Opinion
G044784 Super. Ct. No. 30-2009-00117749
03-07-2012
TRACY ANNE COOPER, Plaintiff and Respondent, v. MERT WALLEN, Defendant and Appellant.
Ferruzzo & Ferruzzo, David N. Shaver; Law Offices of Bunt & Shaver and David N. Shaver for Defendant and Appellant. Enterprise Counsel Group, Patrick D. Flannery, James S. Azadian and Jonathan H. Matthews for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Andrew P. Banks, Judge. Affirmed.
Ferruzzo & Ferruzzo, David N. Shaver; Law Offices of Bunt & Shaver and David N. Shaver for Defendant and Appellant.
Enterprise Counsel Group, Patrick D. Flannery, James S. Azadian and Jonathan H. Matthews for Plaintiff and Respondent.
Defendant Mert Wallen appeals from a judgment for monetary damages entered in plaintiff Tracy Anne Cooper's favor. Cooper and Wallen agreed to purchase a house "50-50," with each contributing $125,000 toward the downpayment and paying half the monthly mortgage and other expenses. Wallen handled all the transaction's details and took title in his name alone, even though Cooper believed they had agreed to take title in both their names. After learning Wallen took title in his name only, Cooper repeatedly asked Wallen to add her name to the legal title. Wallen assured Cooper she owned half the property and that he would provide her with legal title, but he never did. After their romantic relationship ended, Cooper moved out of the house and filed this lawsuit.
Cooper originally alleged legal claims seeking to recover her contribution to the downpayment as monetary damages and equitable claims seeking to establish and enforce her interest in the property. On the eve of trial, however, she dismissed all her equitable claims and proceeded solely on her legal claims for monetary damages. Based on Wallen's failure to provide Cooper with legal title reflecting her interest in the property, the jury returned a verdict in Cooper's favor on her breach of fiduciary duty claim and awarded her $105,050 in damages.
Wallen challenges the judgment entered on the jury's verdict, arguing (1) Cooper may not recover her contribution to the downpayment as damages because she continues to own an equitable interest in the property that Wallen holds in trust for her benefit; (2) Cooper did not suffer any damages because she continues to own an equitable interest in the property and she presented no evidence showing Wallen's conduct damaged that interest; (3) the trial court erroneously admitted certain evidence Cooper presented and excluded certain evidence Wallen offered; and (4) the trial court failed to properly instruct the jury regarding Cooper's interest in the property.
Wallen bases each of his challenges on the assumption Cooper continues to own an equitable interest in the property. As explained below, however, Cooper made an election of remedies when she dismissed her equitable claims and proceeded to trial on her legal claims for damages only. By making that election, Cooper abandoned any claim to a continuing interest in the property and therefore Wallen's challenges to the judgment based on Cooper's equitable interest fail. We affirm the judgment.
I
FACTS AND PROCEDURAL HISTORY
Cooper and Wallen began dating in October 2005. Wallen worked as a licensed real estate broker developing new sites for restaurants. Cooper was the first woman he had dated since his wife passed away in early 2004. Cooper had legally separated from her husband, but did not hold a job so she could stay at home to raise her three-year-old daughter.
In April 2007, Cooper and Wallen decided to purchase a house together. When Cooper informed Wallen she had $125,000 to contribute toward a downpayment, he pledged to match that amount. The two agreed to buy a house "50-50," with each contributing one-half of the downpayment and then evenly splitting the mortgage payments, property taxes, and homeowners association dues. They planned to hold the house for a couple years, sell it, and split the profit. In the interim, Cooper would live in the house with her daughter. Cooper viewed the agreement as a business arrangement or investment separate from their relationship. Wallen, however, viewed it as a "romantic transaction," not an investment or business venture.
The couple made an offer on a house they found in Newport Beach. Wallen assured Cooper he would work with their agent and handle the transaction. Because she had never purchased property, Cooper deferred to Wallen and his 40 years of experience as a real estate broker. Although Wallen testified he regularly discussed the transaction with Cooper, she testified she never received any documents or details relating to the transaction. Despite the agreement to purchase the house "50-50," Cooper's name did not appear on any of the purchasing documents and Wallen never told their agent Cooper would own 50 percent of the house. Based on their agreement, Cooper expected her name to be on the title when escrow closed.
In May 2007, Wallen negotiated $1,095,000 as the purchase price for the property and opened escrow in his name alone. Following Wallen's instructions, Cooper wrote him a personal check for her $125,000 contribution toward the downpayment and Wallen alone deposited all funds with escrow. During escrow, Cooper's divorce attorney prepared a document entitled "Joint House Ownership Agreement," describing the couple's intent to buy the house together and hold title as tenants-in-common, with each owning an undivided one-half interest. Before closing, Cooper gave the agreement to Wallen for his signature. He promised to read it and have his attorney review it, but he never forwarded a copy to his attorney and never signed it. Escrow closed in July 2007 with Wallen taking title in his name alone as an unmarried man. Wallen also took the $840,000 mortgage on the property in his name only.
Wallen testified he took title in his name because either his attorney or Cooper told him she should not be on title due to her pending divorce. Cooper, however, testified no one raised her divorce as an issue during escrow, she did not tell Wallen to leave her off the title, and she expected to be on title when escrow closed. Wallen's attorney also denied telling Wallen that Cooper should not be on title.
Cooper and her daughter moved into the house after escrow closed and she evenly split the mortgage payments and homeowner association dues with Wallen. Although Wallen often spent the night at the house, he did not move in and would leave early in the morning. Instead, he maintained the Newport Beach residence he had owned for many years.
Cooper did not learn Wallen took title in his name alone until September 2007 when he gave her a document entitled "Acknowledgement of Constructive Trust." In pertinent part, this document states, "The undersigned, Mert Wallen ('Mert'), hereby acknowledges that the single family residence located at 2216 Fiesta, Newport Beach, California . . . was purchased in Mert's name alone although the funds used for the purchase were contributed equally by Mert and Tracy Anne Cooper ('Tracy'). By reason thereof, Mert acknowledges that he is holding title to an undivided one-half interest in the Property as a constructive trustee for Tracy's benefit; and that although legal title is vested in Mert's name only, equitable ownership is held by Mert and Tracy as tenants-in-common, each owning an undivided one-half interest. All rights and privileges pertaining to Tracy's equitable one-half interest in the Property shall be within her sole power and control as though she were vested with legal title thereto; and upon Tracy's request, Mert will promptly deliver to Tracy, in recordable form, a Quitclaim Deed to her equitable undivided one-half interest."
Wallen's attorney prepared this document, which bore only Wallen's signature. The document did not have a space for Cooper to sign and Wallen and Cooper never discussed the document before he showed it to her. When he gave Cooper the document, Wallen told her it was in her best interest for her name not to appear on title until her divorce was final. Wallen assured Cooper she owned half of the property and he would name her on the legal title once her divorce was final.
In February 2008, Cooper's divorce became final and she asked Wallen to transfer her interest in the property to her. In the ensuing months, Cooper repeated her request numerous times. Each time, Wallen told her not to worry, she owned half of the property, and he would transfer legal title to her. Wallen, however, never recorded or delivered to Cooper a deed granting her legal title to any interest in the property.
Cooper testified her romantic relationship with Wallen ended during the summer of 2008, but Wallen testified it continued until October 2008, when he discovered she started dating another man. At that point, Cooper and Wallen argued about her interest in the property. Wallen repeatedly told Cooper he would not transfer her interest in the property to her unless she stopped dating the other man. Wallen also denied any obligation to transfer the property to her because their relationship ended.
According to Cooper, these exchanges became increasingly heated and Wallen even burst into the house on one occasion, swore at her, and told her to start looking for an apartment because he was going to sell the house. Wallen, however, denied threatening Cooper or yelling at her. These confrontations made Cooper increasingly uneasy and she stopped paying her share of the mortgage and other expenses after December 2008. By early February 2009, Cooper moved out of the house. Once he learned Cooper had moved out, Wallen contacted a realtor to list the property for sale. When he did not receive any offers to purchase the property, Wallen rented it to a tenant for $500 less than the monthly mortgage payment.
Based on Wallen's failure to place Cooper on the legal title, Cooper filed this lawsuit at the end of January 2009. Her complaint alleged three legal claims seeking monetary damages (breach of fiduciary duty, fraud, and breach of contract) and three equitable claims seeking to enforce her interest in the property (specific performance, quiet title, and declaratory relief). Wallen's answer admitted Cooper was the equitable owner of an undivided, one-half tenant-in-common interest in the property that he held in trust for her, and that he had not transferred to Cooper legal title to that interest despite her request.
The trial court conducted a jury trial in September 2010 after Cooper dismissed all her equitable claims and proceeded solely on her claims for monetary damages. Cooper sought only the $125,000 she paid Wallen as her contribution toward the downpayment on the property. The jury found for Wallen on the fraud and breach of contract claims, but found for Cooper on the breach of fiduciary duty claim and awarded her $105,050 in damages.
Wallen moved for a new trial and judgment notwithstanding the verdict on the breach of fiduciary duty claim. He argued (1) Cooper could not recover the money she contributed toward the downpayment as damages because that money purchased an equitable interest in the property that Wallen continued to hold in trust for Cooper's benefit; (2) Cooper could not recover any damages for Wallen's failure to provide her with legal title to her interest in the property because Cooper failed to present any evidence showing Wallen's failure to convey legal title damaged Cooper's interest; and (3) the trial court erroneously refused to instruct the jury by either defining a trust's legal effect or explaining that the Acknowledgement of Constructive Trust provided Cooper with an interest in the property as a matter of law.
The trial court denied both motions because Wallen's arguments assumed Cooper continued to hold an interest in the property. The court, however, explained that Cooper made an election of remedies and abandoned any interest in the property when she dismissed her equitable claims and proceeded to trial based solely on her legal claims for monetary damages. The trial court thereafter entered judgment in Cooper's favor based on the jury's verdict. Wallen timely appealed.
II
DISCUSSION
A. The Jury's Verdict Appropriately Compensated Cooper for Damages Caused by Wallen's Breach of Fiduciary Duty
1. Cooper's Interest in the Property Did Not Prevent Her from Recovering Monetary Damages
Wallen contends Cooper's breach of fiduciary duty claim failed as a matter of law because Cooper did not suffer any damage. According to Wallen, he committed a "technical breach" of fiduciary duty by failing to provide Cooper with legal title to her interest in the property, but Cooper suffered no harm because she still has an interest in the property that he holds in trust for her. Specifically, Wallen contends Cooper still owns the same equitable interest in the property she owned before he breached his fiduciary duties and therefore his breach caused her no damage. We reject this contention, however, because Cooper abandoned any claim to a continuing interest in the property by seeking only monetary damages at trial.
In an action against a fiduciary for breach of duty in managing property, the plaintiff has the choice of pursuing equitable remedies to enforce his or her interest in the property or legal remedies for damages to obtain a personal judgment against the fiduciary. (Van de Kamp v. Bank of America (1988) 204 Cal.App.3d 819, 863.) That choice lies with the injured plaintiff alone. (Gherman v. Colburn (1977) 72 Cal.App.3d 544, 564 (Gherman) ["it is also axiomatic that where a civil wrong gives rise to two or more causes of action, the choice of remedy is vested in the victim, not in the wrongdoer"]; see also Navarro v. Perron (2004) 122 Cal.App.4th 797, 802.)
In Gherman, the parties formed a joint venture to purchase a large tract of land and the plaintiffs sued after the defendants took title to the property in their name and denied the joint venture's existence. (Gherman, supra, 72 Cal.App.3d at pp. 553-555.) In affirming the plaintiffs' judgment for monetary damages, the Court of Appeal explained the defendants' wrongful conduct in repudiating the joint venture and converting the assets gave the plaintiffs alternative remedies: They could either waive their tort and contract claims for monetary damages and sue in equity to specifically enforce the joint venture's terms, or they could sue solely for monetary damages. (Id. at pp. 564-565.) The Gherman court concluded the plaintiffs elected their legal remedies by dismissing all equitable claims and proceeding to trial based solely on their legal claims for monetary damages. (Ibid.)
Here, Wallen's wrongful conduct in taking title to the property in his name alone and his subsequent failure to convey any legal interest to Cooper likewise gave Cooper alternative remedies: She could either waive her tort and contract claims for monetary damages and sue in equity to enforce her legal interest in the property, or she could submit to Wallen's refusal to convey her legal title and sue solely for the monetary damages she suffered when Wallen pocketed her $125,000 without placing her on the title. (Gherman, supra, 72 Cal.App.3d at pp. 564-565.) As in Gherman, Cooper chose her legal remedies by dismissing her specific performance, quiet title, and declaratory relief claims and proceeding to trial based solely on her claims for monetary damages.
Under the election of remedies doctrine, "'[w]here a person has two concurrent remedies to obtain relief on the same state of facts, and these remedies are inconsistent, he must choose or elect between them; and if he has clearly elected to proceed on one, he is bound by this election and cannot thereafter pursue the other. . . .'" (Denevi v. LGCC, LLC (2004) 121 Cal.App.4th 1211, 1218, original italics (Denevi); see also Fassberg Construction Co. v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 759 (Fassberg) ["The doctrine generally holds that if a plaintiff elects a particular remedy in lieu of an alternative and inconsistent remedy and thereby gains an advantage to the detriment of the defendant, the plaintiff thereafter is precluded from pursuing the alternative remedy"].)
Cooper's legal claims for monetary damages are inconsistent with her equitable claims to enforce her interest in the property. Her legal claims sought to recover the $125,000 she contributed toward the downpayment because she never received legal title to an interest in the property. Her equitable claims sought to compel Wallen to provide her with legal title to her interest in the property. These two claims are mutually exclusive because one relinquishes any claim to the property while the other enforces an interest in the property. Recovery under both claims would result in a double recovery because it would allow Cooper to get her money back and receive an interest in the property. The election of remedies doctrine exists to prevent this kind of double recovery. (See Denevi, supra, 121 Cal.App.4th at p. 1218; Fassberg, supra, 152 Cal.App.4th at p. 759.) Thus, by electing her legal remedy of monetary damages over any equitable remedies, Cooper chose among inconsistent remedies and abandoned any claim to a continuing interest in the property.
Wallen contends the election of remedies doctrine did not apply here because Cooper already held an interest in the property and therefore had no basis to assert an equitable claim to establish or enforce that interest. According to Wallen, a resulting trust arose as a matter of law when he took title to the property in his name and the Acknowledgement of Constructive Trust he gave Cooper several weeks later confirmed Cooper owned an undivided, one-half tenant-in-common interest in the property that Wallen held in trust. Based on these trust theories, Wallen insists Cooper continues to have an undivided, one-half tenant-in-common interest in the property that he holds for her benefit and therefore Cooper did not show she suffered any damages.
Wallen, however, fails to recognize both a resulting trust and a constructive trust are equitable remedies. (See, e.g., Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 76; Marvin v. Marvin (1976) 18 Cal.3d 660, 665.) "A constructive trust is an involuntary equitable trust created by operation of law as a remedy to compel the transfer of property from the person wrongfully holding it to the rightful owner." (Communist Party v. 522 Valencia, Inc. (1995) 35 Cal.App.4th 980, 990.) "'A resulting trust arises by operation of law from a transfer of property under circumstances showing that the transferee was not intended to take the beneficial interest. [Citations.] Such a resulting trust carries out and enforces the inferred intent of the parties. [Citations.]' [Citation.] 'It has been termed an "intention-enforcing" trust, to distinguish it from the other type of implied trust, the constructive or "fraud-rectifying" trust. The resulting trust carries out the inferred intent of the parties; the constructive trust defeats or prevents the wrongful act of one of them.' [Citations.]" (Fidelity National Title Ins. Co. v. Schroeder (2009) 179 Cal.App.4th 834, 847-848.)
As equitable remedies available to enforce an interest in property, a resulting trust and constructive trust are remedies Cooper abandoned when she proceeded to judgment based solely on her legal claims for damages. These remedies may have arisen as options for Cooper from the moment Wallen took title in his name alone, but they are options she ultimately chose not to pursue. Cooper alone had the choice of which remedy to pursue. Consequently, Wallen may not force her to accept an interest in the property in lieu of monetary damages based on his breach of fiduciary duty. (Gherman, supra, 72 Cal.App.3d at pp. 564-565.)
Wallen's argument assumes he and Cooper agreed that he would hold her interest in the property in trust. Substantial evidence, however, supports the contrary conclusion. Cooper testified that she expected her name to be on title from the time escrow closed and only learned it was not when Wallen gave her the Acknowledgement of Constructive Trust several weeks later. That acknowledgment was a unilateral act by Wallen and not a negotiated agreement between the parties. Cooper knew nothing about it until Wallen signed it and gave it to her. Cooper did not sign the acknowledgment; indeed, there was not a space for her signature. Wallen testified Cooper knew he would take title in his name alone to protect her interest while her divorce remained pending. Cooper and other witnesses contradicted this account and support the jury's implied rejection of Wallen's claim. We cannot disturb the jury's implied resolution of this conflict in the evidence because it is supported by substantial evidence. (See Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1188.)
Finally, Wallen contends it is undisputed he continues to hold Cooper's undivided, one-half tenant-in-common interest in trust for her benefit, but he fails to cite any evidence or authority supporting that conclusion. Wallen's concession at trial that Cooper continued to own an interest in the property established that she in fact owned an interest. The record shows Wallen repeatedly represented to Cooper and others that she owned half the property and he would transfer that interest to her, but he never did. Wallen's admission that Cooper owned an interest in the property is not the equivalent of transferring legal title to her, as shown by his repeated failure to transfer that interest to her. Moreover, this contention flatly ignores the legal effect of Cooper's election of remedies.
2. Cooper's Damages Include Her Contribution Toward the Downpayment The parties acknowledge Civil Code section 3333 provides the measure of damages for Cooper's breach of fiduciary duty claim. (Michelson v. Hamada (1994) 29 Cal.App.4th 1566, 1582.) That section provides the traditional measure of damages in tort and states, "For the breach of an obligation not arising from contract, the measure of damages . . . is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not." (Civ. Code, § 3333; Michelson, at p. 1582.)
"'Tort damages are awarded to fully compensate the victim for all the injury suffered. [Citation.] There is no fixed rule for the measure of tort damages under Civil Code section 3333. The measure that most appropriately compensates the injured party for the loss sustained should be adopted. [Citation.]' [Citation.] 'A plaintiff in a tort action is not, in being awarded damages, to be placed in a better position than he would have been had the wrong not been done.' [Citation.]" (Metz v. Soares (2006) 142 Cal.App.4th 1250, 1255 (Metz).)
"The amount of damages awarded in a case is a question of fact to be determined by the jury. [Citation.] As such, it is subject to our evaluation of whether it is supported by substantial evidence. [Citation.] In examining the sufficiency of the evidence to support an award of damages, it is not required that we be able to precisely recreate the jury's reasoning. [Citation.] We will uphold a verdict if it is within the range of possibilities supported by any of the testimony. [Citation.]" (Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 531-532 (Pellegrini); see also Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506-507.)
Cooper sought as damages the $125,000 she contributed toward the downpayment on the property. Wallen contends Cooper cannot recover any portion of these funds because she continues to own an undivided, one-half tenant-in-common interest in the property. According to Wallen, Cooper could only recover as damages the decrease in the property value of Cooper's interest caused by Wallen's breach of fiduciary duty. Because Cooper did not present any evidence on the value of her interest either before or after Wallen's breach, he concludes Cooper may not recover any damages. Wallen again ignores the legal effect of Cooper's election of remedies and misapplies the measure of damages Civil Code section 3333 provides.
As discussed above, Cooper abandoned any claim to an ongoing interest in the property when she elected to pursue her legal claims for damages only. Her decision not to seek remedies enforcing an interest in the property rendered any evidence on this point irrelevant. Cooper had no burden to present evidence the property decreased in value because she did not ask for damages based on this theory.
Cooper presented evidence showing she gave Wallen $125,000 for him to use in purchasing the property in both his and her name, but Wallen used that money to purchase the property in his name alone. Wallen's actions damaged Cooper because she gave up $125,000, and the opportunity to put that money to other uses, but never received legal title to the property or any of the benefits associated with holding legal title to the property. Indeed, without legal title to the property, Cooper essentially paid Wallen $125,000 for the right to rent the property from him.
Because Civil Code section 3333 does not establish a fixed rule for the measure of tort damages, the question here is simply whether the jury's award of $105,050 appropriately compensated Cooper for the injuries she suffered from Wallen's breach of fiduciary duty, without putting her in a better position than she otherwise would have been. (Metz, supra, 142 Cal.App.4th at p. 1255.) We conclude the jury appropriately compensated Cooper for her damages by awarding her a significant portion of the money she contributed to the down payment. B. The Trial Court Did Not Abuse Its Discretion in Its Evidentiary Rulings
1. Evidence Regarding Wallen's Continuing Breach of Fiduciary Duty
Wallen brought a motion in limine to prevent Cooper from presenting evidence showing a continuing or ongoing breach of fiduciary duty. Specifically, Wallen argued the trial court should have excluded under Evidence Code section 352 as unduly prejudicial evidence that Wallen still had not deeded a legal interest in the property to her at the time of trial. The trial court denied Wallen's motion, explaining Wallen would be allowed to present evidence showing he did not dispute Cooper's interest in the property and could explain why he had not yet transferred legal title to her.
We review the trial court's evidentiary rulings for abuse of discretion. (Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 456, disapproved on other grounds in People v. Freeman (2010) 47 Cal.4th 993, 1006, fn. 4; People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619, 639-640 [ruling on motion in limine to exclude evidence as unduly prejudicial under Evidence Code section 352 reviewed for abuse of discretion].) We reverse a trial court's ruling whether to exclude evidence only upon a "'clear showing [the court's ruling] exceeded the bounds of reason, all of the circumstances being considered.' [Citation.]" (Sun Pacific, at p. 640.)
Wallen fails to establish any abuse of discretion in the trial court's ruling. He argues the evidence should have been excluded because Cooper had an interest in the property at the time of trial as a matter of law. As explained above, Wallen is mistaken in that contention. The evidence is relevant to show he intentionally breached his fiduciary duty to provide Cooper with legal title and never transferred title despite repeatedly representing that he would. Moreover, Wallen provides no credible explanation how this evidence unduly prejudiced his case.
2. Wallen's Expert Testimony Regarding the Property's Value
Wallen sought to offer expert testimony by a real estate broker regarding the property's value when he listed it for sale after Cooper moved out. The broker had represented the seller when Wallen purchased the property and represented Wallen in his efforts to sell or lease the property. The trial court allowed the broker to testify on how he priced the house when Wallen put it on the market, but would not allow the broker to opine on the property's true value. After the broker testified regarding the listing price, the trial court instructed the jury the broker's opinion was not evidence regarding the property's value at that time it was listed.
Wallen contends the trial court abused its discretion in limiting the broker's testimony because the broker was qualified to opine regarding the property's value and excluding this evidence severely prejudiced Wallen's defense. According to Wallen, the evidence was critical because it showed he and Cooper had no equity in the property and therefore Cooper had not suffered any damages.
Regardless of whether the broker was qualified to testify about the property's value, that opinion was irrelevant and the trial court's refusal to admit it did not prejudice Wallen's defense. Wallen bases his challenge to this evidentiary ruling on the same faulty premise we rejected above. Specifically, he assumes the proper measure of damages on Cooper's breach of fiduciary duty claim is any change in the value of Cooper's interest caused by Wallen's breach of duty. As explained above, however, Cooper abandoned her claim to an interest in the property and therefore any change in the property's value is irrelevant to her damages claim. She sought only to recover monetary damages for the $125,000 she paid to Wallen for a legal interest in the property and the property's value has no bearing on that claim. C. The Trial Court Did Not Err in Failing to Instruct the Jury that Cooper Held an Interest in the Property or on the Definition of a Trust
Wallen contends the trial court failed to instruct the jury Cooper had an undivided, one-half tenant-in-common interest in the property that Wallen continues to hold in trust for her benefit. Alternatively, Wallen contends the trial court should have instructed the jury on the definition of a trust so they could understand the nature of Cooper's interest in the property and Wallen's obligation to hold it in trust for her. We reject these contentions, however, because Wallen did not request jury instructions on these issues.
"'"'In a civil case, each of the parties must propose complete and comprehensive instructions in accordance with his theory of the litigation; if the parties do not do so, the court has no duty to instruct on its own motion.' [Citations.]" [Citation.] Neither a trial court nor a reviewing court in a civil action is obligated to seek out theories plaintiff might have advanced, or to articulate for him that which he has left unspoken.' [Citation.] . . . Plaintiff's failure to request any different instructions means he may not argue on appeal the trial court should have instructed differently. [Citation.]" (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1130-1131.) "'In order to complain of failure to instruct on a particular issue the aggrieved party must request the specific proper instruction.' [Citation.]" (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1535, original italics; Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 335.)
Wallen asserts he requested these instructions, but he failed to support his claim with citations to the appellate record. Cooper's brief points out this failure and explains the set of "Refused/Withdrawn" jury instructions included in the appellate record Wallen prepared does not include proposed instructions defining a trust or that Cooper held an interest in the property. Wallen's reply brief offers no response. Moreover, an instruction that Cooper continued to hold an interest in the property would not have been proper because of Cooper's election of remedies.
During deliberations, the jury inquired "can we give [Cooper] 50% interest in the property in lieu of a monetary settlement?" The court's response explained, "No, the jury can render a verdict (which is not a settlement) which is to be based on applying the law I gave you to the facts as you find them." In discussing the appropriate response to this question, Wallen's counsel expressed concern a simple "no" response might imply Cooper did not have an interest in the property. In this context, Wallen's counsel suggested the court should consider including in its response a statement that the Acknowledgement of Constructive Trust provided Cooper with a 50 percent interest in the property. The trial court declined, explaining whether Cooper held a 50 percent interest in the property was not a question her monetary damage claims presented for the jury's resolution and Wallen failed to file a cross-complaint seeking any kind of relief confirming Cooper still held an interest in the property.
Wallen provides no explanation how this jury question required the trial court to advise the jury as Wallen contends, especially in light of Cooper's election of remedies and his failure to request any specific jury instruction regarding Cooper's interest in the property. Similarly, Wallen presents no argument or authority showing the trial court failed to properly respond to the jury's question. (Robinzine v. Vicory (2006) 143 Cal.App.4th 1416, 1422, fn. 6 [argument waived on appeal "by failing to provide this court with relevant authority or argument"].)
III
DISPOSITION
The judgment is affirmed. Cooper shall recover her costs on appeal.
ARONSON, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
IKOLA, J.