Opinion
D057733 Super. Ct. No. GIN55878
08-11-2011
DAVID J. SMITH et al., Plaintiffs and Appellants, v. MARVIN WIEBE et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
STATE OF CALIFORNIA
APPEAL from a judgment of the Superior Court of San Diego County, Thomas P. Nugent, Judge. Affirmed.
I.
INTRODUCTION
In September 2006, David J. Smith and his company, Blue Pacific Aviation, Inc. (collectively Smith), filed this action against Smith's broker, Roger Smith (Roger), and Roger's company, International Aviation, Ltd. In his complaint, Smith alleged that Roger defrauded Smith while representing Smith in the purchase of an airplane. Smith later filed a first amended complaint alleging that Marvin Wiebe and his company, Tyler Turbine Sales, Inc. (collectively Wiebe), conspired with Roger to defraud Smith. After entering into a settlement agreement with Roger, Smith filed a fifth amended complaint against Wiebe that contained claims for negligence, negligence per se, conversion, fraudulent concealment, and civil conspiracy. The gist of Smith's fifth amended complaint was that Wiebe had failed to disclose to Smith both that Wiebe was participating in a scheme with Roger "to make a secret profit" from Smith's purchase of the airplane, and that there was a significant amount of corrosion on the fuselage of the airplane.
We refer to Marvin Wiebe and Tyler Turbine Sales, Inc., collectively as Wiebe, for ease of reference. We express no opinion with respect to Wiebe's contention that Marvin Wiebe may not be found individually liable on any of the claims in this action.
Roger is no longer a party to the action and is not a party to this appeal.
Although the operative complaint is unclear as to whether Smith intends to assert claims for negligence per se and conspiracy, we interpret it as such for purposes of this opinion.
Wiebe filed a motion for summary judgment in which he argued that he owed no legal duty to Smith to inform him about the nature of the transaction through which Smith purchased the airplane. Wiebe also argued that there was no evidence to support Smith's claim that Wiebe failed to disclose corrosion on the airplane. The trial court granted Wiebe's motion for summary judgment and entered judgment in favor of Wiebe. On appeal, Smith claims that there is a triable issue of fact as to each of his claims. We affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The operative complaint
In March 2010, Smith filed the operative fifth amended complaint (referred to hereafter as the complaint) against Wiebe. Smith alleged that Wiebe was liable for negligence, negligence per se, conversion, fraudulent concealment, and civil conspiracy. Smith stated that his complaint was based on two allegations:
"David Smith claims that he was lied to and that facts were concealed from him in the purchase of the airplane. He claims two things.
"First, Wiebe participated in a secret plan with others to make a secret profit of $1.75 million from the sale of the [airplane] in about thirty days, using Smith's own funds to purchase the [airplane] for themselves. Wiebe either intentionally or negligently failed to tell Smith about the plan.
"Second, Wiebe and his company knew or should have known that there was serious corrosion resulting in a hole in the fuselage of the [airplane] at the time of the sale to David Smith that made flying the plane dangerous and required substantial repairs."
Smith's complaint contained the following allegations concerning the nature of the transaction through which the airplane purchase was accomplished. In approximately November 2003, Smith met with Roger concerning Smith's interest in purchasing an airplane. Roger later contacted Wiebe about the purchase. On February 12, 2004, Purcell Tire Ventures (Purcell) entered into an agreement to sell a Cessna airplane with tail number N701HA (the Cessna) to Wiebe for $4.75 million dollars. On that same day, Wiebe entered into an agreement to sell the Cessna to Roger for $4.975 million. Both agreements were contingent on Smith obtaining financing to fund the purchase.
Smith's complaint describes Roger as Smith's "broker."
Smith alleged that on February 13, 2004, an escrow company, IATS Escrow (IATS), received a $50,000 deposit for the purchase of the Cessna. Smith further alleged, "Wiebe is the contact person for escrow for this deal and controlled escrow. The [$50,000] deposit occurred with David Smith's agreement to purchase [the Cessna] for $5.85 million."
Although the identities of the parties to the agreement by which Smith agreed to purchase the Cessna are not made clear in Smith complaint, the record contains an agreement signed by Smith on February 13, 2004 through which Roger agreed to sell the Cessna to Smith for $5.85 million.
Smith claimed that prior to the deal closing, Wiebe "asked for and got confirmation of loan approval from [a bank] for David Smith's purchase of [the Cessna]." Smith's complaint also alleged that Wiebe sent several faxes to Roger expressing his concern that Smith had not obtained financing in sufficient time to close the deal. On March 25, Wiebe informed Roger that IATS had received a $5 million deposit into escrow. Wiebe directed IATS to disburse $4.756 million to Purcell and $225,000 to Wiebe. Wiebe instructed IATS to disburse the remainder of the proceeds "as Roger . . . instructs." That same day, a bill of sale reflecting a sale from Purcell to Smith was filed.Over the next few days, IATS received additional deposits into escrow, and distributed approximately $870,000 to Roger.
Much of Smith's complaint is drafted in the passive, making it unclear who Smith alleges took certain actions.
On March 30, Wiebe made deposits into escrow to cover the cost of refurbishing the interior of the Cessna. Smith also alleged that Wiebe was present on April 27 when the Cessna was stripped and repainted, and that during this process, "extensive and potentially catastrophic corrosion [was] found underneath a cockpit window that [was] covered up with Bondo and painted over." Smith alleged that "Wiebe knew about [the] corrosion but did not care." Smith alleged that a company with whom he intended to charter the plane subsequently discovered extensive corrosion on the plane.
Smith did not allege when the corrosion was discovered.
Smith claimed that these facts established several causes of action. Specifically, Smith alleged that Wiebe had been negligent "both in what he did and what he failed to do." Smith also claimed that Wiebe was liable pursuant to the negligence per se doctrine because, Smith maintained, Wiebe had committed a criminal theft by "stealing David Smith's funds to purchase the aircraft and pay himself $225,000." In a cause of action for conversion, Smith alleged, "Wiebe stole from David Smith. This is conversion." Smith alleged that Wiebe was liable for the tort of fraudulent concealment because "Wiebe concealed his purchase of the aircraft using Smith's money; concealed his secret profit of $225,000; concealed his knowledge that Roger Smith was also purchasing the aircraft using Smith's money and himself making $1.75 million in secret profit; and concealed dangerous corrosion in the aircraft that could have killed Dr. Smith and his family." Finally, Smith alleged that Wiebe had entered into a conspiracy with Roger because Wiebe knew "Smith was going to be defrauded and have his money stolen . . . ." B. Wiebe's motion for summary judgment and Smith's opposition
In May 2010, Wiebe filed a motion for summary judgment and/or adjudication. In his supporting brief, Wiebe addressed the two primary factual allegations contained in Smith's complaint, namely, Wiebe's alleged failure to disclose certain details concerning the nature of the transaction by which the purchase of the Cessna was accomplished, and Wiebe's alleged failure to disclose at the time of the sale that there was a significant amount of corrosion on the airplane's fuselage.
With respect to the nature of the transaction, Wiebe argued that Roger represented Smith in the purchase of the Cessna, and that Wiebe had merely assisted Roger in his search for the Cessna. Wiebe stated that Roger informed him that Smith was looking for a Cessna Citation VII, that Wiebe located a plane for Roger that met Smith's specifications, and that Roger agreed to purchase the Cessna on behalf of Smith. Wiebe described the sale as follows:
"At the time of the sale, the Aircraft was owned by [Purcell] and the title flowed direct[ly] from Purcell to [Smith]. . . . However, as is typical in aircraft purchase and sale transactions, the transactions [were] structured so that the brokers that had located the Aircraft were compensated from the sales proceeds. . . . Such a structure, which is very standard in the industry, is known as a 'back-to-back' transaction. . . . In this case, [Wiebe] in effect purchased the Aircraft from Purcell at one price ($4.75 million) and re-sold it to [Roger] for a slightly higher price ($4.975 million), allowing [Wiebe] a standard fee for its services (approximately 4% of the sales price) . . . . [Roger], in turn, resold the Aircraft to [Smith] for $5.85 million after purchasing it for $4.975 million."
In addition, Marvin Wiebe offered a declaration stating that his business, Tyler Turbine Sales, Inc., was engaged "in the business of brokering executive aircraft." Marvin Wiebe also explained that, with respect to the sale of the Cessna, he served as "an intermediary in the transaction" and never took possession or title of the airplane.
With respect to Smith's allegations concerning corrosion on the airplane, Wiebe cited evidence demonstrating that both the Cessna's manufacturer and Smith, himself, had inspected the airplane prior to Smith's purchase and that neither had found any significant corrosion. Wiebe also lodged a declaration from the president of the company that painted the Cessna just prior to delivery to Smith stating that there was no corrosion on the Cessna at the time it was painted. Wiebe also noted that it was undisputed that the corrosion was not discovered until more than a year after Smith's purchase of the Cessna.
Wiebe argued that Smith's negligence claim failed because it was based on a theory of nondisclosure, which is not actionable. Weibe also argued that Smith should have relied on his "own broker to give [him] pertinent information, not someone [he] never even met and with whom [he] never had any interaction." Wiebe argued that Smith's conversion claim failed because Smith had voluntarily paid the purchase price of the Cessna into escrow. Wiebe maintained that when the escrow agent paid a portion of this money to Wiebe for his compensation in the transaction, the money no longer belonged to Smith. Wiebe argued that Smith's fraudulent concealment claim failed because Wiebe was not Smith's fiduciary and was therefore under no duty to disclose to Smith the details surrounding the transaction. Wiebe argued that Smith's conspiracy claim failed because Smith could prove neither an underlying tort nor an agreement between Wiebe and Smith to commit a tort.
In his opposition, Smith restated the factual allegations contained in his complaint. Smith contended that these facts established triable issues of fact as to each of the causes of action alleged in his complaint. With respect to his negligence claim, Smith contended that Wiebe "had a fiduciary duty to let David Smith know what was happening." With respect to his conversion claim, Smith argued, "Weibe intentionally took Smith's money to purchase the aircraft and to make his secret profit of $225,000." Smith also argued that Wiebe was liable to Smith for fraudulent concealment, repeating the allegations in his complaint that Wiebe had concealed profits that Wiebe and Roger were making on the transaction, and had also concealed the existence of corrosion on the airplane. Finally, Smith repeated the allegations in his complaint concerning the existence of a conspiracy between Wiebe and Roger. C. The trial court's ruling
As the trial court noted in its order granting summary judgment, Smith's complaint was drafted in the form of a brief rather than a complaint.
In June 2010, after receiving Wiebe's reply brief and hearing oral argument, the trial court granted Wiebe's motion for summary judgment. With respect to Smith's negligence claim, the trial court concluded that Wiebe did not owe "a duty to disclose to [Smith] [Wiebe's] financial arrangements with [Roger]." The trial court also observed that there was "no evidence that [Wiebe] made any misrepresentations to [Smith] or [his] agent [Roger]." With respect to Smith's negligence per se claim, the trial court concluded, "There is no evidence that Wiebe . . . stole any monies from [Smith]." The trial court concluded that Smith's conversion claim failed for the same reason. With respect to Smith's fraudulent concealment claim, the court concluded that there was no triable issue of material fact with respect to whether Wiebe owed Smith a duty to disclose "the nature of the transaction with [Roger]." The trial court also stated, "As for the alleged nondisclosure of corrosion, there is no evidence that [Wiebe was] aware of any corrosion on the plane." Finally, the trial court concluded that there was no triable issue of material fact with respect to whether Wiebe could be found liable for an underlying wrongful act on a conspiracy theory.
The reporter's transcript from the hearing is not in the record.
The trial court entered judgment in favor of Wiebe. Smith timely appeals from the judgment.
III.
DISCUSSION
Smith claims that the trial court erred in granting Wiebe's motion for summary judgment. Specifically, Smith contends that there is a triable issue of fact with respect to each of the claims in his complaint—negligence, conversion, fraudulent concealment, and conspiracy. We conclude that the trial court properly granted judgment as a matter of law for Wiebe on each of these claims. A. The law governing summary judgment
In light of our conclusion that the trial court properly granted summary judgment for Wiebe for the reasons stated in the text, we need not consider any of the alternative grounds that Wiebe offers for affirming the judgment.
A moving party is entitled to summary judgment when the party establishes that it is entitled to the entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant may make this showing by establishing that the plaintiff cannot establish one or more elements of all of his causes of action, or that the defendant has a complete defense to each cause of action. (Towns v. Davidson (2007) 147 Cal.App.4th 461, 466.)
In reviewing a trial court's ruling on a motion for summary judgment, the reviewing court makes " 'an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. [Citations.]' [Citation.]" (Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1143.)
"On review of a summary judgment, the appellant has the burden of showing error, even if he did not bear the burden in the trial court. [Citation.] . . . .'As with an appeal from any judgment, it is the appellant's responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority.' " (Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 230.) B. The trial court properly granted judgment as a matter of law for Wiebe on each of Smith's causes of action
At the outset, we note that the portion of Smith's opening brief that sets out his legal arguments is replete with hyperbolic accusations, but lacks a single citation to the factual record to support these assertions. In addition, Smith's legal arguments are largely conclusory. In short, it is extremely difficult to understand the precise nature of Smith's contentions on appeal or the evidence that he contends creates a material issue of fact with respect to the claims in his complaint, due to the nature of his briefing. We endeavor below to address the arguments raised in Smith's brief, notwithstanding its deficiencies.
1. Negligence
"The elements of a negligence cause of action are duty to use due care and breach of duty, which proximately causes injury." (Lopez v. City of Los Angeles (2011) 196 Cal.App.4th 675, 685.) "Duty is a question of law for the court." (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 770-771.)
Smith argues, "In taking David Smith's money to purchase an aircraft on his own account at substantially below what he claimed was its market value and make his own profit, Wiebe had a duty to let David Smith know what was happening." (Italics added.) In his reply brief, Smith contends that his claim is "plainly articulated as one for negligent concealment . . . ." Smith cites no authority for the existence of the tort of "negligent concealment," and we are aware of none. It is true that the "misrepresentation" element of the tort of negligent misrepresentation may be established by showing "the suppression of fact by one bound to disclose it." (Conte v. Wyeth, Inc. (2008) 168 Cal.App.4th 89, 101, fn. 7, italics added.) Assuming that this is the gist of Smith's negligence claim, Smith has not demonstrated that Wiebe owed Smith a duty to disclose the nature of the transaction through which the purchase of the Cessna was accomplished.
Smith's complaint is far from a model of clarity with respect to the legal theory pursuant to which he seeks to hold Wiebe liable in negligence. The entirety of Smith's negligence claim reads as follows: "As alleged herein, Wiebe's conduct was negligent and as a direct and proximate consequence of that negligence, David Smith was clearly harmed. He bought a defective plane for nearly two million dollars more than it was worth. Wiebe's misconduct was clearly a substantial factor in causing that harm. He failed to use reasonable care to prevent harm to David Smith. He was negligent both in what he did and what he failed to do."
In its order granting summary judgment, the trial court stated, "It appears from a broad reading of the complaint that Plaintiffs are alleging that Defendants were negligent in that they failed to disclose to Plaintiffs that Wiebe/Tyler Turbine was acting as a broker in the transaction and part of the purchase price being paid by plaintiffs was Wiebe/Tyler Turbine's commission." We agree with the trial court's characterization of Smith's negligence claim.
Smith appears to contend that the existence of such a duty may be inferred because there was sufficient evidence from which a jury could find that Wiebe was Smith's agent. We disagree. The formation of an agency relationship is a bilateral matter that requires words or conduct by both principal and agent. (Van't Rood v. County of Santa Clara (2003) 113 Cal.App.4th at 549, 571.)The principal must in some manner indicate that the agent is to act for him, and the agent must act or agree to act on his behalf and subject to his control." ' " (Ibid.)Wiebe offered unrebutted testimony showing that he never communicated with Smith in any fashion, and that he never communicated with Roger with the intent that such communication be relayed to Smith. Further, Smith cites no evidence that indicates that Smith in any way communicated to Wiebe that Weibe was to act for Smith, and no evidence that Wiebe manifested his intent to act on Smith's behalf and under his control.
In addition to his agency argument, Smith also argues that Wiebe had a duty to "let [him] know what was happening," pursuant to Ward v. Taggart (1959) 51 Cal.2d 736 (Ward). Ward is factually distinguishable and provides no support for Smith's contention that Wiebe owed him a duty of disclosure. In Ward, the defendant real estate broker made a number of "fraudulent misrepresentations" to the plaintiffs' agent in order to facilitate the broker's secret purchase and resale of a piece of property. (Id. at p. 741.) The broker falsely told the plaintiffs' agent that the broker was the listing agent for the property and that he would communicate the plaintiffs' offer of $4,000 per acre to the seller. (Id. at pp. 739-740.) The broker then falsely told the plaintiffs' agent that the seller would not take less than $5,000 per acre. (Ibid.) After the plaintiffs' agent made an offer to the broker, on behalf of the plaintiffs, to purchase the property at the higher price, the broker falsely told the agent that the seller had accepted the offer. (Id. at p. 740.) The broker then secretly purchased the properly himself for $4,000 per acre and resold the property to the plaintiffs for approximately $5,000 per acre. (Id. at pp. 739-740.) The broker completed the fraud by providing a number of "fabrications" in an attempt to explain "the unusual handing of the sale," in which the broker's business associate was listed as the beneficiary of a trust deed for the property. (Id. at p. 740.)
The plaintiffs sued the broker and his business associate for fraud. After a court trial, the court entered judgment in favor of the plaintiffs. (Ward, supra, 51 Cal.2d at p. 740.) On appeal, the defendants admitted that "the evidence [was] clearly sufficient to support the finding of fraud." (Ibid.)However, the defendants contended that the plaintiffs could not prove damages because "there can be no recovery in a tort action for fraud without proof of the actual or 'out-of-pocket' losses sustained by the plaintiff and . . . there was no evidence that the property was worth less than plaintiffs paid for it." (Ibid.)
In considering the defendants' contention, the Ward court noted that there was no evidence of an agency or other fiduciary relationship between plaintiffs and the defendants. The Ward court reasoned, "Plaintiffs dealt at arms length with Taggart [the defendant broker] through their agent Thomsen. At no time did Taggart purport to act for plaintiffs. There is no evidence of any prior dealings between the parties or any acquaintanceship or special relationship that would create a fiduciary duty of defendants to plaintiffs." (Ward, supra, 51 Cal.2d at p. 741.) The Ward court agreed with the defendants that, "In the absence of a fiduciary relationship, recovery in a tort action for fraud is limited to the actual damages suffered by the plaintiff." (Ibid.)However, the Ward court held that the plaintiffs could recover damages under a quasi-contractual theory of unjust enrichment, (id. at p. 742), reasoning:
"Even though Taggart was not plaintiff's agent, the public policy of this state does not permit one to 'take advantage of his own wrong' [citation], and the law provides a quasi-contractual remedy to prevent one from being unjustly enriched at the expense of another. [Fn. omitted.] Section 2224 of the Civil Code provides that one 'who gains a thing by fraud . . . or other wrongful act, is, unless he has some other and better right thereto, an involuntary trustee of the thing gained, for the benefit of the person who would otherwise have had it.' As a real estate broker, Taggart had the duty to be honest and truthful in his dealings. [Citations.] The evidence is clearly sufficient to support a finding that Taggart violated this duty. Through fraudulent misrepresentations he received money that plaintiffs would otherwise have had. Thus, Taggart is an involuntary trustee for the benefit of plaintiffs on the secret profit of $1,000 per acre that he made from his dealings with them." (Id. at pp. 741-742.)
Unlike the situation in Ward, in which the defendant broker made multiple false misrepresentations on which the plaintiffs could have reasonably relied, in this case there is no evidence that Wiebe made any misrepresentations to Smith or to Smith's agent. Thus, Ward is wholly factually distinguishable. Further, because the Ward court had no occasion to consider the element of duty in the context of a negligence claim, Ward provides no legal support for Smith's argument that Wiebe owed him a legal duty in this case. To the extent that Ward has any relevance to this case, it supports our conclusion that there is no evidence of an agency or other fiduciary relationship between Wiebe and Smith. (Ward, supra, 51 Cal.2d at p. 740 [concluding broker was not plaintiff's agent where broker did not act on behalf of plaintiff].) Accordingly, we conclude that Smith has failed to demonstrate that Wiebe owed him a duty to disclose any information concerning the manner by which the purchase of the airplane at issue was accomplished.
In light of our conclusion, we need not consider any of the other elements of Smith's negligence claim insofar as that claim is based on Wiebe's purported failure to disclose information concerning the airplane purchase transaction at issue.
Smith also appears to argue that Wiebe was negligent because he participated in a plan to "conceal life-threatening defects in the jet." This argument fails because there is no evidence in the record to support this factual assertion. Smith's assertion appears to be based on the completely unsupported contention that Wiebe was aware that the Cessna contained "potentially catastrophic corrosion" under a cockpit window, before the airplane was delivered to Smith. In a subsection of Smith's brief entitled "Painting over Problems," Smith cites evidence that, prior to the delivery of the airplane to Smith, Wiebe paid for certain improvements to the interior of the airplane and observed the airplane while it was being painted. Smith also asserts that the corrosion "was likely found" on the Cessna while it was being painted, and that "Wiebe knew about this corrosion but did not care." However, Smith fails to cite any evidence whatsoever in support of either of these allegations.
In contrast, in moving for summary judgment, Wiebe provided a declaration from Kevin Miller, the president of the company that painted the Cessna, in which Miller states that there was no corrosion present on the plane at the time it was painted in April 2004, just prior to delivery to Smith. Miller also states that he told Wiebe that the Cessna was "corrosion-free." In the absence of any evidence that Wiebe had knowledge of corrosion on the Cessna prior it to being delivered to Smith, Wiebe was entitled to judgment as a matter of law on Smith's negligence claim insofar as that claim is premised on Wiebe's alleged failure to disclose the existence of corrosion on the Cessna.
Miller states, "I can state from my own personal knowledge and my specific recollection that the Aircraft did not have any corrosion at the time that [my company] painted it in April 2004."
Having rejected all of the theories of negligence liability that Smith asserts in his brief, we conclude that the trial court did not err in granting judgment as a matter of law for Wiebe on Smith's negligence claim.
In his respondent's brief, Wiebe argues that Smith abandoned his contention that Wiebe could be found liable for negligence under a negligence per se theory based on Wiebe's alleged commission of a grand theft under Penal Code section 487. We agree that Smith forfeited this contention by failing to adequately address it in his opening brief. While Smith repeatedly accused Wiebe of theft in his opening brief, Smith never discussed these accusations in the context of the doctrine of negligence per se. In fact, Smith does not address the doctrine of negligence per se in any fashion in his opening brief, and he fails to offer any explanation for this omission in his reply brief. Accordingly, we conclude that Smith has forfeited this contention by failing to adequately address it in his opening brief. (See Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448 ["[P]arties are required to include argument and citation to authority in their briefs, and the absence of these necessary elements allows this court to treat [an] issue as waived"]; Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894, fn. 10 [" ' "points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before" ' "].)
2. Conversion
" ' "Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion are the plaintiff's ownership or right to possession of the property at the time of the conversion; the defendant's conversion by a wrongful act or disposition of property rights; and damages.(Plummer v. Day/Eisenberg, LLP (2010) 184 Cal.App.4th 38, 45.)
Smith contends, "Wiebe undeniably took David Smith's money and credit without permission." The record contains undisputed evidence that Smith and his lender deposited in escrow the money that was ultimately used to purchase the airplane, and that the escrow company later distributed a portion of the funds to Wiebe. The distribution of funds from escrow to Wiebe is fully consistent with the purchase agreements for the Cessna that are contained in the record. Specifically, these agreements establish that Smith agreed to pay Roger $5.85 million for the Cessna, Roger agreed to pay Wiebe $4.975 million for the Cessna, and Wiebe agreed to pay Purcell $4.75 million for the Cessna. Thus, Wiebe was entitled to receive as his commission the $225,000 that the escrow company disbursed to him, representing the difference between the prices at which Wiebe bought and sold the Cessna. There is no evidence from which a jury could find that Wiebe wrongfully converted Smith's funds. Accordingly, we conclude that the trial court did not err in granting judgment as matter of law for Wiebe on Smith's conversion claim.
3. Fraudulent concealment
" '[T]he elements of a cause of action for fraud based on concealment are: " '(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.' " ' " (Levine v. Blue Shield of California (2010) 189 Cal.App.4th 1117, 1126-1127, citations omitted.)
Smith's fraudulent concealment claim is based on the same alleged duty to disclose that we discussed above in connection with Smith's negligence claim. In light of our conclusion that Wiebe owed Smith no duty to disclose the facts surrounding the nature of the transaction by which the purchase of the Cessna was accomplished (see pt. III.B.1, ante), we conclude that the trial court properly granted judgment as a matter of law for Wiebe on Smith's fraudulent concealment claim.
In the section of Smith's opening brief in which he discusses his fraudulent concealment claim, Smith also argues that even absent a finding of a fiduciary relationship, a cause of action for fraudulent concealment "may arise in at least three instances: (1) the defendant makes representations but does not disclose facts which materially qualify the facts disclosed, or which render his disclosure likely to mislead; (2) the facts are known or accessible only to defendant, and defendant knows they are not known to or reasonably discoverable by the plaintiff; (3) the defendant actively conceals discovery from the plaintiff." (Quoting Warner Constr. Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 294.) However, Smith fails to demonstrate that any of these circumstances exist in this case. Specifically, Smith cites no evidence that Wiebe made representations that should have been qualified, or that he was aware of facts that he knew Smith could not discover, or that he concealed discovery from Smith.
4. Conspiracy
In Klistoff v. Superior Court (2007) 157 Cal.App.4th 469, 479, the court outlined the nature of a civil conspiracy:
" '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.' [Citation.]
" 'The act done and resulting damage to the plaintiff, not the conspiracy to act, is the essence of civil conspiracy. [Citation.] The elements of an action for civil conspiracy are (1) formation and operation of the conspiracy, and (2) damage to plaintiff resulting from an act or acts done in furtherance of the common design. The existence of a civil conspiracy makes each participant in the wrongful act responsible as a joint tortfeasor for all damages resulting from the wrong, whether or not a participant was a direct actor and regardless of the degree of his activity. [Citation.]"
Smith claims that Wiebe "knew what he and Roger were up to," and that, "[Wiebe] knew that they were going to steal millions of dollars from David Smith to fund their purchases and profits on the flipping of [the airplane]," and that "at a minimum, Wiebe knew David Smith was going to be defrauded and have his money stolen."
As noted in the text, conspiracy is not a separate cause of action. We assume for purposes of our discussion that Smith's complaint, broadly construed, may be interpreted to allege that Wiebe was liable for negligence, conversion, and fraudulent concealment under a conspiracy theory of liability.
Despite these assertions, Smith does not point to any evidence that Wiebe knew that Roger allegedly planned to defraud Smith. Further, Marvin Wiebe offered a declaration in which he stated:
"Until after this litigation was filed, I did not know the terms of [the] deal between Dr. Smith and Roger. While I presumed Roger was being compensated as a broker, I did not know how or how much. I never saw the agreement between Roger and Dr. Smith and do not know its terms, and there was no agreement between [Wiebe] and Roger as either the amount of compensation Roger would earn or how the transaction with Roger's clients would be structured. I never inquired as to those terms, as I did not think that was any of my business. I presumed that Roger was communicating all pertinent information to his client, but I do not know what was said between the two of them. I had no reason to think that Roger was misinforming his client about anything, and I had no reason to suspect that Roger was not providing Dr. Smith with all information he requested or needed. I certainly never entered into any agreement with Roger to help him mislead his clients or influence them in any way."
In light of this evidence, and the absence of any countervailing evidence, the trial court did not err in granting judgment as a matter of law for Wiebe on Smith's conspiracy claim.
IV.
DISPOSITION
The judgment is affirmed. Wiebe is entitled to recover his costs on appeal.
AARON, J.
WE CONCUR:
HALLER, Acting P. J.
McDONALD, J.