Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05CC02373, Hugh Michael Brenner, Judge.
Law Offices of Darlene Allen and Darlene Allen for Plaintiffs and Appellants.
Stuart W. Knight for Defendants and Respondents.
OPINION
ARONSON, J.
After George and Esther Shore lost their home through foreclosure, they sued John Needham, the beneficiary of the Daybreak Court Trust #1045 (Daybreak), which bought their condominium, and Possess the Land, Inc. (PTL), the corporate trustee, for converting personal property they left at the residence. A jury awarded Esther $3,000 in damages against Needham, but rejected claims of elder abuse and negligent infliction of emotional abuse. The jury also found in favor of PTL, rejecting a claim that Needham acted as the trustee’s agent. The court awarded the trustee $3,600 in court costs. Plaintiffs argue reversal is required because the special verdict failed to direct the jury to determine whether George was entitled to damages for conversion. Plaintiffs also complain the verdicts on conversion and elder abuse are inconsistent, and challenge the sufficiency of the evidence to support the jury’s verdict rejecting their claim Needham acted as an agent for the trust and Esther’s emotional distress cause of action. Finally, plaintiffs argue the court erred by excluding a police report and removing the table of contents from plaintiff’s exhibit book before giving it to the jury. Finding no basis to overturn the judgment, we affirm.
We refer to Shores by their first names when necessary to avoid confusion, and intend no disrespect. (See In re Marriage of Olsen (1994) 24 Cal.App.4th 1702, 1704, fn. 1.)
I
Facts and Procedural Background
Plaintiffs filed a complaint in January 2005 asserting causes of action for conversion, negligence, elder abuse against George, and negligent infliction of emotional distress against Esther. Plaintiffs alleged they had stored numerous items of their personal property in the garage of their Anaheim home, including appliances, household furnishings, furniture, fixtures, memorabilia with sentimental value, floor and window coverings, and tools. On December 18, 2003, plaintiffs’ home was sold at a foreclosure sale to PTL, as trustee of Daybreak. On January 29, 2004, Needham advised plaintiffs they should call him to obtain their personal property, and later allowed plaintiffs access to the property on February 24. Plaintiffs arrived at the residence and discovered much of their stored property had disappeared. Plaintiffs asserted defendants converted their property and took it for a “wrongful use.” They also alleged defendants failed to maintain security and acted negligently by removing a padlock that plaintiffs had installed on the garage to prevent theft. They alleged defendants’ actions resulted in the loss of their property and caused Esther to suffer severe mental anguish. They asked for return of the property or damages for the value of the personal property converted and any other relief warranted.
Esther Shore testified the couple had moved out of their condo because of construction defects. They boxed up their possessions, and moved in with Esther’s mother. It is unclear if or when they moved back into the condo. When she learned of the foreclosure, Esther called her lawyer, who put her in touch with Needham. She telephoned him, and he gave her only a day to retrieve her property because “escrow was closing.” She returned to her former residence on February 24 to collect her belongings, but numerous items had disappeared, many of which were irreplaceable and had significant sentimental value to her. Gone were her heirloom silverware, lamps, drapes, mirrors, perfume, kitchen accessories, paintings, appliances, and other possessions. Esther believed Needham had the property taken to the dump.
Plaintiffs have filed only a partial reporter’s transcript containing the testimony of Esther Shore and Dr. Mark Miller, Esther’s cardiologist and internist. As appellants, plaintiffs carry the burden to present an adequate record for review. (Dawson v. Toledano (2003) 109 Cal.App.4th 387 (Dawson).)
On cross-examination, defense counsel impeached Esther with a burglary report concerning her missing property she made to Anaheim police on February 24, 2004. The written report, which was admitted into evidence, contained a list of property less extensive than the items she described in her testimony. Additionally, a schedule to her 2003 bankruptcy petition, as amended and submitted under penalty of perjury, listed the value of household goods and furnishings at $5,000. Esther claimed this referred to the value of the property she kept at her mother’s, and she estimated the value of the personal property at the condo to be about $54,000. Esther never contacted defendants to ask about her missing property.
Esther denied receiving a document entitled “Notice of Right to Reclaim Abandoned Personal Property (Valued less than $300.00)” with a mailing date of December 20, 2003. The notice listed “mattress, t.v., washer, dryer misc.”
A schedule to her 1997 bankruptcy petition listed the value of her household goods at $2,000.
Dr. Miller opined the loss of her personal possessions caused Esther to suffer emotional distress. He acknowledged an anxious nature, large debt load, unsuccessful construction defect lawsuit, a foreclosure, and two bankruptcies also contributed to her distress.
II
Discussion
A. Conversion Damages
Plaintiffs argue the special verdict was defective because it failed to direct the jury to determine the amount of damages George should recover. Consequently, even though the jury found in favor of both plaintiffs on the conversion cause of action, the jury failed to award damages to George. According to plaintiffs, inconsistencies in the special verdict form necessitate setting aside the judgment and granting a new trial.
The parties did not provide the jury with special verdict forms separating George and Esther on the conversion cause of action. Rather, the special verdict for conversion asked the jury to answer the following question: “Did Needham wrongfully exercise[] control over GEORGE SHORE and ESTHER LINDA SHORE’S personal property?” If the jury answered this question affirmatively, they were directed to ascertain “What are Esther[’s] damages?” Nothing in the record reflects George complained about the form of the verdict before the court discharged the jury; therefore, the plaintiffs waived any error. (Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 277.) Moreover, the only testimony in the record concerning damages relates to Esther; no evidence shows any of the property belonged to George separately. Because the missing property belonged to the marital community, we fail to see how George was prejudiced by an award to Esther alone.
B. Elder Abuse
George contends the verdict was inconsistent because the jury found Needham converted George’s property, but did not hold Needham liable for elder abuse. Specifically, the jury found Needham did not take George’s property for a “wrongful use.”
Plaintiffs have failed to show as a matter of law the jury erred in concluding Needham did not take the property for a wrongful use. Under Welfare and Institutions Code section 15610.30, financial abuse of an elder “occurs when a person or entity does any of the following: [¶] (1) Takes, secretes, appropriates, or retains real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or both. [¶] (2) Assists in taking, secreting, appropriating, or retaining real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or both. [¶] (b) A person or entity shall be deemed to have taken, secreted, appropriated, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates or retains possession of property in bad faith. [¶] (1) A person or entity shall be deemed to have acted in bad faith if the person or entity knew or should have known that the elder or dependent adult had the right to have the property transferred or made readily available to the elder or dependent adult or to his or her representative. [¶] (2) For purposes of this section, a person or entity should have known of a right specified in paragraph (1) if, on the basis of the information received by the person or entity or the person or entity’s authorized third party, or both, it is obvious to a reasonable person that the elder or dependent adult has a right specified in paragraph (1).” (Italics added.)
“Wrongful use” is not otherwise defined in the statute, and plaintiffs supply no legal authority suggesting conversion of an elder’s personal property always constitutes elder abuse. The record plaintiffs have supplied us does not contain any testimony concerning defendant’s version of events and therefore plaintiffs have failed to carry their burden to demonstrate error. (Dawson, supra, 109 Cal.App.4th 387.) The jury may have found Needham acted wrongfully but not in “bad faith” when he disposed of plaintiffs’ possessions following the foreclosure. The jury may have found Needham did not “use” the property merely by discarding it. Thus, the jury could have reasonably found Needham’s wrongful control of George’s personal property following the foreclosure was not a “wrongful use” and therefore not elder abuse. In any event, plaintiffs have not met their burden to demonstrate error because of their failure to provide a complete record.
C. Needham’s Agency
The jury found Needham did not act as PTL’s agent. Relying on the declaration of trust establishing Daybreak, and Needham’s “testimony,” plaintiffs argue the evidence established Needham acted as PTL’s agent as a matter of law. An agency finding would have presumably precluded the trial court from awarding PTL $3,600 in costs because PTL would have been jointly liable for Needham’s torts.
Needham’s testimony, if he testified, is not in the record. There is no evidence he was a beneficiary of Daybreak, and nothing in the limited record provides a clue about the corporate trustee PTL’s role in the disposition of plaintiffs’ personal property or PTL’s relationship to Needham or his acts. Plaintiffs do not identify the corporate officers or directors of PTL, and the record does not reveal if PTL directed Needham to dispose of the property or whether he took it upon himself to remove plaintiffs’ belongings. We are aware of no authority that a beneficiary is an agent of his trustee as a matter of law.
Plaintiffs rely on Daybreak’s declaration of trust. It provides the “interest of any beneficiary hereunder shall consist solely of a power of direction to deal with the title to said property and to manage and control said property as hereinafter provide[d] . . . , and the right to receive the proceeds from rentals and from mortgages, sales or other disposition of said premises . . . .” (Italics added.)
Section Two specifies the acts that the trustee may perform at the direction of the beneficiaries, all of which relate solely to the conveyance of legal interests in the property and execution of legal instruments concerning the same. Section Four provides the “beneficiary or beneficiaries hereunder, in his, or her of their own right shall have the management of said property and control of the selling, renting and handling thereof, and said trustee shall have no duty in respect to such management or control, . . . . No beneficiary hereunder shall have any authority to contract for or in the name of the trustee or to bind the trustee personally.” (Italics added.) Section Five provides that the trustee is not “required to . . . manage, operate, improve or repair the real property at any time . . . .”
An agency is created when an agent represents the principal in dealings with third persons. (Civ. Code, § 2295.) The declaration of trust expressly provides that the beneficiary(ies), not the trustee, had control over the management of the property. The beneficiary(ies) had no authority to bind PTL. There is no evidence Needham acted on behalf of PTL in his dealings with the Shores. There is no evidence, as plaintiffs assert, that Needham was “given a power of direction by PTL.” Under the trust declaration, it was the beneficiaries who were to direct the trustee to act within its defined sphere, and under the declaration this did not include removal of the Shores’ personal property. We discern no error in the jury’s finding, based on unchallenged instructions (see Judicial Council of Cal., Civ. Jury Instns. (2006) CACI No. 3704) that Needham was not an agent of PTL.
D. Exclusion of December 2005 Police Report
Plaintiffs contend the trial court erred in excluding exhibit No. 4, a police report dated December 28, 2005, allegedly containing a detailed list of the missing property. The trial court sustained defendants’ hearsay objections and excluded the report.
Plaintiffs argue the report “contained a more complete and accurate list of the items allegedly converted by defendants from plaintiffs,” and was admissible under Evidence Code section 1280. Section 1280 provides, “Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies: [¶] (a) The writing was made by and within the scope of duty of a public employee. [¶] (b) The writing was made at or near the time of the act, condition, or event. [¶] (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness.”
A police officer’s report is admissible under Evidence Code section 1280 if it is based upon the observations of a public employee who had a duty to observe facts and report and record them correctly. (Rupf v. Yan (2000) 85 Cal.App.4th 411, 430, fn. 6.) Statements independently admissible, such as a party admission, contained in a police report are admissible, despite their hearsay character. (Ibid.) Plaintiffs point to nothing in the observational section of the report that was relevant, and Evidence Code section 1280 did not authorize admission of plaintiffs’ hearsay statements concerning their losses. The court did not err in excluding the report. Plaintiffs did not object to the initial police report, exhibit No. 3, so we have no occasion to determine whether the court properly admitted it. (Evid. Code, § 353.)
E. Removal of Table of Contents from Plaintiffs’ Exhibit Books
Plaintiffs argue the court erred by removing the table of contents from plaintiffs’ exhibit notebook before providing the notebook to the jury. Plaintiff raised the issue in a new trial motion, which the court denied, but the limited record sheds no light on whether or why the court omitted the table of contents, nor does plaintiff include the table in the appellate record or adequately explain why it was necessary or even helpful. In any event, Code of Civil Procedure section 612 provides that jurors may take into the jury room all papers received in evidence, and any exhibits which the court may deem proper, plus their own notes on the proceedings, with a copy of the jury instructions (Code Civ. Proc., § 612.5). The court did not abuse its discretion by omitting the table of contents, which does not fall into one of these categories; consequently, we discern no “irregularity” in the proceedings. (Code Civ. Proc., § 657.) Nor will we assume the jury could not “decipher any of the other exhibits introduced . . . since there was no guide . . . to aid the jury it in its deliberations.” The jury could have asked the court to have the reporter reread testimony if it was confused about any of the exhibits admitted at trial.
Finally, plaintiffs rely on a juror declaration to prove their point. The juror declared most jurors did not look at the exhibits, some expressed “frustration at not knowing where things were in the book of exhibits . . . and gave up attempting to find specific items in the book . . . .” The juror also declared “it was difficult to determine what the exhibits were attempting to show because some did not make sense; had there been a table of contents, it would have more clearly indicated what the exhibits and photographs were attempting to show.” The juror explained they “had no basis for determining what the plaintiffs really lost and the value of those items lost.” Much, if not all, of the juror’s declaration constituted an inadmissible attempt to prove the subjective state of mind of individual jurors. (See Evid. Code, § 1150, subd. (a); Continental Dairy Equip. Co. v. Lawrence (1971) 17 Cal.App.3d 378, 385 [trial judge properly struck affidavits averring certain jurors did not review all documentary evidence, some were confused, foreman failed to act as leader, one juror dominated jury, and some disagreed with verdict]; Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 418.) But even taking the declaration at face value, plaintiffs supply no ground for reversal for the reasons mentioned above.
F. Substantial Evidence of Esther’s Emotional Distress
The jury found Needham was negligent but that Esther did not “suffer serious emotional distress.” Plaintiffs challenge the sufficiency of the evidence to support the jury’s finding, arguing Esther suffered emotional distress damages as a matter of law because she presented evidence of these damages from her physician and defendants did not produce any evidence to the contrary. We reject this contention because plaintiffs failed to carry their burden of demonstrating error.
As mentioned above, plaintiffs presented for review only a partial transcript of the trial proceedings. An appellant cannot expect to prevail on appeal by providing only those portions of the record that support the appellant’s arguments. As the court in Osgood v. Landon (2005) 127 Cal.App.4th 425, 435, explained: “‘“A judgment or order of the [trial] court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent. . . .” (Orig. italics.) [Citation.]’ [Citation.] It is the appellant’s affirmative duty to show error by an adequate record. [Citation.] ‘A necessary corollary to this rule [is] that a record is inadequate, and appellant defaults, if the appellant predicates error only on the part of the record he provides the trial court, but ignores or does not present to the appellate court portions of the proceedings below which may provide grounds upon which the decision of the trial court could be affirmed.’ [Citation.]”
Here, we do not know what evidence defendants presented on Esther’s emotional distress claim. In the absence of a complete record, we must presume the judgment is correct.
G. Sanctions for Frivolous Appeal
Defendants request sanctions for a frivolous appeal. (Code Civ. Proc., § 907; Cal. Rules of Court, rule 8.276.) We issued an order inviting written opposition and advised the parties we would decide the issue of sanctions in conjunction with the decision on appeal. While we agree the appeal lacks merit, we deny the motion. The standards for determining whether an appeal is frivolous are to be “sparingly applied.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649.) We cannot say plaintiffs’ appeal is “indisputably” meritless or “prosecuted for an improper motive.” (Id. at p. 650.)
III
Disposition
The judgment is affirmed. Respondents are entitled to their costs.
WE CONCUR: O’LEARY, ACTING P. J., MOORE, J.
Plaintiffs have requested we take additional evidence (Code Civ. Proc., § 909) and receive the trial court reporter’s certification that George Shore testified at trial. They argue the document is necessary to refute defendants’ claim George did not testify. We have reviewed the superior court file, which does reflect George Shore testified, as does the partial reporter’s transcript. We judicially notice this fact, and deny the motion to take additional evidence as moot.