Slaughter v. Kohl

Filed 11/19/09 Slaughter v. Kohl CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County, Mary Ann Murphy, Judge. Affirmed.

Howarth & Smith, Don Howarth, Suzelle M. Smith and Darcy R. Harris for Plaintiffs and Appellants.

Munger, Tolles & Olson, Garth T. Vincent and David S. Han for Defendants and Respondents.

____________________

INTRODUCTION

Plaintiffs Stephen Slaughter and S&J Shoes, Inc. appeal from a judgment against them and in favor of defendants Jerry Kohl, Corazon Retail Corp. and Brighton Collectibles, Inc. We affirm.

FACTS AND PROCEDURAL BACKGROUND[1]

Defendant Jerry Kohl (Kohl) owned Leegin Creative Leather Products, Inc. (Leegin) which manufactured and sold items under its Brighton trademark. Plaintiff Stephen Slaughter (Slaughter) approached Kohl with a concept for developing retail stores under the name Brighton Collectibles. Effective July 1, 1999, Kohl and defendant Corazon Retail Corp. (Corazon) entered into a Store Management Agreement with Slaughter and a corporation he owned and controlled, plaintiff S&J Shoes, Inc. (S&J) to develop the retail stores (1999 Agreement). Kohl had formed Corazon for this purpose, and it was owned and controlled by Kohl and his wife.

The 1999 Agreement provided that Kohl would loan to Corazon approximately $900,000 with interest. Slaughter and S&J would provide the services needed for management of Corazon and its development of retail stores. Slaughter and S&J would receive a monthly base fee computed on a formula tied to the number of retail stores. Slaughter would receive salary and benefits initially not to exceed $225,000 per year, which would increase not to exceed $247,500 per year once seven retail stores had been opened for business. Slaughter and S&J would receive an annual performance bonus equal to a percentage[2] of Corazons net profits before taxes . . . . For such purpose, net profits before taxes shall be determined in accordance with generally accepted accounting principles and shall be calculated by Corazons accountants, whose determination shall be final and binding on the parties. The term of the agreement was originally three years, but later was amended to six years.

The term of the 1999 Agreement expired on June 30, 2005. Slaughter continued managing Corazon and its retail stores. In October 2005, Kohl informed Slaughter that Slaughters services to Corazon would be terminated under Kohls plan for corporate reorganization, and Kohl wished to enter into a new agreement for Slaughters services through the transition period. Ultimately, Kohls corporations, Leegin and Brighton Retail, Inc., merged to form a new corporation, defendant Brighton Collectibles, Inc. (BCI), and the transfer of Corazons stock to BCI was set for November 30, 2005.

Prior to the stock transfer, on November 15, 2005, Kohl entered into the 2005 Agreement with Slaughter and S&J, with the effective date to be retroactive to July 1, 2005. The terms of the agreement were essentially the same as the 1999 Agreement, with BCI taking the place held by Leegin in the 1999 Agreement. The term of the 2005 Agreement was to extend only from July 1, 2005 to March 31, 2006. The 2005 Agreement provided that Slaughter and S&J were independent contractors and not partners of Corazon. It also expressly provided that it superseded all prior written or oral agreements with respect to the subject matter.[3]

After receiving notice of the termination, Slaughter and his wife had several communications with Kohl about the partnership rights they believed they had and their belief that they were entitled to $7.5 to $8 million as their portion of the value of Corazons retail stores at the time of transfer. Kohl maintained they had no rights in the value and refused to pay them for any such value.

According to Slaughter, when he received the final draft of the 1999 Agreement on June 21, 1999, he noted that it did not include any of the provisions he had proposed in order to give him an ownership interest in Corazon and its retail stores. According to Slaughter and his wife, they promptly travelled to California and met Kohl at the Far Niente restaurant to clarify the ownership issue prior to executing the agreement. They maintain that Kohl told them they were partners with him and the way the June 21, 1999 draft had been written was way better than ownership for Slaughter. According to Kohl, no such Far Niente meeting ever occurred.

Slaughter and S&J filed suit against Kohl, Corazon, and BCI on November 3, 2006. The causes of action were primarily based on breach of the 2005 Agreement and breach of the alleged oral agreements for a joint venture and partnership with Kohl in regard to the Corazon retail stores.[4] At trial, Slaughter admitted that neither the 1999 nor the 2005 Agreement provided that he had any ownership interest in Corazon and its retail stores or that he had a partnership or joint venture with Kohl. He also admitted he had no oral agreements with Corazon. After a jury trial, the court entered judgment on the jurys verdict that defendants were entitled to judgment against plaintiffs as to all causes of action.[5]

DISCUSSION

Plaintiffs contentions of reversible error relate to the existence of a business value component in the term net profits in the 1999 and 2005 Agreements and of an oral joint venture or partnership agreement between Slaughter and Kohl. We find no merit in them.

1. Exclusion of Evidence of Prior Consistent Statements

Slaughter proffered the testimony of two of his S&J business associates, Laura Cross Oakley (Oakley) and Rick Baggett (Baggett), as evidence of the Far Niente meeting at which he and Kohl reached an oral agreement that net profits as used in the 1999 Agreement included a value component as well as an income component and that Kohl and Slaughter were partners. He contends that the trial court erred in excluding the testimony as hearsay not qualifying for admission as evidence of prior consistent statements (Evid. Code,[6]  1236, 791) and as more prejudicial than probative ( 352).

We review a trial courts ruling on the admissibility of evidence for abuse of discretion. (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 332.) Abuse of discretion occurs only where there is a clear showing that the ruling exceeded the bounds of reason, given the circumstances. (Ibid.) Even if we determine the evidentiary ruling was in error, we will not reverse the judgment on the basis of such an evidentiary ruling unless the error resulted in a miscarriage of justice. (Cal. Const., art. VI,  13; Saxena, supra, at p. 332.) That is, the party challenging the ruling must demonstrate that it is reasonably probable a more favorable result would have been reached absent the error. (Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1431-1432.)

To qualify as a prior consistent statement under sections 1236 and 791,[7] the existence of a fabrication must be raised by another party and the statement must have been made before the motive for fabrication arose. ( 791, subd. (b); see People v. Noguera (1992) 4 Cal.4th 599, 628-630; People v. Hayes (1990) 52 Cal.3d 577, 609.) We agree with the trial court that Slaughters motive to fabricate arose when he received the final draft of the 1999 Agreement and realized it did not contain provision for him to have an ownership interest. Slaughter claims that he made the trip to California promptly after receiving the draft and had a dinner meeting with Kohl to address the omission. Accordingly, the statements he allegedly made to Oakley or Baggett necessarily occurred after, not prior to, his motive to fabricate arose. Thus, we agree that the trial properly excluded them on the basis that they did not qualify as prior consistent statements under sections 1236 and 791.

Plaintiffs cite People v. Hayes, supra, 52 Cal.3d 577 in support of their claim that evidence of Slaughters consistent statements made prior to the time he learned of the termination in October 2005, when plaintiffs contend the relevant dispute arose, were admissible. In Hayes, the defendant raised the issue of whether, when a witnesss testimony may have been influenced by multiple . . . motives to fabricate, a prior consistent statement is admissible if made before the existence of any one or more of the alleged . . . motives to fabricate or only if made before the existence of all such . . . motives. (Id. at p. 609.) When the witness was impeached by evidence that criminal charges were pending against him at the time he testified, the trial court ruled that, under section 791, the witnesss consistent statement made prior to the filing of the charges was admissible to rebut the impeachment. (Ibid.) The defendant contended the trial court erred, in that, when the witness gave the prior statement, he had other motives to fabricate arising from the facts that he was on probation and also a suspect in the same motel robbery and murder for which the defendant was being tried. (Ibid.) The Hayes court disagreed, citing its decision in another case that a prior consistent statement is admissible if it was made before the existence of any one or more of the . . . motives that, according to the opposing partys express or implied charge, may have influenced the witnesss testimony. (Ibid., italics added.)

In the instant case, the motive for Slaughter to fabricate was that his written agreement with Kohl did not give him any partnership or other ownership interest in Corazon or its retail stores. Slaughter first knew that fact when he read the draft on June 21, 1999, which he signed a few days thereafter, without any change in terms. That fact had not changed by the time Slaughter was notified of the termination in October 2005. Unlike the Hayes witness, Slaughter had only one motive to fabricate, and it was the same in October 2005 as it was in June 1999. Thus, Slaughters statements made after his motive existed did not qualify as admissible prior consistent statements even under the holding in Hayes. (People v. Hayes, supra, 52 Cal.3d at p. 609.)

In any event, any error was harmless and not cause for reversal. (Tudor Ranches, Inc. v. State Comp. Ins. Fund, supra, 65 Cal.App.4th at pp. 1431-1432.) We cannot, on the record before us, conclude the courts exclusion of the testimony of Oakley or Baggett constituted a miscarriage of justice, in that, absent the exclusion, the result would have been more favorable to plaintiffs. (Saxena v. Goffney, supra, 159 Cal.App.4th at p. 332.)

The record is replete with evidence that Slaughter did not have any ownership interest in Corazon (and, therefore, the retail stores) and that net profits did not include a value component to entitle Slaughter to 50 percent of the value of the stores upon termination of the 2005 Agreement. According to Slaughter, the value component and 50-50 partnership were part of the oral agreement reached with Kohl at the Far Niente meeting. Kohl testified that no such Far Niente meeting occurred.

Slaughter and his wife testified before the jury extensively about the Far Niente meeting and the oral agreements they allegedly reached with Kohl. There was no independent evidence, however, which corroborated their testimony.[8] Neither the credit card records for Slaughter nor those for Kohl showed California restaurant charges or, for Slaughter, any California travel-related charges such as airfare, lodging or dining. Slaughter did not provide any documentary evidence of the travel or meeting or any witness who could testify from personal knowledge about the travel or meeting.[9] Slaughter testified that he did not tell any of the attorneys, accountants or auditors related to the 1999 Agreement negotiations or implementation about the Far Niente meeting.

Other evidence before the jury regarding negotiations and drafting for the 1999 Agreement shows that Kohl ultimately rejected every proposal by Slaughter for inclusion of provisions to allow Slaughter to obtain an ownership interest in Corazon or otherwise share in the value of Corazons retail stores. Slaughter was aware of the absence of such provisions in the agreement but signed it anyway on or about July 1, 1999. Slaughter confirmed his awareness in his 2002 email message addressed to Kohl, in which Slaughter requested that something be added to the 1999 Agreement giving Slaughter an interest in Corazon or payment for a portion of its value upon termination of the agreement.

Slaughter testified that the 1999 Agreement said that there was no partnership between him and Corazon, and he did not have an oral partnership or any other oral agreements with Corazon. He testified further that at the time he received the June 21, 1999 draft of the 1999 Agreement, he felt that he had a partnership with Kohl and Kohl confirmed it orally at the Far Niente meeting. Slaughter testified that the only evidence of any partnership between Slaughter and Kohl was the testimony of Slaughter and his wife about the Far Niente meeting. Later, on cross-examination, Slaughter testified that he understood that the only claim in the instant case relating to any oral agreements relates to Corazon.

The 2005 Agreement includes the following recital of facts: Since its formation as a California corporation in 1999, 100 percent of the stock of Corazon has been owned by Jerry Kohl . . . and his wife . . . . Slaughter effectively admitted the truthfulness of the recital by signing the agreement. Further, the 2005 Agreement stated that it superseded all prior agreements, written or oral, between the parties with respect to the subject matter of the agreement.

The language of the 1999 and 2005 Agreements does not support Slaughters position as to value being a component of net profits. In its provisions for compensation to Slaughter and S&J, each agreement includes a formula for calculating a performance bonus as a percentage of Corazons net profits before taxes, which were to be determined in accordance with generally accepted accounting principles by Corazons accountants, whose determination shall be final and binding on the parties. Slaughter claims, nevertheless, that net profits is not defined in the agreements and cites the absence of the definition as the basis for introducing extrinsic evidence of the meaning. The record shows that, during the negotiation of the 1999 Agreement, Slaughters attorney proposed that net profits be defined as earnings before interest, taxes, depreciation and amortization, but Kohls lawyer countered that net profits were to be measured before taxes, but not before interest, depreciation and amortization. Both the 1999 and 2005 Agreements use the measure articulated by Kohls lawyer, and Slaughter signed both agreements. Nothing in the agreements or documents regarding negotiation of them indicates that net profits was to include a value component.

Slaughter claimed a financial report showed that, in 2000, Kohl had paid him a value component, in addition to an income component, for the first store Corazon sold, the Mission Viejo store. The testimony of defendants accounting expert, however, cast doubt on Slaughters claim.

Clearly, substantial evidence supports the jurys verdict. There is nothing to suggest that if Oakley or Baggett had been allowed to testify as to what Slaughter said to them about the California trip or Far Niente meeting, it is reasonably probable a result more favorable to plaintiffs would have been reached. (Tudor Ranches, Inc. v. State Comp. Ins. Fund, supra, 65 Cal.App.4th at pp. 1431-1432.) Hence, error, if any, by the trial court in excluding the testimony is harmless and does not constitute a basis for reversal of the judgment. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.) Having reached this conclusion, we decline to address plaintiffs other contentions related to the exclusion of the testimony.

2. Jury Instruction on Joint Venture Losses

The trial court instructed the jury that [a] joint venture requires the sharing of losses and joint control of the venture. [] No joint venture exists where one party assumes all of the risk of loss.[10] Plaintiffs contend that the trial court erred in refusing to give Slaughters proposed jury instruction that [t]he fact that one partys losses would be in the form of loss of his labor . . . does not defeat a finding of joint venture. In closing argument, however, plaintiffs explained their position on the risk of loss to plaintiffs, including Slaughters risk of loss of the value of his labor over and above the amount of his salary. On the special verdict form, in Question 7 regarding breach of oral joint venture, the jury indicated its finding that Slaughter and Kohl did not share losses with respect to Corazon.

A trial court has discretion to refuse an instruction offered by a party when the trial courts instructions otherwise adequately cover the subject. (Moreno v. Fey Manufacturing Corp. (1983) 149 Cal.App.3d 23, 28.) The court is not required to instruct in the specific words requested by a party so long as the jury is adequately instructed on the applicable law. [Citations.]Nor is it error to refuse an instruction excerpting specific language from an opinion if the principle expressed by the excerpted language is encompassed by the more general instruction already given. [Citation.] (Traxler v. Varady (1993) 12 Cal.App.4th 1321, 1332-1333.) [I]nstructions on points which have been sufficiently covered by other instructions may be properly refused by the trial court, although they are correctly drawn and applicable to the evidence. (Moreno, supra, at p. 28.)

In April Enterprises, Inc. v. KTTV, supra, 147 Cal.App.3d 805, the court set forth the requirements to determine whether a joint venture exists. A joint venture . . . is an undertaking by two or more persons jointly to carry out a single business enterprise for profit. . . . The elements necessary for its creation are: (1) joint interest in a common business; (2) with an understanding to share profits and losses; and (3) a right to joint control. . . . (Id. at p. 819, citations omitted.) These elements were identified in instruction 58 as well as instruction 60 given by the trial court.

Plaintiffs proposed instruction was based upon a statement in April Enterprises that where a joint venture involves the contribution of capital by one party and services by the other, . . . [i]n the event of loss, the party contributing capital loses his capital and the one contributing labor loses the value of his efforts. (April Enterprises, Inc. v. KTTV, supra, 147 Cal.App.3d at p. 819.) The court therefore held that even if one partys loss was in the form of lost labor, a joint venture could still be recognized as in existence. (Id. at p. 820.)

The trial court also refused an instruction defendants proposed based upon the principle that if a party is guaranteed substantial compensation, such as a salary and a share of the profits, in return for his labor, such labor does not satisfy the shared loss element of a joint venture. (Brockman v. Lane (1951) 103 Cal.App.2d 802, 805 [no partnership where the owner of the land ran all the risk of loss, whereas the man who farmed it on behalf of the owner was paid a monthly salary and a share of profits, if any]; Wiltsee v. California Emp. Com., supra, 69 Cal.App.2d at pp. 127-128 [no joint venture where man dredging gold on Wiltsees behalf was paid a monthly salary and, in the nature of a bonus, a percentage of net profits].) Whether Slaughter and Kohl equally shared the risk of loss with respect to Corazon and its retail stores was a factual issue to be determined by the jury. It was, therefore, appropriate for the attorneys for plaintiffs as well as defendants lawyers to argue the issue before the jury, as occurred in this case. (Moreno v. Fey Manufacturing Corp., supra, 149 Cal.App.3d at p. 29.)

In any event, any error by the court in refusing Slaughters proposed instruction was harmless. (Moreno v. Fey Manufacturing Corp., supra, 149 Cal.App.3d at p. 27 [instructional error requires reversal if it is reasonably probable that a more favorable decision would have resulted in the absence of the error].) Because the jury answered No to special verdict form Question 7 as to whether Slaughter and Kohl shared losses, the jury did not proceed to answer questions as to whether Slaughter and Kohl shared control over Corazon (Question 9) and whether Slaughter and Kohl each had the right to direct and control the conduct of the other with respect to Corazon (Question 10). If the jury had reached the questions, however, the record indicates that they would also have been answered No.

As previously discussed, Slaughter admitted that Corazon (and its retail stores) were 100 percent owned by Kohl. The 1999 and 2005 Agreements specify the services Slaughter was to perform for Kohl and Corazon. Slaughter may have had some control over matters related to performing those services. However, nothing indicates that Slaughter had a right to control Kohl or Corazon. The agreements expressly provided that plaintiffs were independent contractors and not partners or agents of Corazon. No substantial evidence supports the conclusion that Slaughter had joint control with Kohl over Corazon or the retail stores. A right of joint control by each party is an essential element for a joint venture. (April Enterprises, Inc. v. KTTV, supra, 147 Cal.App.3d at p. 819.) Therefore, the record does not support a finding that Slaughter had a joint venture with Kohl. Thus, had the jury found that Slaughter shared losses with Kohl, there is insufficient evidence of another essential element of a joint venturejoint controlfor the jury to find a joint venture existed. The result would have been the same. Therefore, there is no reasonable probability of a result more favorable to Slaughter on the joint venture issue and, accordingly, any error in instructing the jury on the shared loss element of a joint venture was harmless. (Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at p. 800; Moreno v. Fey Manufacturing Corp., supra, 149 Cal.App.3d at p. 27.) Having resolved plaintiffs contention on the foregoing bases, we decline to address any further claims advanced by plaintiffs on the issue.

3. Sufficiency of the Evidence

Plaintiffs contend that the evidence is insufficient to sustain the jurys finding that no partnership or joint venture existed. We disagree.

When an appellant challenges the sufficiency of the evidence to sustain a factual finding, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the [trier of fact]. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.) Substantial evidence is evidence of ponderable legal significance, . . . reasonable in nature, credible, and of solid value. [Citations.] (Id. at p. 873, italics omitted.) The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record. (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 652.)

As plaintiffs point out, whether a joint venture or partnership has been created may be inferred from conduct of the parties and need not be expressed in written words. (Iron etc. Co. v. American Milling etc. Co. (1931) 115 Cal.App. 238, 247; 1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts,  102, pp. 144-146.) A partnership connotes coownership in the partnership property with a sharing in the profits and losses of a continuing business. [Citations.] [] A joint venture has no corporate or partnership designation. It is an undertaking by two or more persons jointly to carry out a single business enterprise for profit. [Citations.] Such a venture or undertaking may be formed by parol agreement [citation], or it may be assumed as a reasonable deduction from the acts and declarations of the parties [citation]. (Nelson v. Abraham (1947) 29 Cal.2d 745, 749-750.) Plaintiffs claim that the joint venture and partnership agreements were oral and the conduct of the contracting parties in the instant case was sufficient for the jury to find a joint venture or partnership had been created.

The particular conduct plaintiffs first claim as evidence of an oral joint venture or partnership is that the parties continued operating Corazon and its retail stores without a written contract for six months after the 1999 Agreement expired and before the 2005 Agreement was executed. The parties subsequent conduct in entering into the 2005 Agreement renders plaintiffs argument a nullity. The text of the 2005 Agreement states clearly that it was retroactively effective as of July 1, 2005, the day after the 1999 Agreement expiration date. Further, the conduct of the parties during the six-month period was consistent with the two written agreements. Slaughter testified that the written agreements did not give him any ownership interest in Corazon and did not constitute joint venture or partnership agreements.

Plaintiffs also rely on the evidence of their course of conduct with Kohl and Corazon over the years as well as the promises and assurances made by Kohl that they were partners. If their conduct shows anything relevant to the issue, it is that no such joint venture or partnership agreement existed. As we previously discussed, Slaughters course of conduct with Kohl over the years included requests that something be added to their store management agreements to give Slaughter an interest in the value of Corazon in the event the agreements terminated. Other than in the initial draft of the 1999 Agreement, there is no evidence that Kohl even considered giving Slaughter an ownership interest in Corazon and its retail stores. Rather, there are documents showing that Kohl did not intend to give Slaughter an ownership interest.

Slaughter testified that the only evidence of the oral partnership or joint venture agreement was the testimony of himself and his wife concerning their conversation with Kohl at the Far Niente meeting. Plaintiffs presented no corroborating documentary evidence or testimony by any individual who had personal knowledge of the meeting. Determining whether the testimony offered was credible rested within the sole province of the jury as the trier of fact. (Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1065.) Lastly, the evidence before the jury included Slaughters testimony that there were no oral agreements related to Corazon. Accordingly, we conclude that substantial evidence supports the jurys findings that no joint venture and no partnership existed.

DISPOSITION

The judgment is affirmed. Defendants are awarded their costs on appeal.

JACKSON, J.

We concur:

PERLUSS, P. J.

WOODS, J.

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[1] Additional facts relevant to each of plaintiffs contentions are included in our discussion of each contention.

[2] The percentage was to be 10 percent initially, increased to 50 percent when Corazon had repaid Kohls loan in full.

[3] The 2005 Agreement provided that S&J and Slaughter are entering into this agreement as and shall at all times be independent contractors. Under no circumstances shall Slaughter, [S&J] or their employees look to Corazon as its or their employer, not as a partner or agent. It also provided that [t]his Agreement is the entire agreement between the parties with respect to the subject matters hereof, and supersedes any and all prior written or oral agreements between the parties. The 1999 Agreement included identical provisions.

[4] Plaintiffs alleged causes of action as follows: breach of contract for the 2005 Agreement (first cause); breach of oral joint venture agreement for sharing Corazon net profits 50-50 and having joint control of Corazon (second cause); breach of oral partnership agreement for sharing Corazon net profits 50-50, including both net income of operations and increased value of the joint enterprise (third cause); breach of the implied covenant of good faith and fair dealing in the 2005 Agreement (fourth cause); promissory estoppel based on defendants clear promises to plaintiffs for sharing net profits 50-50, including both net income and increased value (fifth cause); fraud and deceitfraud by concealment (sixth cause), by intentional misrepresentation (seventh cause), false promise (eighth cause), constructive fraud (ninth cause); negligent misrepresentation (tenth cause); breach of fiduciary duties (eleventh cause); unjust enrichment (twelfth cause); quantum meruit (thirteenth cause); constructive trust (fourteenth cause); and accounting (fifteenth cause) in that defendants concealed their intent to use the absence of a definition of net profits in the 2005 Agreement to circumvent their obligations to pay plaintiffs their 50 percent share of market value of the retail stores.

[5] The judgment recited that the trial court had previously dismissed the fifth cause of action for promissory estoppel and granted defendants motion for nonsuit as to the thirteenth cause of action for quantum meruit.

[6] Further statutory references are to the Evidence Code.

[7] Section 1236 provides: Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement is consistent with his testimony at the hearing and is offered in compliance with Section 791.

Section 791 provides: Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after: []  . . .  [] (b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.

[8] Slaughter testified the Far Niente meeting (in Glendale, California) was between June 21, 1999 and July 12, 1999, when the 1999 Agreement was fully executed. Slaughter said he signed it on July 1. Slaughter had no receipts from the trip. Slaughter produced credit card records showing travel ticket purchases during the time period, but they made no mention of destination. In 2002, Slaughter emailed Kohl that Slaughter and his wife believed and had faith that they would always get 50 percent of Corazon at the end of their tenure with Kohl and requested that something to that effect be put in the 1999 Agreement. The trial court repeatedly pointed out that, of Slaughter, Oakley and Baggett, the only person claiming personal knowledge of the trip to California and the Far Niente meeting was Slaughter, but Slaughter had not been able to provide any evidence corroborating his claimed personal knowledge, including no receipts or other documentation even showing he went to California or any witness, other than his wife, who had any personal knowledge of the California trip and Far Niente meeting.

[9] In offers of proof to the trial court, Oakley and Baggett testified that they had no personal knowledge even that Slaughter went to California promptly after receiving the June 21, 1999 draft, not to mention any Far Niente meeting there with Kohl.

[10] The trial court gave instruction 58, a modified version of CACI No. 3712, which provided in part: You must decide whether a joint venture existed in this case. A joint venture exists when two or more persons combine their property, skill, or knowledge to carry out a single business undertaking and agree to share the control, profits, and losses . . . . Then the court gave instruction 60 as follows: A joint venture is an agreement between two or more persons to undertake a business project together for profit. A joint venture requires the sharing of losses and joint control of the venture. []  No joint venture exists where one party assumes all of the risk of loss. [] No joint venture exists unless both parties have the right to direct and control the conduct of each other with respect to Corazon. The court based instruction 60 on April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 819, Tomei v. Fairline Feeding Corp. (1977) 67 Cal.App.3d 394, 401 [normally in a joint venture, the parties share profits and losses], and Wiltsee v. California Emp. Com. (1945) 69 Cal.App.2d 120, 124, 127-128.