Filed 3/5/14 Choy v. Guo CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


CORNELIUS CHOY et al.,
         Plaintiffs, Cross-defendants and
         Appellants,                                                     A134088

v.                                                                       (Alameda County
SHIJUAN GUO et al.,                                                      Super. Ct. No. HG 08419907)
         Defendants, Cross-complainants and
         Respondents.


         Cornelius “Tony” Choy and Yong Chun “Diana” Liu1 were engaged to be married
and, upon their separation, disputed several financial matters. Tony sued Diana and her
sister-in-law, Shijuan “Lucy” Guo, upon allegations that he contributed funds to the down
payment of a house purchased in the names of Diana and Lucy and that he was the
rightful owner of the property. Diana and Lucy cross-complained, alleging that Tony
committed fraud and breach of fiduciary duty as a real estate agent and tax preparer.
         Following a bench trial, the court entered judgment in favor of Diana and Lucy.
The court ordered Tony to pay Diana $40,036.70 for converting her tax refunds and
retirement funds to his use and ordered him to pay Lucy $60,000 in damages for fraud in
connection with the house purchase. We shall affirm the judgment.



1
  The parties referred to themselves by their adopted English first names at trial and in
their briefing on appeal. For clarity, we follow that practice here.


                                                             1
                                      Statement of Facts
         Tony is originally from Singapore but attended high school in California. He is
college educated and holds an MBA degree that was awarded in the early 1980s. Tony
works as a pharmacist and is also self-employed as a licensed real estate agent and tax
preparer. Tony is president of Excel Financial Management, Inc. (Excel), a corporation
he founded in 1986 that is engaged in real estate and mortgage transactions.
         Tony started dating Diana in early 2005. Diana was born in China and received a
college degree there. She came to the United States in 1997 and works as a factory
manager. In 2001, Diana and a family member bought a house in Fremont and she was
living there when she met Tony. Tony testified that, in October 2005, he and Diana began
living together in a bedroom Tony maintained at Excel’s corporate office in Hayward.
Diana testified that she continued to live in her Fremont home and spent only occasional
nights at the Excel office. In the Summer of 2006, they became engaged to be married.
The couple began having “lots of fights and arguments” in March 2008 and separated in
October of that year. Tony and Diana became embroiled in a dispute over financial
matters, including distribution of Diana’s tax refunds and investment funds and
ownership of a house the couple occupied during the last months of their relationship.
Tax refunds
         Tony prepared Diana’s tax returns for the tax years 2005, 2006 and 2007. The
refund on her 2005 tax return was electronically deposited into her checking account. The
refunds on her 2006 and 2007 refunds were electronically deposited into Excel’s account.
Diana testified that she did not give Tony permission to deposit her tax refunds into his
corporate account. Diana said she asked Tony about the missing refunds and he admitted
depositing the money into his account but promised to repay the money to her, with
interest. Tony never repaid the money, which totaled $17,769.2
IRA funds



2
    All figures are rounded to the nearest dollar.


                                                2
       Diana had an individual retirement account (IRA) with Fidelity Investments. In
November 2006, the account balance of $22,268 was transferred to Excel. Diana testified
that she did not give permission for the transfer and did not learn of the transfer until
April 2008, when Tony admitted transferring the funds. Diana said that, upon learning of
the transfer, Tony assured her that he was managing the money for her but refused to give
her an accounting statement. In November 2008, Diana tried to transfer her IRA account
from Excel to another institution but could not access the money. Diana testified that
Tony told her the IRA money “went to” Excel. Tony never gave Diana her IRA funds. At
trial, Tony admitted the tax refunds and IRA funds were deposited into Excel’s account
but claimed the funds were Diana’s contribution to the couple’s living expenses.
House purchase
       In December 2007, Tony wanted to buy a home to live in with Diana when they
married. Tony made a daily study of foreclosure listings and found a house he liked in
Hayward. Diana’s brother and his wife were also looking for a house at the time and
expressed interest in the Hayward house. Diana’s brother, Yong Qiang Liu, lives in China
but his wife, Lucy, and their adult daughters live locally. Lucy moved to the United
States from China in 1998. She does not speak or read English and testified through an
interpreter at trial. Tony testified that he decided to let Lucy and her husband buy the
house and acted as their real estate agent in the transaction, with Excel as the broker.
       On December 27, 2007, Lucy signed a contract to buy the Hayward house from
Wells Fargo Bank for $680,000. Lucy made a $10,000 deposit on the house. Escrow was
set to close in February 2008, later extended to March 2008. Lucy testified that she had
never before purchased a house and did not understand the documents she signed, which
were written in English. Lucy said Tony speaks Mandarin Chinese but never explained
the documents to her. Lucy said she signed whatever Tony told her to sign because she
trusted him.
       Tony’s corporation, Excel, acted as the mortgage broker to obtain financing for the
Hayward house. Excel obtained a purchase money loan of $417,000 in Lucy’s name.
Lucy and her husband raised $130,000 as a down payment but were unable to raise the


                                              3
entire amount needed to satisfy the purchase price of $680,000. Lucy told Tony she no
longer wanted the house and was willing to lose her $10,000 deposit.
       Tony told Lucy he wanted to buy the house to live in with Diana and asked her for
a loan so he could buy the house. He could not raise the purchase price before the closing
date without Lucy’s help. Lucy agreed to proceed with the purchase with the
understanding that Tony would later reimburse her and assume ownership of the house.
The escrow settlement statement shows that the purchase price and closing costs were
financed as follows: $417,000 mortgage loan in Lucy’s name, $120,000 down payment
from Lucy, $10,000 initial deposit from Lucy, and $150,000 down payment from Diana,
using funds that in fact were provided by Tony. Lucy and Diana took title to the house.
       The parties disagree over the exact terms of their March 2008 oral agreement
concerning purchase of the house. According to Lucy, Tony promised to remove her
name from the mortgage loan and repay her $130,000 plus interest within three weeks.
Tony admits that he promised to repay Lucy but testified that he promised to repay the
money “as fast as I can, it would be weeks or months.” Tony said repayment was
contingent upon Diana loaning him money from a line of credit she promised to take out
on her Fremont house and Lucy transferring title to him so he could refinance the house
and pay off her mortgage loan. Diana testified that she never agreed to loan money to
Tony to repay Lucy and Lucy testified that she agreed to transfer title to him only after he
repaid the loan and secured the release of her obligation on the mortgage.
       Following the close of escrow, Tony and Diana made improvements to the house
and moved into it around May 2008. The couple broke up around October 2008 and
moved out of the house. Tony made mortgage payments while living at the house and,
after the couple separated, Diana made the payments and continued to make them
through the time of trial in June 2010. Tony never repaid Lucy’s loan in full; he paid
$70,000 of the $130,000 he owed.
                                Procedural Background
       In November 2008, Tony sued Lucy and Diana to obtain title to the Hayward
house, to recover damages for breach of contract and conversion, and for rescission. Lucy


                                             4
and Diana cross-complained against Tony and Excel for breach of fiduciary duty, fraud,
conversion and constructive trust. A three-day bench trial was conducted in June 2010.
An intended statement of decision was filed in October 2010 and a final statement of
decision was filed in September 2011. The court made a number of factual findings in its
13-page statement of decision, among them: (1) Tony converted Diana’s tax refunds and
IRA funds to his own use in breach of his fiduciary duty as her tax preparer and fund
manager; (2) Tony defrauded Lucy in the purchase of the Hayward house by promising to
repay her “within 3 weeks and have her name removed from the mortgage if she would
loan him $130,000” when he had no intention of fulfilling that promise; (3) Tony
breached his fiduciary duty as Lucy’s real estate agent by manipulating her into
purchasing the house for his own benefit without regard to her interests; and (4) Diana
and Lucy were free of wrongdoing.
       In September 2011, the court entered judgment ordering Tony to pay Diana
$40,037 (tax and IRA funds) and Lucy $60,000 (loan balance). While emphasizing that
Tony failed to establish the requirements for imposing a constructive trust on the
Hayward house, the court nevertheless gave Tony the opportunity to acquire partial
ownership in an effort “to do equity” because he made a financial contribution to the
purchase. The court ordered Lucy to transfer title to Tony if, within 120 days of the date
of judgment, he made the necessary payment to her and obtained the lender’s consent to
Tony’s assumption of the mortgage. The lender refused its consent, so that title remained
with Lucy and Diana and Lucy remained liable on the mortgage.3
       Tony filed a motion for new trial and to set aside the judgment. The court denied
the motions and Tony and Excel filed a timely notice of appeal.




3
 Tony states in his appellate brief that he believes the house was subsequently sold.
However, the record contains no evidence of a sale and no evidence of the terms of any
possible sale.


                                             5
                                           Discussion
I. The court did not err in ruling on evidentiary matters concerning Tony’s conversion of
Diana’s IRA fund.
       It is undisputed that Diana’s IRA funds were transferred to Tony’s corporation,
Excel, and the trial court held Tony liable for wrongfully converting the funds. The court
found credible Diana’s testimony that she never authorized the transfer and rejected
Tony’s testimony that Diana signed a form to transfer the funds as a contribution to the
couple’s living expenses.
       On appeal, Tony contends the court erred in excluding evidence substantiating his
claim that Diana authorized the transfer. Tony offered an expert witness on “the
processes of transferring IRA accounts.” The expert’s proffered opinion was that “it
would be virtually impossible” to transfer IRA funds “without a signature.” During
expert voir dire, the court questioned Tony’s counsel on the propriety and relevance of
the proffered testimony. The court observed that expert testimony on general brokerage
practices was “not helpful” as the case presented a purely factual question as to whether
Diana actually signed a form authorizing redemption of her IRA funds. The court said:
“It’s factual, so the facts are there or the facts aren’t there, and I’ll figure that out at the
end of the trial.” Tony’s counsel replied, “I’m comfortable with that” and made no further
effort to introduce expert testimony on the topic.
       Diana argues that the court did not exclude expert testimony but simply challenged
Tony to demonstrate its relevance, at which point Tony conceded its irrelevance and
abandoned all effort to introduce it. In all events, assuming the court excluded the
proffered testimony, exclusion was proper. “ ‘As a general rule, a trial court has wide
discretion to admit or exclude expert testimony. [Citations.] An appellate court may not
interfere with the exercise of that discretion unless it is clearly abused.’ ” (People v.
Valdez (1997) 58 Cal.App.4th 494, 506.) There was no abuse of discretion here.
       The proffered expert testimony on brokerage practices was largely irrelevant to the
issues at trial and, to the extent relevant, was not related to a subject beyond the court’s
knowledge. The disputed issue was whether Diana consented to the transfer of her IRA


                                                 6
funds to Tony, as he claimed, not whether brokerage firms require a signature to redeem
funds. That a financial institution requires an account holder’s signature to withdraw
money is not “a subject that is sufficiently beyond common experience that the opinion of
an expert would assist the trier of fact” (Evid. Code, § 801, subd. (a)) especially where, as
here, the trier of fact is the court. In finding the proffered testimony irrelevant, the court
never questioned that a brokerage firm would require a signature. The issues for
determination were whether it was Diana who signed a transfer document and if she did
so intending that Excel assume ownership of the funds. As the court rightly noted, expert
testimony about brokerage practices generally would not “illuminate anything” relevant
to the case.
       Nor did the court err in excluding a signed IRA withdrawal form presented on the
last day of trial. The document at issue is a Fidelity Investments form signed with Diana’s
name transferring her IRA funds as a “Distribution from a Rollover IRA to a qualified
plan” with the receiving plan name listed as “Excel Financial Management Corporation.”
       As an initial matter, the parties on appeal disagree as to whether Tony obtained a
definitive ruling excluding the document. The proceedings were not transcribed but the
parties stipulated to a settled statement of the proceedings. According to that statement,
Tony’s attorney presented the document on the last day of trial, saying that Tony had
discovered it the previous night and he wished to introduce it as part of his rebuttal case.
Tony’s counsel “made no motion in chambers to admit the document[], nor did the court
state that it would not admit the evidence. But the court indicated that it was not going to
consider the evidence in terms that were clear and strong enough to convey the sense that
it was no longer contemplating the matter. ‘Enough is enough,’ the court stated.” We
accept this statement as a ruling of exclusion and turn to the merits.
       The trial court “indicated that it was not inclined to consider the evidence . . . for
several reasons, including its late discovery and the unfair surprise that admitting it would
entail; the court also stated that the evidence could be subject to exclusion under
Evidence Code section 352 because it was irrelevant to the issues that were before the
court, because additional information about [Tony’s] and [Diana’s] financial


                                               7
arrangements was not going to assist the court in deciding the case, and because
admitting the evidence would cause the trial to be much longer than necessary.”
       The court did not abuse its discretion in excluding the document, which was
produced late in the trial without a showing of good cause for its delayed production and
was of marginal relevance. Tony wildly overstates the document’s significance in calling
it “a smoking gun” that proves he did not convert Diana’s IRA funds. Tony proffered no
evidence to authenticate the signature and, in any event, the document shows a rollover
distribution from Fidelity Investments to Excel as a substituted financial institution
obligated to manage the funds for Diana’s benefit. The document, assuming it is
authentic, shows nothing more than Excel’s receipt of IRA funds in trust for Diana. In
this regard, it is consistent with other evidence, including the tax return Tony prepared
reporting a tax-free rollover IRA distribution. Nothing in the IRA transfer document
substantiates Tony’s claim that Diana redeemed her IRA fund and gave him ownership of
the proceeds. The court acted properly in excluding the document. Moreover, even if
wrongly excluded, the document without more contains no information that would have
changed the outcome of the trial. Thus, the court did not err in denying a new trial motion
that relied upon the document and Tony’s declaration attesting to its late discovery.4
“[P]rejudicial error is the basis for a new trial, and there is no discretion to grant a new
trial for harmless error.” (Nazari v. Ayrapetyan (2009) 171 Cal.App.4th 690, 694.)
II. Substantial evidence supports the court’s finding that Tony breached the fiduciary
duty owed Lucy.
       The trial court found that Tony breached the fiduciary duty he owed Lucy as her
real estate agent by self-dealing “in violation of his obligation to use the utmost care and
to act in his client’s best interest.” The court concluded that Tony used “false promises to
4
  Tony argues that the trial court disregarded his declaration, and other declarations,
under the mistaken belief that a new trial motion must be based upon the record presented
at trial and not on newly discovered evidence. We do not believe the court misunderstood
the available grounds for a new trial. The court did remark that it would not consider
matters outside the record but that remark was made with reference to some of the
additional evidence submitted with the new trial motion that the court believed may have
been available during trial but was not proferred in evidence.


                                               8
pressure [Lucy] into agreeing to proceed with the purchase after having asked him on
several occasions to terminate the purchase. The evidence establishes that [Tony’s]
motive was to own the house and he used [Lucy] to try to accomplish this.” The court
also noted that Tony’s ‘failure to provide her with Chinese language documents and his
failure to tell her that she would be obligated under the mortgage was both dishonest and
showed a lack of integrity. [Tony’s] objective was to manipulate [Lucy] into purchasing
the house without regard to her express wish . . . and risks to her.”
       The record amply supports the court’s findings. “The law imposes on a real estate
agent ‘the same obligation of undivided service and loyalty that it imposes on a trustee in
favor of his beneficiary.’ [Citations.] This relationship not only imposes upon him the
duty of acting in the highest good faith towards his principal but precludes the agent from
obtaining any advantage over the principal in any transaction had by virtue of his
agency.” (Batson v. Strehlow (1968) 68 Cal.2d 662, 674-675.) “Unless otherwise agreed,
an agent must perform the agency solely for the benefit of the principal in matters
connected with the agency. The agent cannot compete with the principal on matters
connected with the agency, take part in any transaction in which the trustee has an
interest adverse to the beneficiary, or undertake any other agency responsibilities adverse
to the interests of the principal.” (2 Miller & Starr, Cal. Real Estate (3rd ed.) § 3.25.)
       The evidence shows that Lucy wished to withdraw from the transaction but Tony
convinced her to proceed with the purchase so he could obtain the property for his own
benefit. In doing so, Lucy made a substantial cash payment and assumed mortgage
liability upon Tony’s false promise that he would quickly repay her and release her from
liability. His conduct constituted a clear breach of fiduciary duty.
       Tony’s contention that there is insufficient evidence of malfeasance is founded on
his own trial testimony, disregarding Lucy’s contrary testimony. The trial court, however,
expressly found Tony’s testimony to be “specious.” “The findings of the trial court as to
any disputed factual issue are binding on this court, so long as they are supported by
substantial evidence.” (Arntz Builders v. City of Berkeley (2008) 166 Cal.App.4th 276,
284.) Under the substantial evidence standard, “[w]e resolve all factual conflicts and


                                               9
questions of credibility in favor of the prevailing party and indulge all reasonable
inferences to support the trial court’s order.” (City of Claremont v. Kruse (2009) 177
Cal.App.4th 1153, 1180.) Lucy’s testimony fully supports the trial court’s conclusion that
Tony breached the fiduciary duty he owed her.
       Tony contends the court’s conclusion was based on a finding that Lucy did not
know she was signing a mortgage, which he argues is a finding without evidentiary
support. At oral argument, Tony’s counsel noted that Lucy’s cross-complaint was
premised on allegations that Tony secured a mortgage in Lucy’s name and Lucy testified
at trial that she understood the house loan was “under [her] name.” Tony misconstrues
the court’s decision in characterizing the finding as determining that Lucy was wholly
ignorant of the documents she signed. The court found that Lucy agreed to sign a
mortgage but did so without a full understanding of the obligations and risks she was
assuming. The court observed that Lucy “did not understand that the mortgage was being
secured only in her name. She thought that her name would be removed within 3 weeks
of closing.” Lucy “was willing to extend a short term loan but did not want a long term
financial commitment.” The court’s findings are well-supported by the evidence.
       Nor did the court base its determination on the fact that Tony did not provide Lucy
with closing documents in Chinese, as Tony claims on appeal. The court observed that
Tony’s “failure to provide her with Chinese language documents and his failure to tell her
that she would be obligated under the mortgage was both dishonest and showed a lack of
integrity.” The observation was one among many that informed the court’s determination
that Tony failed to act in “the highest good faith and undivided service and loyalty” to his
client. (Field v. Century 21 Klowden-Forness Realty (1998) 63 Cal.App.4th 18, 25.) That
determination is supported by the record as a whole.
III. Substantial evidence supports the court’s finding that Tony defrauded Lucy.
       Lucy testified that Tony promised to remove her name from the Hayward house
mortgage and repay her $130,000 loan within three weeks. The court found that Tony
made this promise fraudulently, without any intention of performing it, because “[h]e



                                             10
wanted the house and did not seem to care how he got it.” Tony denies fraudulent intent,
arguing that he intended to perform the promise at the time he made it.
       Substantial evidence supports the court’s finding of fraudulent intent. Direct
evidence of a party’s intent is seldom possible. The law recognizes that “fraudulent intent
must often be established by circumstantial evidence.” (Tenzer v. Superscope, Inc. (1985)
39 Cal.3d 18, 30.) “[F]raudulent intent has been inferred from such circumstances as
defendant’s insolvency, his hasty repudiation of the promise, his failure even to attempt
performance, or his continued assurances after it was clear he would not perform.” (Ibid.)
       The circumstances here support the finding of fraudulent intent. Tony admitted
that he did not “have the money . . . to close escrow” and borrowed the money from Lucy
intending to repay her only “as fast as” he could in “weeks or months” and “subject” to
Diana loaning him money. But Diana testified she never agreed to lend Tony money. She
testified that he asked her for money, both before and after the close of escrow, and she
consistently refused. This evidence supports the inference that Tony promised to repay
Lucy in three weeks without intending to do so, intending only to repay her “as fast as”
he could and only if he could convince Diana to lend him the money. Tony’s promise
was made without an intent to perform.
       At oral argument, Tony’s counsel insisted that Tony had the ability, and intention,
to perform and that it was Lucy who obstructed performance by refusing to place title to
the house in escrow, to be transferred to Tony upon his repayment of the loan, which
would have enabled him to obtain his own mortgage to pay off Lucy’s mortgage. But
Tony testified that he did not open an escrow account until May 2008, weeks after his
performance was due, and there is no evidence that he ever paid into the escrow account
the funds that would have been required from him had a mortgage been obtained. The
evidence is thus consistent with the court’s finding that Tony did not have the means to
repay Lucy within the time promised and made the promise with no intention of
performing it.
       Tony argues there is no fraud where there are no damages and maintains that Lucy
was not damaged. Title to the house remained with Lucy and Diana and Tony contends


                                            11
that sale of the house will net Lucy more than the unpaid balance of her loan to him and
any liability resulting from assumption of the mortgage obligation. However, Lucy
clearly suffered damages in loaning money to Tony that was never repaid. As discussed
more fully below, there is no evidence in the record indicating that Lucy would obtain
any profit on sale of the house, but it is clear that she became obligated to repay the
outstanding balance on the $417,000 mortgage. Lucy also became obligated to make
payments on the mortgage loan and for property insurance, property taxes, and other
related expenses. While Diana paid these costs, Lucy was a joint owner subject to an
action for contribution. The evidence leaves little doubt that Lucy incurred appreciable
damages as a result of Tony’s fraud.
IV. The court did not err in denying Tony ownership of the house or contract rescission.
       Tony contends the court should have awarded him ownership of the house or,
alternatively, rescinded the parties’ contract and awarded him $260,000 for money he
advanced on the down payment, his partial loan repayment to Lucy, the monthly
mortgage payments that he made, and the home improvement costs that he incurred. The
contention is meritless. As the trial court properly found, Lucy’s oral promise to convey
real property to Tony was unenforceable (Civ. Code, § 1624, subd. (a)(3)) and in all
events was conditioned on Tony repaying Lucy and securing her release from liability on
the mortgage. Tony also failed to demonstrate grounds for the equitable remedy of
rescission. (Civ. Code, § 1689.) It would hardly be equitable to compel Lucy to pay him
for his expenditures on the house he fraudulently induced her to purchase. As the trial
court properly found, there is “no factual basis” for rescission.
       Despite finding no grounds for rescinding the contract or imposing a constructive
trust, the court nevertheless sought to “do equity” for Tony in light of the funds he did
provide in the expectation of assuming ownership of the house. As indicated above, the
court ordered Lucy to transfer title to Tony if, within 120 days of the date of judgment, he
repaid her down payment and obtained the lender’s consent to his assumption of the
mortgage. Tony sought the lender’s consent but it was refused. The court, upon learning
of the refusal, denied Tony’s request for modification of the judgment. The court was


                                             12
willing to provide relief to Tony for his investment in the house provided Lucy was made
“whole,” but understandably refused to make any modification that threatened to reduce
her full recovery.
       Tony claims Lucy’s recovery exceeded her actual damages but fails to substantiate
the claim. Tony bears the burden to affirmatively establish error and to demonstrate that
it resulted in a miscarriage of justice that requires reversal. (Aguayo v. Amaro (2013) 213
Cal.App.4th 1102, 1109; Paterno v. State of California (1999) 74 Cal.App.4th 68, 105-
106.) Tony has failed to carry that burden. His claim of excessive damages rests on the
assertion that Lucy was awarded title to a $680,000 house with a $417,000 mortgage,
resulting in a $263,000 windfall. There are several factual weaknesses in the claim. First
and foremost, he presented no formal appraisal of the value of the house at the time of
trial. The $680,000 value Tony assigns to the house is based on its purchase price in
March 2008. But the house was purchased during a “boom market,” as Tony’s real estate
expert conceded at trial. The market “tank[ed]” shortly after the purchase, making its
value at the time of trial in June 2010 questionable. Tony testified that he consulted
several appraisal websites months before trial and estimated the house’s value, at that
time, to be in a range of the “high 300s to low 500s,” which is considerably less than its
$680,00 purchase price and, at the low range, less than the mortgage obligation.
Moreover, Lucy was not entitled to receive all sale proceeds because title to the property
was held by Lucy and Diana. Tony’s assertion that Lucy received a windfall also fails to
account for the mortgage payments and other costs incurred in the more than two years
that elapsed between purchase of the house and the time of trial. In short, the record does
not contain a property appraisal, an accounting, or any other evidence to support Tony’s
claim of excessive damages. There is no basis for overturning the court’s damage award.
                                        Disposition
       The judgment is affirmed.




                                             13
                                 _________________________
                                 Pollak, J.


We concur:


_________________________
McGuiness, P. J.


_________________________
Siggins, J.




                            14
