Filed 7/21/16 Scurich Brothers, Inc. v. Frederickson CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                      SIXTH APPELLATE DISTRICT

SCURICH BROTHERS, INC. et al.,                                       H038675
                                                                    (Monterey County
         Plaintiffs and Respondents,                                 Super. Ct. No. M90957)

         v.

MARK FREDERICKSON et al.,

         Defendants and Appellants.

         Plaintiffs Scurich Brothers, Inc. (SBI), Mark Scurich, and Bill Scurich
(collectively, plaintiffs), sued a number of defendants in connection with two real estate
transactions. In the first transaction, SBI purchased three residential lots (lots
transaction) and received a repurchase addendum from the seller agreeing to repurchase
the lots after one year (repurchase addendum). In the second transaction, SBI purchased
assignments of fractional interests in six deeds of trust for six residential lots (deed of
trust assignments transaction).
         The case involved several defendants, only a fraction of whom have appealed.
Plaintiffs bought the lots from defendant MJM Real Estate Investments, LLC (MJM).
The repurchase addendum was signed by defendant Mark Frederickson. Frederickson
also arranged the deed of trust assignments transaction. The deeds of trust were assigned
to SBI from defendant Edinburgh Development Group, Ltd. (Edinburgh). Those deeds of
trust secured promissory notes issued to Edinburgh by defendant MidValley Ventures I,
LLC (MidValley LLC). Defendant CalStar Industries, Inc. (CalStar) was the majority
shareholder of MidValley LLC, and defendant MidValley Framing, Inc. (MidValley
Framing) was the minority shareholder of MidValley LLC. Defendant Wayne Moles was
the chief financial officer of both Edinburgh and CalStar.
       On the causes of action concerning the lots transaction, the trial court granted
rescission and awarded plaintiffs compensatory damages, attorney’s fees, and costs
against Frederickson and MJM. Regarding the deed of trust assignments transaction, the
trial court found Frederickson, MJM, Edinburgh, MidValley LLC, and CalStar liable for
fraud and awarded plaintiffs compensatory and punitive damages.1 The trial court also
found Frederickson liable for breach of fiduciary duty (in connection with the deed of
trust assignments transaction) and breach of an implied covenant (in connection with the
lots transaction), and awarded compensatory damages for each.
       This appeal was filed by defendants Frederickson, MJM, Moles, and CalStar, but
the opening brief concedes that MJM is a suspended limited liability corporation and
therefore is not a party to the appeal. Frederickson, Moles, and CalStar claim the trial
court erred as matter of law when it determined that: (1) Frederickson was the alter ego
of MJM; (2) plaintiffs had standing; (3) plaintiffs were entitled to rescission of the lots
transaction; (4) Frederickson breached the repurchase addendum; (5) Frederickson
breached the implied covenant that the lots would be conveyed free of encumbrances;
(6) Frederickson and Moles committed fraud related to the deed of trust assignments
transaction; (7) Frederickson breached his fiduciary duty to plaintiffs related to the deed
of trust assignments transaction; (8) the benefit-of-the-bargain measure of damages
applied to Frederickson’s breach of fiduciary duty; and (9) plaintiffs were entitled to
punitive damages from Frederickson. For the reasons stated here, we will reverse the
judgment because rescission was not an available remedy for the lots transaction and




       1
           Default was entered against MidValley LLC.
                                              2
plaintiffs did not suffer additional damages from Frederickson’s breach of the implied
covenant.
                         I.   TRIAL COURT PROCEEDINGS
   A. TRIAL EVIDENCE
       Brothers Bill and Mark Scurich began investing with Frederickson in 2003, when
Frederickson was the president of Sterling Pacific, which was apparently a private
investment company. Between 2003 and 2005, the Scurich brothers were satisfied with
their investments with Frederickson and Sterling Pacific. In late 2005, Frederickson
informed the Scurich brothers that he was selling Sterling Pacific and had selected them
among a small group of Sterling Pacific’s clients with whom he wanted to maintain a
professional relationship. Frederickson’s principal place of business was in Monterey
County.
            1. The Lots Transaction and Repurchase Addendum
       In early 2006, Frederickson approached the Scurich brothers with an investment
opportunity to buy residential lots in Chowchilla, informing them that a developer was
planning to build “multi-million-dollar” homes on the lots. Frederickson told Mark
Scurich it was “a heck of a good deal” because prices would continue to climb over time.
Based on these representations, on February 12, 2006 the brothers purchased three lots in
Block 10 of the Greenhills Estates & Golf Club subdivision through their corporation SBI
from Frederickson’s limited liability corporation MJM for $978,440.44. When Mark
Scurich expressed concern that the lots might not appreciate in value according to
Frederickson’s expectations, Frederickson drafted and signed the repurchase addendum
on February 13, 2006. It stated that MJM “agrees to repurchase” the lots “if buyer so
chooses after Feb. 15, 2007 for [the] original purchase price plus 12% interest” and that
SBI “will market these lots through Cal Star and [MJM] during the one-year period.”
SBI later transferred the lots to Rubus, a general partnership consisting of Mark Scurich
and Bill Scurich.
                                             3
       One of the lots, Lot 8, was encumbered by a deed of trust held by A.J. Louis
Corporation securing a construction lien with a principal balance of $121,555. On a
Seller’s Estimated Closing Statement signed by Frederickson the day before he sold the
lots, $121,000 as a payoff to “A.J. Lewis [sic]” is subtracted from the $315,000 purchase
price paid by SBI for Lot 8. However, the final settlement statement for that transaction
omitted the A.J. Louis lien. North American Title Company, who acted as the escrow
agent in the lots transaction, paid off the A.J. Louis lien in 2008.
       Within “a month or two” after February 2007, Mark Scurich asked Frederickson to
honor the repurchase addendum. Plaintiffs then sent a formal letter to Frederickson and
MJM in October 2007 demanding performance. Plaintiffs ultimately sued MJM and
Frederickson for breach of the repurchase addendum, seeking specific performance of the
agreement. Plaintiffs’ second amended complaint (hereafter, Complaint) also alleged
MJM and Frederickson breached the implied covenant that Lot 8 was conveyed free of
encumbrances. Plaintiffs did not plead a cause of action for violation of the Subdivided
Lands Act (Bus. & Prof. Code, § 11000 et seq.).
          2. Deed of Trust Assignments Transaction
       Edinburgh held nine promissory notes secured by deeds of trust on nine residential
lots in Block 13 of the Greenhills Estates & Golf Club subdivision. The face value of
each note was $85,500, representing money Edinburgh lent to MidValley LLC in January
2006. The notes would mature in January 2007. MidValley LLC was owned by two
entities: a majority shareholder CalStar (of which Wayne Moles was Chief Financial
Officer) and a minority shareholder MidValley Framing. The deeds of trust for the nine
notes were all second in priority, behind deeds of trust securing notes for over $550,000
per property. In November 2006, MidValley Framing made an offer to be released from
liability as a member of MidValley LLC. CalStar’s 2006 statement of income from its 50
percent interest in MidValley LLC showed a loss of $5,576, suggesting that
MidValley LLC’s total loss was $11,152.
                                              4
       In late December 2006, Larry Pistoresi and Wayne Moles (the president and chief
financial officer, respectively, of Edinburgh) approached Frederickson regarding an
investment opportunity.2 Edinburgh offered to assign the deeds of trust for the nine
promissory notes to Frederickson at a discount in order to provide a tax benefit to
Edinburgh. Pistoresi and Frederickson agreed that Edinburgh would assign 95.90643
percent interests in the deeds of trust for a total of $370,000 (approximately $41,111 per
deed of trust assignment). Edinburgh would retain the remaining 4.09357 percent interest
in each deed of trust.
       Armed with that information, Frederickson called Bill Scurich. Bill testified to the
following. Frederickson told him his colleagues Moles and Pistoresi “had some lots that
they needed to sell by the end of the year ... [due to] tax implications.” Frederickson
claimed these lots were a short-term purchase from Edinburgh and that Edinburgh would
repurchase them in 60 to 90 days for $82,500 each. Frederickson told him the lots were
about $52,166 each, Bill Scurich agreed to buy six of the nine lots as SBI, and SBI gave
Frederickson a check for $313,000.3 Bill Scurich believed the prices for these Block 13
lots were lower than the Block 10 lots he had purchased earlier in the year because the
lots on Block 13 were smaller, unlike the Block 10 lots that were “the cream of the crop”
in the subdivision. Frederickson had also told him that during the early years of the
subdivision, buyers had purchased lots for as little as $12,000.
       Frederickson finalized the deal with Pistoresi (who consulted with Moles) and
MJM paid Edinburgh $370,000 ($41,111 per deed of trust assignment), with the intention
that MJM would take three deed of trust assignments and SBI would take the other six.
Two documents were recorded to memorialize the nine deed of trust assignments. One,

       2
          Pistoresi was not named as a defendant. He testified under subpoena for
plaintiffs at trial.
        3
          On direct examination, Bill Scurich testified that Frederickson told him the lots
were “52.5, or thereabouts,” and later testified on cross-examination that the lots were
“52,100 and whatever.” $313,000 divided by six is $52,167.
                                             5
between Edinburgh and SBI, listed the lot numbers and Assessor’s Parcel Numbers for
the six deed of trust assignments but transferred one “undivided 95.90643% interest
($82,000)” in “that certain Deed of Trust dated January 19, 2006 ... recorded as
instrument no. 2006003825” in January 2006. That instrument number corresponds with
the deed of trust between MidValley LLC and Edinburgh for one of the six Block 13 lots.
As a result of this incongruous drafting, title reports prepared for the lots showed the deed
of trust assignment to SBI for one lot but did not show assignments of the deeds of trust
for the other five lots.4 The second document, between Edinburgh and MJM, similarly
referred to one deed of trust, but listed three lots.5 Both documents were signed by
Pistoresi and Moles on behalf of Edinburgh and listed MJM’s business address as the
mailing address for the assignments once they were recorded.
       In August 2007, new deed of trust assignments were drafted in order to properly
convey property interests in all nine lots secured by the deeds of trust.6 Those
assignments transferred a 95.90643 percent interest in each deed of trust to SBI,
“[t]ogether with the note or notes therein described or referred to” in the original deeds of
trust, which were the promissory notes issued by MidValley LLC to Edinburgh in
January 2006. That same month, Frederickson’s wife purchased Lot 48 in Block 13 and
Frederickson sent an e-mail to Pistoresi and Moles directing them to pay off the SBI deed
of trust assignment encumbering that property and to use any excess funds toward paying
off another deed of trust assignment. The excess funds amounted to $11,219.03, which
were paid to plaintiffs for part of the money owed on another deed of trust assignment


       4
         Plaintiffs received a copy of the deed of trust assignment from Frederickson in
February 2007.
       5
         Frederickson later reassigned MJM’s deed of trust assignments to a woman
named Maria Vargas to satisfy a personal debt to her.
       6
         Plaintiffs received copies of their six new deed of trust assignments at some
point, but Bill Scurich testified that he could not remember precisely when they received
them.
                                              6
they had purchased. In September 2007, the senior lienholders for the Block 13 lots
associated with plaintiffs’ remaining deed of trust assignments sent notices of default for
each lot and the lots were later sold at a trustee’s sale to satisfy those senior liens.
Plaintiffs sent a letter to MidValley LLC demanding that it pay SBI for the five
remaining deed of trust assignments (which as a result of the trustee’s sale were no longer
secured by real property). MidValley LLC did not pay plaintiffs any money in response
to the demand letter.
       Relating to the deed of trust assignments, the Complaint alleged causes of action
for breach of contract against MidValley LLC, CalStar, and MidValley Framing; fraud in
the inducement against Frederickson, MJM, Moles, and Edinburgh; conspiracy to commit
fraud against Frederickson, MJM, Edinburgh, Moles, MidValley LLC, MidValley
Framing, and CalStar; breach of fiduciary duty against Frederickson; and negligence and
negligence per se against Frederickson and MJM.
   B. AMENDED STATEMENT OF DECISION
       In an amended statement of decision that the court based on plaintiffs’ proposed
statement of decision, the court found: MJM (and Frederickson as MJM’s alter ego)
violated “the Subdivision Map Act such that Rescission of the [lots transaction] is
warranted”;7 MJM (and Frederickson as MJM’s alter ego) breached the repurchase
addendum; CalStar (as the alter ego of MidValley LLC) breached its obligation to pay
promissory notes secured by the deed of trust assignments; Frederickson, MJM, Moles,
and Edinburgh defrauded plaintiffs in the deed of trust assignments transaction;
Frederickson, MJM, Edinburgh, Moles, and CalStar conspired to defraud plaintiffs in the
deed of trust assignments transaction; Frederickson breached his fiduciary duty to


       7
         As we will discuss in greater detail in Part II.B.2, plaintiffs raised issues and
offered expert testimony through Guy Puccio related to the Subdivided Lands Act
(Bus. & Prof. Code, § 11000 et seq.), but appear to have confused that statutory scheme
with the Subdivision Map Act (Gov. Code, § 66410 et seq.).
                                               7
plaintiffs in the deed of trust assignments transaction; Frederickson and MJM committed
negligence and negligence per se related to both transactions; and Frederickson and MJM
breached the implied covenant that Lot 8 was conveyed free of encumbrances.
   C. PUNITIVE DAMAGES HEARING
       At a hearing to determine the appropriateness and amount of punitive damages to
impose against Frederickson for defrauding plaintiffs, plaintiffs elicited testimony from
Frederickson, his former accountant, and Joshua Fischer (a member of the partnership
that purchased Sterling Pacific from Frederickson around 2005). Among several assets
identified, plaintiffs focused on three that they argued Frederickson had attempted to
hide: a deposit for over $1 million owed to Frederickson for a villa in Anguilla; a
promissory note and deed of trust for which Frederickson held a 50 percent beneficial
interest related to the sale of Sterling Pacific that Frederickson caused to be assigned to
his daughter in 2010 (worth approximately $245,000); and a trustee’s deed depositing an
interest in land into one of Frederickson’s retirement accounts in October 2008 (worth
over $400,000). Frederickson testified that he would probably not be able to recover the
Anguilla deposit because the property was being foreclosed upon, but did not offer
documentation about the foreclosure. Frederickson testified that his daughter bought the
note from him, but did not present evidence that he received compensation for the
assignment. Frederickson acknowledged during his testimony that he had not disclosed
the retirement deposit during his deposition, stating that he thought plaintiff’s counsel
had been asking about new transfers whereas the retirement deposit was “transferred
back” into the account after a debtor defaulted on a loan. Plaintiffs argued that
Frederickson had refused to disclose evidence of his assets despite discovery requests,
was hiding major assets from the court, and had the ability to pay punitive damages.
Frederickson claimed he had a negative net worth.
       The trial court was very direct in describing its dissatisfaction with Frederickson’s
testimony in the punitive damages phase of the case, stating that it was “very concerned”
                                              8
about Frederickson’s failure to disclose money deposited into a retirement account and
that there were “huge, empty spaces” in Frederickson’s testimony that “raise[] a serious
question in the Court’s mind about his veracity ... .” The court found “[b]oth his answers
to questions in court and the failure to provide any documents in support of [his]
position ... very troubling”; his testimony was “exceedingly unreliable”; and it was
“striking how hard the defendant was working to not give reliable information.” The trial
court accepted plaintiffs’ evaluation of Frederickson’s assets and ordered $313,000 in
punitive damages against him.
   D. JUDGMENT
       The judgment (drafted by plaintiffs) awarded the following: (1) rescission of the
lots transaction, along with $342,144.33 in compensatory damages, $38,303.63 in
attorney’s fees, and $7,000 in costs against Frederickson and MJM “due to failure to
comply with [the] Subdivision Map Act”; (2) $127,677.76 against Frederickson and
MJM for breach of the implied covenant for Lot 8; (3) $324,775.68 against Frederickson,
MJM, CalStar, Moles, and Edinburgh jointly and severally for conspiracy to defraud
plaintiffs related to the deed of trust assignments transaction; (4) $277,622.35 against
Frederickson for breach of fiduciary duty in the deed of trust assignments transaction;8
and (5) $313,000 in punitive damages against Frederickson and MJM for fraud in the
deed of trust assignments transaction.
                                   II.    DISCUSSION
       Preliminary issues affect the scope of review. It is settled that judgments are
generally considered final against non-appealing parties (Estate of McDill (1975)
14 Cal.3d 831, 840), and suspended domestic corporations may not appeal from an

       8
          The court found that plaintiffs were entitled to benefit-of-the-bargain damages
for Frederickson’s breach of fiduciary duty. The court calculated benefit-of-the-bargain
damages as $602,398.03. Because the court had already found Frederickson liable for
$324,775.68 in out-of-pocket damages for fraud, the court subtracted that amount from
the full amount of benefit-of-the-bargain damages to reach $277,622.35.
                                             9
adverse judgment. (Gar-Lo, Inc. v. Prudential Sav. & Loan Assn. (1974)
41 Cal.App.3d 242, 245.) As noted at the outset, the opening brief concedes that MJM is
not a party to the appeal because it is a suspended limited liability corporation. However,
the brief later attempts to assert issues related to MJM. Because MJM is a suspended
LLC, our review is limited to claims related to Frederickson, Moles, and CalStar. We
will address MJM’s conduct only as necessary to determine Frederickson’s alter ego
liability for MJM’s actions. The trial court’s judgment is final as to all other defendants.
       Plaintiffs argue that the opening brief did not fairly summarize the facts in the
light most favorable to the judgment and requests that we deem forfeited all arguments
related to the sufficiency of the evidence. (Citing Foreman & Clark Corp. v. Fallon
(1971) 3 Cal.3d 875, 881.) Trial court decisions are presumed correct and the appealing
party has the burden to affirmatively show error. (Santa Clara County Environmental
Health Assn. v. County of Santa Clara (1985) 173 Cal.App.3d 74, 83–84 (Santa Clara
County Env. Health); Lennane v. Franchise Tax Bd. (1996) 51 Cal.App.4th 1180, 1189.)
We will not furnish legal arguments for an appellant. (Century Surety Co. v. Polisso
(2006) 139 Cal.App.4th 922, 963.) Though the appealing defendants’ briefs provide an
improperly one-sided recitation of facts and essentially attempt to retry the case on
appeal, we will nonetheless review arguments containing reasoned analysis.9 Finally,
when a defendant’s liability is established by one of several alternative grounds, we need
not consider all alternative grounds for the judgment. (Sutter Health Uninsured Pricing
Cases (2009) 171 Cal.App.4th 495, 513 (Sutter).)




       9
          Neither party’s briefing was perfect. Our review was hampered by all of the
parties’ failures to cite the record to support factual assertions. When citations did occur,
they did not comply with California Rules of Court, rule 8.204(a)(1)(C), which requires
briefs to support record references by citation to both page and volume numbers.
                                             10
   A. FREDERICKSON AS ALTER EGO OF MJM
       Frederickson challenges the trial court’s finding that he was the alter ego of MJM.
The trial court found that Frederickson “used MJM funds as his own” and did not
maintain corporate formalities. We review a trial court’s application of the alter ego
doctrine for substantial evidence. (Misik v. D’Arco (2011) 197 Cal.App.4th 1065, 1072
(Misik).)
       Generally, a corporation is regarded as a separate and distinct legal entity and its
liabilities will not extend to its stockholders, officers, and directors. (Sonora Diamond
Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 538 (Sonora); see also former
Corp. Code, § 17101, subd. (a) [generally “no member of a limited liability company
shall be personally liable ... for any debt, obligation, or liability of the limited liability
company”], repealed by Stats. 2012, ch. 419, § 19, p. 3986.) The alter ego doctrine is an
equitable exception to that general rule, allowing courts to find an individual member of
the corporation liable if: (1) there is a sufficient unity of interest and ownership between
the corporation and the individual controlling it that their separate personalities no longer
exist; and (2) “treating the acts as those of the corporation alone will sanction a fraud,
promote injustice, or cause an inequitable result.” (Misik, supra, 197 Cal.App.4th at
pp. 1071–1072; former Corp. Code, § 17101, subd. (b), repealed by Stats. 2012, ch. 419,
§ 19, p. 3986; see also Corp. Code, § 17703.04, subd. (b).) Factors supporting
application of the alter ego doctrine include: commingling of funds and assets; one entity
representing that it is liable for the debts of the other; identical equitable ownership of the
entities; using the same offices and employees; using an entity as a “ ‘mere shell or
conduit for the affairs of the other’ ”; inadequate capitalization; disregard of corporate
formalities; and having identical directors and officers. (Sonora, at pp. 538–539, quoting
Roman Catholic Archbishop v. Superior Court (1971) 15 Cal.App.3d 405, 411.)
       Though the lots transaction was between MJM and SBI, the trial court found
Frederickson liable as the alter ego of MJM. The court found that MJM was composed
                                               11
of Frederickson and his wife and that Frederickson used MJM funds as his own
throughout the transactions before the court. Frederickson argues there was no evidence
to support the trial court’s finding. To the contrary, plaintiffs offered evidence through
the testimony of Ms. Vargas that Frederickson used property owned by MJM to satisfy a
personal debt to her related to her investment of $380,000 with Frederickson for what she
believed was a condominium in Lake Tahoe. Instead of the condominium, Frederickson
assigned her three deeds of trust in Block 13 owned by MJM. Throughout her testimony,
Vargas referred to Frederickson as an individual and her testimony suggested that the
debt was personally owed by Frederickson, not MJM. Though Frederickson argues that
plaintiffs did not submit any agreement between Vargas and Frederickson into evidence,
absent evidence that Vargas’s investment had actually been with MJM her testimony
provides substantial evidence from which the trial court could find that Frederickson used
MJM property to satisfy a personal debt. Further, Mark Scurich testified that
Frederickson never specified that he was acting as MJM in the lots transaction and that
“it was always just Mark Frederickson to me.” That evidence also supports the trial
court’s finding of a “unity of interest” between Frederickson and MJM. (Misik, supra,
197 Cal.App.4th at pp. 1071–1072.)
       As for the second prong, Frederickson makes no affirmative showing that the trial
court erred in concluding that an inequitable result would follow unless it pierced the
corporate veil. The court could reasonably conclude that it would be inequitable to allow
Frederickson to conduct transactions seemingly as an individual and then hide behind the
MJM corporate form upon plaintiffs’ discovery of his wrongdoing. That inequity is
particularly acute here as MJM is now a suspended corporation. Further, as we will
discuss, substantial evidence supports the trial court’s finding that Frederickson
defrauded plaintiffs and breached his fiduciary duties to them. We find substantial
evidence supports the trial court’s conclusion that Frederickson is the alter ego of MJM.


                                             12
   B. LOTS TRANSACTION
           1. Plaintiffs’ Standing
       Frederickson argues that plaintiffs lack standing to sue on the lots transaction
because the Rubus general partnership, to which SBI transferred the lots, is not a named
plaintiff. Civil actions “must be prosecuted in the name of the real party in interest.”
(Civ. Proc. Code, § 367.) The real party in interest is generally the person or entity
possessing the right sued upon. (Gantman v. United Pacific Ins. Co. (1991)
232 Cal.App.3d 1560, 1566–1567.) The repurchase addendum for the lots is a contract
between SBI and MJM, and there is no evidence SBI transferred or assigned its rights
under the addendum to Rubus. SBI therefore has standing to directly enforce the
repurchase addendum.
       Plaintiffs’ ability to sue for breach of contract or rescission in connection with the
purchase of the lots is more complicated, but the result is the same. SBI transferred the
lots to Rubus in August 2006. Mark and Bill Scurich were named as plaintiffs both
individually and as general partners of Rubus. “Lawsuits to enforce partnership claims
are generally only instituted in the name of the partnership, [citation], or by all of the
individual partners in their capacity as partners by common law.” (Delbon Radiology v.
Turlock Diagnostic Center (1993) 839 F.Supp. 1388, 1391.) Plaintiffs are the sole
partners of Rubus and sued in their capacity as general partners of that partnership. By
including all of the partners of the Rubus general partnership in their capacities as general
partners, plaintiffs satisfied Code of Civil Procedure section 367. Frederickson offers no
reason for a contrary finding, nor does he suggest he suffered any prejudice from
plaintiffs’ pleading.
           2. The Trial Court Erred in Granting Rescission
       Frederickson argues that rescission of the lots transaction was inappropriate
because the Complaint neither alleged Subdivision Map Act (or Subdivided Lands Act)
violations nor prayed for rescission as a remedy. It appears the trial court granted a
                                              13
request to amend the Complaint to conform to proof that plaintiffs made in their written
rebuttal statement. A trial court may grant a request to amend a pleading to conform to
proof offered at trial. (Civ. Proc. Code, § 473, subd. (a)(1).) We review a trial court’s
decision to amend a pleading for abuse of discretion. (Thompson Pacific Const., Inc. v.
City of Sunnyvale (2007) 155 Cal.App.4th 525, 545.)
                  a. Procedural Background
       As Frederickson notes, the Complaint did not reference the Subdivision Map Act
or rescission. The first mention of rescission we find in the record is a passing reference
during plaintiffs’ opening statement, where counsel stated “if you violate the Subdivision
Map Act, and you don’t do a Public Report, and you sell in disregard of that, it’s a
transaction that’s rescindable.” Plaintiffs’ expert witness Guy Puccio testified that what
he referred to as the “Subdivided Lands Law” requires sellers to provide various
disclosures about subdivided property in a public report. The trial court admitted public
reports for Block 10 and Block 13 into evidence.
       In plaintiffs’ written closing argument, they urged that Frederickson’s failure to
provide plaintiffs with a public report during the lots transaction violated the Subdivided
Lands Act (Bus. & Prof. Code, § 11000 et seq.), which forbids selling land in a
subdivision “without first obtaining a public report from the Real Estate Commissioner.”
(Bus. & Prof. Code, § 11018.2.) Plaintiffs claimed the remedy for that violation was to
void the lots transaction and “award rescission.” Frederickson argued in his written
closing argument that rescission was not available because it had not been pleaded.
Plaintiffs responded in rebuttal that their Subdivided Lands Act arguments were within
the scope of the Complaint and, to the extent not properly pleaded, requested that the
court amend the Complaint to conform to proof. The trial court granted plaintiffs’
“request for rescission” but did not mention a statutory basis in its ruling. Plaintiffs filed
a proposed statement of decision, which stated “Frederickson and MJM failed to comply
with the Subdivision Map Act” and granted rescission of the lots transaction. (Italics
                                              14
added.) That Subdivision Map Act reference was repeated verbatim in both the court’s
initial and amended statements of decision. The judgment, drafted by plaintiffs, also
referenced the Subdivision Map Act.
                  b. Analysis
       Based on the evidence presented at trial, it appears that plaintiffs meant to allege
violations of the Subdivided Lands Act, which mandates disclosure of information by
subdividers to prospective purchasers of homes via documents called public reports.
(See Barrett v. Hammer Builders, Inc. (1961) 195 Cal.App.2d 305, 308 [“The legislative
purpose is to protect individual members of the public who purchase lots or homes from
subdividers and to make sure that full information will be given to all purchasers
concerning public utility facilities and other essential facts with reference to the land.”].)
However, plaintiffs instead referred to the Subdivision Map Act (Gov. Code,
§ 66410 et seq.), which is an entirely different statutory scheme regulating subdivision
approvals and land use planning by local governments. (See, e.g., Gov. Code, § 66411
[“Regulation and control of the design and improvement of subdivisions are vested in the
legislative bodies of local agencies.”].)
       The parties’ briefs on appeal suggest they believe either that the court based its
decision solely on the Subdivision Map Act or that the Subdivided Lands Act and
Subdivision Map Act refer to the same statutory scheme. The opening brief restates its
objection to plaintiffs’ failure to plead rescission or the Subdivision Map Act and argues
prejudice for not being allowed to assert exceptions to the Subdivision Map Act in the
trial court. (Citing Gov. Code, § 66499.35, subd. (a).) Respondent’s brief is similarly
confused, referring to the Subdivision Map Act in relation to the disclosure requirements
of the Subdivided Lands Act, but also occasionally correctly referring to the Subdivided
Lands Act. Plaintiffs quote Sixells, LLC v. Cannery Business Park (2008)
170 Cal.App.4th 648, 655, to support their argument that the trial court properly voided


                                              15
the lots transaction, even though that case involves the Subdivision Map Act and not the
Subdivided Lands Act.
       We requested supplemental briefing to clarify whether plaintiffs meant to allege
violations of the Subdivided Lands Act rather than the Subdivision Map Act. In their
supplemental brief, plaintiffs state that they presented evidence related to both the
Subdivision Map Act and the Subdivided Lands Act at trial. But there is no support for
plaintiffs’ claim that they alleged or argued violations of the Subdivision Map Act.
Plaintiffs do not cite an applicable section of the Subdivision Map Act to inform this
court what violations they might have been asserting. Though they point to Guy Puccio’s
references to the Subdivision Map Act at trial, those were merely passing references to
that statute in the context of his detailed discussion of the information disclosure
requirements of the Subdivided Lands Act. As for the Subdivided Lands Act, plaintiffs
claim their failure to cite that statute in their proposed statement of decision and
thereafter was “simply an omission” and argue we should disregard the court’s reference
to the Subdivision Map Act because the court’s decision was correct in law. (Citing
D’Amico v. Board Of Medical Examiners (1974) 11 Cal.3d 1, 18–19 (D’Amico).)
       Plaintiffs also argue the court did not err in granting their request to amend to
conform to proof because defendants had notice of their claims. The appealing
defendants note in their supplemental brief that a reviewing court will not affirm a trial
court’s decision on a different ground “when the ‘ “new theory was not supported by the
record made at the first hearing and would have necessitated the taking of considerably
more evidence.” ’ ” (Quoting People v. Brown (2004) 33 Cal.4th 892, 901; see also ibid.
[noting principle of affirmance on a different ground does not apply when “ ‘the
defendant had no notice of the new theory and thus no opportunity to present evidence in
opposition’ ”].)
       While plaintiffs did present some evidence at trial related to the Subdivided Lands
Act—namely Guy Puccio’s testimony and a brief discussion in their written closing
                                              16
argument—we find that Frederickson did not have adequate notice and opportunity to
respond to issues related to the Subdivided Lands Act because plaintiffs: failed to allege
Subdivided Lands Act violations (or request rescission) in the Complaint; repeatedly
referred to the wrong statutory scheme throughout trial; and failed to reference the correct
statute in the proposed statement of decision after the trial court apparently granted
plaintiffs’ informal request to amend. Absent notice and an opportunity to present
evidence in opposition, the trial court abused its discretion when it allowed the pleading
to be amended in that fashion. (Code Civ. Proc., § 473, subd. (a)(1); see Weinberg v.
Dayton Storage Co. (1942) 50 Cal.App.2d 750, 759 [“amendments of pleadings to
conform to the proofs should not be allowed when they raise new issues not included in
the original pleadings and upon which the adverse party had no opportunity to defend”].)
       Because the trial court improperly granted leave to amend, its decision to rescind
the lots transaction and award $342,144.33 in compensatory damages related to that
rescission cannot stand. The Complaint neither alleged violations of the Subdivided
Lands Act nor prayed for rescission. As plaintiffs did not amend to allege Subdivided
Lands Act violations at a time that would have given defendants adequate notice and an
opportunity to defend, and because plaintiff did not provide any other legal basis for
rescission, the court erred in granting that remedy. We also reverse the attorney’s fees
award because it was apparently likewise based on plaintiffs’ Subdivided Lands Act
argument. Although we find that plaintiffs were not entitled to rescission of the lots
transaction, as discussed next they are entitled to damages related to the lots transaction
based on the trial court’s finding that Frederickson and MJM breached the repurchase
addendum.
          3. The Trial Court Did Not Err in Concluding that Frederickson
             Breached the Repurchase Addendum
       Frederickson argues that he did not breach the repurchase addendum because
plaintiffs sought to exercise their option after a deadline he contends was specified in the

                                             17
repurchase addendum. The February 2006 repurchase addendum states that MJM
“agrees to repurchase” the lots “if [SBI] so chooses after Feb. 15, 2007” for the original
purchase price plus 12 percent interest. It required SBI to market the lots “through Cal
Star and MJM Real Estate during the one-year period.”
       Parol evidence is admissible to interpret a contract when its terms are ambiguous.
(Roden v. Bergen Brunswig Corp. (2003) 107 Cal.App.4th 620, 624.) Though a contract
may appear clear on its face, it is latently ambiguous if parol evidence shows that the
contract is reasonably susceptible of two or more interpretations. (Bill Signs Trucking,
LLC v. Signs Family Limited Partnership (2007) 157 Cal.App.4th 1515, 1521.) Whether
a contract is ambiguous is a question of law we review de novo. If a contract is
ambiguous and parol evidence is not in conflict, interpretation of the contract is also
reviewed de novo. However, if there is conflicting parol evidence, we uphold the trial
court’s interpretation if it is supported by substantial evidence. (Ibid.) We also review a
trial court’s determination that a party breached a contract for substantial evidence. (Saks
v. Charity Mission Baptist Church (2001) 90 Cal.App.4th 1116, 1132.)
       Frederickson argues “it is clear from the evidence that plaintiffs were required to
exercise the option, if at all, at the one year time limit referenced in the repurchase
agreement,” while plaintiffs contend the trial court properly decided that the agreement
did not have a time limit and that Frederickson breached the agreement when he refused
to repurchase the lots. Though the repurchase addendum appears clear on its face, parol
evidence in the form of trial testimony from plaintiffs and Frederickson show it is
reasonably susceptible of each party’s interpretation. Frederickson testified that “[o]ur
intent was one year” and that plaintiffs’ formal request in October 2007 was too late
because it came “almost two years after” he signed the repurchase addendum. Mark
Scurich testified that Frederickson told him if the lots did not sell within a year,
Frederickson would repurchase them. He further testified that plaintiffs asked
Frederickson to honor the agreement and repurchase the lots within “a month or two”
                                              18
after February 2007. Plaintiffs formally demanded that Frederickson honor the
repurchase addendum by letter in October 2007.
       Faced with conflicting testimonial evidence, the court determined that MJM (and
Frederickson as MJM’s alter ego) breached the repurchase addendum. The court could
reasonably find that the February 15, 2007 date referred to the time period during which
CalStar and MJM had the exclusive right to market the property and that it did not create
an option that both matured and expired on the same day. By finding that MJM and
Frederickson breached the repurchase addendum, the court impliedly rejected
Frederickson’s testimony that plaintiffs had to exercise their option on February 15, 2007.
The court apparently found plaintiffs’ testimony more credible than Frederickson’s. We
will not disturb the trial court’s credibility determinations on appeal. (People v. Maury
(2003) 30 Cal.4th 342, 403 [“[I]t is the exclusive province of the trial judge or jury to
determine the credibility of a witness and the truth or falsity of the facts upon which a
determination depends.”].) Substantial evidence supports the trial court’s rejection of
Frederickson’s interpretation of the repurchase addendum. Because Frederickson never
repurchased the lots, substantial evidence also supports the trial court’s finding that MJM
and Frederickson breached the repurchase addendum.
       Though we have determined that rescission was an inappropriate remedy,
plaintiffs are entitled to one of two alternative remedies on remand, based on the
remedies plaintiffs requested in their Complaint: money damages or specific
performance. As “the breach of an agreement to purchase an estate in real property,”
Frederickson’s breach of the repurchase addendum entitles plaintiffs to “the excess, if
any, of the amount which would have been due to the seller under the contract over the
value of the property to him or her, consequential damages according to proof, and
interest.” (Civ. Code, § 3307.)10 Alternatively, the court has discretion to require


       10
            Unspecified statutory references are to the Civil Code.
                                              19
specific performance of the repurchase addendum, meaning that Frederickson would
receive the lots from plaintiffs in return for plaintiffs’ purchase price ($978,440.44) plus
12 percent interest, as well as any pre- and post-judgment interest to which plaintiffs may
be entitled. (§§ 3384, 3386, 3287–3289.) We express no opinion regarding which of
those remedies is more appropriate here, leaving that decision to the trial court on
remand.
            4. The Trial Court Did Not Err in Concluding that Frederickson
               Breached an Implied Covenant Regarding Lot 8; However the Award
               of Damages was Improper
       Frederickson argues the trial court erred in finding that MJM (and Frederickson as
MJM’s alter ego) breached the implied covenant in the grant deed for Lot 8 that the
property was being transferred free of encumbrances by failing to pay off an existing lien
held by A.J. Louis Corporation. Frederickson contends on appeal that he did not know
that lien encumbered Lot 8.11 Section 1113 describes covenants that are implied “[f]rom
the use of the word ‘grant’ in any conveyance by which an estate of ... fee simple is to be
passed ... .” One of those covenants is that “such estate is at the time of the execution of
such conveyance free from encumbrances done, made, or suffered by the grantor, or any
person claiming under him.” (§§ 1113, subd. (2); 1114 [“The term ‘incumbrances’
includes taxes, assessments, and all liens upon real property.”].) As the trial court’s
resolution of this issue involved application of section 1113 to the facts, we review for
substantial evidence. (See Haworth v. Superior Court (2010) 50 Cal.4th 372, 384 [noting
substantial evidence standard applies to application of law to facts].)
       Frederickson argues on appeal that he did not know the A.J. Louis lien
encumbered Lot 8 when MJM transferred Lot 8 to SBI via grant deed, citing his trial


       11
         The amended statement of decision erroneously states that the lien at issue was
held by “VoulaFX, Inc.,” due to plaintiffs’ reference to the wrong information in its
proposed statement of decision. However, defendants acknowledge that the relevant lien
was held by A.J. Louis Corporation.
                                             20
testimony to that effect. However, Frederickson omits other evidence that directly
controverts his testimony, including the “Seller’s Estimated Settlement Statement,” dated
February 12, 2006 and signed by Frederickson. That statement lists various expected
debits and credits related to the Lot 8 transaction. It subtracts $121,000 associated with
payoff charges to “A.J. Lewis [sic]” from the $315,000 purchase price credit expected
from plaintiffs. Frederickson also replied “Yes” when asked at trial: “As of the date of
February 12th, 2006, did you understand that Mr. Louis should be paid $121,000?”
Frederickson later testified he learned that the title company had paid off the lien and
confirmed that he never reimbursed the title company. The foregoing provides
substantial evidence to support the trial court’s finding that Frederickson knew of the lien
on the property, and that by failing to pay the lien out of the proceeds from the Lot 8 sale
he breached the implied covenant that Lot 8 was conveyed free of encumbrances.
       Though substantial evidence supports Frederickson’s liability for breach, the
record does not support the trial court’s award of $127,677.76 in damages for that breach.
The title company paid A.J. Louis to satisfy the lien. Plaintiffs did not provide evidence
showing that they suffered any injury. Plaintiffs argue the collateral source rule—which
allows a plaintiff to recover from a tortfeasor even when the plaintiff received
compensation for an injury from a third party—applies and makes the title company’s
payment irrelevant. (Citing Chanda v. Federal Home Loans Corp. (2013)
215 Cal.App.4th 746, 752.) However, plaintiffs concede in their supplemental brief that
the collateral source rule generally applies only in tort cases. (Plut v. Fireman’s Fund
Ins. Co. (2000) 85 Cal.App.4th 98, 107 [“[T]he overwhelming weight of authority in
California and other jurisdictions has rejected the extension of the collateral source rule
to breach of contract.”]; see also Bramalea California, Inc. v. Reliable Interiors, Inc.
(2004) 119 Cal.App.4th 468, 472 [“But the collateral source rule applies to tort damages,
not to damages for breach of contract.”].) A lawsuit for breach of the implied covenant
that a grant of fee simple is conveyed free of encumbrances sounds in contract rather than
                                             21
tort. (See William Ede Co. v. Heywood (1908) 153 Cal. 615, 617 [“[T]he right of the
grantee to reimbursement from the grantor and his heirs for money necessarily paid by
him to discharge encumbrances so covenanted against [by section 1113] thus rests on the
terms of his contract.”].)
       Plaintiffs request that we apply the collateral source rule to affirm the trial court’s
decision, arguing that Frederickson will receive a windfall by not having to pay off the
lien and that the title company will be denied reimbursement. However, plaintiffs’
failure either to show damages they incurred or to join the title company as a plaintiff in
the suit precludes the trial court’s damages award related to breach of the implied
covenant. (See American Title Co. v. Anderson (1975) 52 Cal.App.3d 255, 259–260
[subrogation action by title company against grantor related to section 1113 action
against grantor by grantee].)
   C. DEED OF TRUST ASSIGNMENTS TRANSACTION
            1. The Trial Court Did Not Err in Concluding that Frederickson
               Breached his Fiduciary Duty and Defrauded Plaintiffs
       Frederickson argues that he acted as a principal rather than as plaintiffs’ broker or
agent in the deed of trust assignments transaction and therefore owed no fiduciary duty to
them. He further contends that plaintiffs did not prove fraud, and incorrectly claims they
had to do so by clear and convincing evidence.12 The trial court found Frederickson
liable for breach of fiduciary duty (in his role as a real estate broker for plaintiffs) and
fraud related to the deed of trust assignments.13 As these causes of action were based on
similar facts, we address them together. We review the court’s fraud and breach of

       12
           Section 3295, cited by Frederickson, does not discuss standards of proof. To
the extent Frederickson meant to cite section 3294, that section sets out the showing
necessary for punitive damages, not the tort of fraud. (§ 3294, subd. (a).)
        13
           On appeal, the parties make breach of fiduciary duty arguments related to both
the lots transaction and the deed of trust assignments transaction. Because the trial court
focused its breach of fiduciary duty decision on the deed of trust assignments transaction,
we do not address claims related to the lots transaction.
                                              22
fiduciary duty findings for substantial evidence. (Warren v. Merrill (2006)
143 Cal.App.4th 96, 109–110 (Warren).)
              a. Frederickson as De Facto Broker
       A real estate broker subject to mandatory licensing by the state is “a person who,
for a compensation or in expectation of a compensation, regardless of the form or time of
payment, does or negotiates to do one or more of the following acts for another or others:
[¶] ... [¶] (d) Solicits borrowers or lenders for or negotiates loans or collects payments or
performs services for borrowers or lenders or note owners in connection with loans
secured directly or collaterally by liens on real property or on a business opportunity.”
(Bus. & Prof. Code, §§ 10131, subd. (d); 10130 [requiring real estate broker’s license to
“engage in the business of, act in the capacity of, advertise as, or assume to act as a real
estate broker”].) An individual acting as a real estate broker owes his or her principal an
obligation of undivided service and loyalty equal to that imposed on trustees in favor of
their beneficiaries. (Warren, supra, 143 Cal.App.4th at p. 109.) That obligation includes
the duty to disclose all material facts about the transaction that might affect the
principal’s decision. (Roberts v. Lomato (2003) 112 Cal.App.4th 1553, 1563 (Roberts).)
A real estate broker does not cease to be his or her principal’s fiduciary when the broker
also enters the transaction as a principal in his or her own right. (Id. at p. 1566.)
       To prove Frederickson was a broker, plaintiffs had to show that he solicited,
negotiated, or otherwise performed services for plaintiffs related to the deed of trust
assignments and did so for compensation or in expectation of compensation. Bill Scurich
testified that Frederickson called him in December 2006, offering plaintiffs a “proposed
investment” to purchase lots from Edinburgh (through Pistoresi and Moles).
Frederickson told Bill Scurich that it was a short-term transaction; in return for investing
around $52,166 per lot, plaintiffs would receive $82,500 per lot in 60 to 90 days. Based
on Frederickson’s representations, plaintiffs paid Frederickson $313,000.


                                              23
       On the other side of the transaction, Pistoresi approached Frederickson and offered
him nine deed of trust assignments at a discount. Although the face value of each deed of
trust was $85,500 ($769,500 total), Pistoresi offered to assign a 95.90643 percent interest
in each deed of trust for $41,111 each ($370,000 total). Frederickson retained three deed
of trust assignments and plaintiffs were meant to receive the other six deed of trust
assignments. Throughout the transaction, Pistoresi negotiated solely with Frederickson
and received the $370,000 purchase price directly from MJM.
       The foregoing provides overwhelming evidence to support the trial court’s finding
that Frederickson was a de facto broker because he solicited and negotiated the deed of
trust assignments for plaintiffs and received compensation by taking $313,000 from
plaintiffs for six deed of trust assignments even though Edinburgh only charged him
$246,666 for those six. In light of that evidence, Frederickson’s claims that “no actions
[were] undertaken on behalf of” plaintiffs and that he was not compensated border on
frivolous.
              b. Fraud by Frederickson and Breach of Fiduciary Duty
       A real estate broker (or unlicensed de facto broker) is liable for actual fraud
through the tort of deceit if the broker knowingly misrepresents a material fact to a
principal, with intent to deceive the principal, and the principal detrimentally relies on the
misrepresentation. (Warren, supra, 143 Cal.App.4th at p. 110; §§ 1709 [“One who
willfully deceives another with intent to induce him to alter his position to his injury or
risk, is liable for any damage which he thereby suffers.”]; 1710, subd. (1) [deceit includes
the “suggestion, as a fact, of that which is not true, by one who does not believe it to be
true”].) Alternatively, constructive fraud occurs when a broker, even “without an
actually fraudulent intent,” breaches the fiduciary duty owed to a principal by gaining an
advantage by misleading the principal to his or her prejudice. (§ 1573; Warren, at
p. 109.)


                                             24
       Bill Scurich testified that Frederickson offered to sell plaintiffs six lots for
$313,000 from Edinburgh. However, the transaction was actually for assignments of
fractional interests in six second-priority deeds of trust related to six lots in Block 13.
Though sold by Edinburgh, these deed of trust assignments were for notes issued by
MidValley LLC, an entity about which plaintiffs knew nothing. Facts regarding the type
of property interest (fee title versus a subordinated trust deed) and the price for that
interest are certainly material facts that Frederickson had a duty to disclose.
Frederickson’s failure to disclose the true terms of the transaction as well as his
affirmative misrepresentations constituted material misrepresentations.
       As plaintiffs’ de facto broker who negotiated the transaction with Edinburgh,
Frederickson knew that the transaction involved deed of trust assignments rather than fee
simple grant deeds and that Edinburgh sought $246,666 for the six deed of trust
assignments ($41,111 per assignment times six assignments), not $313,000. Rather than
send the deed of trust assignments to plaintiffs after recordation, which Bill Scurich
testified had been their common practice in previous transactions, Frederickson had the
deed of trust assignments mailed to his address and did not provide plaintiffs a copy until
two months after the transaction. Based on that evidence, the court could infer that
Frederickson intended to deceive plaintiffs into investing so that he could earn $66,334
(the difference between $313,000 and $246,666), and sought to delay their discovery of
his fraud by having the deed of trust assignments mailed to his office.
       Plaintiffs detrimentally relied on Frederickson’s misrepresentations. They paid for
what they believed were six lot deeds, received only partial deed of trust assignments,
and paid substantially more than Edinburgh’s asking price for the assignments. Further,
foreclosure by the senior lienholder eliminated the real property security for the deed of
trust assignments, a result which could not have occurred had plaintiffs received fee
simple deeds as promised. The importance of the type of property interest received was
stressed by Bill Scurich, who testified that he would not have invested had he known the
                                              25
investment involved deed of trust assignments. The foregoing provides substantial
evidence to support the trial court’s finding that Frederickson defrauded plaintiffs and
intentionally breached his fiduciary duty to them by withholding and misrepresenting
material facts.
       Frederickson’s arguments against the trial court’s findings are unpersuasive. He
argues it was “unreasonable as a matter of law” for plaintiffs to think they were receiving
fee title to six lots for a total of $313,000 when they had spent almost $1 million earlier
that year for three lots. But Bill Scurich offered a reasonable explanation for his belief,
testifying that Frederickson told him that during the early years of the development
investors purchased lots for as little as $12,000. Bill also testified that he believed,
“based on what [he] understood from Mr. Frederickson,” that the Block 10 lots plaintiffs
had purchased in the lots transaction were more expensive because they were the “the
cream of the crop” in the subdivision, whereas the Block 13 lots were much smaller.
Frederickson also points to an e-mail with the subject “note purchase” that he claimed to
have sent to Bill Scurich on December 27, 2006 informing him they were “good to go on
the note purchase” and instructing him where to transfer $313,000 to MJM. But Bill
Scurich testified that he never received the e-mail and that he sent the money in response
to a telephone call he received from Frederickson on December 27, 2006. On all of these
issues, the trial court heard conflicting evidence and found plaintiffs’ testimony more
credible. Such credibility determinations are the province of the trial court to which we
defer on appeal. (Maury, supra, 30 Cal.4th at p. 403.)
       Because substantial evidence supports the trial court’s fraud and breach of
fiduciary duty findings, we do not reach the alternative bases for liability against
Frederickson regarding the deed of trust assignments transaction (namely, negligence and
negligence per se). (Sutter, supra, 171 Cal.App.4th at p. 513 [“[O]ne good reason is
sufficient to sustain the order from which the appeal was taken.”].)


                                              26
              2. Fraud by Wayne Moles14 Based on Withholding Material Facts
         Moles argues that the trial court erred in finding him individually liable for
defrauding plaintiffs in the deed of trust assignments transaction in his role as an officer
of Edinburgh.15 (Citing Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490,
508.) Moles’s argument that he could not be found liable for fraud because he “did not
engage in any conversations with plaintiffs” misses the point. As noted in the amended
statement of decision, in addition to affirmative representations, liability for fraud
attaches to the “suppression of a fact, by one who is bound to disclose it” (§ 1710,
subd. (3)), when that suppression is used to induce a person to purchase realty.
(Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009)
171 Cal.App.4th 1356, 1382–1383 (Alfaro).) A duty to disclose arises when one party to
a transaction has exclusive knowledge of, or access to, material facts not reasonably
discoverable by the other party. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 347.) In
transactions involving real property, material facts include those affecting the value or
desirability of the property. (Alfaro, at p. 1382.) Whether the seller knew about the
suppressed facts and whether those facts were material are both questions of fact subject
to substantial evidence review. (Shapiro v. Sutherland (1998) 64 Cal.App.4th 1534,
1544.)
         Regarding Moles’s duty to disclose material facts not reasonably discoverable by
plaintiffs, the trial court found that Moles, as the CFO of both Edinburgh (the lender to

         14
           The opening brief’s heading refers to fraud claims against both CalStar and
Wayne Moles, but that section focuses on Moles without directly challenging the court’s
findings regarding CalStar. Because error must be affirmatively shown and CalStar did
not satisfy that burden, we do not reach the trial court’s finding of liability against
CalStar. (Santa Clara County Env. Health, supra, 173 Cal.App.3d at pp. 83–84.)
       15
           The trial court found Moles individually liable and imposed damages jointly
and severally among Moles, CalStar, and the other defendants. Because Moles would not
owe a greater amount of money as the alter ego of CalStar, we do not reach his arguments
regarding whether he was the alter ego of CalStar.
                                               27
MidValley LLC and assignor to SBI) and CalStar (the majority member of borrower
MidValley LLC), had insider knowledge of material facts not reasonably discoverable by
plaintiffs. The court found that Moles knew MidValley LLC was in a “precarious”
financial position, that the other member of MidValley LLC (MidValley Framing) had
sought to leave MidValley LLC “to avoid liability,” and that the deed of trust
assignments were “risk capital” because MidValley LLC needed to complete residences
to pay off the notes but could not complete those homes before the notes matured.
       Moles testified that in November 2006 MidValley Framing made an offer to be
released from liability as a member of MidValley LLC. Regarding MidValley LLC’s
financial position, plaintiffs relied on CalStar’s 2006 financial statement regarding its
50 percent share of MidValley LLC’s profits and losses, which showed no net annual
income for MidValley LLC and a loss of $5,576 for CalStar. Moles did not discuss
MidValley LLC’s assets in the trial court, instead arguing in the fraud section of his
closing trial brief that all facts related to the transaction were reasonably discoverable.
       On appeal, Moles now claims MidValley LLC had $10 million in assets, citing the
first page of a MidValley LLC balance sheet. However, to the extent the trial court was
even presented with that argument, it found plaintiffs’ evidence more credible, likely
because the second page of that balance sheet discloses that while MidValley LLC had
over $10 million in assets, it also had over $10 million in liabilities, leading to $8,667.46
in total equity in December 2006. The trial court also discredited Moles’s testimony that
he did not know plaintiffs were purchasing the deed of trust assignments, citing
“documents prepared and discussed by Edinburgh, Moles, and Frederickson” that showed
plaintiffs were the purchasers, including the deed of trust assignment itself, which Moles
signed on behalf of Edinburgh. Substantial evidence therefore supports the trial court’s
conclusion that Moles had a duty to disclose these material facts to plaintiffs.
       We are also not persuaded by Moles’s argument that he cannot be held liable for
fraud because he “did not engage in any conversations with plaintiffs ... .” Given his duty
                                              28
to disclose material facts, his admitted failure to talk to plaintiffs is completely consistent
with the court’s finding that he breached his duty. Insider information about
MidValley LLC’s financial difficulties was not reasonably discoverable by plaintiffs,
especially because they believed they were conducting a transaction with Edinburgh. By
failing to disclose the material information that MidValley LLC did not have sufficient
assets to repay the notes secured by the deeds of trust that were partially assigned to
plaintiffs (let alone the larger first position deeds of trust), Moles induced plaintiffs to
invest. Plaintiffs were damaged by Moles’s concealment when the holder of the first-
position deeds of trust foreclosed on the properties, extinguishing the property interests
securing the promissory notes Edinburgh assigned to plaintiffs. Substantial evidence
therefore supports the trial court’s finding that Moles defrauded plaintiffs.
            3. Damages for Breach of Fiduciary Duty Based on Fraud
       Frederickson argues the trial court improperly awarded benefit-of-the-bargain
damages16 for his breach of fiduciary duty, arguing he was only responsible for plaintiffs’
out-of-pocket losses.17 Plaintiffs do not address Frederickson’s argument about the
measure of damages for the deed of trust assignments transaction, confining their
discussion of benefit-of-the-bargain damages to the lots transaction.
       Determination of the proper measure of damages is a question of law we review
de novo, while the trial court’s calculation of the amount of damages awarded is
reviewed for substantial evidence. (Rony v. Costa (2012) 210 Cal.App.4th 746, 753.)
Further, “ ‘a ruling or decision, itself correct in law, will not be disturbed on appeal
merely because given for a wrong reason. If right upon any theory of the law applicable

       16
           Benefit-of-the-bargain damages are intended “insofar as possible to place [the
plaintiff] in the same position he would have been in” had the bargain been as promised.
(Coughlin v. Blair (1953) 41 Cal.2d 587, 603.)
        17
           An out-of-pocket measure of damages “awards the difference in actual value at
the time of the transaction between what the plaintiff gave and what he received.”
(Stout v. Turney (1978) 22 Cal.3d 718, 725 (Stout).)
                                              29
to the case, it must be sustained regardless of the considerations which may have moved
the trial court to its conclusion.’ ” (D’Amico, supra, 11 Cal.3d at p. 19.)
       The trial court found Frederickson liable for $602,398.03 in damages for his
breach of fiduciary duty related to the deed of trust assignments transaction and
characterized those as benefit-of-the-bargain damages.18 (Citing Alliance Mortgage Co.
v. Rothwell (1995) 10 Cal.4th 1226 (Alliance).) Because Frederickson’s liability for
breach of fiduciary duty was based on his intentional misrepresentations to plaintiffs, the
trial court effectively awarded plaintiffs $602,398.03 against Frederickson for his fraud in
the deed of trust assignments transaction.
       Section 3343, subdivision (a) provides that “[o]ne defrauded in the purchase, sale
or exchange of property is entitled to recover the difference between the actual value of
that with which the defrauded person parted and the actual value of that which he
received ... .” That language sets forth an out-of-pocket measure of damages. (Stout,
supra, 22 Cal.3d at p. 725.) But section 3343 also describes additional damages that may
be recovered, including lost profits. A defrauded party is entitled to recover “any loss of
profits or other gains which were reasonably anticipated and would have been earned by
him from the use or sale of the property had it possessed the characteristics fraudulently
attributed to it by the party committing the fraud,” so long as “all of the following
apply: [¶] (i) The defrauded party acquired the property for the purpose of using or
reselling it for a profit. [¶] (ii) The defrauded party reasonably relied on the fraud in
entering into the transaction and in anticipating profits from the subsequent use or sale of
the property. [¶] (iii) Any loss of profits for which damages are sought under this


       18
          The judgment stated that Frederickson was personally liable for $277,622.35
for breach of fiduciary duty but explains that amount “is the difference between the
‘benefit of the bargain’ damages of $602,398.03 awardable under plaintiff’s [sic] claim of
breach of fiduciary duty against Mark Frederickson, personally, and the out of pocket
damages of $324,775.68 awarded against all defendants under the above ‘conspiracy to
commit fraud’ claim.”
                                             30
paragraph have been proximately caused by the fraud and the defrauded party’s reliance
on it.” (§ 3343, subd. (a)(4).)
       Here, in the amended statement of decision the trial court found that “Frederickson
and MJM solicited Plaintiffs to invest money with Edinburgh” to buy “what was
supposed to have been six parcels” and that “Frederickson promised that Plaintiffs’
money, plus a return on investment, would be repaid to Plaintiffs within 90 days.” Those
statements support a finding that plaintiffs acquired the deed of trust assignments “for the
purpose of using or reselling [them] for a profit.” (§ 3343, subd. (a)(4)(i).) The trial
court also found that “Frederickson told Plaintiffs that the purchase was a ‘heck of a good
buy’ ” and determined that plaintiffs’ “reliance on the misrepresentations by
Frederickson ... was reasonable in that Frederickson convinced plaintiffs that he was
running the same investment services through MJM that he had previously [run] through
Sterling Pacific Lending, Inc., ... with whom plaintiffs had a history of successful
investments.” Those statements support a finding that plaintiffs’ reliance on
Frederickson’s fraud “in entering into the transaction and in anticipating profits from the
subsequent use or sale of the property” was reasonable. (§ 3343, subd. (a)(4)(ii).)
Though the trial court’s amended statement of decision did not expressly find that the
“loss of profits for which damages are sought under this paragraph have been
proximately caused by the fraud and the defrauded party’s reliance on it” (§ 3343,
subd. (a)(4)(iii)), the court’s award of the face value of each note—which is essentially
the same amount as plaintiffs testified they were promised as profits—was necessarily an
implicit finding by the trial court that plaintiffs’ lost profits were proximately caused by
Frederickson’s fraud.19
       Such a finding entitled plaintiffs to their lost profits under section 3343,
subdivision (a)(4). Plaintiffs were awarded $602,398.03, based on the face value of

       19
         Bill Scurich testified that Frederickson promised plaintiffs would receive
$82,500 for each lot but the trial court used the face value of each note ($82,000).
                                             31
plaintiffs’ fractional interest in the notes ($82,000 per note), less a partial pay-off of
$98,475.99 made to plaintiffs in August 2007, plus added interest. Bill Scurich testified
that Frederickson promised him $82,500 per lot, which would be the starting point for a
lost profits calculation and would lead to a slightly larger recovery. Significantly,
however, plaintiffs do not challenge the adequacy of the damages awarded. Because the
trial court’s award of $602,398.03 in damages was “ ‘correct in law’ ” as an award of lost
profits under section 3343, subdivision (a)(4), “ ‘it must be sustained regardless of the
considerations which may have moved the trial court to its conclusion.’ ”20
(D’Amico, supra, 11 Cal.3d at p. 19.)
       Frederickson relies on Kenly v. Ukegawa (1993) 16 Cal.App.4th 49 (Kenly) to
argue that he was not liable for plaintiffs’ lost profits under section 3343,
subdivision (a)(4). In Kenly, the defendant (Ukegawa) owned a farm that was
encumbered by several liens including a first trust deed securing a promissory note
(Puckett note). Facing a pending foreclosure sale related to the Puckett note, Ukegawa
approached the plaintiff (Kenly) and promised that if Kenly “acquired the Puckett note he
would profit handsomely from a later purchase and resale of the farm.” (Id. at p. 51–52,
55.) In reality, “Ukegawa had no intention of performing his promise to sell, but only
made such promise to induce Kenly to advance the funds necessary to stave off the
impending foreclosure.” (Id. at p. 52.) Kenly purchased the Puckett note and later sued
Ukegawa when he learned that Ukegawa was trying to sell the farm to someone else.
The trial court found that Ukegawa had defrauded Kenly and awarded damages


       20
          Because the trial court’s award can be sustained as an award of lost profits, we
do not consider whether plaintiffs were also entitled to those damages by virtue of
Frederickson’s intentional fraud as a fiduciary. (See Alliance, supra, 10 Cal.4th at
pp. 1240–1241, 1250 [stating “the ‘broader’ measure of damages provided by
sections 1709 and 3333 applies” to intentional fraud by a fiduciary but concluding that
“[w]hile the measure of damages under section 3333 might be greater for a fiduciary’s
intentional misrepresentation, we need not address that issue here”], italics in original.)
                                              32
“representing the lost profits Kenly would have obtained had Ukegawa honored the
agreement to sell the [farm] property to him.” (Ibid.)
       The Court of Appeal in Kenly reversed the award of lost profits. (Kenly, supra,
16 Cal.App.4th at p. 53.) The Kenly court explained that lost profits are recoverable
under section 3343, subdivision (a)(4) “when a buyer of property is induced by fraudulent
representations of the seller concerning the nature of the property.” (Ibid.) But the court
concluded that section 3343, subdivision (a)(4) did not apply because the lost profits
Kenly claimed were “expected from the resale of a piece of property (i.e., the farm) never
acquired by the defrauded party.” (Id. at pp. 53–54, original italics.) The court reasoned
that section 3343 “clearly contemplates that the party actually acquire the property in
question, i.e., the property from which profits were to be realized” and that because
Kenly never obtained the property from which he expected profits, he was not entitled to
lost profits. (Id. at p. 55, original italics.)
       Kenly is factually distinguishable. The plaintiff in Kenly knew about two different
pieces of property (the Puckett note and the farm) and knowingly purchased the Puckett
note with the belief that he would then be able to purchase the farm and profit from
reselling the farm. By contrast, in this case the trial court found that plaintiffs were told
they were buying six fee simple deeds that would then be resold back to Edinburgh for a
profit. Though the property plaintiffs actually acquired turned out to be the deed of trust
assignments, plaintiffs acquired the only “property in question” they were aware of and
were thus entitled to “any loss of profits or other gains which were reasonably anticipated
and would have been earned by [them] from the use or sale of the property had it
possessed the characteristics fraudulently attributed to it by” Frederickson.21 (§ 3343,
subd. (a)(4).)


       21
          Simon v. San Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159 (Simon),
which cited Kenly with approval in a different context, is likewise factually
                                                  33
          4. The Trial Court Properly Awarded Punitive Damages
       Frederickson contends that plaintiffs were not entitled to punitive damages
because they did not prove Frederickson’s fraud by clear and convincing evidence and
that, even assuming plaintiffs were entitled to damages, the trial court’s award was
excessive. (Citing § 3294.) The trial court awarded $313,000 in punitive damages
against Frederickson and MJM for fraud in the deed of trust assignments transaction after
receiving evidence and holding a separate hearing.
              a. Plaintiffs Demonstrated Entitlement to Punitive Damages
       Section 3294, subdivision (a) states: “In an action for the breach of an obligation
not arising from contract, where it is proven by clear and convincing evidence that the
defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the
actual damages, may recover damages for the sake of example and by way of punishing
the defendant.” Fraud under section 3294 “means an intentional misrepresentation,
deceit, or concealment of a material fact known to the defendant with the intention on the
part of the defendant of thereby depriving a person of property or legal rights or
otherwise causing injury.” (§ 3294, subd. (c)(3).) In imposing punitive damages, the
trial court found that plaintiffs established Frederickson’s fraud by clear and convincing
evidence, which requires a showing in the trial court that is of sufficient clarity to leave
no substantial doubt. (In re Angelia P. (1981) 28 Cal.3d 908, 919.) We review the trial
court’s finding for substantial evidence. (Crail v. Blakely (1973) 8 Cal.3d 744, 750.)
       Contrary to Frederickson’s claim on appeal that the trial court found him liable for
only constructive fraud, the court found Frederickson liable for actual fraud regarding the
deed of trust assignments transaction. The court found that Frederickson intentionally
misrepresented both the nature of the investment (claiming plaintiffs were buying lots
when the investment was actually for assignments of second-position deeds of trust) and

distinguishable because the plaintiff in Simon never acquired the property from which he
claimed lost profits. (Id. at pp. 1168–1170.)
                                              34
the price of the investment (claiming Edinburgh sought $52,500 per deed of trust
assignment instead of the actual price of $41,111). The record contains abundant support
for the trial court’s conclusion that plaintiffs proved those intentional misrepresentations
by clear and convincing evidence, including testimony by Bill Scurich and Larry
Pistoresi as well as documentary evidence showing the price Edinburgh actually charged
for the deed of trust assignments. Substantial evidence thus supports the trial court’s
finding that plaintiffs were entitled to punitive damages against Frederickson.
                  b. The Punitive Damages Award Was Not Excessive
       Frederickson contends that the $313,000 punitive damages award is excessive
because his net worth was “non-existent” as of the March 2011 punitive damages
hearing, and because plaintiffs produced no evidence of his net worth at the time of
trial.22 Section 3294, subdivision (a), authorizes imposition of punitive damages “for the
sake of example and by way of punishing the defendant.” When reviewing a claim that
the amount of punitive damages is excessive under state law, we must “determine
whether the award is excessive as a matter of law or raises a presumption that it is the
product of passion or prejudice.” (Adams v. Murakami (1991) 54 Cal.3d 105, 109–110.)
Our Supreme Court has identified the following criteria to guide our review: the
reprehensibility of the misconduct; comparison of the punitive damages award to the
amount of compensatory damages awarded; and the wealth of the defendant. (Neal v.
Farmer’s Ins. Exchange (1978) 21 Cal.3d 910, 928 (Neal).) We do not re-weigh the
evidence or resolve issues of credibility, as those powers are vested in the trial court.
(See Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908, 918–919 [finding that the

       22
          Though the topic heading in Frederickson’s opening brief states that the
punitive damages award was “constitutionally excessive,” he offers no argument
regarding the constitutional issue, i.e., whether the punitive damages award was so
excessive as to violate due process. (See Simon, supra, 35 Cal.4th at p. 1172.) As
Frederickson did not provide reasoned analysis supporting a claim of federal
constitutional error, we do not address the due process issue. (Santa Clara County Env.
Health, supra, 173 Cal.App.3d at p. 83–84.)
                                             35
defendants failed to challenge excessiveness of punitive damages in the lower court;
noting that review of the amount of damages should occur first in the trial court because
“the trial court is vested with the power, denied to us, to weigh the evidence and resolve
issues of credibility”].)
       Frederickson argues that the punitive damages award was excessive as a matter of
law because plaintiffs did not provide evidence of Frederickson’s wealth at the time of
trial adequate to rebut his showing that his net worth was non-existent. But plaintiffs
argued that they were unable to provide current financial information for Frederickson
because he refused provide information in response to discovery requests. By accepting
plaintiffs’ evaluation of Frederickson’s assets, the trial court implicitly accepted
plaintiffs’ argument. Further, plaintiffs presented evidence of over $1.5 million in assets
that plaintiffs argued Frederickson was attempting to hide (the Anguilla property deposit,
the promissory note Frederickson caused to be assigned to his daughter, and assets in a
retirement account). Though Frederickson argued that those assets should not be factored
into his net worth for various reasons, the trial court deemed his testimony “exceedingly
unreliable” and was troubled by “[b]oth his answers to questions in court and the failure
to provide any documents in support of [his] position ... .”
       As for the reprehensibility of Frederickson’s conduct and the relationship between
the punitive damages award and the amount of compensatory damages awarded
(Neal, supra, 21 Cal.3d at p. 928), neither criterion supports a finding that the punitive
damages award was excessive as a matter of law. Frederickson took advantage of a
position of trust in the deed of trust assignments transaction and profited from his
intentional misrepresentations to plaintiffs. And the punitive damages award is equal to
plaintiffs’ investment in the deed of trust assignments transaction, which was the starting
point for the trial court’s compensatory damages calculation. On this record,
Frederickson has failed to show that the trial court’s $313,000 punitive damages award
was excessive as a matter of law. (Neal, at p. 928.)
                                             36
                                 III.   DISPOSITION
      The judgment is reversed and the matter is remanded with instructions to strike:
(1) $324,144.33 in compensatory damages and $38,303.63 in attorney’s fees related to
rescission of the repurchase addendum; and (2) $127,677.76 in damages related to
Frederickson’s breach of the implied covenant related to Lot 8. On remand, the trial
court shall determine the remedy to be awarded for Frederickson’s breach of the
repurchase addendum, either: monetary damages in the amount of “the excess, if any, of
the amount which would have been due to the seller under the contract over the value of
the property to him or her, consequential damages according to proof, and interest”
(Civ. Code, § 3307); or specific performance of the repurchase addendum if the trial
court finds that the remedy provided by Civil Code section 3307 is inadequate
(Civ. Code, § 3384). Each party shall bear its own costs on appeal.




                                           37
                                         ____________________________________
                                         Grover, J.




WE CONCUR:




____________________________
Bamattre-Manoukian, Acting P.J.




____________________________
Mihara, J.




Scurich Brothers, Inc. et al. v. Mark Frederickson et al.
H038675
