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Kelley Angela Bell v. Reginald Mason et al

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE


April 28, 2011

KELLEY ANGELA BELL, PLAINTIFF AND RESPONDENT,
v.
REGINALD MASON ET AL., DEFENDANTS AND APPELLANTS.

(Los Angeles County Super. Ct. No. BC347869) APPEAL from a judgment and order of the Superior Court of Los Angeles County, Kenneth R. Freeman, Judge. Reversed and remanded with directions.

The opinion of the court was delivered by: Klein, P. J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

Defendants and appellants Reginald Mason (Reginald) and Shante Mason (Shante)*fn2 (collectively, the Masons) appeal a $700,000 judgment in favor of plaintiff and respondent Kelley Angela Bell (Bell) following a jury trial, as well as a postjudgment order awarding Bell $204,500 in attorney fees.

Bell sold her house to Shante for $130,000. Bell then sued the Masons alleging she "suffers from mental retardation"*fn3 and that the Masons "took advantage of plaintiff's disabilities in gaining her trust and inducing her to enter into the transaction which deprived her of her home."

The defense theory is that Bell is of normal intelligence and that she knowingly entered into an arm's length transaction with Shante for the sale of her property. At trial, the defense sought to call Dr. Samuel Black (Black) as an expert psychiatric witness to testify Bell is not mentally retarded and that she in fact has average intelligence. The trial court ruled Black could not testify regarding Bell's mental retardation or lack thereof. Although Black had reviewed, inter alia, Bell's medical records and had viewed in excess of 15 hours of her videotaped deposition, the trial court ruled that because Black had not met or personally examined Bell, the defense had failed to lay a sufficient foundation for Black to testify as to Bell's IQ or mental retardation.

In the published portion of this opinion, we conclude a sufficient foundation was shown for Black's testimony; the mere fact Black had not personally examined Bell did not preclude him from testifying as to her mental capacity. Reversal is required because the trial court's ruling amounted to prejudicial evidentiary error which eviscerated the defense case and left the jury with the plaintiff's uncontroverted expert testimony that Bell is mentally retarded. (Evid. Code, § 354.)

In the unpublished portion of the opinion, we conclude that irrespective of the trial court's erroneous evidentiary rulings which inured to Bell's benefit, Bell failed to present substantial evidence to support her claims of fraud, intentional infliction of emotional distress, dependent adult abuse and conspiracy. Therefore, the trial court's evidentiary errors do not require this matter to be remanded for a new trial. Instead, we reverse and remand to the trial court with directions to enter judgment in favor of the Masons.

FACTUAL AND PROCEDURAL BACKGROUND

1. Overview.*fn4

a. Bell's acquisition and encumbering of the subject real property.

John Williams and Asa Williams (the godparents) were an elderly childless couple who frequently took care of Bell when she was a child. Bell went to the library and read about grant deeds and how to transfer real estate. On or about September 2, 2003, title to the Williamses' real property located on 4th Avenue in Los Angeles (the property) purportedly was transferred by grant deed to Bell as a gift. At the time, there were no encumbrances on the property.

On September 16, 2003, two weeks after obtaining title to the property, Bell obtained a $65,000 loan on the property from JMJ Financial Group (JMJ), secured by a deed of trust, at a rate of 12 per cent per annum. The interest rate was high because Bell had poor credit.

In October 2003, Bell moved Asa Williams to a convalescent hospital. John Williams, who was in poor health, died in December 2003.

As will be explained in greater detail below, in November 2003, Bell entered into an agreement to sell the property to Shante for $130,000.

b. Bell's godmother sues Bell to recover title to the property; Bell enters into a settlement agreement with the godmother's conservator, obligating Bell to prosecute the instant lawsuit.

On April 19, 2004, Asa Williams filed a complaint (the Williams action) against Bell, Shante, Vernon Washington and Wendell Bonville (Bonville), seeking to quiet her title to the property and declaratory relief, and alleging causes of action for fraud, civil conspiracy, negligent and intentional infliction of emotional distress. Asa Williams alleged Bell "caused a transfer of title of the PROPERTY by fraudulent means by signing the name of WILLIAMS on said Grant Deed of September 2, 2003. That BELL made said illegal transfer of the PROPERTY for the sole purpose of obtaining a monetary loan in the amount of $62,000.00 and thereby placing a lien against the PROPERTY for said amount."

Asa Williams subsequently was placed under a conservatorship.

On July 7, 2005, Asa Williams died intestate, without leaving any heirs at law.

On October 12, 2005, Asa Williams's conservator, Harold Johnson (Johnson), entered into a settlement agreement and mutual release with Bell.*fn5 The settlement agreement did not require any cash outlay by Bell. The settlement agreement noted the existence of claims by Bell against Shante, Bonville and others regarding the subject real property and the refinancing of the property and stated "Bell agrees to pursue such claims. [¶] 4. In the event Bell recovers on the Claims set forth in paragraph 3 above, . . . Bell agrees to pay Johnson one half of all amounts recovered or the value of all property recovered, less the sum of . . . [$11,500.00]." Thus, Bell's prosecution of the instant lawsuit against the Masons was required by the promise Bell made to the conservator in the Williams settlement agreement.

2. The instant lawsuit.

On January 9, 2007, Bell, by and through a guardian ad litem, Ella Bell Gory, filed the operative first amended complaint against the Masons, Bonville, as well as JMJ, Gateway Loans, Inc. (Gateway), and Horizon Escrow, Inc. (Horizon). The complaint sought, inter alia, to quiet title in Bell as the sole owner in fee simple of the subject real property she obtained from the Williamses. Bell alleged she obtained the property by grant deed in September 2003, and that she borrowed $64,000 against the property one month later.

The complaint alleged two distinct acts of wrongdoing.

First, Bell alleged her former boyfriend, Bonville, forged her signature on the net loan proceeds of $51,971 and converted the money to his own use.

Second, Bell alleged she was defrauded in the transaction wherein she sold the property for $130,000 to Shante. "On or about January 22, 2004, plaintiff purportedly sold the 4th Avenue Property to Shante Mason (the 'Sale') pursuant to the representation that the sale was a mere sham intended to gain the necessary credit rating to furnish funds to repair the premises." (Italics added.) However, instead of treating the sale as a sham, as had been agreed, defendants treated the sale as real and evicted her from the property in 2006.

Bell pled the various defendants "relied on their knowledge that plaintiff suffers from mental retardation"*fn6 and "took advantage of plaintiff's disabilities in gaining her trust and inducing her to enter into the transaction which deprived her of her home."

Based on these allegations, Bell asserted claims for fraud and deceit, conversion by Bonville of the $51,971 loan proceeds, financial dependent adult abuse (Welf. & Inst. Code, § 15600 et seq., § 15610.30), breach of fiduciary duty, intentional infliction of emotional distress, conspiracy, negligence and common count for monies received. Bell sought damages, quiet title, imposition of a constructive trust and an accounting.

Prior to trial, JMJ, Gateway and Horizon were dismissed from the case, and the trial court granted summary adjudication in favor of the Masons on Bell's quiet title claim. The trial court struck Bonville's answer as a discovery sanction and entered Bonville's default. Thus, the sole claims in issue are Bell's claims against the Masons arising out of her sale of her property to Shante.

3. Trial testimony.

In determining whether the trial court committed prejudicial evidentiary error in excluding certain defense evidence (Evid. Code, § 354), the inquiry is whether "it appears reasonably probable that were it not for the trial court's incorrect evidentiary rulings, a result more favorable to [appellant] could have been obtained. [Citation]." (Winifred D. v. Michelin North America, Inc. (2008) 165 Cal.App.4th 1011, 1040.) We summarize the evidence mindful of this standard.

a. Plaintiff's case.*fn7

Under Bell's theory of the case, the parties had agreed to treat the $130,000 sale of the property to Shante as "a mere sham" and that Bell "would continue in reality to own the 4th Avenue Property." However, the Masons breached the agreement by treating the sham sale as a valid conveyance and evicting her from the premises. Thus, under Bell's theory, Shante's payment to her of $130,000, to enable Bell to remain in her home, was essentially a gift from a generous stranger. (Bell and Shante had never met.) If Bell's version of the agreement were believed, she was entitled to remain in the house rent-free as the purported actual owner.

(1) Direct examination of plaintiff's expert.

To establish her mental incapacity, Bell presented the expert testimony of Dr. Catherine Scarf, a practicing psychologist. Scarf testified she had administered various performance and verbal tests to Bell, which disclosed Bell's IQ is 62, placing her in the bottom one percentile. Scarf opined Bell is incapable of entering into contracts.

Scarf explained that in diagnosing mental retardation, according to the DSM Manual, "which is what you use to diagnose mental retardation, mental retardation has to be established prior to the age of 18." Here, Scarf evaluated Bell at age 37, at which time Bell was first diagnosed with mental retardation, but Scarf opined Bell's history over the years indicated mental retardation.

(2) Cross-examination of Scarf.

Cross-examination disclosed Scarf evaluated Bell at the request of Bell's attorney, Armen Tashjian (Tashjian) (Bell's trial and appellate counsel). Cross-examination revealed the circumstances under which Scarf came to evaluate Bell. The trial court admitted into evidence Exhibit 423, a letter from Tashjian to Germany that went into Bell's file. The letter stated in pertinent part: "I wish to explain briefly why Kelley Bell has an urgent need for evaluation by a psychiatrist or licensed psychologist who has practiced for at least five years. Ms. Bell is represented by this law firm in the above-referenced litigation. This lawsuit involves individuals who use deceptive tactics to take away Ms. Bell's residence, effectively rendering her homeless for several months. She seeks compensation for her damages." (Italics added.)

Thus, on August 18, 2006, Tashjian referred Bell to Scarf to obtain a capacity declaration for the court to determine whether a conservator should be appointed for Bell.*fn8 Bell came to Scarf's office on August 24, 2006, accompanied by Donetta Germany, who gave Scarf information regarding Bell's adaptive functioning.

Scarf admitted intelligence tests can be "faked out" by performing below one's ability. However, Scarf asserted "you can't fake me out" because she looks at other data besides test scores. However, Scarf stated she was not familiar with what is tested on a GED examination, and therefore could not address the impact of Bell's completion of a GED on her assessment.*fn9 Scarf also was unaware that Bell has a driver's license. Scarf did not look at Bell's high school records. She did not inquire about Bell's employment history. She did not look at any retainer agreement between Bell and Tashjian. She did not read the transcript of Bell's deposition or view the videotape of Bell's deposition to assess Bell's intellectual capacity. Scarf did not know whether Bell was capable of doing research at the library, and did not inquire of Bell as to her real estate knowledge or experience.

Scarf stated she ordinarily checks different sources to confirm whether what she was being told was accurate. In this case, however, Scarf did not consult with anyone other than Tashjian's office and Donetta Germany, who accompanied Bell to Scarf's office.

b. Defense case.

As will be discussed below, in the Discussion section, the trial court precluded the defense expert, Black, a highly qualified licensed psychiatrist, from testifying "as to IQ or retardation of Ms. Bell," stating "I do not believe there's been a sufficient foundation laid for that," in that Black had not personally evaluated Bell. The trial court limited Black's testimony to depression and personality disorder. As a consequence, the jury was left with Scarf's uncontroverted expert testimony that Bell has an IQ of 62.

The defense theory of the case was that Bell lied about being a helpless person who was taken advantage of, that Bell improperly acquired the property from her godparents, immediately extracted as much equity as she could, given her poor credit, and then sold the property to Shante in order to extract additional money from the property. The defense contended Bell knowingly entered into an arms-length transaction with Shante for the sale of the property, and the sale price was fair in light of prevailing market conditions as well as the dilapidated condition of the property. Specifically, there was a gaping hole in the bathroom floor, the subfloor had rotted out, the heating and plumbing systems were inadequate, the garage was falling down, the siding was dilapidated, and the house was slightly off its foundation.

Of the $130,000 purchase price,*fn10 Bell received a check in the amount of the $21,114 in net proceeds. The remainder was disbursed as follows: $65,000 went to repay Bell's prior loan from JMJ; $8,500 went for repairs to the property; $1,300 went to pay a one-percent broker's commission to Reginald; about $6,500 went to pay closing costs, title charges and escrow fees; and $27,500 went to an entity owned by Reginald to be held back as a security deposit for Bell's tenancy, allegedly representing two years of future rent.

c. Verdict.

The jury returned special verdicts, finding, inter alia: there was a conspiracy between Bonville and the Masons to defraud Bell; Reginald made a false representation of fact to Bell,*fn11 upon which she reasonably relied; and Bell was a dependent adult at the time of the conduct. As against the Masons, the jury awarded Bell $200,000 for past economic loss, $100,000 for past noneconomic loss, and $100,000 for future noneconomic loss. In addition, Reginald and Shante were ordered to pay Bell punitive damages in the sums of $200,000 and $100,000, respectively. Thus, Bell was awarded a total of $700,000 in damages.

d. Motion for new trial.

The Masons brought a motion for new trial, raising numerous grounds including abuse of discretion by the trial court in its evidentiary rulings, and juror misconduct, based on concealment by two jurors of their personal experience with mental disabilities.

On May 19, 2009, the trial court denied the motion for new trial.

On May 26, 2009, the Masons filed a timely notice of appeal from the judgment.

e. Attorney fees.

On June 22, 2009, Bell moved for an award of attorney fees in the amount of $409,000, on the ground she had prevailed on her claim under the Elder Abuse and Dependent Adult Civil Protection Act, and therefore was entitled to statutory attorney fees under Welfare and Institutions Code section 15657.5, subdivision (a).

On July 23, 2009, the trial court awarded a total of $204,500 in attorney fees, including $167,100 to Tashjian.

On September 1, 2009, the Masons filed a timely notice of appeal from the postjudgment order for attorney fees.

CONTENTIONS

The Masons contend: the trial court erred in excluding evidence relating to critical issues in the case and thereby prevented the defense from presenting its theory of the case; the trial court erred in admitting certain evidence; Bell failed to present sufficient evidence to support her claims of conspiracy, fraud, dependent person abuse, and intentional infliction of emotional distress; the trial court erred in refusing to grant a new trial based upon juror misconduct; the judgment should be reversed due to cumulative error; and the attorney fee award to Bell should be vacated.

DISCUSSION

1. Trial court committed prejudicial evidentiary error in precluding defense expert Black from testifying that Bell is not mentally retarded.

a. Proceedings.

At trial, the defense sought to call Black as an expert psychiatric witness to testify Bell does not suffer from mental retardation and that in fact she has average intelligence. The trial court conducted a hearing outside the presence of the jury to determine the admissibility of this testimony.

The record reflects Black has solid credentials. He is a licensed psychiatrist with 38 years of experience. He is on the teaching faculty at UCLA Medical School. Further, Black read Scarf's trial testimony in its entirety and reviewed the records that Scarf produced which Scarf testified were the basis for her opinion. In addition, Black read all three volumes of Bell's deposition testimony and viewed in excess of 15 hours of her videotaped deposition testimony.

Black explained that psychiatrists commonly offer opinions based on information acquired through means other than personal examination of a patient. Black also explained that IQ testing is just one way to gain information about a patient, but IQ tests are not normally used in litigation because the person being tested is capable of skewing the results. Also, "there's a very strong feeling in psychology that in the minority population, giving the IQ tests that are available [is] not an accurate indication of the IQ of the minority groups" because the tests are culturally biased in favor of the white middle class population.

Black offered examples from his review of Bell's deposition that helped him form his opinion that Bell is not mentally retarded. Black cited Bell's ability to read rapidly and clearly from the escrow instructions, and that she remembered her credit union account number.

The trial court ruled Black could not testify regarding Bell's mental retardation or lack thereof. The trial court was not concerned with Black's training or qualifications. The trial court's sole concern was that Black had not met or personally examined Bell, and therefore the defense had failed to lay a sufficient foundation for Black to testify as to Bell's IQ or mental retardation.*fn12

b. Exclusion of Black's opinion re mental retardation was erroneous; the fact Black did not personally examine Bell did not affect the admissibility of the evidence but merely went to the weight of his testimony.

Evidence Code section 801 provides: "If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: [¶] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and [¶] (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion." (Italics added.)

The trial court's stated reliance on People v. Bassett (1968) 69 Cal.2d 122, a death penalty case, was misplaced. In Bassett, the issue presented was whether the testimony of two prosecution experts, neither of whom had examined the defendant in person and who testified on the basis of a lengthy hypothetical question posed by the prosecutor (id. at p. 140), could "be deemed 'substantial' evidence to support the implied finding of defendant's mental capacity on the guilt phase of [the] trial." (Id., at p. 146.) Although said expert testimony did not constitute substantial evidence, Bassett added: "We do not imply, of course, that the testimony in question was inadmissible. Assuming the necessary minimum acquaintance with the case in which he is called to testify, 'the extent of an expert's knowledge goes to the weight of his testimony, rather than to its admissibility' (Estate of Schluttig (1950) 36 Cal.2d 416, 424 [224 P.2d 695]). And this rule has recently been applied to the sanity testimony of a psychiatrist who was not permitted to conduct a personal examination of the defendant. (People v. Brekke (1967) 250 Cal.App.2d 651, 661-662 [58 Cal.Rptr. 854].)" (Bassett, supra, 69 Cal.2d at p. 146, fn. 22, italics added; accord People v. Phillips (1981) 122 Cal.App.3d 69, 85 ["the fact that Dr. Blinder's testimony was based in large measure upon reports by others rather than upon his personal observations of the defendant or of other persons displaying that syndrome may affect the weight of his testimony but does not render that testimony inadmissible if those reports meet the standard of reasonable reliability"], italics added.)

Here, Black had more than the "necessary minimum acquaintance with the case in which he [was] called to testify." (Bassett, supra, 69 Cal.2d at p. 146, fn. 22.) As noted, Black read Scarf's trial testimony in its entirety and he reviewed the records that Scarf produced which Scarf testified were the basis for her opinion. In addition, Black read all three volumes of Bell's deposition testimony and viewed in excess of 15 hours of her videotaped deposition testimony. Therefore, Black established a solid foundation for his testimony. The trial court's exclusion of Black's expert opinion that Bell has normal intelligence was clearly erroneous.*fn13

c. Erroneous exclusion of Black's testimony was prejudicial.

As pled in the complaint, Bell's theory of the case is that she "suffers from mental retardation" and that the Masons "took advantage of plaintiff's disabilities in gaining her trust and inducing her to enter into the transaction which deprived her of her home." The exclusion of Black's expert opinion that Bell has normal intelligence eviscerated the defense case and left the jury with uncontroverted expert testimony by Scarf that Bell is mentally retarded. This prejudicial evidentiary error requires reversal of the judgment.

[[Begin nonpublished portion.]]

[[2. Trial court further erred in granting Bell's motion in limine to preclude evidence relating to the Williams action.

The trial court granted a motion in limine by Bell, pursuant to Evidence Code section 352, to preclude evidence relating to the Williams action, on the ground evidence pertaining to the Williams case was irrelevant to this action, would be more prejudicial than probative and would have a tendency to confuse the jury. The trial court excluded on relevancy grounds any testimony about the Williams lawsuit or the settlement of that lawsuit. We conclude the exclusion of said evidence was erroneous, the Williams action and settlement were highly relevant and the evidence should have been admitted, subject to any appropriate limiting instructions.

Leaving aside the issue of Bell's unclean hands or whether Bell had obtained the property by defrauding her godparents, the Williams evidence was relevant in various respects:

1) The existence of the Williams litigation reflected that Bell's acquisition of the property was highly acrimonious and that Bell was estranged from the Williamses. These circumstances controverted Bell's version, namely, that she was victimized by the Masons, who took advantage of her disability to steal the home which had been given to her by her beloved godparents.

2) Bell admitted in her deposition that the Williams action, in which she was sued by her godmother, caused her great distress and prevented her from working for all of 2004. However, the preclusion of any mention of the Williams action at trial enabled Bell to attribute all her emotional distress to the alleged misconduct of the Masons, and enabled her to obtain a jury award of $200,000 in noneconomic damages.

3) Bell obtained an extremely favorable settlement in the Williams action. The settlement agreement did not require any payment by Bell. The settlement agreement merely required Bell to prosecute claims against third parties, namely, the Masons and Bonville (Shante and Bonville were Bell's co-defendant in the Williams action) and to share any recovery with the godmother's conservator. The fact Bell achieved such a favorable settlement in the Williams action is at odds with Bell's claim she is a dependent adult who was easily duped by the Masons.

4) The Williams settlement, which obligated Bell to prosecute the instant claims against the Masons, was highly relevant to Bell's credibility. The Williams settlement casts doubt upon Bell's true motive for filing the instant lawsuit. The trier of fact was entitled to decide whether Bell brought this action to right a wrong that had been perpetrated against her by the Masons, or whether Bell pursued this action against the Masons in order to fulfill her obligations under the Williams settlement.

For all these reasons, the grant of the motion in limine, excluding evidence of the Willams action and settlement thereof, was prejudicial error.

3. Erroneous exclusion of Bell's deposition testimony.

The trial court further erred in precluding the defense from presenting to the jury various brief excerpts from Bell's deposition, which would have impeached Bell's trial testimony. The damaging deposition admissions, which should have been admitted in their entirety, included the following statements by Bell:

1) Prior to this lawsuit, which was prosecuted by a guardian ad litem on Bell's behalf, Bell never had a guardian ad litem or a conservator, and had never given anyone a power of attorney to sign documents on her behalf.

2) Prior to this litigation, Bell had been diagnosed with the following disabilities: attention deficit order and dyslexia, not mental retardation.

3) Bell has a California driver's license with no restrictions on it.

4) At the time Bell signed the grant deed transferring the property to Shante, Bell knew she was not refinancing the property. Bell knew the difference between a loan and a sale.

5) In 2004, Bell suffered stress from being named as a co-defendant in the Williams lawsuit. Because of the stress from that lawsuit she decided not to work that entire year.

6) Bell admitted Shante made no promises to her. In fact, Bell admitted she had no contact with Shante. As for Reginald, Bell admitted he never told her anything that was intended to defraud her.

The deposition excerpts included the following colloquy:

"Q. Okay. You have sued Shante Mason?

"A. Yes.

"Q. Have you ever met her face-to-face?

"A. No, I have not.

Bell also admitted she had never spoken to Shante by telephone. Bell further testified as follows:

"Q. Did Shante Mason ever make any promises to you?

"A. No.

" [¶] . . . [¶]

"Q. Okay. Did Reginald Mason ever say anything that leads you to believe that he intended to defraud you?

"A. No. (Italics added.)

7) Bell does not consider herself to be in need of special assistance in day-to-day life. In Bell's view, there isn't anything she shows to the outside world that would disclose to someone that she is a person of less than normal intelligence. Further, she had no reason to believe that Shante or Reginald considered her to be of below normal intelligence.

Thus, the excluded deposition excerpts contain numerous damaging admissions by Bell. The admissions by Bell were fully admissible and their erroneous exclusion was prejudicial error.*fn14

4. Bell's failure of proof entitles the Masons to entry of judgment in their favor.

Ordinarily, reversal due to prejudicial evidentiary error would require remand for a new trial. Here, a new trial is not warranted. Irrespective of the trial court's erroneous evidentiary rulings which inured to Bell's benefit, the state of the record is that Bell failed to present substantial evidence to support her claims against either Shante or Reginald. Therefore, on remand, the Masons are entitled to entry of judgment.

To recap, Bell proceeded at trial against Shante and Reginald on four theories: fraud, dependent person abuse, intentional infliction of emotional distress and conspiracy.

The record contains the following key admissions by Bell: (1) she never met Shante and had never even spoken to Shante by telephone; (2) Reginald never said anything to Bell that led Bell to believe he intended to defraud her; and (3) neither Shante nor Reginald had any reason to believe Bell is a person of below normal intelligence.

These admissions dispose of Bell's allegations that Reginald and Shante "relied on their knowledge that plaintiff suffers from mental retardation," that they "conned [Bell], a developmentally retarded woman, into signing the deed to her house to [Shante]", and that they "took advantage of plaintiff's disabilities in gaining her trust and inducing her to enter into the transaction which deprived her of her home."

Given the dearth of direct evidence of wrongdoing by Shante and Reginald, Bell seeks to hold them liable as co-conspirators in a scheme with Bonville, her former boyfriend, to steal her house.

a. General principles.

The elements of a civil conspiracy are (1) the formation and operation of the conspiracy; (2) the wrongful act or acts done pursuant thereto; and (3) the damage resulting. (Mosier v. Southern Cal. Physicians Ins. Exchange (1998) 63 Cal.App.4th 1022, 1048.) "As long as two or more persons agree to perform a wrongful act, the law places civil liability for the resulting damage on all of them, regardless of whether they actually commit the tort themselves. [Citation.] 'The effect of charging . . . conspiratorial conduct is to implicate all . . . who agree to the plan to commit the wrong as well as those who actually carry it out. [Citations.]' [Citation.] [¶] Therefore a plaintiff is entitled to damages from those defendants who concurred in the tortious scheme with knowledge of its unlawful purpose. [Citation.] Furthermore, the requisite concurrence and knowledge ' " 'may be inferred from the nature of the acts done, the relation of the parties, the interests of the alleged conspirators, and other circumstances.' " ' [Citation.] Tacit consent as well as express approval will suffice to hold a person liable as a coconspirator. [Citation.]" (Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 784-785.)

b. On this record, no inference the Masons conspired with Bonville.

The evidence at trial established the following:

Reginald knew Bonville for about 10 years and Shante knew Bonville for about four years. Bonville, who was a real estate agent, hung his license in the office of Reginald, who had a real estate broker's license. In October 2003, Bonville, who was working at Bank of America, called Reginald and told him that Bell, his girlfriend, needed to sell her property because she could no longer afford to make the payments. Reginald visited the property, spoke with Bell, and contacted his sister, Shante, regarding the property.

Given the dilapidated condition of the property, Shante made an offer of $130,000, on a residential purchase agreement form. Reginald presented the offer to Bell and she accepted. With respect to agency relationships, the purchase agreement form confirmed that Solomon David Realty, Reginald's firm, was the selling agent (not the listing agent), and that it exclusively represented Shante, the buyer.

Reginald was paid a broker's commission of $1,300, or one percent, for representing his sister, Shante, the buyer in the transaction. Bell also acknowledged signing an escrow amendment instructing the escrow to disburse $27,500 from the seller's proceeds to Solomon David Capital Advisers, Reginald's firm.*fn15 *fn16

Bell's relationship with Bonville ended in April 2004, when he hit her.

To establish a conspiracy between Bonville and the Masons, Bell relies on the following facts: Bonville and the Masons knew each other for years; Bonville had been employed by Reginald; Bonville was listed as the appraisal contact person for Shante on the loan documents when she was purchasing the subject property.

The mere fact Bonville knew the Masons does not tend to show they conspired to defraud Bell. Likewise, it is speculative to infer the posting of Bonville's real estate license in Reginald's office is indicative of an agreement between the Masons and Bonville to defraud Bell. Finally, the fact Bonville was listed as the appraisal contact on Shante's loan application is insufficient to support a finding of conspiracy. The record reflects Bell did not have a telephone and therefore the appraiser had no way of contacting her. Therefore, Shante listed Bell's boyfriend, Bonville, as the appraisal contact on her loan application.

These facts, either alone or in combination, do not tend to show a conspiracy between the Masons and Bonville. Accordingly, the Masons are entitled to entry of judgment on Bell's claims against them.]]

[[End nonpublished portion.]]

DISPOSITION

The judgment and the postjudgment attorney fee order are reversed and the matter is remanded to the trial court with directions to enter judgment in favor of the Masons. The Masons shall recover their costs on appeal.

CERTIFIED FOR PARTIAL PUBLICATION

We concur: CROSKEY, J. ALDRICH, J.


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