Filed 9/21/26 Daneshrad v. Danesh CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
MOJDEH MICHELLE B346183
DANESHRAD,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. 20STCV24883)
v.
NICK DANESH,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Kevin Clement Brazile, Judge. Affirmed.
Mojdeh Michelle Daneshrad, in pro. per., for Plaintiff and
Appellant.
Builders Law Group and Nick M. Campbell for Defendant
and Respondent.
____________________________
Plaintiff Mojdeh Michelle Daneshrad appeals from a
judgment in favor of defendant Nick Danesh. Plaintiff’s
complaint alleged defendant misrepresented or failed to disclose
material facts when he sold a property to plaintiff. Following a
bench trial, the trial court found plaintiff had not satisfied the
burden of proof on any of her causes of action. We hold
substantial evidence supports the trial court’s findings and
affirm.
BACKGROUND
1. Complaint
Plaintiff filed a complaint against defendant, as well as a
real estate brokerage, the brokerage’s agents, and a real estate
appraiser, alleging “omissions and misrepresentations” in
connection with a sale of a property to plaintiff. Plaintiff alleged
the defendants misrepresented or failed to disclose certain facts
leading plaintiff to believe, falsely, that 1) she was purchasing a
larger property than she actually purchased; 2) the sale included
permitted plans for construction on the property; 3) the single-
family residence on the property could be leased or sold; and
4) the lots included in the sale could be separately developed.
Plaintiff alleged the property in fact did not include one of the
parcels she was led to believe would be included in the sale, there
were no permitted construction plans, the single-family residence
was a guest house that could not be leased or sold, and the lots
were tied together and could not be separately developed.
Plaintiff asserted causes of action against defendant for negligent
misrepresentation, nondisclosure of material facts, fraudulent
concealment, and fraudulent misrepresentation; against the
brokerage and its agents for negligent misrepresentation, breach
2
of fiduciary duty, constructive fraud, and professional negligence;
and against the appraiser for negligent misrepresentation and
professional negligence.
Plaintiff settled with the real estate brokerage, agents, and
appraiser, leaving only defendant in the lawsuit. Plaintiff and
defendant proceeded to a bench trial.
2. Relevant trial evidence
We summarize the trial evidence relevant to our disposition
of this appeal.
A real estate listing for the property described it as “a total
of five parcels” with a “1 bedroom 1 bathroom home,” “[p]lans for
5,000 sq ft house on top section of property in addition to the
already existing house,” “room for an additional 3rd house on the
property,” and “Private Guest unit w/ private entry and
remodeled bathroom w/ huge shower.”
A 2017-dated document entitled “Agreement Between
Owner and Architect” (boldface & some capitalization omitted)
described an architect’s promised services for defendant,
including preparing architectural plans for converting the
existing structure on the property to an accessory dwelling unit,
and preparing additional architectural drawings for an
approximately 4,000-square-foot single-family residence. The
agreement attached an aerial-view drawing and several
conceptual drawings of a structure from different angles.
The purchase agreement executed by plaintiff and
defendant indicated the sale would include a total of five parcels,
each identified by a 10-digit number. An inspection advisory
attached to the purchase agreement advised plaintiff to
“investigate the condition and suitability of all aspects of the
property,” including “lot size” and “governmental requirements”
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“affecting the current or future use of the Property, its
development or size,” such as “[p]ermits, inspections, certificates,
[and] zoning.” (Boldface & some capitalization omitted.)
An addendum to the purchase agreement stated, “Property
to be sold in ‘As Is’ condition.” A disclosure statement signed by
defendant and plaintiff recommended plaintiff inspect the
property.
The purchase agreement further indicated the real estate
brokerage and its agents would serve as dual agents representing
both buyer (plaintiff) and seller (defendant).
There was evidence plaintiff performed a physical
inspection of the entire property before the close of escrow, as did
an inspector hired by plaintiff. Plaintiff’s mortgage lender hired
an independent appraiser to assess the property, and plaintiff
obtained title insurance. The appraiser was a defendant in
plaintiff’s lawsuit, and plaintiff testified she had filed or would
soon file a lawsuit against the title insurance company as well.
A map of the property provided by defendant to plaintiff
before the sale identified six parcels, each with a unique 10-digit
number. The map is mostly black and white, but the fourth
parcel is colored yellow. The fourth parcel’s 10-digit number
does not match any of the five numbers listed in the purchase
agreement. The other five parcels’ numbers largely match those
in the purchase agreement, although two of the parcels’ numbers
have digits transposed (2275-103-008 (purchase agreement) vs.
2275-013-008 (map), 2275-108-013 (purchase agreement) vs.
2275-018-013 (map)).
A “Certificate of Occupancy” (some capitalization omitted)
issued by the City of Los Angeles in 1982 described the structure
on the property as “accessory living quarters.” Defendant
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testified he provided this document to the real estate agents prior
to the close of escrow.
A “Covenant and Agreement to Hold Property as One
Parcel” (boldface & some capitalization omitted) recorded with
Los Angeles County in 1985 indicated the property “shall be held
as one parcel and no portion shall be sold separately.”
3. Statement of decision
Following the close of plaintiff’s case, defendant moved for
judgment under Code of Civil Procedure section 631.8. The trial
court granted the motion and issued a statement of decision
ruling in favor of defendant on all causes of action.
The court made the following findings:
Plaintiff received five parcels from the sale as promised in
the sales agreement.
There was no evidence the dual agents received false or
misleading information from defendant that they passed on to
plaintiff. Defendant never made any direct disclosures to
plaintiff, and there was no evidence he failed to make any
required disclosures to the dual agents. Defendant did not
prevent plaintiff from investigating the property.
Defendant never represented that the structure on the
property was a single-family dwelling. The listing described the
structure as a one-bedroom and one-bath home, which it
appeared to be based on photographs admitted into evidence.
There was insufficient evidence, moreover, that defendant
drafted, prepared, or approved the property listing, “which was
most likely done by dual agents based upon the prior property
listing that [defendant] relied upon when he purchased the
property.” Defendant never represented the property had an
approved building permit or city-approved plans for a future
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home. “There was merely an agreement with an architect for a
conceptual design of a home on the property.”
Plaintiff signed an advisory recommending she investigate
the boundaries of the property, building permits, zoning, and
other government requirements. Defendant sold the property to
plaintiff “ ‘in As Is condition.’ ” (Boldface omitted.) Plaintiff,
although an attorney and experienced real estate agent, failed to
investigate available government records concerning the property
as advised. Plaintiff, the title insurance company, the appraiser,
or plaintiff’s property inspector should have discovered the
certificate of occupancy and recorded covenant indicating the
structure on the property was an accessory living quarters and
the parcels were tied together.
The court found defendant credible in terms of the
information he provided to the dual agents. The court also found
defendant credible in terms of what facts he knew or did not
know about the property. The court found plaintiff not credible
in terms of the disclosures made to her before the close of escrow.
The court specifically found credible defendant’s testimony that
he provided the certificate of occupancy to the dual agents prior
to close of escrow. The court found not credible plaintiff’s
testimony that she did not receive the certificate of occupancy.
The court noted that “[f]or unknown reasons Plaintiff elected not
to call any of the 3 dual agents to testify at trial,” and therefore
there was no testimony from the agents contradicting defendant’s
testimony.
The court found plaintiff had failed to prove her cause of
action for negligent misrepresentation because defendant made
no representations to plaintiff that were untrue, defendant made
no untrue representations that he intended plaintiff to rely upon,
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plaintiff did not rely on any untrue representations by defendant,
and there was insufficient evidence any representations by
defendant were a substantial factor in any harm suffered by
plaintiff.
The court found plaintiff had failed to prove her cause of
action for nondisclosure of material facts because there was
insufficient evidence defendant knew plaintiff did not know or
could not reasonably discover the parcels were tied together, and
indeed plaintiff could reasonably have discovered the lots were
tied together from available government records.
The court found plaintiff had failed to prove her cause of
action for fraudulent concealment because there were no
concealed facts, defendant did not intentionally fail to disclose
any material facts, plaintiff could have discovered the lots were
tied together from investigation of government records, defendant
did not prevent plaintiff from discovering any material facts, and
there was insufficient evidence defendant intended to deceive
plaintiff.
The court found plaintiff had failed to prove her cause of
action for fraudulent misrepresentation because defendant made
no false misrepresentations of material facts; there was
insufficient evidence of any intentional false representation, or
that defendant knew a representation was false when he made it
or that he was reckless with regard to its truth; plaintiff could
have discovered material facts by reasonable investigation; and
the property was sold in “as is” condition.
Plaintiff timely appealed.
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DISCUSSION
A. Motion for Judgment and Standard of Review
“After a party has completed his presentation of evidence in
a trial by the court, the other party, without waiving his right to
offer evidence in support of his defense or in rebuttal in the event
the motion is not granted, may move for a judgment. The court
as trier of the facts shall weigh the evidence and may render a
judgment in favor of the moving party . . . , or may decline to
render any judgment until the close of all the evidence.” (Code
Civ. Proc., § 631.8, subd. (a).) “ ‘ “In making the ruling, the trial
court assesses witness credibility and resolves conflicts in the
evidence.” ’ [Citation.]” (Orange County Water Dist. v. MAG
Aerospace Industries, Inc. (2017) 12 Cal.App.5th 229, 239 (Orange
County Water Dist).) The trial court “ ‘ “may enter judgment in
favor of the defendant if the court concludes that the plaintiff
failed to sustain its burden of proof. . . .” ’ [Citation.]” (Ibid.)
“ ‘ “The standard of review after a trial court issues
judgment pursuant to Code of Civil Procedure section 631.8 is the
same as if the court had rendered judgment after a completed
trial — that is, in reviewing the questions of fact decided by the
trial court, the substantial evidence rule applies.” ’ [Citation.]”
(Orange County Water Dist., supra, 12 Cal.App.5th at p. 239.)
“ ‘ “But, we are not bound by a trial court’s interpretation of the
law. . . .” ’ [Citation.] ‘ “We review legal issues . . . under a
de novo or independent standard.” ’ [Citation.]” (Id. at pp. 239–
240.)
When reviewing for substantial evidence, “we ‘liberally
construe[ ]’ findings of fact ‘to support the judgment and we
consider the evidence in the light most favorable to the prevailing
party, drawing all reasonable inferences in support of the
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findings.’ [Citation.] ‘We may not reweigh the evidence and are
bound by the trial court’s credibility determinations.’ [Citation.]”
(McPherson v. EF Intercultural Foundation, Inc. (2020)
47 Cal.App.5th 243, 257.)
“ ‘The substantial evidence standard of review takes on a
unique formulation where, as here, “the trier of fact has expressly
or implicitly concluded that the party with the burden of proof
did not carry the burden and that party appeals.” ’ [Citation.]”
(Symons Emergency Specialties v. City of Riverside (2024)
99 Cal.App.5th 583, 597.) In that circumstance, “ ‘ “ ‘the question
for a reviewing court becomes whether the evidence compels a
finding in favor of the appellant as a matter of law. [Citations.]
Specifically, the question becomes whether the appellant’s
evidence was (1) “uncontradicted and unimpeached” and (2) “of
such a character and weight as to leave no room for a judicial
determination that it was insufficient to support a finding.” ’ ” ’
[Citation.]” (Garcia v. KND Development 52, LLC (2020)
58 Cal.App.5th 736, 744; accord, Symons Emergency Specialties,
at p. 597.)
B. Elements of Plaintiff’s Causes of Action
“Negligent misrepresentation requires an assertion of fact,
falsity of that assertion, and the tortfeasor’s lack of reasonable
grounds for believing the assertion to be true. It also requires the
tortfeasor's intent to induce reliance, justifiable reliance by the
person to whom the false assertion of fact was made, and
damages to that person.” (SI 59 LLC v. Variel Warner Ventures,
LLC (2018) 29 Cal.App.5th 146, 154.)
“ ‘ “In the context of a real estate transaction, ‘[i]t is now
settled in California that where the seller knows of facts
materially affecting the value or desirability of the property . . .
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and also knows that such facts are not known to, or within the
reach of the diligent attention and observation of the buyer, the
seller is under a duty to disclose them to the buyer. [Citations.]’
[Citations.] Undisclosed facts are material if they would have a
significant and measurable effect on market value. [Citation.]” ’ ”
(RSB Vineyards, LLC v. Orsi (2017) 15 Cal.App.5th 1089, 1097
(RSB Vineyards).)
“ ‘To establish a claim for fraudulent misrepresentation, the
plaintiff must prove: “(1) the defendant represented to the
plaintiff that an important fact was true; (2) that representation
was false; (3) the defendant knew that the representation was
false when the defendant made it, or the defendant made the
representation recklessly and without regard for its truth; (4) the
defendant intended that the plaintiff rely on the representation;
(5) the plaintiff reasonably relied on the representation; (6) the
plaintiff was harmed; and (7) the plaintiff’s reliance on the
defendant’s representation was a substantial factor in causing
that harm to the plaintiff.” ’ [Citation.]” (Graham v. Bank of
America, N.A. (2014) 226 Cal.App.4th 594, 605–606 (Graham).)
“The required elements for fraudulent concealment are:
(1) concealment or suppression of a material fact; (2) by a
defendant with a duty to disclose the fact to the plaintiff; (3) the
defendant intended to defraud the plaintiff by intentionally
concealing or suppressing the fact; (4) the plaintiff was unaware
of the fact and would not have acted as he or she did if he or she
had known of the concealed or suppressed fact; and (5) plaintiff
sustained damage as a result of the concealment or suppression
of the fact.” (Graham, supra, 226 Cal.App.4th at p. 606.)
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C. Substantial Evidence Supports the Judgment
Plaintiff had the burden of proof below, and fails to show
that as a matter of law the evidence compelled a ruling in her
favor.
The trial court found plaintiff had failed to prove numerous
elements of her causes of action, but we focus on the court’s
finding plaintiff either received or could have discovered the
information she alleged defendant misrepresented or omitted —
in other words, defendant did not mispresent or conceal anything
from her. This finding, if supported by substantial evidence, is
fatal to plaintiff’s causes of action, all of which require a
misrepresentation or material omission. We discuss each claimed
misrepresentation/omission in turn.
1. Alleged misrepresentation that sale would
include an additional parcel
Plaintiff alleged defendant led her to believe the sale would
include a parcel, which she calls parcel 4, that was not, in fact,
part of the sale. The trial court found plaintiff received all the
parcels promised in the purchase agreement. Substantial
evidence supports this finding.
The purchase agreement listed five parcels each identified
by a 10-digit number. Prior to the sale, defendant provided
plaintiff with a map of the property showing six parcels. The
10-digit numbers listed on parcels 1, 2, 3, 5, and 6 match those in
the purchase agreement, apart from two instances of
transposition of digits (plaintiff raises no argument concerning
the transposition). The fourth parcel’s 10-digit number, however,
is not listed in the purchase agreement. This is substantial
evidence defendant did not misrepresent that parcel 4 was
11
included in the sale, as well as substantial evidence plaintiff
could not reasonably rely on any representations that conflicted
with the purchase agreement’s express identification of the five
parcels being sold.
2. Alleged failure to disclose legal status of
structure on property
Plaintiff alleged defendant misrepresented or failed to
disclose the legal status of the structure on the property, which
was not a standalone residence but accessory living quarters.
The trial court noted the city-issued certificate of occupancy
identifying the structure as accessory living quarters, and found
credible defendant’s testimony that he provided that certificate to
plaintiff before the sale was consummated. Accordingly, the
court found defendant had disclosed the legal status of the
structure to plaintiff, and even if he had not, the certificate of
occupancy was publicly available and therefore discoverable by
plaintiff upon reasonable investigation. The certificate and
defendant’s testimony are substantial evidence supporting the
trial court’s findings.
3. Alleged failure to disclose parcels were tied
together
Plaintiff alleged defendant failed to disclose the five parcels
were legally tied together and could not be separated for purposes
of sale or development. The trial court noted the covenant tying
the parcels together was recorded and thus available in county
records, and found plaintiff or those assisting her in investigating
12
the property1 could have discovered that covenant through
reasonable investigation. The recorded covenant is substantial
evidence nothing was concealed from plaintiff that she could not
reasonably discover.
4. Alleged misrepresentation sale would include
completed architectural plans
Plaintiff alleged the listing for the property stating “[p]lans
for 5,000 sq ft house on top section of property,” as well as
defendant’s subsequent disclosure of an agreement between him
and an architect attaching conceptual drawings, led her to
believe the sale would include completed plans for a residence on
the property. Substantial evidence supports the trial court’s
finding defendant never promised completed or approved plans.
The listing merely states “plans” without any more
information, which the trial court reasonably could have
concluded did not constitute a promise of plans at any particular
stage of completion. Defendant then disclosed the full extent of
those plans to plaintiff, that being conceptual drawings and an
agreement with an architect. Although plaintiff alleged this
disclosure led her to believe defendant would also provide
completed plans — that is, plaintiff allegedly believed defendant
for some reason disclosed the conceptual drawings but not the
plans themselves — the trial court reasonably could find the
1 The property was evaluated by plaintiff’s inspector, her
lender’s appraiser, the title insurance company, and according to
plaintiff, a contractor, a developer, and a surveyor. As noted, the
appraiser was a defendant in the instant litigation, and plaintiff
either had, or intended to file a lawsuit against the title
insurance company too.
13
disclosure in fact supported the opposite conclusion, that
defendant had disclosed all there was and no more was
forthcoming. Put another way, the court could find it was not
reasonable for plaintiff to assume without further inquiry, based
solely on the listing and defendant’s disclosure of the agreement
and drawings, that defendant was holding back additional,
completed plans that he would hand over at some point in the
future.
Although at trial plaintiff testified the dual agents told her
she would be provided with plans following close of escrow, she
acknowledged defendant did not make these representations to
her. Nor does plaintiff identify any evidence defendant
instructed or otherwise caused the dual agents to make those
representations. Regardless, the trial court did not have to
believe plaintiff’s testimony; the court, in fact, noted plaintiff’s
lack of credibility in its statement of decision.
D. We Reject Plaintiff’s Contrary Arguments
Plaintiff argues the trial court erred in concluding sale of
the property “as is,” the buyer’s inspection advisory, the
availability of government records, and a lack of direct
communications between plaintiff and defendant defeated
plaintiff’s claims as a matter of law. Plaintiff contends the trial
court, in an earlier order denying defendant’s motion for
summary judgment, rejected the proposition that those
circumstances defeated plaintiff’s claims, and the court’s ruling
against her at trial conflicted with that earlier order. Plaintiff
acknowledges the purported conflict between the summary
judgment ruling and the court’s ruling at trial does not establish
reversible error, but argues the “inconsistency . . . underscores
that the judgment rested on legal shortcuts the court had
14
previously recognized were insufficient to defeat the claims as a
matter of law.”
We disagree with plaintiff’s characterization of the
statement of decision. Nowhere in the statement of decision did
the court conclude that the “as is” status of the sale, the buyer
advisory, or any other circumstances absolved defendant of
liability as a matter of law. Rather, the listed circumstances
were among the factual findings upon which the court based its
conclusion that, inter alia, plaintiff could not reasonably rely on
any assurances from defendant or the dual agents without
conducting her own investigation, and that investigation would
have revealed through available government records the
information plaintiff alleged defendant failed to disclose. In other
words, the court found defendant did not withhold any material
information plaintiff and those assisting her could not have
discovered through reasonable investigation.
Plaintiff argues there was no evidence that the information
defendant allegedly failed to disclose to her was available in
public records. It was not defendant’s burden to show the
information was available through publicly available records, but
plaintiff’s burden to show it was not available. In any event, the
covenant tying the lots together was recorded, which is
substantial evidence supporting an inference the document was
publicly available. As for the certificate of occupancy, the court
found defendant provided that document to the dual agents to
give to plaintiff, and therefore it is irrelevant whether plaintiff
could have discovered that document on her own.
Plaintiff argues the record does not support a finding that
she could have discovered the covenant regarding tying the lots
through investigation. She claims she offered evidence that she,
15
along with a developer, contractor, and surveyor, all investigated
the property, including its legal status, and none discovered the
government records at issue. The question before us is not
whether there is evidence supporting plaintiff’s claims, but
whether there is substantial evidence supporting the trial court’s
findings. The trial court was not obligated to accept plaintiff’s
evidence of investigation, and indeed could conclude based on
plaintiff’s alleged inability to discover the recorded covenant that
plaintiff’s investigation was inadequate. We must defer to these
findings and all supporting inferences from those findings.
Plaintiff argues case law holds that a plaintiff’s negligence
in discovering falsity is not a defense to intentional fraud. She
argues it is also not a defense that a plaintiff continues with a
transaction despite discovering the fraud. Assuming arguendo
plaintiff accurately characterizes the law, it is inapplicable here
because the trial court expressly found insufficient evidence
defendant had the intent or knowledge necessary to prove
intentional fraud. Specifically, the court found insufficient
evidence defendant intended to deceive plaintiff, made
representations he knew to be false, made representations
recklessly without regard for the truth, or knew plaintiff did not
know about the lot-tie covenant and/or could not reasonably
discover it. (Graham, supra, 226 Cal.App.4th at p. 606
[fraudulent concealment requires intent to defraud]; id. at
pp. 605–606 [fraudulent misrepresentation requires proof
defendant knew representation was false or made representation
recklessly without regard for its truth]; RSB Vineyards, supra,
15 Cal.App.5th at p. 1097 [nondisclosure tort requires proof
defendant knew the nondisclosed information was neither
“ ‘ “ ‘known to, or within the reach of the diligent attention and
16
observation of the [plaintiff]’ ” ’ ”].) Plaintiff does not address
these findings on appeal, and therefore forfeits any challenge to
them. (Sierra Palms Homeowners Assn. v. Metro Gold Line
Foothill Extension Construction Authority (2018) 19 Cal.App.5th
1127, 1136 [issue not raised in appellate briefing forfeited].)
At most, plaintiff contends defendant’s testimony stating he
believed the lot-tie covenant was not something he needed to
disclose to plaintiff “supported Plaintiff’s theory that the
nondisclosure was deliberate.” Identifying evidence purportedly
supporting plaintiff’s theory is insufficient to overcome the trial
court’s contrary findings which, again, are supported by
substantial evidence. Also, to prove fraud through concealment
or nondisclosure, it is not enough to show a defendant
deliberately withheld information, absent proof the defendant
intended to defraud or knew the plaintiff did not have the
information and could not obtain it. (Graham, supra,
226 Cal.App.4th at p. 606; RSB Vineyards, supra, 15 Cal.App.5th
at p. 1097.) Plaintiff identifies no evidence compelling any such
findings.
Plaintiff argues the trial court erred in presuming
constructive knowledge on her part from unrecorded instruments.
Assuming arguendo principles of constructive knowledge could
apply here, the lot-tie covenant was recorded. The trial court
found plaintiff had actual knowledge of the certificate of
occupancy because defendant provided it to her.
Plaintiff argues her trial testimony established “she did not
receive the certificate [of occupancy] before closing, . . . and that
even when she later obtained it after the sale, she understood it
as referring to the guest unit rather than as a document negating
Defendant’s repeated representation that the property included a
17
legal single-family home.” In making this argument, plaintiff
seems to be saying although the certificate of occupancy informed
her there was a guest unit on the property legally designated as
accessory living quarters, this did not provide notice that there
was not also a single-family home on the property as defendant
allegedly represented to her. A belief, however, that the property
included a single-family residence in addition to the accessory
living quarters would not have been reasonable given that a
simple visual inspection of the property would have confirmed
there was no structure apart from the accessory living quarters.
Plaintiff argues defendant’s testimony he disclosed the
certificate of occupancy is not credible because it was self-serving
and unsupported by third-party or documentary evidence. She
further contends defendant’s testimony was impeached by his
own earlier statements and other documents. Credibility
findings are for the trial court to make, and we must defer to
them when reviewing for substantial evidence. Even if arguendo
inconsistent statements undercut the trial court’s credibility
finding, plaintiff identifies no statements by defendant
contradicting his testimony that he provided the certificate of
occupancy. At most, she musters a general attack on his
credibility by identifying purportedly inconsistent statements by
defendant regarding whether the structure on the property was a
single-family home as opposed to accessory living quarters.2
2 In defendant’s interrogatory responses and declaration in
support of his summary judgment motion, he characterized the
structure as an accessory dwelling unit. At trial, in contrast, he
testified he read the certificate of occupancy to indicate the
structure had been converted from an accessory unit to a single-
family residence. The trial court sustained defense counsel’s
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Those statements have no bearing on whether defendant
provided the certificate of occupancy, which was the basis for the
trial court’s conclusion that plaintiff could not reasonably have
been misled to believe the structure was a single-family home.
Plaintiff argues the trial court was wrong, on the basis
plaintiff did not call the dual agents to testify, to accept
defendant’s testimony that he disclosed the certificate of
occupancy. Plaintiff contends, “The absence of agent testimony
is not affirmative proof that disclosure occurred.” Defendant
did not have the burden to affirmatively prove disclosure.
Rather, plaintiff had the burden to show she had not received the
disclosure. The trial court found plaintiff had not met this
burden, in part because there was no corroborating testimony
from the dual agents. The trial court could take into account the
absence of corroborating evidence from key witnesses to the
transactions at issue in evaluating credibility as the trier of fact.
Plaintiff argues evidence defendant provided necessary
disclosures to the dual agents, even if accepted, does not establish
those disclosures reached plaintiff. Again, it was not defendant’s
burden to prove plaintiff received the disclosures, but plaintiff’s
burden to prove she did not.
Plaintiff argues the trial court erred in excluding as
hearsay text messages and e-mails from the dual agents sent
after the close of escrow purportedly indicating the agents were
looking for the architectural plans to provide to plaintiff. She
argues that evidence, if admitted, was relevant to show, inter
relevance objection to this testimony, stating, “[T]he document
says what [the structure] is. If [defendant] thought it was a
single family home, and the document says something else, I’m
going to go by the document. He’s wrong.”
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alia, why plaintiff continued to believe permitted plans existed.
Assuming arguendo this is so, the trial court found insufficient
evidence defendant had conveyed false information to the dual
agents to pass on to plaintiff, and therefore any liability for
misrepresenting the existence of plans would fall on the dual
agents, not defendant.
Plaintiff further argues the excluded text messages and
e-mails would have proven any plans given to the agents were
not disclosed to plaintiff before closing. We do not understand
this argument. Plaintiff’s causes of action do not allege
defendant failed to disclose or provide completed plans to
plaintiff, but rather defendant in fact had no completed plans but
misled plaintiff to believe he did. Plaintiff’s causes of action
therefore assume the agents had no plans to give plaintiff, apart
from the architect agreement and conceptual drawings. Given
this allegation, any evidence the agents were searching for the
nonexistent plans postclosing is irrelevant.3
3 We deny plaintiff’s request to disregard defendant’s
appellate brief as untimely filed.
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DISPOSITION
The judgment is affirmed. Defendant is awarded his costs
on appeal.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
WEINGART, J.
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