1460, 1467-1468 & fn. 7; Kane v. Huntley Financial (1983) 146 Cal.App.3d 1092, 1097, fn. 2.) Ms. Newman's claims were subject to proof under applicable general "form of title" rules. (See Lovetro v. Steers (1965) 234 Cal.App.2d 461, 468 [as between third parties, an automobile parts store conveyed to a husband and wife as joint tenants destroys the statutory presumption that property is community even if it is purchased with joint funds]; see In re Marriage of Wall (1973) 30 Cal.App.3d 1042, 1045-1046.) Evidence Code section 662 states: "The owner of the legal title to property is presumed to be the owner of the full beneficial title. This presumption may be rebutted by clear and convincing proof." Under the form of title rule, it is presumed that defendants held separate interests in the property as tenants in common and it is not community property. (Abbett Electric Corp. v. Storek, supra, 22 Cal.App.4th at pp. 1467-1468 & fn. 7; Kane v. Huntley Financial, supra, 146 Cal.App.3d at p. 1097, fn. 2.) To overcome the form of title presumption, Ms. Newman as the party asserting the title is different than that stated in the deed has the burden of proving the fact by clear and convincing evidence. (Ibid.; In re Marriage of Brooks and Robinson, supra, 169 Cal.App.4th at p. 185; In re Marriage of Haines, supra, 33 Cal.App.4th at p. 297.)
Defendants presented evidence they acquired the property in 1998 with community funds. When they initially acquired the property, title was taken in the name of a limited partnership. In 2003, title changed from a limited partnership to defendants as tenants in common in order to obtain a loan from a bank. Defendants testified they had a private agreement to own their properties and any legal entities owning their assets as community property regardless of the form of title. The trial court rejected this testimony and concluded Ms. Newman did not establish community ownership of the property contrary to the form of title by clear and convincing evidence. Further, the trial court found that Dr. Newman was not credible. Substantial evidence supports the finding Ms. Newman did not establish a community interest in the property. (Monks v. City of Rancho Palos Verdes, supra 167 Cal.App.4th at p. 295; Ermoian v. Desert Hospital, supra, 152 Cal.App.4th at p. 501.)
C. Dr. Newman's Cross-Complaint
Dr. Newman sued DC Commercial, Inc. and Mr. Noh for errors allegedly committed during the aborted transaction. Dr. Newman asserts the trial court incorrectly disregarded uncontroverted opinion testimony on the professional negligence and fiduciary duty breach issues. As a general rule, opinion testimony is required in professional negligence cases to establish standard of care, breach and causation issues. (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001; Scott v. Rayhrer (2010) 185 Cal.App.4th 1535, 1542-1543.) The standard of care can be conclusively established by uncontradicted opinion testimony. (In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 820; see also Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 632-633.) Professional negligence must be established by opinion testimony unless the particular circumstances are not sufficiently beyond common experience. (Evid. Code, § 801, subd. (a); Flowers v. Torrance Memorial Hospital Medical Center, supra, 8 Cal.4th at p. 1001; Franz v. Board of Medical Quality Assurance (1982) 31 Cal.3d 124, 141.) But, not every professional negligence claim will require opinion testimony because the duty of care may not necessarily be beyond the realm of common knowledge. (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 844-845; Godfrey v. Steinpress (1982) 128 Cal.App.3d 154, 185-186; Jorgensen v. Beach 'N' Bay Realty, Inc. (1981) 125 Cal.App.3d 155, 163-164.)
More specifically, in Jorgensen v. Beach 'N' Bay Realty, Inc., supra, 125 Cal.App.3d at pages 163-164, a nonsuit was reversed because opinion testimony was unnecessary to determine the duty of care by a real estate agent because statutory honest and fair dealing requirements were matters within common experience and knowledge. Jorgensen further concluded that nonsuit was not required even though opinion testimony might be necessary to prove negligence by failure to exercise reasonable care in setting a price for the property.(Id. at pp. 164-165.) This was because, to the extent the opinion testimony was needed, it was supplied by the testimony of the defendant's real estate agents on the normal industry standards. (Ibid.) Similarly, in Easton v. Strassburger (1984) 152 Cal.App.3d 90, 105-106, opinion testimony was not needed to prove a real estate broker's negligence for failure to disclose a history of soil problems on the property. And to the extent opinion testimony was needed, it was sufficiently established by the testimony of defendant's real estate agents. (Id. at pp. 106-107.)
In this case, DC Commercial, Inc. and Mr. Noh offered evidence on the standards of care which conflicted with that presented by Dr. Newman. There was testimony from two real estate agents in DC Commercial, Inc's employ, Mr. Noh and Mr. Cancienne. Conflicting testimony was offered on the issues of: proceeding without Ms. Newman's signature; sending the documents to plaintiff after Dr. Newman signed the counteroffer; and setting the sales price for the property. This evidence was sufficient to controvert any of Dr. Newman's opinion testimony. Moreover, we disagree with Dr. Newman that reversal is required because the trial court could not rely on Mr. Noh and Mr. Cancienne on the standard of care and causation issues. The issue as to the witness' qualifications has been forfeited by Dr. Newman's failure to object on this ground. (Evid. Code, § 353; People v. Lewis (2008) 43 Cal.4th 415, 503; People v. Flores (1992) 7 Cal.App.4th 1350, 1359-1360.) Furthermore, no abuse of discretion has been shown by the trial court's consideration of their opinions on the issues. (People v. Guerra (2006) 37 Cal.4th 1067, 1113, overruled on a different point in People v. Rundle (2008) 43 Cal.4th 76, 151, fn. 21; Miller v. Los Angeles County Flood Control District (1973) 8 Cal.3d 689, 701; Douglas v. Ostermeier (1991) 1 Cal.App.4th 729, 738.) It was not beyond the bounds of reason to allow two licensed real estate agents to testify as to the standard of care. (Easton v. Strassburger, supra, 152 Cal.App.3d at p. 106; Jorgensen v. Beach 'N' Bay Realty, Inc., supra, 125 Cal.App.3d at pp. 163-164.)
Finally, even if the trial court erred in considering the testimonies of Mr. Cancienne and Mr. Noh, no prejudicial error was established. The trial court found DC Commercial, Inc. and Mr. Noh did nothing to cause injury to Dr. Newman. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.) The trial court concluded any injury to Dr. Newman was caused by his own wrongful conduct. The determinations DC Commercial, Inc. and Mr. Noh did nothing wrong and the causation findings are supported by substantial evidence. The causation determinations are dispositive of each of Dr. Newman's claims in the cross-complaint. (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1255 [negligent misrepresentation]; Lopez v. City of Los Angeles (2011) 196 Cal.App.4th 675, 685 [negligence]; Kaldenbach v. Mutual of Omaha Life Ins. Co. (2009) 178 Cal.App.4th 830, 850 [fraud]; Expressions at Rancho Niguel Assn. v. Ahmanson Developments, Inc. (2001) 86 Cal.App.4th 1135, 1139-1140 [indemnity]; Mosier v. Southern Cal. Physicians Ins. Exchange (1998) 63 Cal.App.4th 1022, 1044 [fiduciary duty breach].)
D. DC Commercial, Inc.'s Brokers' Fee Cross-Complaint
Dr. Newman argues the trial court erred in awarding DC Commercial, Inc. a commission. Dr. Newman asserts the commission was forfeited due to Mr. Noh's and Mr. Cancienne's professional negligence which was established as a matter of law by Dr. Newman's uncontroverted opinion testimony. But, he concedes that the argument is only applicable if the judgment on his cross-complaint is reversed. As previously noted, the trial court resolved the conflicting evidence against Dr. Newman on the professional negligence and breach of fiduciary duty issues. More importantly, the trial court found Dr. Newman caused his own injuries, a finding supported by substantial evidence. Dr. Newman's reliance on cases which set forth forfeiture standards based on the conduct (whether negligent or intentional) of brokers is neither applicable nor controlling. (See Ziswasser v. Cole & Cowan, Inc. (1985) 164 Cal.App.3d 417, 421-425 [even a breach of fiduciary duty for failure to disclose a loan to the buyer did not warrant a forfeiture which requires bad faith, disloyalty or fraud]; see also Roberts v. Lomanto (2003) 112 Cal.App.4th 1553, 1570 [failure to disclose the amount of an assignment fee did not justify the harsh forfeiture remedy where there was no evidence of deliberate deception of fraud]; compare Sierra Pacific Industries v. Carter (1980) 104 Cal.App.3d 579, 582-583 [breach of disclosure duty entitled vendor to recover commission]; Baird v. Madsen (1943) 57 Cal.App.2d 465, 475-476 [deceptive broker who abandoned seller, returned a deposit check to a prospective buyer, and then sold the property to a different buyer was not entitled to a commission].)
IV. DISPOSITION
The judgment is affirmed. Plaintiff, Amusement Industry, Inc., is awarded its costs on appeal from Jasmine Newman. Cross-defendants, DC Commercial, Inc. and Brian Noh, are awarded their costs on appeal from defendant, Benny Newman.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J. We concur:
ARMSTRONG, J.
MOSK, J.