Opinion
G050744
04-30-2015
DIANA J. JOHNSON, Plaintiff, Cross-Defendant, and Respondent, v. LLOYD COPENBARGER et al., Defendants, Cross-Complainants, and Appellants.
Copenbarger & Associates, Paul D. Copenbarger and Elaine B. Alson for Defendants, Cross-Complainants, and Appellants. Donna Bader for Plaintiff, Cross-Defendant, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115 . (Super. Ct. No. RIC 536500) OPINION Appeal from a judgment of the Superior Court of Riverside County, John W. Vineyard, Judge. Affirmed. Copenbarger & Associates, Paul D. Copenbarger and Elaine B. Alson for Defendants, Cross-Complainants, and Appellants. Donna Bader for Plaintiff, Cross-Defendant, and Respondent.
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Lloyd Copenbarger, his wife Laura, and their limited liability investment company, Cabnell, LLC, (collectively Copenbarger) appeal from the trial court's entry of judgment against them on their cross-complaint against their former employee, Diana J. Johnson (Diana). The lawsuit arose from Copenbarger's failed residential real estate investment in the Inland Empire with Diana and another former employee, Diana's husband Daryl, before Daryl died of cancer. Although Copenbarger failed to timely submit any proposed special verdict forms on the causes of action in his own cross-complaint, he now complains that some aspects of the jury's special verdict were fatally inconsistent, requiring a retrial on damages, and that other portions of the special verdict forms were erroneous. As we explain, the jury's verdict is not inconsistent, Copenbarger injected any ambiguity in the verdict while also failing to seek clarification before the jury was discharged, and he fails to demonstrate that any alleged error in the special verdict forms was prejudicial. We therefore affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
Daryl worked as a legal assistant for Copenbarger in the latter's Newport Beach estate planning law firm and later also at Copenbarger's jet business at the Chino Airport. In October 2004, Daryl married Diana, a Russian immigrant, and by the next month the pair began looking to move out of their room in the San Diego home of Daryl's ex-girlfriend. They searched for manufactured housing with a preapproved loan budget of $175,000, but because Daryl spent so much time at the hangar scanning law firm files and working on Copenbarger's other projects, the couple accepted Copenbarger's offer to live in a motor home (RV) at the hangar during their home search. Diana also began scanning files and working for Copenbarger. The couple stayed in the RV for a year, but it was only a temporary solution because they had to share space with other employees during the day and use an outside restroom. Daryl informed Copenbarger he would have to resign if they could not find housing near the Chino Airport. Meanwhile, the booming Inland Empire residential real estate market seemed to present a mutually beneficial solution.
The parties' accounts of the nature of their initial purchase and subsequent arrangements for a Corona residence differ dramatically, which the jury resolved largely in Diana's favor. According to Diana, she and Daryl purchased the home at 2210 Lone Tree Street near the Chino Airport (Corona property or Lone Tree Street property) with the Copenbargers in early 2006 with the mutual understanding that it was a joint venture. According to Diana, the joint venture consisted of an arrangement in which the Copenbargers would provide the downpayment, the Johnsons would live in the home and maintain and improve it with sweat equity, and they would pay $2,000 of the monthly mortgage while the Copenbargers paid $1,200. Assuming like most joint venturers that their plans would yield success, the Johnsons and Copenbargers envisioned selling the property in five to 10 years for a handsome profit.
The Copenbargers indeed supplied the downpayment of approximately $108,000, the Johnsons paid the earnest money deposit of $3,000 and home inspection fees of $275, and each of the four parties signed the loan application, deed of trust, and promissory note, taking title to the property as "joint tenants." The loan on the property secured by the mortgage was for more than $400,000. The Johnsons moved into the property in March 2006, immediately improved the residence by constructing a block wall for about $4,000, and they planted fruit trees, painted and repaired the interior, and paid for maintenance, including landscaping and lawn services.
By December 2007, Daryl became sick and needed a liver transplant, then learned he had cancer, and died in early 2009. By then, the value of the home had plummeted with the economic downturn, and Diana moved out of the residence later that year. Soon neither she nor Copenbarger made the mortgage payments; they became embroiled in this lawsuit, and the bank foreclosed on the home in 2012, just before the parties went to trial on their claims and counterclaims.
According to Copenbarger, the parties' arrangement was never a joint venture but instead he loaned the Johnsons the downpayment and other sums and expected to be paid back. Copenbarger claimed he learned only after they bought the home that the Johnsons could not contribute substantial funds to the purchase or pay the loan back, so he arranged with Daryl for the Johnsons to rent the property from him for $2,000 a month.
According to Diana, she knew in 2006 the property somehow had been placed in Cabnell's name because Copenbarger was concerned about liability if someone got hurt at the property, but she did not recall or know if she ever signed a quitclaim deed. She had no intention of conveying her interest in the property or changing the relationship between the parties as joint tenants in a joint venture, and Copenbarger assured her she was still a co-owner. Neither Cabnell nor Copenbarger attempted to assume the $400,000 mortgage, on which Diana remained an obligor. At trial, Copenbarger introduced a quitclaim deed signed by the parties on April 17, 2006, transferring legal title to Cabnell. The notary entry was dated 10 days before the signature date on the quitclaim deed and was incomplete; the deed was recorded almost two months later in June 2006. The jury ultimately found in a special verdict that Diana signed the deed but did not deliver it.
According to Diana, she and Daryl stopped making their portion of the mortgage payment in April 2008 with Copenbarger's blessing, to resume once Daryl received a liver transplant and returned to work. Unfortunately, Daryl learned in May 2008 that he had terminal cancer. According to Copenbarger, he reached an oral agreement in July 2008 with Daryl and Diana in which Diana would use the life insurance proceeds following Daryl's death to pay off the mortgage and buy out Cabnell's legal title and the Copenbargers' equitable interest by paying back all sums they had put into the property.
With the economy still good at this time, each side apparently believed Diana also had the option to walk away from the investment, whether characterized as a joint venture or a loan, and instead purchase another home with the insurance proceeds. Copenbarger would go forward with what may have seemed a still-promising real estate investment at the time, assuming sole ownership responsibility for the property, including mortgage payments. According to Copenbarger's cross-complaint, under this option Diana would remain on the mortgage nominally for reasons that are not particularly clear in the record, but perhaps so he more easily could maintain or obtain business credit lines or avoid the cost or inconvenience of refinancing. For her part, Diana believed that if the joint venture ended with her purchasing another home, she would be entitled to have her name removed from the $400,000 mortgage on the Corona property.
Copenbarger's testimony presented yet another option he asserts the parties agreed upon. According to Copenbarger, he met with Daryl in the hospital in February 2009 before Daryl died and reached an oral agreement that Diana's sole alternate option if she did not buy out the property with the life insurance proceeds was to vacate the property within 90 days of Daryl's death and meet her rental obligation by paying the back rent that Copenbarger had suspended while Daryl was ill. It appears that under this option, Diana still had no obligation to buy out Copenbarger's interest or pay back the loan Copenbarger asserted he had extended to the Johnsons to buy the property. Instead, Diana simply would have to pay the rent she and Daryl allegedly owed Copenbarger based on Copenbarger's view that the parties reached a rental agreement when the Johnsons could not repay what he claimed was a loan, not a joint venture.
Diana testified there had been no such rental obligation or deathbed agreement for an option to pay back-rent. She never saw Copenbarger at the veteran's hospital with Daryl as he deteriorated, and she explained that by mid-February Daryl could not talk; he could only open and close his eyes and squeeze her hand. He died in early March 2009. Copenbarger asserted Daryl was Diana's agent in the oral agreement he reached with Daryl for Diana either to buy out Copenbarger's interest and become sole owner of the property or to pay back rent and vacate the property (2008 Oral Agreement Options).
According to Diana, Copenbarger immediately pressed her to resume making payments after Daryl died. She made what she believed were mortgage payments from March through November 2009, moving out in September 2009. Diana testified that when Copenbarger came by the home after Daryl's death to demand a monthly payment, he told her Cabnell owned the home and she was not technically obliged to make mortgage payments. She continued making the payments because Copenbarger agreed she could stay in the home until September 2009, when the Copenbargers' grandson would move into the property. According to Diana, Laura Copenbarger came to the house in April 2009 and advised her to purchase a less expensive home and give her (Laura) the remaining life insurance proceeds to invest on Diana's behalf.
According to Diana, in July 2009 Copenbarger demanded that she write "rent" in the memo field of her check for her portion of the mortgage, but she refused because she never considered herself a renter. That month at Copenbarger's request she also signed over to Copenbarger a refund check from the lender. She was confused why her name was on the check given Copenbarger and Laura had both told her Cabnell was on the loan and she was not. She visited the lender's branch office and discovered she was still on the loan. She then went to the recorder's office and discovered the quitclaim deed, which she saw for the first time, and she discovered Cabnell had been formed in 2002, not in 2006 as she believed for liability purposes on the Corona residence joint venture.
In a July 2009 telephone conversation, she confronted Copenbarger about his earlier statements that she was not on the loan, but he assured her she was not obligated on the loan. She contacted the lender and arranged for the lender to send loan assumption paperwork to Copenbarger. He did not respond favorably. He dropped by her home on August 5, 2009, and told her he would never sign the assumption paperwork. During the visit, her realtor called and told her that her offer on another home had been accepted. When she told Copenbarger, he insisted that she move out of the Corona home by mid-September. She gave him her monthly payment for the preceding month, but delivered the next payment directly to the lender. Copenbarger again came by the house, screamed at her and called her selfish and a Communist, demanding to know, "Do you want war?" According to Copenbarger, however, Diana had demanded that he simply give her the Corona property, stating, "You are a rich man. You are a millionaire. It won't hurt you to give me this house so I could have it for me and my grandson."
Diana's friend and neighbor, Della Lembke, came by the home and spoke to both Copenbarger and Diana. According to Lembke, Copenbarger confirmed he and Laura had bought the home with Daryl and Diana as co-owners, but he wanted to restructure the arrangement. Lembke believed Copenbarger explained the property had been transferred to Cabnell to limit liability, but all four co-owners were part of Cabnell or maintained their ownership of the Corona property. At trial, Copenbarger denied explaining the parties' relationship in this manner. According to Lembke, Copenbarger explained he wanted Diana to remain on the loan to free up his credit for business loans, and while Diana could walk away from the house, he would not remove her from the loan.
According to Lembke, Copenbarger said Diana had two options: either pay off the mortgage herself and return Copenbarger's investment of approximately $109,000 in the property, or lend Copenbarger $400,000 from the life insurance proceeds so he could pay off the mortgage and he would then refinance the Corona property and use the proceeds for his own purposes while also paying Diana back over a period of three to five years. Still other options included Diana paying off the sums Copenbarger had put into the Corona property, but he would remain on the mortgage and might be able to employ Diana at one of his companies, or Diana could pay back-rent and vacate the premises, or they could equalize their positions in the Corona property by Diana paying Cabnell half of the sums it or Copenbarger had invested in the property (collectively, 2009 Oral Contract Options).
In September 2009, Diana gave one of Copenbarger's employees a check made out to the lender for $2,000 as her portion of the Corona mortgage payment, but the next day another employee contacted her to rewrite the check because Copenbarger already had made the mortgage payment that month, which Diana discovered was not true. According to Diana, Copenbarger called her and screamed at her, threatening eviction. Diana testified that the lender's branch office was not receptive to partial payments on the monthly mortgage obligation. Uncertain of her status in the house and believing she had been wronged, she filed suit against Cabnell and the Copenbargers in September 2009. According to Diana, she made out mortgage payments to the lender in October and November 2009, but stopped thereafter because "I didn't know who to pay, for what to pay, and how much to pay; and I would like to know what my status [is] regarding this house." In her complaint, she requested that an account be established to receive house payments while the lawsuit was pending.
Copenbarger continued making mortgage payments through 2010, but stopped thereafter, concluding it was no longer worth it to throw "good money after bad." The lender foreclosed on the property just before trial in September 2012. The foreclosure eliminated many of Diana's causes of action, including to quiet title or partition the property, and by the time of trial, her remaining causes of action consisted of breach of contract, false promise, breach of fiduciary duty among joint tenants, constructive fraud, and intentional infliction of emotional distress.
In pertinent part, the cross-complaint alleged causes of action against Diana for breach of various oral agreements and for false promises. The cross-complaint was based on Copenbarger's core assertion that the Corona acquisition was fundamentally a loan and not a joint venture. Specifically, Copenbarger alleged the parties entered an oral loan agreement in January 2006 (2006 Agreement) in which Copenbarger would advance $101,000 as a downpayment on the Corona home and more than $7,000 for closing costs, plus a $1,250 portion of the monthly mortgage payments, all of which Daryl and Diana would repay with 6.3 percent interest, the same interest rate on the mortgage to acquire the property.
The cross-complaint alleged Diana breached a second oral agreement (2008 Agreement) in which she and Daryl agreed she would use a portion of the death benefit of Daryl's $750,000 life insurance policy to buy the property from Cabnell by repaying the sums Copenbarger had advanced towards purchasing the property and paying the monthly mortgage. The cross-complaint also alleged the existence of an option Copenbarger extended to Daryl and Diana in early 2009 (2009 Option) under which Diana could remain in the house for 90 days after Daryl's death, paying $2,000 a month for those three months, and Copenbarger thereafter would pay the mortgage in full provided Diana remained on the mortgage. The cross-complaint's false promise cause of action alleged Diana "made misrepresentations consisting of false promises to perform her obligations under the 2006 Agreement, 2008 Agreement, and the 2009 Option."
After a two week trial, the trial court submitted the case to the jury for decision by special verdict. The jury decided against Diana on her claims, but concluded in a special verdict finding that the parties entered a "contract for a joint investment into the Lone Tree Street Property." The jury also rejected all the causes of action in Copenbarger's cross-complaint. The jury concluded in a special verdict finding that the Copenbargers and Diana did not "discuss entering into a contract for a loan to allow the Johnsons to purchase the Lone Tree Street Property for themselves." (Italics added.)
The jury also concluded that Lloyd Copenbarger, but not Laura or Cabnell, discussed with Diana entering a contract "regarding two options she would have as to the Lone Tree Street property in the event that Daryl Johnson died." But the special verdict form the parties submitted to the jury on this question did not specify what the two options were, including whether they consisted of some permutation of the following options: the 2008 Agreement (repayment with death benefit) and 2009 Option (Copenbarger agrees to assume full responsibility for the property and mortgage if Diana remains nominally on the loan) that Copenbarger alleged in the cross-complaint, or the 2008 Oral Agreement Options discussed above, including Copenbarger's assertion that Daryl and Diana agreed to pay back rent as an alternative to repaying the loan, or any of the 2009 Oral Contract Options noted above that Copenbarger allegedly discussed with Lembke. In any event, the jury concluded in this special verdict form concerning the two unspecified options that Diana and Copenbarger reached an oral agreement and that Copenbarger performed but Diana did not, causing harm to Copenbarger, but he was not entitled to damages.
In another special verdict form, the jury found Diana signed the quitclaim deed but did not deliver it. Consequently, the jury did not reach the remaining questions on the form, including whether Diana executed the quitclaim deed based on a misrepresentation or whether she received adequate consideration. The form did not contain any questions concerning her intent in executing the deed, including whether she intended to terminate the joint tenancy or her interest in the property, or only to limit liability.
As to the false promise allegation in the cross-complaint, the jury found Diana made a promise to Copenbarger, but she intended to perform when she made it. The special verdict form nevertheless directed the jury to continue answering questions, and the jury filled in a blank on the form indicating Copenbarger suffered a "[p]ast economic loss" of $104,000 in his dealings with Diana. The form the parties provided to the jury did not specify which promise Diana made to Copenbarger in any of their multiple alleged transactions, but only that she intended to perform it.
The trial court polled the jury and then discharged it. Copenbarger did not request a more formal or certain verdict before the jury was discharged, and neither did Diana. The trial court then granted Diana's motion for a directed verdict on Copenbarger's false promise claim because the jury unanimously found Diana intended to perform the promise when she made it. The court explained: "That should have been the end of the form. That is the necessary element. There cannot be a judgment entred when there has been a specific finding [and] 12 of 12 [polling] that she intended to. . . fulfill the promise when she made it . . . . I think it would be error as a matter of law to allow the verdict to stand on the false promise cause of action . . . . Directed verdict as to — there is a no-liability finding based on, as I said, the jury's 12 of 12 finding that Diana Johnson intended to perform the promise when she made it. I think that necessarily defeats that cause of action." The trial court denied Copenbarger's motion for a new trial, and he now appeals.
II
DISCUSSION
A. Special Verdict Form 1902 and Alleged Inconsistency in the Verdicts
Copenbarger contends the special verdict form on his false promise claim against Diana wrongly elicited an answer that resulted in a "hopelessly" inconsistent verdict concerning damages, requiring a retrial. We are not persuaded.
As Copenbarger points out, question 2 in the verdict form pertinent to his false promises claim asked the jury, "2. Did Diana Johnson intend to perform this promise when she made it." Notably, the special verdict form did not identify what "this" promise was. The form did not identify any particular false promise Diana allegedly made in any particular transaction with Copenbarger. Rather, the first question in the verdict form simply asked, "1. Did Diana Johnson make a promise to Lloyd Copenbarger that was important to the transaction," but without identifying either the promise or the transaction.
In any event, the verdict form specified that if the jury answered affirmatively that Diana intended to perform the promise, then the jury should proceed to answer subsequent questions. ("If your answer to question 2 is yes, then [continue with the false promise verdict form]. [¶] If you answered no, please sign and date this form and then move on to the next form.") As Copenbarger now recognizes, the form should have directed the jury to stop if it concluded Diana intended to perform whatever promise she may have made. This is because a cause of action for deceit based on a false promise requires that the promisor lured or induced the promisee into an agreement the promisor never intended to perform. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 159 (Tarmann).) Once the jury determined Diana intended to perform any promises she may have made to Copenbarger, his false promise claim against her necessarily failed. (Ibid.)
Nevertheless, the jury proceeded as instructed in the false promise special verdict form to answer additional questions concerning Diana's alleged false promise or promises. Among other answers, the jury marked "Yes" as its response to the question, "Was Lloyd Copenbarger's reliance on Diana Johnson's [still unspecified] promise a substantial factor in causing harm to Lloyd Copenbarger." The jury further identified Copenbarger's "harm" as a "[p]ast economic loss" of $104,000. Specifically, the special verdict form asked, "What are Lloyd Copenbarger's damages," and the jury filled in $104,000 as his "Past economic loss," but rejected any notion Diana "acted with malice, oppression, or fraud" or that Copenbarger suffered any "Past non-economic loss, including physical pain/mental suffering."
Copenbarger seizes on these further answers as allegedly irreconcilable with the jury's answers on another special verdict form. In its special verdict concerning an alleged oral contract between Diana and Copenbarger involving two unspecified options for Diana after Daryl died, the jury concluded Diana and Copenbarger reached an unspecified agreement that Diana subsequently breached, harming Copenbarger, but his damages were zero. Copenbarger insists Diana's alleged promise or promises underlying the false promise special verdict form in which the jury concluded Copenbarger suffered a $104,000 loss must be same as in oral agreement the jury found Diana breached with zero damages after Daryl's death. Based on this premise, Copenbarger argues the $104,000 and zero damage conclusions are hopelessly inconsistent and must be reversed for a retrial. Not so.
In Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal.2d 452 (Woodcock), our Supreme Court explained that if a jury's special verdict "is hopelessly ambiguous, a reversal is required." (Id. at p. 457.) But "[i]f the verdict is merely ambiguous, a party's failure to request a correction or clarification of the verdict before the jury is discharged may amount to a waiver of the ambiguity or defect, particularly if the party's failure to object was to reap a '"technical advantage"' or to engage in a '"litigious strategy."' [Citations.]" (Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1092, fn. 5 (Zagami).) The Zagami court explained that a verdict is not fatally inconsistent or "hopelessly ambiguous" if the court can "'"interpret the verdict from its language considered in connection with the pleadings, evidence and instructions."'" (Id. at p. 1092.)
Woodcock explained the process for confronting an ambiguous special verdict as follows: "'If the verdict is ambiguous the party adversely affected should request a more formal and certain verdict. Then, if the trial judge has any doubts on the subject, he may send the jury out, under proper instructions, to correct the informal or insufficient verdict.' [Citations.] But where no objection is made before the jury is discharged, it falls to 'the trial judge to interpret the verdict from its language considered in connection with the pleadings, evidence and instructions.' [Citations.] Where the trial judge does not interpret the verdict or interprets it erroneously, an appellate court will interpret the verdict if it is possible to give a correct interpretation. [Citations.] If the verdict is hopelessly ambiguous, a reversal is required, although retrial may be limited to the [ambiguous] issue . . . ." (Woodcock, supra, 69 Cal.2d at pp. 456-457, italics added.) As the court noted in Woodcock, however, a party may not construct the alleged ambiguity based on some instructions or a portion of the verdict rather than the record as a whole. (Id. at p. 457.)
Here, Copenbarger contends Diana was the party adversely affected by the jury's seeming conflict in finding he suffered both zero damages and a $104,000 loss, and therefore it was her burden to request a more certain verdict. But the discrepancy in these sums was adverse to Copenbarger, not Diana, because it was his burden to establish his right to damages and the amount. As the trial court explained, Copenbarger bore the burden on his cross-complaint to establish all the elements of his causes of action against Diana, including a false promise. Accordingly, when the jury concluded Diana intended to perform any promise she may have made concerning the property following Daryl's death, the trial court correctly granted her motion for a directed verdict on Copenbarger's false promise claim. (Tarmann, supra, 2 Cal.App.4th at p. 159.)
On appeal, Copenbarger notes Diana made a motion in limine for a nonsuit on the false promise claim, which the trial court denied on grounds a jury could find Diana made a false promise harming Copenbarger in her numerous interactions with him concerning the property. Copenbarger argues the trial court's earlier denial of nonsuit precluded it from later granting Diana a directed verdict precisely because the jury may have intended to express in its false promise special verdict a factual finding that Diana caused Copenbarger $104,000 in damages.
This argument fails for two reasons. First, Copenbarger erroneously suggests the jury may have felt compelled to enter a zero damages figure on his breach of oral contract claim despite the $104,000 loss noted on the false promise verdict form because the trial court instructed the jury not to enter duplicative damage awards. If the jury proceeded through the forms in a serial fashion, however, this claim fails because the jury entered its zero damages verdict on Copenbarger's oral contract claim before it reached and rejected his false promise claim. The argument still fails even if the jury did not proceed in a serial fashion because the trial court did not instruct the jury to avoid duplicative awards for Copenbarger's claims.
To the contrary, the trial court gave that instruction only regarding Diana's claims, namely, "If you decide that Diana Johnson has proved her breach of contract claim as well as one or more tort claims, the same damages that resulted from the claims can be awarded only once." (Italics added.) We presume the jury followed the terms of this instruction, applying it only to Diana if applicable and not Copenbarger. Thus, there is no merit to Copenberger's claim the jury only awarded zero damages on his contract claim to avoid duplicating the $104,000 it noted on the false promise form. The distinction in giving the no-duplication instruction for Diana and not Copenbarger can be justified quite readily: simply put, Copenbarger never bothered to specify in the special verdict forms any particular promises or transactions as the basis for his false promise claim, and therefore the verdict forms provided the jury no guidance in determining or specifying whether any sums that might be awarded to Copenbarger were duplicative. Consequently, the opacity of Copenbarger's false promise claim makes him solely responsible for any ambiguity in the verdict or the damages amount.
Second and independently, Copenbarger's directed verdict challenge is misplaced because it overlooks the posttrial posture of Diana's directed verdict motion. Once the jury rendered its conclusion Diana intended to perform any promises she made, the trial court's earlier in limine denial of Diana's nonsuit motion was irrelevant because Copenbarger could not prevail on his false promise claim against her. (Tarmann, supra, 2 Cal.App.4th at p. 159.) Consequently, the trial court was required to grant the directed verdict in Diana's favor on that claim.
It follows from the jury's conclusion Diana intended to perform that the jury should have stopped there instead of proceeding to consider in the remainder of the false promise verdict form whether Copenbarger suffered any loss or damage. Copenbarger blames Diana's counsel because he prepared the verdict form and represented his (incorrect) belief that it tracked the standard CACI instruction. The trial court, however, was justifiably irritated with Copenbarger and reasonably could assign primary blame to Copenbarger for failing, despite two weeks' notice, to review the proposed special verdict instructions and, indeed, for failing to timely propose any instructions or special verdict form on Copenbarger's claim in his cross-complaint that Diana made a false promise.
In any event, Copenbarger's appellate bid for reversal based on a seeming conflict in the verdict fails because the jury's verdict is not hopelessly ambiguous or inconsistent. Rather, it is easily reconciled. The jury's verdict reflects a straightforward conclusion rejecting Copenbarger's basic premise that the oral contract in which the jury awarded him zero damages and the false promise claim noting his $104,000 loss were based on the same transaction. Given the jury was not instructed to avoid duplicative damages on Copenbarger's claims, the differing damage amounts of zero and $104,000 indicate the jury concluded the transactions underlying each claim were distinct, contrary to Copenbarger's assertion they were the same and therefore inconsistent.
Notably, the jury rejected in the special verdict form pertinent to the initial acquisition of the property Copenbarger's assertion that he loaned the downpayment of $108,000 to the Johnsons, which they were to repay him minus the approximately $4,000 they contributed. Instead, the jury in a special verdict finding accepted the bulk of the trial testimony, which indicated the Johnsons and Copenbargers entered a joint venture in acquiring the property together as joint tenants, with the Copenbargers supplying the acquisition costs and the Johnsons improving the property while they lived in it and paid the majority of the monthly mortgage.
Accordingly, it appears the jury viewed Copenbarger's unspecified false promise claim as pertaining to the initial acquisition, and concluded Diana made no false promise, but rather intended to make the joint venture a success. In his cross-complaint, testimony, and argument to the jury Copenbarger suggested alternate scenarios in which Diana allegedly made false promises that she never intended to perform during the initial acquisition of the property and in negotiations both before and after Daryl died about what to do with the property. But Copenbarger never specified in his special verdict form which alleged false promises or transactions he meant, nor required the jury to make particular determinations about specific alleged false promises, leaving the matter ambiguous. Regardless, in continuing to answer the false promise special verdict questions, the jury's observation that Copenbarger suffered a $104,000 "[p]ast economic loss" is not traceable to a false promise by Diana because the jury concluded she intended to perform. As the trial court suggested in denying Copenbarger's new trial motion, the jury apparently concluded the $104,000 loss simply reflected Copenbarger's loss of his initial $108,000 down payment and closing costs due to the economic downturn and foreclosure, minus the Johnsons' approximately $4,000 contribution.
The record and the jury's verdict strongly support this interpretation in which Copenbarger's $104,000 "[p]ast economic loss" occurred because of the nature of the parties' initial joint venture and not as a result of Diana's alleged false promise or breach of a subsequent oral contract or contracts, as Copenbarger claimed. Specifically, while Copenbarger contributed at least $104,000 more than Diana and Daryl to the initial acquisition of the property, the jury determined the parties' arrangement was a joint venture, and therefore Copenbarger took on greater risk ($104,000 greater) if the joint venture did not succeed. Copenbarger's false promise theory in his cross-complaint strongly suggested the $104,000 "loss" the jury identified in its false promise special verdict finding was traceable to an alleged initial (but unspecified) false promise or promises in the acquisition of the property, not some later false promise. Copenbarger's cross-complaint stated that Diana "knew [her unspecified] promises to be false and made those representations with the intention to induce Lloyd into paying the down payment, closing costs, the balance of the monthly mortgage payments, and costs of home improvements on the property." (Italics added.)
By suggesting Diana's alleged false promise or promises induced Copenbarger to advance these funds, Copenbarger himself suggested these sums necessarily pertained to the initial transaction with Diana, and not a later oral agreement. After all, there was no evidence Diana induced Copenbarger to part with an additional down payment or closing costs. Accordingly, the record and Copenbarger's own pleading belie his claim that the jury's $104,000 loss and zero damages figures refer to the same underlying oral agreements and therefore are hopelessly inconsistent. Rather, the $104,000 figure arose from the parties' initial agreement to contribute different amounts to the joint venture, and the jury therefore concluded Copenbarger as a joint venturer shouldered that risk.
The zero damages award on Diana's breach of an unspecified oral contract presents no inconsistency with the $104,000 amount. The oral contract pertained to the parties' negotiations both before and after Daryl died about what to do with the property, but the special verdict on Copenbarger's claim that Diana breached an oral agreement never required the jury to specify which oral agreement the parties reached in these negotiations. As noted, Copenbarger's false promise special verdict also did not require the jury to specify the alleged false promise or cause of any loss. Given the absence of an instruction directing the jury to avoid duplicative awards on Copenbarger's claims, the distinct amounts of zero damages on the oral contract claim and the $104,000 loss on the alleged false promise indicate that the jury concluded these two claims were not, as Copenbarger claims, based on the same underlying transaction or promise. As Diana explains, the zero damages figure operates clearly as a jury finding that while she may have reached an unspecified agreement with Copenbarger about what to do with the property after Daryl died, Copenbarger was not entitled to damages under such an agreement for one or more reasons. For example, the jury's express finding of zero damages suggests the jury found Copenbarger's damage claims speculative, inflated, or oppressive. The jury also may have concluded he acted with unclean hands in attempting to falsely recharacterize a joint venture as a rental agreement or to divest a joint tenant of her property interest or to shift his losses to her.
Alternately, the jury's verdict of zero damages may simply reflect that several of the possible oral contract modifications — as alleged both in Copenbarger's cross-complaint and the trial testimony — allowed Diana to simply walk away from the property. In these scenarios, Copenbarger's damages were also zero. Simply put, while Copenbarger's suffered significant "[p]ast economic losses" in the initial transaction totaling $104,000 more than Diana or Daryl invested, under the nature of a joint venture and the subsequent oral options Diana was given, she was not required to "save" Copenbarger from suffering that loss. Rather, she was entitled to walk away from the property.
More to the point, however, the zero damages and $104,000 loss are manifestly distinct and clearly suggest in their wide divergence and in light of the trial court's instructions that they pertain to different underlying transactions and promises, and therefore do not present a hopeless inconsistency as Copenbarger claims. Even assuming arguendo any inconsistency, it was Copenbarger's burden as the party adversely affected by the asserted inconsistency to seek clarification before the jury was discharged. (Woodcock, supra, 69 Cal.2d at pp. 456.) Additionally, Copenbarger failed to timely propose any special verdict forms on his own cross-complaint claims and instead was content to leave his false promise and oral contract claims nonspecific, finding an ambiguity only when he was unhappy with the jury's verdict. It was too late to complain then, and his challenge is therefore forfeited. (Ibid.; Zagami, supra, 160 Cal.App.4th at p. 1092 [citing cases].) "'[A] party may not sit by in silence, taking chances of a favorable verdict, and after a hostile verdict, then, for the first time, be heard to complain.'" (Deward v. Clough (1966) 245 Cal.App.2d 439, 444-445.) B. Alleged Errors in Other Special Verdict Forms
Copenbarger contends the special verdict forms concerning whether the parties entered an oral contract "regarding two options [Diana] would have as to the Lone Tree Street property" if Daryl died misstated the law and therefore misled the jury. Copenbarger complains that the initial question on this special verdict form erroneously asked the jury to decide whether Lloyd Copenbarger, Laura Copenbarger, or Cabnell "discuss[ed]" with Diana "entering into a contract regarding two options she would have as to the Lone Tree Street property in the event that Daryl Johnson died?" (Italics added.) The verdict form then stated: "If your answer to question 1 is yes, then answer question 2. [¶] If you answered no, please sign and date this form and then move to the next form." As to Laura and Cabnell, the jury answered, "No," on the first question and stopped there. But as to Lloyd, the jury answered, "Yes," and continued answering questions, concluding the unspecified oral contract terms were "clear enough" for Diana and Copenbarger to understand, they agreed to the contract terms, Lloyd performed but Diana did not, and Lloyd was thereby harmed, but the jury filled in a zero for his damages.
Copenbarger contends the instruction was erroneous because it started the jury off on the wrong foot by suggesting he or Laura or Cabnall were required to "discuss" any alleged oral modification options with Diana, rather than with Daryl. As Copenbarger points out, Daryl may have been acting as Diana's agent, and assuming Daryl agreed to the modification options, then she did too. But the special verdict was not legally erroneous because it is also true that parties may enter a contract by direct discussions or, as the trial court also instructed the jury, by conduct instead of words. In any event, Copenbarger's challenge amounts to a claim that the special verdict form was a misleadingly incomplete instruction because it omitted the possibility that Daryl was acting as Diana's agent. But the law is clear on instructions that a party claims are misleadingly incomplete: the party must object to the instruction and propose an alternative that correctly states the omitted rule of law. (Lund v. San Joaquin Valley Railroad (2003) 31 Cal.4th 1, 7.) Here, Copenbarger objected to the "discuss[ing]" verbiage at the beginning of the instruction, but never timely proposed alternate language. As Diana observes, if Copenbarger wanted agency instructions or an express provision in the special verdict form to decide whether Daryl acted as Diana's agent, he should have requested it. He did not, and therefore his challenge is forfeited. (Ibid.)
In any event, any possible error was harmless. The jury concluded Copenbarger did discuss an unspecified oral modification with Diana and she agreed to it, but nevertheless he was not entitled to damages. Copenbarger does not dispute the jury's right to make that determination. In light of the zero damages finding, the fact the jury might have concluded Laura or Cabnell may have entered an oral modification with Diana without a direct discussion with her — through Daryl as her agent if the jury had been instructed on that possibility— adds nothing. There is no reason to conclude the jury's zero damages finding would not also apply to them.
Copenbarger also contends the "discuss[ion]" verbiage similarly polluted the jury's special verdict finding on the cross-complaint's allegation the initial oral contract was a loan. The jury concluded in special verdict findings that neither of the Copenbargers nor Cabnell "discuss[ed]" with Diana "entering into a contract for a loan to allow the Johnsons to purchase the Lone Tree Street property for themselves." Again, however, they forfeited this issue by failing to propose alternate language clarifying that a party may enter a contract through an agent instead of direct discussions. And again, even assuming arguendo any error, it was harmless. Here, the jury's express special verdict finding that the parties entered into a "contract for a joint investment" was a direct repudiation of Copenbarger's loan allegation. Consequently, there is no basis for reversal where the jury resolved the issue.
Finally, Copenbarger argues the trial court erred in the special verdict instructions or in response to a jury question by failing to instruct the jury that an executed "instrument or other document purporting to establish or affect an interest in property" is presumed absent contrary evidence to have been "deliver[ed] by each person by whom it purports to have been executed . . . ." (Evid. Code, § 1600.) During deliberations the jury sent the trial court a note that it was "hopelessly hung" on "the special verdict on the quitclaim deed," which asked "Did Diana Johnson sign the Quitclaim Deed?" and, if so, "Did Diana Johnson deliver the Quitclaim Deed to Cabnell?" The trial court and counsel inferred that delivery was the sticking point for the jury, and agreed to instruct the jury with the presumption of delivery created by the Evidence Code. But before the court could do so, the jury reached a verdict concluding Diana had not delivered the quitclaim deed.
Copenbarger's claim fails because he makes no effort to establish the prejudice necessary for reversal on appeal. (Cal. Const., art. VI, § 13.) The remainder of the special verdict form on the quitclaim deed, which the jury did not reach because it concluded Diana did not deliver the deed, did not provide for any damages or other relief for Copenbarger if Diana delivered the deed. The remainder of the special verdict form asked only whether Diana executed the deed based on a misrepresentation by Copenbarger, or whether she received anything of value in exchange for transferring title in the quitclaim deed to Cabnell and, if so, whether she received adequate consideration.
Copenbarger does not suggest how the jury's answers to these questions, if the jury had reached them, would change the judgment favorably for him. The jury concluded the parties entered a joint venture and not a loan agreement with each other when they purchased the property, that Diana intended to perform any promise or promises she may have made to Copenbarger, and that Copenbarger was not entitled to any damages based on any oral modification the parties may have made. In light of these conclusions, the academic question of whether Diana delivered the quitclaim deed is moot.
A single sentence in Copenbarger's reply brief suggests in a cursory, unsupported fashion that the jury's no-delivery determination "affects the parties' rights with respect to tax obligations as well as Cabnell, LLC's claims for damage." With foreclosure on the property extinguishing the parties' property rights, we fail to see any continuing relevance in the quitclaim deed. In any event, the appellate court may not be tasked with developing arguments for an appellant or to formulate or piece together a basis for reversal; to the contrary, we presume the judgment is correct and the appellant must affirmatively demonstrate prejudice. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852; see Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 353 [arguments presented for first time in reply brief are forfeited].)
III
DISPOSITION
The judgment is affirmed. Respondent is entitled to her costs on appeal.
ARONSON, J. WE CONCUR: O'LEARY, P. J. THOMPSON, J.