Gruenewald v. Scott

Filed 6/21/10 Gruenewald v. Scott CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. John B. Gibson, Judge. Affirmed.

Thomas W. Gillen for Plaintiffs and Appellants.

Law Offices of Louis A. Stearns and Louis A. Stearns; Horspool & Parker and J. David Horspool for Defendant and Respondent Melodie Z. Scott.

Law Offices of Louis A. Stearns and Louis A. Stearns for Defendants and Respondents Joyce Hartman and Osborne Tank & Supply, Inc.

Gray & Prouty, Malcolm D. Schick, Kelly Cox, and Thomas K. Cox for Defendant and Respondent John Osborne.

Family quarrels are bitter things. They dont go according to any rules. (Fitzgerald, Babylon Revisited (Feb. 21, 1931) Saturday Evening Post, [as of Feb. 22, 2010].)

. . . until the family members go to court. And then rules will be applied, whether they like the results or not.

This is, at bottom, a quarrel among three adult siblings over their deceased fathers estate. The siblings have entered into a series of agreements in the hope of resolving their disputes, but those agreements have merely given rise to new disputes.

One of the siblings, Nancy Gruenewald, is the plaintiff in this action, along with her son, Layne Gruenewald. The other two siblings Joyce Hartman and John Osborne are defendants. Also named as defendants are the fathers corporation, Osborne Tank & Supply, Inc. (the Corporation), and the current trustee of his trust, Melodie Z. Scott.

The trial court sustained demurrers, without leave to amend, to some of the Gruenewalds claims. It granted summary judgment against the Gruenewalds with respect to others. Finally, the Gruenewalds remaining claims were heard by a jury, which rejected them all.

The Gruenewalds appeal, seeking to relitigate all of these rulings (and more). In the process, they flout fundamental requirements of appellate practice, including that they furnish an adequate record, that they cite their factual assertions to that record, and that they show prejudice; they challenge jury instructions that they stipulated to and special verdict forms that they drafted. To the extent that their contentions have been preserved, and to the extent that we have been enabled to review them, they lack merit. Hence, we will affirm.

I

FACTUAL BACKGROUND

The following facts are taken from the evidence admitted at the jury trial. We caution that they may differ from the facts shown in connection with the various demurrers, as well as from the facts shown in connection with the various motions for summary judgment.

A. The Agreement to Sell the Trusts Real Property and the Corporations Assets to Nancy.

H.S. Osborne died in July 2000. He was survived by four adult children Nancy Gruenewald, Joyce Hartman, John Osborne, and Gary Osborne and by 16 grandchildren.

He had created a living trust (the Trust). After his death, the Trust assets included all of the stock in the Corporation. They also included certain real property in Oro Grande (the Oro Grande property).

According to the terms of the Trust, the income of the Corporation was to go to his children for as long as they (or any of them) lived. Once all of the children were deceased, the Corporation was to be liquidated and distributed among all of his grandchildren then living.

Upon his death, Nancy and Joyce became the trustees of the Trust; John became president of the Corporation.

Various and sundry disputes arose, which need not be recounted here. In the hope of settling these disputes, some of the parties entered into an agreement dated March 5, 2001 (the Agreement). Those parties were: (1) Nancy, in her individual capacity and as cotrustee of the Trust; (2) Joyce, in her capacity as cotrustee of the Trust and as an officer of the Corporation; and (3) John, in his capacity as president of the Corporation.^[1]

The Agreement provided that the Trust would sell the Oro Grande property to Nancy for $90,000. It also provided that the Corporation would sell all of its assets to Nancy for an additional $160,000. The Corporation would distribute the $160,000 by paying $10,000 to each of the 16 grandchildren. Finally, the Trust would dissolve the Corporation.

The probate court approved the Agreement. Nancy paid the $90,000, and the Trust duly conveyed the Oro Grande property to her. Nancy also paid the $160,000, and the Corporation turned over at least some of its assets to her. (Whether it turned over all of its assets is in dispute, as will be seen below.) Nancy immediately resold both the Oro Grande property and the former assets of the Corporation to her adult son Layne.

B. The $40,000 Due to Nancys Children
(Second and Third Causes of Action).

At that point, however, the probate court threw a spanner in the works it refused to approve the distribution of the $160,000 to the grandchildren, because that would infringe the rights of any grandchildren not yet born.

The parties agreed that the distribution should go forward anyway; however, each of the children, along with the grandchildren born to him or her, would have to sign an agreement (the Indemnity), holding harmless Nancy, Joyce, the Trust, and the Corporation, as a condition of receiving those grandchildrens shares. In December 2001, at the request of the Trust, the Corporation prepared the necessary indemnity forms. It also cut a check to each grandchild for $10,000. It then made the forms and the checks available to all of the children and grandchildren. In the case of Nancy and her four children, it sent the forms and the checks to Nancys attorney.

In December 2001, John and Joyce and their children signed their forms and received their checks. Suddenly, however, Nancy and Layne raised a new issue: whether John was really the father of one of his claimed children. They refused to sign the forms unless and until John provided proof of paternity.

At first, Gary, the fourth sibling, refused to sign, because he felt that some of the release language was too broad. In February 2002, however, he withdrew his objection; he and his children signed the forms, and they, too, received their checks.

Meanwhile, also in February 2002, Joyce and Nancy were removed as trustees, and Scott was appointed as the successor trustee.^[2] In addition, Joyce and John were removed as officers of the Corporation, and Scott became the president.

In April 2002, Nancy and her four children finally signed and returned the forms. At that point, however, Joyce (like Nancy) was no longer either a trustee or a corporate officer and had no authority to distribute their $40,000. Scott, who did have the authority, refused to distribute the $40,000 without an agreement from the grandchildren indemnifying her (or an order from the probate court authorizing the distribution). Thus, Nancys children never received the $40,000.

C. Missing Corporate Assets
(First and Fourth Causes of Action).

The Agreement purported to incorporate an Exhibit A, which was supposed to list all of the Oro Grande property, and an Exhibit B, which was supposed to list all of the corporate assets.

According to the Gruenewalds, some of the corporate assets listed in Exhibit B were missing and were never delivered to them. However, in March 2001, when the bulk of the corporate assets were delivered to them, they made no such claim. The first time they claimed that there were missing assets was in September 2002, after the dispute over the $40,000 arose.

According to John, when the Agreement was signed, neither Exhibit A nor Exhibit B was attached. The only copy of the Agreement that is in evidence does not have any Exhibit A. It does have an Exhibit B; however, there is a fax stamp on every page of the Agreement, but no fax stamp on any page of Exhibit B.

John also testified that the only allegedly missing items that he did, in fact, keep actually belonged to him, not to the Corporation.

A number of the allegedly missing items were not listed on an inventory of the corporate assets that had been performed in 2000. Some of them were listed on Laynes personal income tax return, suggesting that he had, in fact, received them. A photo of Nancy taken in October 2001 showed her with one of the supposedly missing items.

As to two of the items (a 2.5 gallon propane bottle and a welder extension cord), the Gruenewalds admitted that they did not actually know who took them; other people had had access to them and could have taken them.

D. Failure to Disclose Code Violations
(Fifth Cause of Action).

In 1997, the County of San Bernardino had cited the Oro Grande property for alleged code violations. At the time, both John and Layne had contacted the county about the issue and had managed to satisfy the countys concerns. Layne admitted that he was fully aware of the citation at the time.

The fifth cause of action which was asserted solely by Nancy alleged that in 2002, the county cited the Oro Grande property again for similar code violations. On that basis, Nancy alleged that John and Joyce were liable to her for fraud because, when the Corporation sold the Oro Grande property to her, they failed to disclose the 1997 code violations.

II

PROCEDURAL BACKGROUND

A. Demurrers.

In April 2004, the Gruenewalds filed this action against Scott, John, Joyce, and the Corporation. The operative complaint asserted the following causes of action against the following defendants:

John and Joyce filed a demurrer to the complaint. Scott joined in the demurrer.

With regard to the first and second causes of action, they argued (among other things) that they were only officers and directors and/or successor shareholders of the Corporation and therefore could not be personally liable for the Corporations breach of the Agreement.

With regard to the fifth cause of action, they argued (among other things) that the complaint did not adequately allege that they had a fiduciary duty of disclosure.

The trial court sustained the demurrer without leave to amend as to the first and second causes of action, but solely as against Joyce and Scott, and not as against John.

It also sustained the demurrer without leave to amend as to the fifth cause of action, but again, solely as against Joyce, and not as against John. It explained: Theres no facts to support the fiduciary relationship.

B. Motions for Summary Judgment.

1. Scotts motion for summary judgment.

The Gruenewalds filed an amendment to the complaint. It attempted to add new allegations against Scott and Joyce to the first cause of action (and arguably also the second).

Scott then filed a motion for summary judgment.^[3]

With regard to the first and second causes of action, Scott argued that the trial court had already sustained her demurrer without leave to amend.

With regard to the third cause of action, she argued (among other things) that the Trust did not allow for any distribution to the grandchildren until all four children were deceased.

In opposition to the motion, the Gruenewalds argued that the trial court had sustained the demurrers as to Scott and Joyce in their individual capacities, but not in their capacities as trustees, so they were free to amend. They also argued that the Agreement authorized the distribution.

The trial court granted the motion. It ruled that the order sustaining the demurrer had already wholly terminated the first and second causes of action as against Scott. It further ruled that Scott had shown, beyond a triable issue of fact, that the third cause of action, as against her, had no merit. Accordingly, it entered a final judgment against the Gruenewalds and in favor of Scott. The Gruenewalds filed a timely notice of appeal (Case No. E046596).

2. Johns motion for summary judgment.

Meanwhile, John filed two motions for summary judgment one against Nancy and one against Layne.

The appellate record with respect to these motions is incomplete. We do have most of the motion against Nancy, with the conspicuous exception of Johns separate statement. Some declarations and exhibits were submitted in support of both motions, and we do have those. However, documents that were unique to the motion against Layne, such as Johns memorandum of points and authorities, have not been included in the appellate record.

In the motion against Nancy, John sought summary judgment on the first and second causes of action on several grounds, including that he was not a party to the Agreement as it relates to the sale of land and assets or as it relates to the distribution of trust funds. (Capitalization omitted.)

John sought summary judgment on the third cause of action on the ground that Nancy lacked standing to sue for conversion of the $40,000.

In opposition, Nancy argued that John was a party to the Agreement because he had signed it and because he had been the president of the Corporation at the time. Nancy also argued that she had standing to sue for conversion of the $40,000 because she was a party to the Agreement.

The trial court granted Johns motions for summary judgment as to the first, second, and third causes of action but denied them as to the fourth and fifth causes of action.^[4]

C. Jury Trial and Judgment.

There was a jury trial on the remaining causes of action against the remaining defendants. The jury, by special verdicts, found against the Gruenewalds on all causes of action. The trial court entered judgment accordingly.

The following chart summarizes the disposition of the various causes of action:

The Gruenewalds filed a timely notice of appeal (Case No. 47405). We consolidated the two appeals.

III

THE FIRST AND SECOND CAUSES OF ACTION: BREACH OF CONTRACT

The first and second causes of action for breach of contract regarding the corporate assets and the $40,000, respectively were resolved in favor of Scott and Joyce on demurrer, in favor of John by summary judgment, and in favor of the Corporation by a jury verdict.

Specifically, the jury found that Nancy did not do all, or substantially all, of the significant things that the contract required her to do[.] It also found that Layne did not enter into any contract with the Corporation.

We find it most convenient to address the Gruenewalds contentions regarding each cause of action in reverse chronological order, starting with the jury verdict.

A. Jury Verdict.

1. Jury instructions.

a. Instruction regarding excuse.

The Gruenewalds contend that the trial court misinstructed the jury regarding Nancys nonperformance as excusing defendants performance.

They point to the following jury instruction:

Defendant Osborne Tank and Supply denies that it failed to deliver certain items of personal property to the plaintiff, and claims that on December 14, 2001, that [sic] it unconditionally made the funds available to the Gruenewald children, and that Plaintiff Nancy Gruenewald and her four children refused to sign papers, which represented a receipt of the funds by her children, thus[] excusing the defendant from performing its [sic] obligations under the contract.

The Gruenewalds forfeited this asserted error, either by requesting the challenged instruction or by agreeing that it could be given. The record fails to show who requested it. Absent a showing that the Gruenewalds did not request it, we are required to presume that they did and, therefore, that any error was invited. (Lynch v. Birdwell (1955) 44 Cal.2d 839, 846-847.) Moreover, the trial court had the parties sort the requested instructions into three piles instructions that they agreed should be given, instructions that they agreed should not be given, and instructions that were disputed. The record fails to show that this instruction went into the disputed pile and not the agreed pile. For this reason, too, any error was invited.

Separately and alternatively, we also reject this contention on the merits. The Gruenewalds argue that this instruction misstated the facts, because the Corporation did not make the funds available unconditionally. The instruction, however, it did not purport to state any facts; it merely stated what the Corporation was contending.

When it came time to instruct the jury on the elements of a breach of contract claim, the trial court instructed (correctly) that Nancy had to prove, among other things, that she did all or substantially all of the significant things that the contract required her to do . . . . Moreover, even the challenged instruction at least implied that performance by the Corporation would not be excused unless it did make the funds available unconditionally. Accordingly, we perceive no error.

b. Refusal to instruct on third party beneficiary principles.

The Gruenewalds contend that the trial court erred with respect to the second cause of action by refusing to instruct the jury on third party beneficiary principles.

The record fails to show that the Gruenewalds in fact requested, or that the trial court in fact refused, a third party beneficiary instruction. The instructions that the trial court refused to give (Instructions to the Jury Refused (capitalization omitted)) have not been included in the appellate record.^[5] Moreover, the instructions that both sides agreed should not be given (Instructions to the Jury Rejected by Counsel (capitalization omitted)) likewise have not been included in the appellate record. Thus, even assuming the Gruenewalds did request this instruction, they cannot show that they did not later agree to withdraw it.

A fortiori, the record also fails to show that the Gruenewalds requested the instruction in the proper format. Rule 2.1055 of the California Rules of Court requires that each proposed instruction must [b]e prepared without any blank lines or unused bracketed portions, so that it can be read directly to the jury. (Cal. Rules of Court, rule 2.1055(c)(3).)

The reporters transcript indicates that at least some instructions were not prepared properly. According to the Gruenewalds themselves, at least one of the instructions they requested had blanks. Moreover, Johns counsel objected to another instruction with blanks that had not been filled in, stating, [I] have no idea how to respond to it. The trial court agreed: Exactly. You havent filled out the form, so Im not going to give it. For all we can tell, this may have applied equally to the third party beneficiary instruction.

The Gruenewalds argue (without citing any authority) that it was trial courts duty to instruct the jury on all points of law arising in the case . . . . Not so. 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.] (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1130-1131.)

Finally, even assuming the trial court erred, the Gruenewalds cannot show prejudice. (Cal. Const., art. VI,  13; Code Civ. Proc.,  475; Elsner v. Uveges (2004) 34 Cal.4th 915, 939.) The jury found that Nancy breached the contract. Thus, there is no reasonable possibility that Layne would have recovered as a third party beneficiary.

2. Special verdict forms.

The Gruenewalds contend that the special verdict form for Laynes breach of contract claims was erroneous, because it allowed the jury to reject these claims on the sole ground that Layne was not a party to the contract. They argue that he could have recovered as a third party beneficiary. They also argue that he had a breach of contract claim because Nancy had reconveyed the corporate assets to him.

The relevant special verdict form provided:

1. Did Plaintiff Layne Gruenewald and Defendant Osborne Tank and Supply, Inc., enter into a contract?

_____ Yes _____ No

If your answer to question 1 is yes, then answer question 2. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form. The jury answered no and accordingly stopped there.

The Gruenewalds forfeited the asserted error by failing to object to the special verdict form at trial. (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 131.) It does appear that this form was prepared by counsel for defendants. However, counsel for the Gruenewalds was asked if he objected to it; he said he did not.  . . . It would seem . . . intolerable to permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not. (Caminetti v. Pacific Mut. Life Ins. Co. of Cal. (1943) 22 Cal.2d 386, 392.)

The Gruenewalds cite Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal.2d 452, which stated: Frequently, failure to object to the form of a verdict before the jury is discharged has been held to be a waiver of any defect. [Citations.] However, waiver is not automatic, and there are many exceptions. [Citations.] [] Waiver is not found where the record indicates that the failure to object was not the result of a desire to reap a technical advantage or engage in a litigious strategy. [Citations.] . . . [W]aiver is not an issue where a defect is latent and there is no hint of litigious strategy. (Id. at p. 456, fn. 2.)

The asserted defect here, however, was not latent. The Gruenewalds are not claiming that the special verdict form was ambiguous; they are claiming that it was legally erroneous. Both the California Supreme Court and the lower appellate courts have frequently held such errors forfeited by failure to object, without even pausing to consider whether the failure was tactical. (E.g., Lynch v. Birdwell, supra, 44 Cal.2d at p. 851; Jensen v. BMW of North America, Inc., supra, 35 Cal.App.4th at p. 131; Ateeq v. Najor (1993) 15 Cal.App.4th 1351, 1359.)

3. The sufficiency of the evidence.

The Gruenewalds contend that there was insufficient evidence to support the jurys finding that Nancy breached the relevant contract.

They forfeited this contention by failing to discuss all of the relevant evidence. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) They discuss only the evidence that favors their position. Indeed, their brief is wholly lacking in any statement of the facts as shown at trial. (See Cal. Rules of Court, rule 8.204(a)(2)(C) [appellants opening brief must provide a summary of the significant facts].) Whenever the brief does purport to state facts, they are almost always cited either to the Gruenewalds own complaint or to their motion for new trial, not to the trial record.^[6]

We also reject this contention on the merits. The evidence at trial showed that, in or before December 2001, [a]ll of the parties inferably including Nancy agreed to the revised distribution plan. This required each child and grandchild to sign the Indemnity as a condition of receiving that grandchilds $10,000.^[7] The Corporation performed fully, by tendering the indemnity forms along with the checks. Thus, Nancy was required to perform by signing the Indemnity within a reasonable time. (Civ. Code,  1657.) The jury could properly find that April 2002 was not a reasonable time.

Nancy may be arguing that the tender was not unconditional, because it required her and Layne to sign the Indemnity. This condition, however, was already imposed by the parties agreement; it was not imposed unilaterally after the fact. (See Civ. Code,  1494, 1498; see also Walsh v. Walsh (1940) 42 Cal.App.2d 287, 293.) Indeed, it was Nancy who imposed an improper condition by insisting that John provide proof of paternity. Accordingly, there was sufficient evidence that Nancy did breach the revised distribution agreement.

B. Summary Judgment.

1. The form of the trial courts order.

Preliminarily, the Gruenewalds contend that the trial courts order granting the motions for summary judgment did not conform to the requirements of Code of Civil Procedure section 437c, subdivision (g), which provides: Upon the grant of a motion for summary judgment, . . . the court shall, by written or oral order, specify the reasons for its determination. The order shall specifically refer to the evidence . . . which indicates that no triable issue exists.

Assuming, without deciding, that the order was defective, the error was harmless. We review an order granting summary judgment independently. It is the validity of the ruling which is reviewable and not the reasons therefor. [Citation.] (Unisys Corp. v. California Life & Health Ins. Guarantee Assn. (1998) 63 Cal.App.4th 634, 640.) Accordingly, a trial courts failure to comply with Code of Civil Procedure section 437c, subdivision (g) is virtually never so prejudicial as to require reversal. (Ace American Ins. Co. v. Walker (2004) 121 Cal.App.4th 1017, 1027; Angell v. Superior Court (1999) 73 Cal.App.4th 691, 703 [Fourth Dist., Div. Two].) It was not prejudicial here.

2. Johns personal liability.

The Gruenewalds contend that the trial court erred by granting summary judgment for John on the first and second causes of action on the theory that John was not a party to the contract.

They forfeited this contention by failing to supply us with an adequate record. The appellants appendix does not include the motion as against Layne. Even as against Nancy, it does not include Johns separate statement or his request for judicial notice. It includes some but not all of Johns exhibits. It also does not include Nancys response to the separate statement.

Error must be affirmatively shown. [Citation.] The party appealing has the burden of overcoming the presumption of correctness. For this purpose, it must provide an adequate appellate record demonstrating the alleged error. Failure to provide an adequate record on an issue requires that the issue be resolved against the appellant. [Citation.] (Defend BayviewHuntersPointCom. v. City and County of San Francisco (2008) 167 Cal.App.4th 846, 859-860.)

We are aware of California Rules of Court, rule 8.163, which provides, The reviewing court will presume that the record in an appeal includes all matters material to deciding the issues raised. Here, however, the record manifestly does not include all of the material matters. Accordingly, this presumption has been overcome.

Alternatively, on this record, the Gruenewalds have not shown error. The issue is not whether John was a party to the Agreement; it is whether he was the party who was obligated to deliver either the assets of the Corporation or the $40,000. Under the terms of the Agreement as pleaded in and attached to the complaint he was not. It was the Corporation, and only the Corporation, that was obligated to deliver the assets. It was the Seller that was obligated to distribute the $40,000; admittedly, this was somewhat ambiguous, as the Agreement referred to both the Corporation and the Trust as the Seller, but clearly it did not refer to John. The mere fact that John consented to the overall Agreement does not make him liable for the breach of another partys promise.

The Gruenewalds argue that John was liable as the president of the Corporation. However, it is hornbook law that a corporate officer is not personally liable for the corporations breach of contract based solely on his or her official position. (E.g., Reynolds v. Bement (2005) 36 Cal.4th 1075, 1087.) The Gruenewalds cite cases dealing with a corporate officers liability for his or her participation in the corporations torts. They are inapplicable to the first and second causes of action, which sounded exclusively in contract. The complaint serves to delimit the scope of the issues before the court on a motion for summary judgment [citation], and a party cannot successfully resist summary judgment on a theory not pleaded. [Citation.] (Bosetti v. United States Life Ins. Co. in City of New York (2009) 175 Cal.App.4th 1208, 1225.)

The Gruenewalds therefore argue that they also alleged a tortious breach of the implied covenant of good faith and fair dealing and that John could be found personally liable for this tort. The trial court, however, had previously granted a motion to strike these allegations. The Gruenewalds do not argue that this was error, and it was not. Because the covenant of good faith and fair dealing essentially is a contract term that aims to effectuate the contractual intentions of the parties, compensation for its breach has almost always been limited to contract rather than tort remedies. [Citation.] The California Supreme Court recognizes only one exception to that general rule: tort remedies are available for a breach of the covenant in cases involving insurance policies. [Citation.] . . . [] Thus, with the exception of bad faith insurance cases, a breach of the covenant of good faith and fair dealing permits a recovery solely in contract. [Citation.] (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1054.)

Finally, the Gruenewalds argue that, even if John was not the promisor under the original Agreement, he became a promisor under a December 2001 written agreement that modified the original Agreement. There are so many things wrong with this argument, it is hard to know where to begin.

First, the Gruenewalds never raised this argument below in opposition to Johns motion for summary judgment. Hence, they forfeited it.

Second, there was no evidence of any such written agreement. Indeed, the Gruenewalds do not cite any of the evidence submitted on Johns motion for summary judgment; instead, they cite their own motion for new trial. That motion, in turn, identified the December 2001 written agreement as trial exhibit Nos. 120 and 121. No such exhibits, however, were introduced (or even marked) at trial, much less in connection with Johns motion for summary judgment.^[8]

Third and finally, even if we were to accept the Gruenewalds characterization of the supposed written agreement, it fails to support their position. They quote it as stating that [t]he Co-Trustees will cause [the Corporation] . . . to distribute $10,000.00 to each of the presently surviving sixteen grandchildren . . . forthwith. The Co-Trustees, in December 2001, were Nancy and Joyce. Nothing in this language obligates John.

3. Nancys standing to bring the second cause of action.

Nancy contends that the trial court erred by granting summary judgment in favor of John on the second cause of action on the ground that she lacked standing.

The error, if any, was harmless. As we have already held, the trial court properly granted summary judgment in favor of John on this cause of action on other grounds. (See part III.B.2, ante.) Nancy was allowed to go to trial on this cause of action, as against the Corporation; the jury simply found against her. Accordingly, Nancy cannot show prejudice.

C. Demurrer.

The Gruenewalds contend that the trial court erred by sustaining Scotts demurrer to the first and second causes of action on the ground that she was merely an officer of the Corporation and therefore could not be personally liable for its breaches of contract.^[9]

As to Nancy, the error was harmless. The jury found that Nancy could not recover against the Corporation for breach of contract because she herself had failed to perform. Thus, even if Nancy had been allowed to go to the jury against Scott on the first cause of action, she would not have recovered. Accordingly, she cannot show prejudice.

The error was also harmless as to Layne. After a full trial, the jury found that Layne could not recover against the Corporation for breach of contract because he was not a party to the relevant contract. This reasoning applies equally to Scott.

IV

THE THIRD CAUSE OF ACTION: FOR CONVERSION OF THE $40,000

The third cause of action, for conversion of the $40,000, was resolved in favor of Scott and John by summary judgment and in favor of Joyce and the Corporation by a jury verdict.

Specifically, the jury found that Joyce and the Corporation did not intentionally prevent . . . Layne . . . from having access to the $10,000 payment being held by [the Corporation] for a significant period of time[.]

More generally, with respect to both the third (conversion of the $40,000) and fourth (conversion of corporate assets) causes of action, the jury also found that Joyce did not actually interfere with plaintiffs ownership or right to possession of plaintiffs property[.]

A. Jury Verdict.

1. Instructional error.

The Gruenewalds contend that the trial court misinstructed the jury regarding conversion. (This argument also applies to the fourth cause of action.)

a. Additional factual and procedural background.

Once again (see part III.A.1.b, ante), the Gruenewalds cannot show that they requested a conversion instruction.

The trial court directed the parties to discuss all of the instructions and to identify the ones on which they disagreed. In the course of doing so, all of the parties stipulated to use a conversion instruction, based on CACI No. 2100, that Johns counsel had drafted. This instruction, as ultimately given to the jury, provided:^[10]

Conversion, [Nancy/Layne]. Plaintiff [Nancy/Layne] claims that [Joyce/John/the Corporation] wrongfully exercised control over [his/her] personal property. To establish this claim Plaintiff [Nancy/Layne] must prove all of the following:

One: That Plaintiff [Nancy/Layne] had a right to possess items of personal property which formerly were owned by Defendant Osborne Tank and Supply Inc.;

Two: That [Joyce/John/the Corporation] intentionally took possession of the items of personal property for a significant period of time;

Three: That Plaintiff [Nancy/Layne] did not consent;

Four: That Plaintiff [Nancy/Layne] was harmed; and

Five: That [Joyce/John/the Corporation]s conduct was a substantial factor in causing Plaintiff [Nancy/Layne]s harm.

b. Analysis.

The Gruenewalds argue that the instruction given was erroneous in two respects: (1) conversion does not require that the defendant intentionally take possession, only that the defendant intentionally interfere with the plaintiffs possession; and (2) the instruction referred to items of personal property which formerly were owned by the Corporation, even though the $40,000 had never been owned by the Corporation.

We need not address this contention. The Gruenewalds stipulated that the instruction could be given. Accordingly, even assuming it was erroneous, any error was invited. (San Francisco Brewing Corp. v. Bowman (1959) 52 Cal.2d 607, 614-615; Mayes v. Bryan (2006) 139 Cal.App.4th 1075, 1090-1091; 7 Witkin, Cal. Procedure (5th ed. 2008) Trial,  316, p. 369.)

B. Summary Judgment.

1. In favor of Scott.

The Gruenewalds contend that the trial court erred by granting summary judgment in favor of Scott on the third cause of action.

We may assume, without deciding, that the trial court erred. The Gruenewalds, however, cannot show prejudice. The jury found, in connection with the second cause of action, that the Gruenewalds had no contractual right to the $40,000. It necessarily follows that Scott did not convert this money.

2. Against Nancy.

The Gruenewalds contend that the trial court erred by ruling, on Johns motion for summary judgment, that Nancy lacked standing to bring the third cause of action.

Ultimately, on the third cause of action, the jury found against Layne. There is no reason to suppose that, even if Nancy had been allowed to proceed as Laynes coplaintiff on the third cause of action, she would have enjoyed a more favorable outcome. Accordingly, the error, if any, was harmless.

V

THE FOURTH CAUSE OF ACTION:

FOR CONVERSION OF CORPORATE ASSETS

The fourth cause of action, for conversion of corporate assets, was asserted solely against Joyce and John. It was resolved in their favor by jury verdicts.

The Gruenewalds contend that the trial court misinstructed the jury regarding conversion. We already rejected this argument in part III.A.1.a, ante.

The Gruenewalds also contend that the special verdict forms regarding this cause of action were defective.

A. Additional Factual and Procedural Background.

The jury was given no fewer than six special verdict forms dealing with this one cause of action, as follows:

1. VF 2100‑1 Conversion[:] Plaintiff Nancy Gruenewald against Osborne Tank and Supply, Inc., in which the jury found that Nancy had a right to possess certain items of personal property formerly owned by [the Corporation], but the Corporation did not intentionally prevent Nancy . . . from having access to the items of personal property for a significant period of time[.] (Italics added.)

2. VF 2100‑2 Conversion[:] Plaintiff Layne Gruenewald against Osborne Tank and Supply, Inc., in which the jury found that Layne had no right to possess certain items of personal property formerly owned by [the Corporation.]

3. VF 2100‑3 Conversion[:] Plaintiff Nancy Gruenewald against Joyce Hartman, in which the jury found that Nancy had a right to possess certain items of personal property formerly owned by [the Corporation], but Joyce did not intentionally prevent Nancy . . . from having access to the items of personal property for a significant period of time[.] (Italics added.)

4. VF 2100‑4 Conversion[:] Plaintiff Layne Gruenewald against Joyce Hartman, in which the jury found that Layne had no right to possess certain items of personal property formerly owned by [the Corporation.]

5. Special Verdict as to Defendant Joyce Hartman, in which the jury found that Joyce did not actually interfere with plaintiffs ownership or right to possession of plaintiffs property[.] (Capitalization omitted.)

6. Special Verdict as to Defendant John Osborne, in which the jury found that John did not actually interfere with plaintiffs ownership or right to possession of plaintiffs property[.] (Capitalization omitted.)

It appears that the first four special verdict forms were prepared by counsel for defendants. Counsel for the Gruenewalds was asked if he objected to them; he said he did not. The Gruenewalds now claim [i]t was intended that this same form was to be used, not only with regard to Joyce and the Corporation, but also with regard to John.

The last two special verdict forms were prepared by counsel for the Gruenewalds.

B. Analysis.

It does seem that something went wrong with the verdict forms. There were forms for Nancy v. the Corporation and Layne v. the Corporation, even though the Corporation had never even been named as a defendant in the fourth cause of action. Moreover, there was only one form for Nancy and Layne v. John, yet there were three forms for Nancy and Layne v. Joyce. In the end, however, these forms allowed for verdicts as to all of the relevant plaintiffs against all of the relevant defendants.

The Gruenewalds forfeited any error in these special verdict forms by failing to object at trial. Once again (see part III.A.2, ante), the asserted defect was not some latent ambiguity. Rather, the Gruenewalds are claiming that the first four forms used legally erroneous language, and the second pair were not supposed to be used at all. These errors should have been apparent, at the latest, by the time the jury was polled.

Alternatively, it appears that the Gruenewalds themselves invited any error. Certainly this is true with respect to the last two forms, which the Gruenewalds own counsel drafted and submitted. They now claim that this pair of forms had been removed from consideration, and had been returned to counsel by the court clerk before there was any discussion on jury instructions or verdict forms. However, they do not cite any portion of the record to support this claim; hence, they have forfeited it. (Cal. Rules of Court, rule 8.204(a)(1)(C) [brief must [s]upport any reference to a matter in the record by a citation]; Mueller v. County of Los Angeles (2009) 176 Cal.App.4th 809, 816, fn. 5.)

This is also true with respect to the first four forms. The Gruenewalds now contend that these forms were erroneous because they used the word intentionally.^[11] However, by asserting that [i]t was intended that the first four forms were to be used, and by claiming that they withdrew the second pair from consideration, they essentially admit that they agreed to the use of these forms.

Moreover, even assuming the first four forms were used by mistake, the Gruenewalds do not identify any prejudicial error that resulted from using them. Although the first four forms used the word intentionally, the second pair did not; rather, they asked whether defendants actually interfere[d] with the Gruenewalds ownership or right to possession. The jury found that defendants did not. This finding is dispositive.

Finally, the Gruenewalds argue albeit only briefly that the special verdict in favor of John is not supported by the evidence.^[12] They forfeited this argument by failing to state it under a separate heading or subheading, as required. (Cal. Rules of Court, rule 8.204(a)(1)(B); In re Marriage of Carlsson (2008) 163 Cal.App.4th 281, 294.) They additionally forfeited it by failing to discuss all of the relevant evidence and by discussing instead only the evidence that favors their position. (See part III.A.3, ante.)

This is not to imply that, if not forfeited, it would have merit. Basically, the Gruenewalds argue that the items being conveyed were listed in Exhibit B to the Agreement, and therefore the parol evidence rule precluded John from testifying that he actually owned some of those items. There was ample evidence, however, that Exhibit B was never actually attached to the Agreement.

To get around this obstacle, they claim that the jury found that both Layne Gruenewald and Nancy Gruenewald had the right to have possession of the listed property. They conclude that this finding entitled them to judgment in their favor. This misstates the record. Actually, the jury found that Layne had no right to possession. Moreover, it found that Nancy had a right to possess certain items of personal property formerly owned by [the Corporation]. It did not find that she had a right to possess the listed property. It was undisputed that Nancy had the right to possess some corporate assets (and ultimately did). Evidently the jury accepted Johns testimony that at least some of the items listed on Exhibit B actually belonged to him.

VI

THE FIFTH CAUSE OF ACTION: FOR FRAUD

The fifth cause of action, for fraud, was asserted solely by Nancy and solely against Joyce and John.

It was resolved in favor of Joyce on demurrer and in favor of John by a jury verdict.

Specifically, the jury found that there were no facts that materially affected the value or desirability of the Oro Grande Property[.]

A. Jury Verdict.

1. In limine ruling.

The Gruenewalds contend that the trial court erred by granting a motion in limine to preclude evidence of code violations in 2002.

a. Additional factual and procedural background.

John filed a motion in limine to exclude evidence of code violations in 2002 as irrelevant, because they occurred after June 2001, when Nancy conveyed the land to Layne. The trial court granted the motion.

b. Analysis.

The trial court correctly ruled that Nancy was not damaged by the 2002 code violations because she no longer owned the land. Nancy argues that her transfer of the land did not necessarily also transfer any existing cause of action. The flaw in this reasoning is that any cause of action to recover damages for the 2002 code violations did not exist yet; to put it another way, even if it existed, it did not give Nancy a right to recover damages that Layne incurred after she sold the land.

Nancy also claims that Johns counsel misstated relevant facts to the trial court. However, she cites no evidence to support that claim. Her own counsel could have contradicted Johns counsel, but he did not.

2. Exclusion of evidence that defendants failed to produce documents.

The Gruenewalds contend that the trial court erred by excluding evidence regarding defendants failure to produce documents relevant to code violations.

a. Additional factual and procedural background.

When the Gruenewalds called John to testify, their counsel asked him:

Q We had sent you a notice requesting that you bring bank records to the court. Did you bring those records to court today?

A My counsel handled that part of the request on my behalf.

Q And are you aware of how he handled it?

[COUNSEL FOR JOHN]: That would be an attorney-client communication.

THE COURT: Sustained. Also, I fail to see the relevance of this. Sounds like discovery material.

[COUNSEL FOR THE GRUENEWALDS]: Well, we were asking for the

THE COURT: Counsel, you may ask for lots of things, but a trial is not a discovery proceeding. Thats to be handled before trial, as you well know.

[COUNSEL FOR THE GRUENEWALDS]: Yes. But we had asked that they produce them for

THE COURT: Counsel.

[COUNSEL FOR THE GRUENEWALDS]: Yes, sir. Okay.

b. Analysis.

The trial courts ruling was correct. The Gruenewalds remedy was to ask the trial court for evidentiary sanctions, issue sanctions, or even terminating sanctions. (1 Cal. Trial Practice: Civil Procedure During Trial (Cont.Ed.Bar 3d ed