Opinion
A126245
08-23-2011
MYRA ARIN, Plaintiff and Respondent, v. ROY A. APPLEQUIST et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County Super. Ct. No. SCV 241142)
These cross-appeals have their origin in an intrafamily dispute arising from unsuccessful attempts to sell a piece of real property. Central to the dispute are two written agreements between Roy Senior and his former wife, real estate agent Myra Arin. Under one agreement, Arin was to market and sell Roy Senior's ranch in Sonoma County, and she returned to California from her home in the U.S. Virgin Islands to do so. In return, Roy Senior agreed to pay for improvements necessary to prepare the ranch for sale and to compensate Arin for her efforts. The other agreement between Roy Senior and Arin declared that Arin had a life estate in the ranch.
The original notice of appeal in this case was filed by Roy A. Applequist (Roy Senior) and his son, Roy G. Applequist (Roy Junior), both individually and as trustees of the Roy A. Applequist Trust dated November 10, 2000. We will refer to these appellants collectively as "the Applequists" save when context requires that they be identified individually.
Over time, the parties' relationship deteriorated, and efforts to sell the ranch failed. Arin then sued the Applequists for, among other things, breach of contract, constructive fraud, and declaratory judgment to enforce the life estate. The Applequists countersued for fraud, breach of contract, professional negligence, breach of fiduciary duty, elder abuse, and conversion.
The superior court granted the Applequists' motion for summary adjudication of Arin's breach of contract claim on statute of limitations grounds. The case proceeded to trial, during which the trial court found for Arin on her claim for declaratory judgment and ruled she possessed a valid life estate. The jury awarded damages to Arin only on her constructive fraud claim. It awarded the Applequists damages for fraud, breach of contract, breach of fiduciary duty, professional negligence, and conversion. The trial court later declared the Applequists the prevailing party and awarded them attorney fees.
Both the Applequists and Arin appeal from the resulting judgment. We find none of the parties' numerous claims of error meritorious. Accordingly, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The litigation giving rise to these appeals began in July 2007. Final judgment was entered two years later. The pretrial proceedings and the ensuing 12-day trial have yielded a voluminous record. The issues on appeal are narrower than those raised below, and we will therefore set forth only the facts necessary to resolution of the parties' contentions. Additional facts relevant to particular issues are included in the discussion portion of our opinion.
Our review of the record has been hampered by the failure of both parties' counsel to comply with the requirements of California Rules of Court, rule 8.204(a)(1)(C). That rule requires record references in briefs to be supported "by a citation to the volume and page number of the record where the matter appears." (Italics added.) The parties' briefs refer us only to page numbers and do not direct us to the volumes of the record in which those pages appear. This problem has been exacerbated by the parties' decision to use the original 27-volume superior court file as the record on appeal, rather than designating only the relevant portions of the record for inclusion in a clerk's transcript. (See Cal. Rules of Court, rules 8.122(a)(1), 8.128(a)(1).) The parties have therefore left it to this court to locate their record citations among the eight volumes of reporter's transcript, the 27 volumes of the superior court's file, and the numerous original exhibits. We remind counsel that "[t]he duty to adhere to appellate procedural rules grows with the complexity of the record." (Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 290.) Counsel should not expect this court to shoulder the burden of searching through a voluminous record to find evidence or rulings for which they have failed to provide proper references. (See Myers v. Trendwest Resorts,
The Parties
Roy Senior was born in 1922. He and Arin married in about 1957 and divorced in the early 1960s. Together they had three children, including Roy Junior. Over the years following their divorce, their contact diminished, and during the years between 1985 and 2000, Roy Senior and Arin communicated very little. Following their divorce, both Roy Senior and Arin remarried. Roy Senior married his second wife, Carol, in 1982, and they divorced in 2000. By the late 1980s, Arin was living with a new husband in St. Croix in the U.S. Virgin Islands. Arin possessed a real estate broker's license in St. Croix, and she was engaged in a number of businesses there, including a trucking firm, a general contracting company, and a real estate agency.
The Property
The property at issue is located at 1520 Mount Weske Drive in Windsor, California (the Property). Roy Senior acquired the Property by purchasing an 11-acre parcel in the late 1970s and a 30-acre parcel in the early 1990s. He later merged the two parcels, and the Property currently consists of some 42 acres, with a primary residence, a guest residence, pool and pool house, a 12,000 square foot Victorian barn, and a six-car garage. Roy Senior lived on the Property with Carol until their divorce in July 2000. After their divorce, Roy Senior moved, but Carol lived on the Property until late 2000 or early 2001.
Arin's Return to California
Between the summer of 2000 and March 2001, Arin made a number of trips to California to visit Roy Senior. During this time period, he told Arin he wanted to sell the Inc. (2009) 178 Cal.App.4th 735, 745.) And we may disregard factual assertions that are unsupported by citations to the record. (Dominguez v. Financial Indemnity Co. (2010) 183 Cal.App.4th 388, 392, fn. 2.) "The same is true with respect to appellant's legal arguments that are not supported by citation to legal authority." (Regents of University of California v. Sheily (2004) 122 Cal.App.4th 824, 826-827, fn. 1, original italics.) Property. Thereafter, the two agreed that Arin would list the Property for sale and sell it. Roy Senior also agreed that Arin and her husband would stay at the Property until it was sold.
Arin testified that Roy Senior persuaded her to get rid of everything she had in St. Croix and move to California. Arin and her husband sold their businesses in St. Croix and moved to the Property in or around July 2001.
The Agreements at Issue
Roy Senior and Arin executed the two separate agreements that are at the heart of this litigation. The first agreement is a one-page, typewritten document dated September 27, 2001 (the Typewritten Agreement). The second is a document handwritten by Roy Senior having an effective date of June 15, 2001 (the Handwritten Agreement). Beneath the parties' signatures is written: "This contract is effective from July 11, 2001."
Arin testified that the Handwritten Agreement was presented to her during the summer of 2002 and backdated to the date on which she moved to the Property. In contrast, Roy Senior testified that the Handwritten Agreement was drawn up in June 2001. Despite the disagreement over the date, the parties do not dispute that Roy Senior and Arin signed the document.
The Typewritten Agreement provides in full: "This agreement is between ROY APPLEQUIST owner of the Estate located at 1520 Mt. Weske Drive, Windsor, California and MYRA ARIN, broker of Select Properties of St. Croix, Inc. [¶] Mrs. Arin['s] responsibilities are to manage, refurbish, and maintain the estate. Compensation for Mrs. Arin is $10,000 a month. [¶] This contract is automatically renewed on a yearly basis. Mrs. Arin has a life estate in the estate at 1520 Mt. Weske Drive, Windsor, California." The Typewritten Agreement contains the signed and notarized signatures of both Arin and Roy Senior.
Roy Senior drafted the Handwritten Agreement to memorialize the understanding he had reached with Arin regarding her efforts to list and sell the Property. Under the terms of the Handwritten Agreement, Arin was to prepare and improve the Property so that it could be sold. She was also responsible for preparing sales materials, overseeing the escrow process, and making any other efforts required for the sale. Roy Senior agreed to provide up to $100,000 to fund expenses necessary for maintenance and improvement of the Property. The parties agreed to divide the proceeds of the sale, with Roy Senior receiving $1,900,000 plus reimbursement of funds for marketing and improvement of the Property and Arin receiving the proceeds remaining after Roy Senior was paid. The Handwritten Agreement also contained an attorney fee clause, which provided that "[i]f a lawsuit is initiated over any aspect of this agreement the losing party will be responsible for all reasonable attorney and court costs for both parties." As originally drafted, the Handwritten Agreement was to remain in effect until June 15, 2004, but the parties later extended it by four years.
Payments to Arin and Further Agreements
Beginning in about July 2001, Arin and her husband undertook work on the Property, making repairs and improvements. From July 2001 through mid-2005, Roy Senior paid Arin for the improvements she made on the Property. Initially, he wrote $10,000 checks to Arin, which she deposited in a "ranch account" from which she withdrew money used for the maintenance and improvement of the Property and to pay herself. At some point in 2002, Roy Senior began to sign blank checks from his account and gave them to Arin to fill out. Arin testified that at least one-third of the money she withdrew for her own use was devoted to improvements to the Property and that she did not pay herself the full $10,000 per month set forth in the Typewritten Agreement.
According to Arin, she misplaced her copy of the Typewritten Agreement in 2001 and only rediscovered it in 2008. She did not tell Roy Senior she had lost the document, but instead contacted attorney Frank Briceno to have him draft documents that would give her rights similar to those contained in the Typewritten Agreement. The documents included a quitclaim deed that would have given Arin "[t]he exclusive right to sell, possess, maintain, protect and improve [the Property] during her lifetime." Neither Arin nor Roy Senior signed these documents, and the attorney prepared a second draft that was never signed.
In August 2002, Arin took the Handwritten Agreement, which had been executed in either July 2001 or July 2002, to another local lawyer, William Cutler, for review. Cutler drafted a "Memorandum of Agreement" that acknowledged the validity of the Handwritten Agreement. Arin and Roy Senior signed the memorandum in November 2002. It appears that this memorandum was later recorded in Sonoma County in December 2004. Cutler later drafted a limited durable power of attorney that Roy Senior signed on March 27, 2004. The document gave Arin the authority to manage and sell the Property, including the authority to enter into listing agreements with real estate agents or brokers.
Efforts to Sell the Property
Arin testified that between 2002 and 2008, she showed the Property at least 150 times. In 2004, she obtained a California real estate license for herself and began listing the Property under that license. Arin did not disclose her claimed life estate in any of the real estate listings or marketing materials for the Property. Nor did she mention the claimed life estate to the brokers with whom she listed the Property or to a prospective purchaser who made an offer for the Property in 2005. She testified that she did not do so because she could not find the Typewritten Agreement and therefore did not believe that she could make a claim to the life estate. She did disclose the life estate in 2008 after she relocated the Typewritten Agreement.
Breakdown of the Relationship
In February 2005, Roy Senior broke his hip during a trip to Arizona. He was hospitalized there and underwent an operation to repair his hip. During this operation, he suffered a mild stroke. After the stroke, Roy Junior offered to help organize his father's financial affairs. Roy Senior testified that it was at this point that he realized that Arin had spent nearly $400,000 on improvements to the Property.
On May 2, 2005, Arin received an offer to purchase the Property. The bid expired by its terms on May 6, 2005. Arin and Roy Senior gave conflicting testimony at trial about whether Arin had communicated the offer to Roy Senior and how the latter had responded to the offer. Arin testified that she communicated the offer by telephone to Roy Senior at his home in California, but he responded by screaming at her and claiming the offer was not real. She claimed she urged him to make a counteroffer, but he refused. Roy Senior, on the other hand, testified that he was in the hospital in Arizona at the time the bid was submitted and that Arin had never informed him of the offer.
In the summer of 2005, Roy Senior and Roy Junior wrote to Arin expressing concern that the expenditures that had been made for improvements were approximately three times the $100,000 contemplated in the Handwritten Agreement. They requested an accounting of the money that had been spent and informed her that no further funds would be transferred until she complied with their request. In July 2005, Roy Senior revoked Arin's power of attorney. Arin testified that she wrote the last check to herself from the ranch account in August 2005. She said the total amount of the checks she had written during her time at the Property was $328,895, of which a third "went back into the ranch."
Arin ultimately received three offers from two prospective purchasers, but none resulted in a sale of the Property.
The Action Below
Arin filed her original complaint on July 17, 2007. She filed the operative third amended complaint on October 1, 2008. Arin asserted 10 causes of action in her third amended complaint, including claims for breach of both the Handwritten and Typewritten Agreements and for declaratory relief. In her cause of action for declaratory relief, she claimed the Typewritten Agreement entitled her to a life estate in the Property. The Applequists answered the third amended complaint on October 23, 2008, asserting 33 separate affirmative defenses.
Meanwhile, on October 19, 2007, the Applequists filed a cross-complaint. They asserted 16 causes of action, including claims by Roy Senior against Arin for fraud, intentional misrepresentation, breach of contract, breach of fiduciary duty, professional negligence, elder abuse, and conversion.
Motion for Summary Adjudication
The Applequists sought summary adjudication of Arin's fifth cause of action for breach of the Typewritten Agreement. They argued Arin's claim was barred by the four-year statute of limitations of Code of Civil Procedure section 337. They contended that if the Typewritten Agreement were valid, then Roy Senior had breached it no later than October 1, 2001, because he admitted he had never paid Arin the $10,000 per month to manage and maintain the Property. Arin, they argued, had confirmed this in her discovery responses by admitting that she was unaware of any documents identifying payments for compensation from Roy Senior. In addition, they noted that Arin's tax returns for the years 2001 through 2007 declared no income from wages, salaries, or tips during those years. Thus, the Applequists contended Roy Senior would have breached the Typewritten Agreement either on October 1, 2001, or at latest, on June 1, 2002, because he wrote the last $10,000 check on May 2, 2002. To be timely, Arin would have had to file her action either by September 30, 2005 or May 31, 2006. Because she did not file her original complaint until July 17, 2007, the Applequists argued the statute of limitations had run on her contract claim.
After hearing argument from the parties, the trial court granted the Applequists' motion as to Arin's fifth cause of action for breach of contract. The court ruled that Arin's claim was barred by the statute of limitations, because her "complaint was filed almost six years after the breach would have occurred."
Other Pretrial Rulings
The Applequists' pretrial brief contended Arin and Roy Senior had never intended the Typewritten Agreement to be valid and enforceable. The true purpose of the agreement, they argued, was to persuade a bank to lend money to Arin. The Applequists sought to use parol evidence to demonstrate the Typewritten Agreement was either a sham instrument intended to deceive the bank or that the agreement was procured by Arin's fraudulent promise to Roy Senior that she would not enforce it. Arin filed a motion in limine to preclude the Applequists from offering this parol evidence. After a hearing, the trial court granted Arin's motion.
Before trial commenced, the trial court discussed with counsel which of the parties' claims were legal in nature and which were equitable. In addressing Arin's sixth cause of action, in which she sought a declaration that she had an enforceable life estate, the trial court opined "[t]hat would be a court issue[.]" When the trial judge asked if there was any objection to her ruling that Arin's claim for declaratory relief was to be tried to the court, the Applequists' counsel responded that he had no objection. The trial court later ruled that the validity of Arin's claimed life estate was for the court, not the jury, to resolve.
The Trial
Trial began on March 19, 2009, and consumed 12 days. Sitting as finder of fact on Arin's claim for declaratory relief, the trial court decided Arin possessed a valid life estate. It further ruled the Applequists could not argue to the jury that the life estate had been the product of elder abuse. The jury found against Arin on all her claims save constructive fraud, for which it awarded her $281,400 in damages, and elder abuse, for which it awarded nothing. The jury returned verdicts in favor of the Applequists on Roy Senior's causes of action for fraud, breach of contract, breach of fiduciary duty, professional negligence, elder abuse, and conversion. As it had with Arin, it awarded no damages on the elder abuse claim. The jury returned identical awards of $72,000 on each of Roy Senior's claims for fraud, breach of contract, breach of fiduciary duty, and professional negligence. It also awarded him $100,000 for conversion.
After hearing the verdicts, counsel agreed with the trial court that they were not inconsistent. The trial court discharged the jury, and counsel argued whether the damages awarded to Roy Senior were duplicative. In a later filing, the Applequists conceded that Roy Senior's damages should be reduced by $72,000 because his claims for breach of fiduciary duty and professional negligence were duplicative. The trial court agreed and reduced Roy Senior's damages to a total of $316,000.
On June 3, 2009, the trial court entered a judgment awarding Roy Senior a net recovery of $34,600. It later entered an amended judgment reflecting the attorney fee award to the Applequists. Both Arin and the Applequists filed timely appeals.
DISCUSSION
Both the Applequists and Arin challenge the judgment. The Applequists' arguments on appeal all relate to the trial court's declaration that Arin possessed a life estate in the Property. Arin contends the trial court erred in summarily adjudicating her claim for breach of the Typewritten Agreement. She also argues that the trial court's instructions permitted the jury to award damages on an incorrect legal theory. Finally, she asserts that there is insufficient evidence to support the three separate damage awards of $72,000. We address these contentions in turn.
I. The Applequists' Appeal
A. The Trial Court Properly Excluded Parol Evidence Regarding the Typewritten Agreement.
The Applequists challenge the trial court's decision to preclude them from presenting parol evidence regarding the formation of the Typewritten Agreement. Their argument is twofold. First, they contend the agreement was merely a sham that the parties never intended to be enforceable. The true purpose of the agreement, they argue, was "to influence the lending decisions of the loan officer at the bank where Arin applied for a loan." Second, citing Code of Civil Procedure section 1856, subdivision (g), the Applequists contend parol evidence is always admissible to show fraud, and therefore they should have been permitted to introduce evidence demonstrating that Arin induced Roy Senior to sign the Typewritten Agreement by fraudulently representing that she would not enforce the agreement against him. Neither of these arguments is persuasive.
Code of Civil Procedure section 1856, subdivision (g) provides: "This section does not exclude other evidence of the circumstances under which the agreement was made or to which it relates, as defined in Section 1860, or to explain an extrinsic ambiguity or otherwise interpret the terms of the agreement, or to establish illegality or fraud."
1. The Sham Agreement Defense
The Applequists are correct that parol evidence may be admitted to prove the parties did not intend a facially complete agreement to take effect at all. (See 2 Witkin, Cal. Evidence (4th ed. 2000) Documentary Evidence, § 102, p. 222.) Thus, "[w]here the defense is that the writing is a sham, i.e., no jural act at all, the parol evidence rule, strictly speaking, has no application." (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 401.) A party asserting this defense, however, must plead it specifically, as it is not encompassed in either the defense of fraud in the inducement or in a general denial. (Id. at pp. 401-403; Saks v. Charity Mission Baptist Church (2001) 90 Cal.App.4th 1116, 1134.) As the trial court pointed out below and as Arin argues in her brief, the sham agreement defense was not among the 33 affirmative defenses the Applequists pled in their answer to Arin's third amended complaint. Since the Applequists do not dispute that they failed to plead this affirmative defense, we hold that the trial court did not err in excluding the evidence offered by the Applequists in support of it.
The Applequists do not contest Arin's pleading argument in their reply brief. (Cf. People v. Hightower (1996) 41 Cal.App.4th 1108, 1112, fn. 3 [appellant's failure to reassert claim in reply brief permitted court to assume that appellant was persuaded by respondent's argument].)
2. The Fraud Defense
The Applequists' second argument fares no better, because it finds no support in the evidence they cite. They direct us to no evidence that Arin ever represented to Roy Senior that she did not intend the Typewritten Agreement to be enforceable. The only evidence cited in their brief is Roy Senior's testimony that Arin "was working on getting a loan at that bank" and that he did not intend the Typewritten Agreement to be binding. But there is nothing in this testimony about any promise from Arin that she would not enforce the agreement. The Applequists' trial counsel recognized, however, that such testimony was essential to her clients' defense of promissory fraud. In arguing this issue to the court prior to trial, counsel explained to the trial court, "[t]he promissory fraud is whether or not Arin would or would not enforce the document. And this is fraud in the inducement. If Arin specifically states to my client, I'm not going to - I'm not going to enforce this document, I just need you to sign it, it doesn't fall within the promissory fraud cases." (Italics added.)
The Applequists' argument also fails for another reason. Even if the testimony could be read to support their fraud claim, the proffered evidence would nevertheless be inadmissible under the rule established in Bank of America etc. Assn. v. Pendergrass (1935) 4 Cal.2d 258 (Pendergrass). In Pendergrass, the California Supreme Court held that the rule permitting parol evidence of fraud to establish the invalidity of a contract "is that it must tend to establish some independent fact or representation, some fraud in the procurement of the instrument or some breach of confidence concerning its use, and not a promise directly at variance with the promise of the writing." (Id. at p. 263.) Quoting an older Virginia case, the court explained: '"It is reasoning in a circle, to argue that fraud is made out, when it is shown by oral testimony that the obligee contemporaneously with the execution of a bond, promised not to enforce it.'" (Ibid., quoting Towner v. Lucas' Exr. (1857) 54 Va. 705, 716.) This would be the precise effect of admitting the proffered testimony in this case. The Applequists were attempting to show that contemporaneously with the execution of the Typewritten Agreement, Arin promised not to enforce it. Pendergrass does not permit the introduction of such evidence.
Although the Pendergrass rule has been criticized as inconsistent with the unqualified language of Code of Civil Procedure section 1856, subdivision (g), we remain bound by the Pendergrass opinion. (Pacific State Bank v. Greene (2003) 110 Cal.App.4th 375, 390.)
3. The Exclusion of Parol Evidence Did Not Affect Roy Senior's Substantive Rights.
The Applequists claim they were prejudiced by the trial court's refusal to permit them to introduce evidence that Arin submitted the Typewritten Agreement to a bank in September 2001 and requested a copy of it from the bank in 2008. They contend this deprived them of the opportunity to refute Arin's claim that she lost the document in 2001 and rediscovered it seven years later. We reject this contention.
First, the Applequists have not given us a citation to the portion of the record at which the challenged ruling appears, and to demonstrate error, "the appellant must identify each order that he asserts is erroneous, cite to the particular portion of the record wherein that ruling is contained, and identify what particular legal authorities show error with respect to each challenged order." (County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1443; see Cal. Rules of Court, rule 8.204(a)(1)(C).) Our independent review of the record discloses that, outside the presence of the jury, the Applequists produced correspondence dating from 2001 among Roy Senior, Arin, and a Virgin Islands bank. The trial court considered these documents, and the Applequists' counsel were permitted to examine Roy Senior about them. After reviewing these documents and hearing Roy Senior's testimony, the trial court nevertheless found that Arin's actions were not inconsistent with her testimony that she had lost the Typewritten Agreement and rediscovered it years later.
In their reply brief, the Applequists refer us only to an untranscribed sidebar conference. They claim they sought to clarify whether the trial court's in limine ruling barring introduction of evidence regarding the sham instrument defense also prevented them from questioning Arin about whether she had presented the Typewritten Agreement to anyone after the document was signed. Since there is no transcript of the trial court's discussion with counsel, we cannot determine what ruling, if any, the trial court may have made at sidebar.
The Applequists have not cited to any evidence in the trial record that supports their claim that Arin requested a copy of the Typewritten Agreement from the bank in 2008, and they do not appear to have made an offer of proof to the trial court on this point. If they made such an offer of proof, they must "provide this court with explicit page citations to the record" or their argument will be deemed forfeited. (Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205.) Indeed, we have been directed to no portion of the record showing that the Applequists ever asserted this as grounds for impeachment below. Since the Applequists have failed to demonstrate that they raised this issue in the trial court, we need not consider it. (E.g., Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 800-801.)
Second, even if this issue had been properly preserved for appeal, it would lack merit. Arin testified at trial that she had lost her copy of the Typewritten Agreement in 2001 and then rediscovered it seven years later. Even if the Applequists had proved she submitted the agreement to a bank in 2001 and then requested a copy of it from that bank seven years later, that would not "refute" her claim that she had lost the document. She might well have sent the agreement to the bank shortly after it was signed in 2001, misplaced her own copy, and then later asked the bank whether it had retained its copy of the agreement when its importance to the litigation became apparent to her. As the trial court noted, Arin's testimony that she lost the Typewritten Agreement and then rediscovered it years later is consistent with the fact that the life estate claim was not included in her original complaint and was added only in 2008.
The Applequists therefore have not shown a reasonable probability that they would have achieved a more favorable result in the absence of the claimed error. (See Bowman v. Wyatt (2010) 186 Cal.App.4th 286, 327-328 [erroneous admission of irrelevant impeachment evidence did not result in miscarriage of justice requiring reversal].) In fact, their brief details an extensive list of evidence produced at trial that tended to impeach Arin's claims regarding the life estate. They thus had ample opportunity to impeach Arin's testimony on this issue.
B. The Trial Court Did Not Err in Refusing to Permit the Jury to Decide the Life Estate Was the Product of Elder Abuse.
The Applequists next claim the trial court erred by refusing to permit the jury to determine whether Arin's claimed life estate was the product of elder abuse. (See Welf. & Inst. Code, § 15610.30 [defining financial abuse of an elder or dependent adult].) This claim is unpersuasive for several reasons. Initially, it is far from clear that it was either properly presented to the trial court or preserved for appeal. Before trial began, the trial court and counsel discussed which of Arin's claims were equitable in nature, and thus could be decided by the court, and which were legal, and thus were to be tried to the jury. Discussing Arin's sixth cause of action for declaratory relief, the trial judge opined "[t]hat would be a court issue, whether she has an enforceable life estate . . . ." The judge asked whether there was any objection, and the Applequists' counsel responded that he had none. The Applequists therefore appear to have acquiesced in having this claim resolved by the court. In addition, after the trial court made its oral finding that Arin had a valid life estate, it ruled that it would not permit the Applequists to argue to the jury that the life estate was procured through elder abuse. Counsel for the Applequists made no objection to that ruling.
While Roy Senior's claim of elder abuse was submitted to the jury, the Applequists were not permitted to argue the theory that Arin had secured her claimed life estate by elder abuse.
Second, it is "beyond question" that the trial court has the authority to resolve equitable claims before submitting legal claims to the jury. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1242.) "This district Court of Appeal has observed that the 'better practice' is for 'the trial court [to] determine the equitable issues before submitting the legal ones to the jury.' [Citation.]" (Hoopes v. Dolan (2008) 168 Cal.App.4th 146, 157; accord, Nwosu v. Uba, at p. 1242 [where case includes both equitable and legal claims, trying equitable claims first is "preferred procedure"].) As often happens when equitable issues are tried first, the trial court's ruling on the validity of Arin's life estate disposed of any legal claim that the life estate was procured by elder abuse. (See Hoopes v. Dolan, at p. 157.) Moreover, the trial judge explained that she would not permit the Applequists to argue to the jury that the life estate was the product of elder abuse, because she herself was "taking all of those facts and evidence into consideration" in resolving Arin's claim for declaratory judgment regarding the validity of the life estate. Having resolved that factual issue adversely to the Applequists, the trial court did not err in concluding that its ruling disposed of their claim that Arin had procured the life estate through elder abuse. (See Nwosu v. Uba, at p. 1242.)
C. The Trial Court Did Not Abuse its Discretion by Informing the Jury That Arin Possessed a Life Estate.
The Applequists contend the trial court abused its discretion when it informed the jury of the court's ruling that Arin possessed a valid life estate. In addition, they claim the trial court erred in giving a supplemental instruction that permitted the jury to rely on the Typewritten Agreement in deciding Arin's remaining claim for breach of the contract embodied in the Handwritten Agreement. They also assert that the trial court erred in refusing to instruct the jury that it had previously struck Arin's breach of contract claim. They claim they were "plainly prejudiced" by these decisions because the jury was supposedly encouraged to find in favor of Arin on her constructive fraud claim and award her $281,000, i.e., by concluding Arin was entitled to $10,000 per month based on the Typewritten Agreement, "so that it could harmonize its verdict with the judge's decision." The Applequists claim the jury must have arrived at this amount because it believed the Typewritten Agreement was valid and entitled Arin to monthly compensation from the date Roy Senior ended her access to his accounts through the date she filed her lawsuit. We cannot agree.
We can dispense quickly with the Applequist's claim that the trial court erred in refusing to instruct the jury that it had granted summary adjudication on Arin's breach of contract claim. Far from being erroneous, the trial court's refusal complied with the express language of Code of Civil Procedure section 437c, subdivision (n)(3), which prohibits the trial court from commenting to the jury upon the grant of a motion for summary adjudication. (See Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1134, 1137.)
The Applequists' objection to the trial court's supplemental jury instruction is likewise meritless. That instruction reads in full: "You are instructed that Myra Arin's breach of contract claim is limited to whether Roy A. Applequist breached the handwritten agreement (exhibit 13) and not whether he breached the typed agreement (exhibit 2). (See Verdict form)." (Italics added.) Thus, contrary to the Applequists' contentions, the plain language of the instruction specifically informed the jury that it could not rely on the Typewritten Agreement. Moreover, the Applequists' brief provides no analysis of the alleged instructional error, and it contains no discussion of any legal authority bearing on this question. (See Regents of University of California v. Sheily, supra, 122 Cal.App.4th at pp. 826-827, fn. 1 [court may disregard legal arguments unsupported by citation of authority].) The Applequists' claim of instructional error therefore fails, as they have not demonstrated that there is a reasonable likelihood the jury misconstrued or misapplied the law in light of the instruction given. (See Bay Guardian Co. v. New Times Media LLC (2010) 187 Cal.App.4th 438, 462.)
We also reject the Applequists' claim that the jury must have arrived at the amount of $281,000 in damages because it believed the Typewritten Agreement was valid. As we have just noted, the trial court's supplemental instruction to the jury explicitly told the jury that it could not rely on the Typewritten Agreement, and we must presume the jury understood and followed this instruction. (Linden Partners v. Wilshire Linden Associates (1998) 62 Cal.App.4th 508, 523.) Furthermore, the Applequists do not explain the factual basis of their claim about how the jury arrived at its damage award. They simply assert that the jury "must have arrived at this amount because it believed the September 27, 2001 Agreement was valid . . . ." Without any explanation of the jury's alleged miscalculation, we are unable to evaluate this argument, and therefore conclude the Applequists have failed to demonstrate error. (See Sharabianlou v. Karp (2010) 181 Cal.App.4th 1133, 1150 [appellant must affirmatively demonstrate error in damage award; it is not appellate court's responsibility to reconcile various damages figures].)
D. The Trial Court Did Not Err in Finding Roy Senior Had Conveyed a Valid Life Estate.
The Applequists make two challenges to the trial court's finding that Arin possessed a valid life estate. They first claim that the Typewritten Agreement did not constitute a valid conveyance because it lacked consideration. They also argue that the conveyance was invalid because there was no evidence that Roy Senior had a present intent to transfer any interest at the time the Typewritten Agreement was executed. Neither of these contentions has merit.
1. The Life Estate Was Supported by Sufficient Consideration.
The Applequists asserted the defense of lack of consideration in their answer to Arin's third amended complaint. This was an issue on which they bore the burden of proof. (Civ. Code, § 1615.) They concede in their brief that "[c]onsideration may be either a benefit conferred or agreed to be conferred upon the promisor . . . or a detriment suffered or agreed to be suffered by the promisee . . . ." (Civ. Code, § 1605.) Applying this definition, we conclude that the record supports a finding of consideration. Arin testified that she "gave up everything in St. Croix" to come to California and that she insisted upon the life estate because she had to have some security. By sacrificing her livelihood in St. Croix, Arin suffered the kind of detriment that may serve as consideration for the grant of the life estate. (See Stone v. Burke (1952) 110 Cal.App.2d 748, 755-756 [employee who was induced to leave position by promise of permanent employment with another employer thereby suffered a prejudice constituting sufficient consideration for promise of permanent employment].) The trial court alluded to Arin's move from St. Croix in ruling that Arin possessed a valid life estate, and it therefore appears to have agreed that this was sufficient consideration for Roy Senior's grant of the estate. In light of this testimony, we cannot say that there is no substantial evidence supporting a finding of consideration. (Banducci v. Banducci (1944) 63 Cal.App.2d 600, 605.)
2. There Was Sufficient Evidence of a Present Intent to Convey.
Equally unpersuasive is the Applequists' contention that the Typewritten Agreement was ineffective to convey a life estate because there was no evidence of Roy Senior's present intent to transfer an interest in the property. The Applequists argue that the language in the Typewritten Agreement stating "Myra Arin has a life estate at 1520 Mt. Weske Drive, Windsor, California" does not evidence a present intent to transfer an interest in real property, but rather refers only to a property interest that was previously conveyed. We disagree.
The trial court relied on the plain language of Code of Civil Procedure section 1971 in ruling that the Typewritten Agreement constituted a sufficient declaration of Arin's life estate. The trial court reasoned that under the plain language of that statute, the Typewritten Agreement was an "instrument in writing . . . declaring" that Arin possessed a life estate. The Applequists do not challenge this interpretation of the statute. As a consequence, we must assume they have acquiesced in it. Moreover, the case law is clear that "[n]o precise words are necessary to constitute a present conveyance." (Carman v. Athearn (1947) 77 Cal.App.2d 585, 596.) We therefore reject the argument that the Typewritten Agreement did not sufficiently express Roy Senior's intent to convey a present interest.
Code of Civil Procedure section 1971 provides in relevant part: "No estate or interest in real property . . . can be created, granted, assigned, surrendered, or declared, otherwise than by operation of law, or a conveyance or other instrument in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same . . . ."
The Applequists also make a cursory argument that the transfer was invalid because Roy Senior did not deliver the original signed version of the Typewritten Agreement to Arin. This argument is not stated under a separate heading or supported by any citation to legal authority, and we may therefore treat it as forfeited. (Cal. Rules of Court, rule 8.204(a)(1)(B); In re Marriage of Carlsson (2008) 163 Cal.App.4th 281, 294; Regents of University of California v. Sheily, supra, 122 Cal.App.4th at pp. 826-827, fn. 1.) In addition, as the trial court noted, failure to deliver was not among the affirmative defenses the Applequists pled. (California Academy of Sciences v. County of Fresno (1987) 192 Cal.App.3d 1436, 1442 ["[a] party who fails to plead affirmative defenses waives them"].) Even if this argument were properly before us, we note that delivery is a matter of intent, and "[a] lack of . . . manual delivery is not fatal to a delivery." (Oakland Bank of Commerce v. Hayes (1958) 159 Cal.App.2d 257, 262.)
II. Arin's Appeal
A. The Trial Court Properly Granted Summary Adjudication on Arin's Breach of Contract Claim.
Arin first challenges the trial court's grant of summary adjudication on her fifth cause of action for breach of contract. She contends the trial court erred in ruling that the statute of limitations barred this claim. She asserts that the Typewritten Agreement constitutes an installment contract, and thus "[t]he statute of limitations barred, at most, an action for those payments missed more than four years prior to the filing of the [original] complaint[.]" We disagree.
Arin's argument faces an initial procedural hurdle, because we can find no evidence it was made below. In opposing the Applequists' motion for summary adjudication, she did not argue the Typewritten Agreement was an installment contract. Her only argument was factual in nature; she claimed the date of Roy Senior's breach of the agreement was disputed. On appeal, Arin may not argue a new legal theory that she did not present to the trial court. (See Saville v. Sierra College (2005) 133 Cal.App.4th 857, 872-873 [where parties' arguments below addressed only one theory, they could not argue new theory on appeal from grant of summary judgment]; accord, Johanson Transportation Service v. Rich Pik'd Rite, Inc. (1985) 164 Cal.App.3d 583, 588, 589, fn. 2 [on appeal from summary judgment, party cannot present new legal theory not presented to trial court].) This argument was not made in the trial court, and thus it is not properly before us on appeal.
Although the Applequists did not raise the forfeiture issue and instead responded to this argument on the merits, we may still find the issue forfeited. (S.M. v. Los Angeles Unified School Dist. (2010) 184 Cal.App.4th 712, 722 [deeming issue waived even though respondent had addressed issue on the merits].) Since the assertion of an issue in the trial court is generally required to preserve the claim for appeal, we may affirm on the ground of forfeiture even though the parties have not briefed the forfeiture question. (See People v. Neilson (2007) 154 Cal.App.4th 1529, 1534 [provision of adequate record on appeal is "a procedural and substantive requirement on the part of any party . . . asserting a position on appeal" and thus Gov. Code, § 68081 does not require briefing of issue of inadequate record].)
Furthermore, this procedural defect has substantive implications. Relying on the language in the Typewritten Agreement that "[compensation for Mrs. Arin is $10,000.00 a month," Arin asserts that the Typewritten Agreement is an installment contract. Citing Armstrong Petroleum Corp. v. Tri-Valley Oil & Gas Co. (2004) 116 Cal.App.4th 1375, she argues that "where performance of contractual obligations is severed into intervals, as in installment contracts, the courts have found that an action attacking the performance for any particular interval must be brought within the period of limitations after the particular performance was due." (Id. at p. 1388.) As a consequence, she contends the statute of limitations bars her action only as to those payments missed before October 2003, more than four years before the filing of her original complaint. But whether the parties' agreement is an "entire contract . . . [or] a severable one" depends upon their intent, which is determined by factors such as the provisions of the contract and their conduct, including their course of performance. (Id. at p. 1389.) Because Arin failed to raise the installment contract theory below, the parties presented no facts to the trial court on whether they intended the Typewritten Agreement to be an entire contract or a severable one. Without such a factual record, we have no means of assessing the validity of Arin's legal characterization of that agreement.
Arin also claims she raised disputed issues of fact regarding when the breach of the Typewritten Agreement occurred. While she appears to contest the trial court's reliance on statements in her tax returns, it is well established that such statements may be treated as admissions. (E.g., Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 525 [citing cases].) Thus the trial court could properly rely on Arin's failure to declare the payments received from Roy Senior as income as evidence that she had never received the $10,000 per month in compensation she claimed was due under the agreement. She claims on appeal that the returns were not complete, but her verified responses to the Applequists' discovery requests stated that she had "produced all tax records in her custody and possession." The trial court cannot be faulted for taking Arin at her word.
B. Arin Has Forfeited Her Claim of Instructional Error.
Arin next contends the trial court erred in precluding evidence that Roy Senior had failed to pay her the $10,000 per month to which they had agreed. Although this argument is phrased in terms of the exclusion of evidence, it appears to depend on her contention that the trial court erroneously granted summary adjudication on her claim for breach of the Typewritten Agreement. Arin complains that "there is no way to determine from the verdict or otherwise whether the jury's award of damages was intended, in whole or in part, to repay Roy Senior for the amounts that [Arin] had taken out of his account to pay herself." Arin contends that the Typewritten Agreement gave her the right to pay herself out of Roy Senior's accounts, and therefore the entire verdict in the Applequists' favor must be reversed. This is so, Arin appears to claim, because the jury instructions permitted the jury to award damages on the theory that she misappropriated the $10,000 per month payment to which she claims she was entitled.
If Arin's contention is that the trial court erroneously excluded particular evidence she sought to introduce, the contention is forfeited because she has failed to direct us to the portion of the record at which the challenged ruling appears. (County of Orange v. Smith, supra, 132 Cal.App.4th at p. 1443; Cal. Rules of Court, rule 8.204(a)(1)(C).)
Arin has forfeited these contentions for a number of reasons. To begin with, although she complains that the jury instructions were defective, she does not point us to the instructions she claims were erroneous. (See Cal. Rules of Court, rule 8.204(a)(1)(C).) The record indicates that the trial court and counsel discussed at length the instructions concerning Arin's claim for breach of contract, but Arin's counsel did not request an instruction or special verdict form that might have cured the problems of which she now complains. (See Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1131 [failure to request different instructions forfeits argument that trial court should have instructed jury differently].) In fact, when the trial court asked Arin's counsel whether he wanted to place any objections to the instructions on the record, counsel responded that he had no specific objections and said only that he found the Applequists' instructions "overly complex and numerous." Consequently, this claim has not been preserved for appeal. (See Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 276 [failure to object to instruction forfeits challenge to instruction on appeal].)
In their response to Arin's argument, the Applequists contend that we should strike the portion of the jury's verdict awarding Arin $281,400 for constructive fraud. The Applequists did not raise this claim in their opening brief on appeal, and therefore we do not consider it. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 723, p. 790 ["Obvious considerations of fairness in argument demand that the appellant present all of his or her points in the opening brief"].)
C. Arin Has Waived and Forfeited Her Challenge to the Amount of the Damage Award.
Finally, Arin claims there is insufficient evidence to support the award of $72,000 for each of Roy Senior's causes of action for fraud, breach of contract, professional negligence, and breach of fiduciary duty. She contends these damage awards are duplicative. The duplication, in Arin's view, resulted from the trial court's instructing the jurors that "when you're considering each claim . . . pretend that it is the only claim before you at any time and do not worry about duplication of damages, because the court and the attorneys will sort all that out after you leave."
The reporter's transcript reflects no objection to this jury instruction. As explained below, counsel for both parties later agreed to have the trial court give a similar instruction to the jury.
Before we can address Arin's argument, we must place it in the factual context in which it arose at trial. We will therefore outline the relevant facts before proceeding to our analysis. As we will explain, the facts demonstrate Arin has both waived and forfeited her challenge to the amount of damages awarded.
We note that Arin has framed her argument in terms of insufficiency of the evidence to support the jury's damage awards. A party claiming the evidence is insufficient to support an award of damages bears the burden of demonstrating that the jury's determination of the amount of damages was erroneous. (See City of Salinas v. Souza &McCue Construction Co. (1967) 66 Cal.2d 217, 225.) To do so, she must show that there is no substantial evidence to support the challenged findings. (E.g., Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) Such a showing requires Arin to fairly summarize all material evidence on the disputed point, or her claim of error will be deemed forfeited. (Ibid.)Arin's brief includes no discussion of the actual evidence of Roy Senior's damages. In her reply brief, she argues that since the Applequists have failed to cite evidence that supports the damage awards, they must be deemed to have conceded that there is no such evidence. Arin misconceives the parties' respective burdens on appeal. It is her " 'duty to set forth a fair and adequate statement of the evidence which is claimed to be insufficient. [She] cannot shift this burden onto respondent, nor is a reviewing court required to undertake an independent examination of the record when appellant has shirked [her] responsibility in this respect.' [Citation.]" (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409.)
1. Facts
On April 3, 2009, the trial court received a note from the jury asking, "How do we avoid redundancy in awarding damages if the same damages apply to more than one claim?" With the agreement of counsel for both parties, the trial court responded as follows: "You should not worry about redundancy in awarding damages. Treat each claim as if it were the only one you are deciding and the court and counsel will take care of sorting out whether there are any duplications or not. If this does not answer your question, please let us know what else you need."
After responding to the jury, the trial court asked counsel to confer about what to do if there were verdicts on causes of action that might be duplicative. Counsel held a discussion off the record and they then discussed the issue of duplicative damage claims with the court. Arin's counsel noted that if the jury awarded damages for duplicative causes of action, "we would have no way of knowing whether they had awarded damages on two causes of action for different things because the verdict forms don't tell us that." The trial court agreed that "[t]here are a lot of things we don't know about when a jury renders verdicts. That's just the way it goes."
Counsel for the Applequists then explained that his clients' claims for elder abuse and conversion were duplicative. Similarly, he conceded that the claims for professional negligence and breach of fiduciary duty were duplicative. In contrast, he argued that the Applequists' claims for breach of contract and fraud were distinctly different. Arin's counsel then stated that "[p]laintiff has no objection to Mr. Lerner's position as he just stated as to defendant[s'] claims."
The jury returned verdicts awarding Roy Senior $72,000 on his causes of action for fraud, breach of contract, breach of fiduciary duty, and professional negligence. Outside of the jury's presence, the trial court asked counsel whether the verdicts were inconsistent, and counsel agreed they were not. Arin's counsel raised no objection to the allegedly duplicative damage awards before the jury was discharged and did not request that the trial court seek clarification from the jury as to how it had calculated Roy Senior's damages. After the jury was discharged, the parties argued the question of duplicative damages to the trial court, which then asked the parties to submit briefs addressing the issue.
In their submissions, the Applequists conceded that Roy Senior's damages should be reduced by $72,000 because his claims for breach of fiduciary duty and professional negligence were duplicative. The Applequists contended that Arin had waived any right to challenge the remaining awards. They argued that Arin's counsel had already agreed that Roy Senior's claims for fraud, breach of contract, and breach of fiduciary duty/professional negligence were cumulative, and not duplicative. In addition, the Applequists noted that Arin could have avoided the problem by requesting that the special verdict forms include a question about how the jury had calculated the damage awards for each claim or by objecting to the verdict forms proposed by the Applequists. Having failed to make any such objection prior to the discharge of the jury, the Applequists claimed Arin had waived her right to contest the point. In response, Arin argued that the jury's question about avoiding redundant damages demonstrated the jury intended to award Roy Senior a total of $72,000 for all of his claims, and she denied that her counsel had agreed Roy Senior's damages were to be treated as cumulative.
On June 5, 2009, the trial court issued an "Order re: Determination of Prevailing Party." The order affirmed the court's written tentative ruling, which had found that Arin's counsel had made an "express agreement on the record that verdicts for fraud, breach of contract and either breach of fiduciary duty or professional negligence and conversion or elder abuse would not be considered duplicative . . . ." The trial court also noted it had discharged the jury without asking whether the verdicts were intended to represent separate awards or a single one. It therefore ruled that Arin could not complain that the damage awards were treated as separate. The trial court accepted the Applequists' concession and held the awards for breach of fiduciary duty and professional negligence duplicative. It therefore reduced Roy Senior's damages by $72,000.
2. Analysis
Arin first argues that her counsel did not agree that "if the jury returned the same amount of damages for four separate causes of action, there would be three separate awards." Thus she claims she did not waive any right to object to the allegedly duplicative verdicts. We cannot agree.
Arin essentially asks us to overturn the trial court's finding that her counsel waived any objection to the damage awards by agreeing that certain of Roy Senior's claims would be treated as separate rather than duplicative. We must, however, uphold the trial court's findings regarding counsel's agreement so long as they are supported by substantial evidence. (See Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 633, 636 [where parties' stipulation consisted of "colloquy on the record between the court and two counsel," trial court's interpretation must be affirmed if supported by substantial evidence].) In reviewing the trial court's determination, we are mindful of the fact that we have before us "nothing but the cold, unadorned words on the pages of the reporter's transcript." (Escobar v. Flores (2010) 183 Cal.App.4th 737, 749.) The trial judge, in contrast, was present in court with the parties and their counsel and was thus in a superior position to assess what counsel intended. Where more than one reasonable inference may be drawn from the undisputed record, we must accept the conclusion of the trial court. (Winograd v. American Broadcasting Co., at p. 633.)
Even if Arin's counsel did not expressly waive her objection to what she now claims are duplicative damages, Arin forfeited the issue by failing to object to the verdict and request clarification before the jury was discharged. (Henrioulle v. Marin Ventures, Inc. (1978) 20 Cal.3d 512, 521.) Here, the claimed defect in the verdict was apparent when the verdict was announced, because the jury returned identical awards of $72,000 on four different causes of action. At that point, Arin's counsel could have requested that the jury be sent back for further deliberations so that it could clarify the total amount of damages it intended to award. (E.g., Maxwell v. Powers (1994) 22 Cal.App.4th 1596, 1602 [counsel asked trial court to return jury for further deliberations where verdict form was ambiguous as to amount of damages].) Had counsel done so, the trial court could have inquired about the jury's intent, and if necessary, instructed the jury to specify whether it intended a single award or multiple awards of $72,000. (See Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 266 [holding defendants had forfeited objection to jury verdict; if defendants had objected, trial court could have inquired about juror's vote, and, if necessary, returned jury for further deliberations].)
Arin argues strenuously that the jury's question indicates that it intended a single award of $72,000. Her interpretation is most certainly plausible, but as the Applequists pointed out below, Arin's argument presupposes that the jury's question referred to all four claims on which damages of $72,000 were awarded. But it is not clear from the question whether the jury was referring to two, three, or four claims. Indeed, it is not even clear that the jury's question referred to Roy Senior's damages as opposed to Arin's. Because Arin failed to object to the verdict at the time when the trial court could easily have sought answers to these questions, we can only speculate as to what the jury meant. Consequently, we reject Arin's claim that the evidence was insufficient to support the jury's award of damages.
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3).)
Jones, P.J. We concur: Simons, J. Bruiniers, J.