(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In the unpublished portion of the opinion, we conclude that irrespective of the trial court's erroneous evidentiary rulings which inured to Bell's benefit, Bell failed to present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
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.
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.
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.
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 ...