Filed 7/28/16 Skorick v. Karanikolas CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


JOHN SKORICK,                                                      B263672

         Plaintiff and Respondent,                                 (Los Angeles County
                                                                   Super. Ct. No. EC061052)
         v.

KRISTEN KARANIKOLAS et al.,

         Defendants and Appellants.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Norman P. Tarle, Judge. Affirmed.
         Dillon Gerardi Hershberger Miller & Ahuja and Timothy P. Dillon for Defendants
and Appellants.
         Douglas S. Draper for Plaintiff and Respondent.




                                    ______________________________
       Kristen Karanikolas and her mother, Diane Pape (collectively Appellants), appeal
from a superior court judgment awarding Karanikolas’s former fiancé, John Skorick,
$140,000 after a jury found Appellants agreed, but failed, to repay Skorick for his
investments in the Appellants’ property. Appellants contend the trial court erred in
(1) not issuing a judgment notwithstanding the verdict because (a) Skorick’s alleged oral
contract with Appellants violated the statute of frauds and (b) his money had and received
claim was time barred; (2) not ordering a new trial after the jury rendered fatally
inconsistent special verdicts; and (3) not admitting the verified complaint, which
prejudiced them. We disagree and affirm.
                                      BACKGROUND
       Pape’s mother, and Karanikolas’s grandmother, Mary Pape, owned the property at
issue until her death in 2006. Pape and Karanikolas lived with her. Upon her death, she
willed the property to her three children, including Pape, in equal shares; at the same
time, Karanikolas’s now ex-husband, Sean Montgomery, moved into the property. In
2007, Pape and Karanikolas refinanced the property to “buy out” Pape’s siblings. The
refinance produced $350,000. Karanikolas and Pape also borrowed $100,000 from
Montgomery for the buyout, and Montgomery secured his loan with a second deed of
trust on the property. Pape and Karanikolas successfully bought out Pape’s siblings and
Pape and Karanikolas became 50/50 joint owners of the property.
       In 2008, Karanikolas and Montgomery married. By 2009, however, Karanikolas
and Montgomery had separated, and in 2010 they divorced. Montgomery never had an
ownership interest in the property.
       Karanikolas and Skorick began dating at the end of 2009. During their whirlwind
courtship, Skorick showered Karanikolas with lavish gifts and was also generous with
Pape. In early 2010, Karanikolas and Skorick decided to live together. Skorick planned
to relocate from his Arizona home to Karanikolas and Pape’s home in May 2010.
       Skorick testified that as part of the plan for Karanikolas and himself to build a life,
he, Karanikolas, and Pape orally agreed that he would move into the property and acquire
an ownership interest in it, and Pape would move out. As to his interest, Skorick testified

                                              2
that the group agreed he would pay off Montgomery’s $100,000 lien in exchange for half
of Karanikolas’s half interest and pay Pape $50,000 a year for four years, totaling
$200,000, in exchange for her half interest. In sum, Skorick would acquire a 75 percent
interest in the property (25 percent from Karanikolas and 50 percent from Pape).
Appellants deny agreeing to these terms.
       Appellants testified the group had a different “understanding.” Appellants
contend they always had an unofficial agreement that Karanikolas would refinance the
property and with the proceeds buy out Pape at $200,000, although they had no firm plan
as to how or when this transfer would occur. Once Skorick arrived, however, their plan
changed. Karanikolas contends that instead of refinancing, Skorick would gift her with
$200,000 to buy out Pape. Karanikolas testified she believed Skorick would become an
owner through marriage after they wed, not because he had contributed cash to buying
out Pape.1
       On May 11, 2010, Skorick paid Karanikolas $10,000, which she then paid to
Montgomery. On January 4, 2011, Skorick paid Karanikolas an additional $80,000,
which she again paid to Montgomery. Although these payments totaled only $90,000 of
Montgomery’s $100,000 lien, Skorick testified that Montgomery filed a full
reconveyance of his deed because Karanikolas had negotiated “the amount of the lien
down” with Montgomery.
       On May 6, 2010, Skorick paid Pape $12,000. On November 15, Skorick paid
Pape an additional $20,000. Skorick also paid Pape’s rent for a year, totaling $18,000,
which the parties agreed at some point would count toward Skorick’s buyout of Pape. In
sum, Skorick made payments to or on behalf of Pape totaling $50,000.
       Skorick did not include his payments to or on behalf of Karanikolas or Pape on his
tax returns and did not list the property, or his interest in it, as an asset on any credit


       1 Itis unclear whether Karanikolas knew that ordinarily under California
community property law, if the $200,000 were truly a gift, the property would be her
separate property and Skorick would not obtain an interest in the property merely by
marriage.

                                                3
reports. Both Pape and Karanikolas characterize the payments from Skorick as gifts
which they were not obligated to repay.
       By early 2011, Skorick’s income dwindled. As planned, Skorick stopped paying
Pape’s rent in April 2011. Thereafter, Karanikolas began paying it. Karanikolas and
Skorick’s romance petered out and was over by the end of 2011. Skorick testified that
when he moved out, he considered himself a three-eighths owner of the property because
he had obtained one-half of Karanikolas’s half interest and one-quarter of Pape’s half
interest (for paying her $50,000 of their agreed $200,000). Karanikolas and Pape deny
that Skorick was an owner or that he communicated to them that he believed himself to
be an owner. Skorick testified he admittedly did not communicate he thought he had an
ownership interest until some months later. In fact, Karanikolas testified that Skorick
even affirmatively told her he did not expect her or Pape to return the money because he
had “ ‘fucked up [her] life enough as it is.’ ”
       In June 2012, Skorick e-mailed Karanikolas, asking whether refinancing was
possible to allow him to “ ‘get some money out’ ” of the property. He testified he
believed that any refinance proceeds would be the fruits of his equity in the property, not
a repayment of the funds he invested. On October 24, 2014, Skorick again emailed
Karanikolas, asking how he could get “ ‘a chunk of what I put in’ ” out of the property.
Although Karanikolas and Skorick were in communication between June and October
2012, there is no evidence that Karanikolas acknowledged Skorick’s requests or affirmed
that he had equity or an ownership interest in the property.
       On November 5, 2012, Karanikolas and Skorick spoke by phone. Skorick claims
they orally modified the original agreement, with Karanikolas speaking on behalf of
herself and Pape. Skorick contends he agreed to give up his three-eighths interest in the
property in exchange for repayment of the $140,000 he invested, which Karanikolas was
to obtain by refinancing the property. Karanikolas, on the other hand, claims they
discussed Skorick’s financial condition, but not any agreement.
       On July 12, 2013, Skorick sued Karanikolas and Pape for constructive trust,
resulting trust, quiet title, equitable lien, and breach of oral contract. Skorick primarily

                                                  4
contended that he had collectively paid Appellants $140,000, which entitled him to a
three-eighths ownership interest in the property, but that Appellants had not conveyed his
interest to him. Appellants replied with a demurrer and a motion for judgment on the
pleadings.2 In response, Skorick filed a first amended complaint (FAC) wherein he
abandoned his quiet title and resulting trust causes of action and added a money paid, or
money had and received, cause of action. He also changed his allegations, claiming he
and Karanikolas orally modified their original oral agreement to allow Karanikolas and
Pape to repay Skorick his $140,000 investment in return for Skorick giving up his three-
eighths interest in the property. Appellants demurred to the FAC, alleging the original
complaint and FAC contained inconsistent and contradictory allegations. The court
sustained Appellant’s demurrer without leave to amend as to the constructive trust and
equitable lien causes of action.
       After several other failed defensive motions by Appellants, a jury heard the case.
At the trial’s conclusion, the jury issued four special verdicts, one for each Karanikolas
and Pape as to the breach of contract and money had and received causes of action. The
jury ruled in Skorick’s favor, awarding him $140,000 total, with $90,000 against
Karanikolas and $50,000 against Pape. Appellants moved for judgment notwithstanding
the verdict, or, in the alternative, a new trial. The court denied both motions, saying the
trial “could have gone either way,” and, in the judge’s view, the case pivoted on “the
credibility of the witnesses.” Appellants appealed.
                                       DISCUSSION
       On appeal, Appellants argue the trial court erred because (1) the oral agreement
violated the statute of frauds, (2) the statute of limitations barred the money had and
received claim, (3) the special verdicts were fatally inconsistent, and (4) it did not admit
the verified complaint.




       2 The parties did not include these documents in the record on appeal, although
they did include a case summary which indicates Appellants filed both documents.

                                              5
       When reviewing the denial of a judgment notwithstanding the verdict, we
determine whether substantial evidence supported the underlying verdict. (Dell’Oca v.
Bank of New York Trust Co., N.A. (2008) 159 Cal.App.4th 531, 554–555.) Substantial
evidence is evidence “which is reasonable in nature, credible and of solid value.” (JKH
Enterprises, Inc. v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046,
1057.) We construe every fact and inference in favor of the judgment and disregard those
unfavorable. (Jonkey v. Carignan Construction Co. (2006) 139 Cal.App.4th 20, 24.) We
do not substitute our judgment for the court’s by reweighing evidence or credibility
determinations. (Ibid.; Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.)
       We review special verdicts de novo to determine whether they are inconsistent.
(David v. Hernandez (2014) 226 Cal.App.4th 578, 585 (David).)
A.     The court did not err in upholding the jury’s verdict
       1.      The amended oral agreement does not fall within the statute of frauds
               a.     The parties could not, and did not, transfer interest in the
property
       Appellants contend the alleged oral modification allowing Appellants to pay
Skorick $140,000 in exchange for him relinquishing his claim to a three-eighths interest
in the property falls within the statute of frauds because it was a transfer of interest in real
property. Under Civil Code section 1624, subdivision (a)(3), a contract must be in
writing if it is an “agreement for . . . the sale of real property, or of an interest therein.”
Code of Civil Procedure section 1971 is in accord: “No . . . interest in real property . . .
can be created, granted, assigned, surrendered, or declared, otherwise than by operation
of law, or a conveyance or other instrument in writing, subscribed by the party creating,
granting, assigning, surrendering, or declaring the same, or by the party’s lawful agent
thereunto authorized by writing.”
       Appellants further argue the oral modification, unlike the original agreement, was
not excepted by the part performance doctrine because Skorick presented no evidence he




                                                6
performed in any qualifying way to invoke the exception.3 Skorick does not argue,
however, that the modification was excepted from the statute. Instead, he argues that the
modification did not fall under the statute at all because the “rescission of a written
contract for the purchase and sale of an interest in real property may be accomplished by
an oral agreement.” (Hastings v. Matlock (1985) 171 Cal.App.3d 826, 837 (Matlock).)
       Appellants counter that Matlock is inapplicable because it involved a contemplated
transfer of interests which never occurred and Skorick claimed at trial he was entitled to,
and did, acquire and then exchange a three-eighths ownership interest in the property.4
We disagree and apply Matlock.
       Although Matlock and the cases it cites, and the cases citing to it, are not entirely
factually on point, their general reasoning that valid real estate contracts may be
rescinded orally when no actual transfer of ownership interest in real property occurs is
applicable. Here, despite Skorick’s testimony, he was not a three-eighths owner in the
property at the time of the modification. The original agreement was for Skorick to
become a 75 percent owner after he had paid off Montgomery’s $100,000 lien on behalf
of Karanikolas and paid Pape $200,000 over the course of four years. Neither of those
conditions fully occurred, however. Skorick paid only $90,000 of the $100,000 lien and



       3 At  trial, Skorick argued the original oral agreement (for him to acquire a
75 percent interest in the property in exchange for $300,000) was excepted from the
statute of frauds under the part performance doctrine. The part performance doctrine
permits otherwise invalid oral contracts for the transfer of real property interests to be
enforced when the party seeking to enforce the contract takes possession of the property
and either makes full or partial payment of the purchase price or substantially improves
the property in reliance on the agreement. (Sutton v. Warner (1993) 12 Cal.App.4th 415,
422.) Skorick argued his occupation of the property and payment of property-related
expenses satisfied the part performance doctrine. On appeal, Appellants also do not
appear to challenge the exception of the original agreement from the statute of frauds.
       4 On appeal, Skorick argues that the ownership interest never transferred and he
merely had a claim to it. Not only is this position incorrect (as explained below), but we
will not ascribe Skorick’s current argument to his position at trial when it is clear his
position then was that he was a three-eighths owner.

                                              7
paid only a quarter of what he owed Pape.5 Because the agreement’s conditions were not
met, and absent a subsequent alternate ownership agreement (which neither party argues
exists), Skorick did not become a three-eighths owner of the property merely because he
paid part of what he promised. In fact, Skorick was not even entitled to become a three-
eighths owner because the parties never agreed he would obtain ownership interests after
each payment. Supporting the fact that Skorick was not in fact an owner, Karanikolas or
Pape never put him on the property’s title nor is there any writing evidencing Karanikolas
or Pape transferred a three-eighths equitable ownership interest to Skorick, even if they
had not yet, or would not, legally transfer title.
       Because Karanikolas and Pape never transferred their interest to Skorick, the
rescission here is contemplated by Matlock and does not fall under the statute of frauds
because no interests were transferred either after Skorick made payments or after the
modification. Whether Skorick believed he had acquired a three-eighths interest, or a
right to such an interest, or that the modification transferred such an interest is irrelevant
to the question of whether the transfer actually occurred.
                b.    The jury reasonably could have upheld a version of the
modification different from Skorick’s account
       The jury need not have accepted Skorick’s precise version of the modification’s
terms to find in his favor. The jury’s special verdicts do not specify on what grounds the
modification rested. It is possible, based on the evidence, the jury found that the


       5 Even   assuming Skorick’s position is correct, it is somewhat unclear whether
Skorick’s payment of $90,000 to Karanikolas to extinguish her ex-husband’s $100,000
lien would have been sufficient to allow Skorick to claim half of Karanikolas’s half-
share. When the parties made the original agreement, the lien was valued at $100,000, or
half of the $200,000 Skorick was going to pay Pape for her full half-share. Because the
parties do not argue that Pape’s and Karanikolas’s half-shares were somehow valued
differently, it is reasonable to assume that the parties valued half of Karanikolas’s half-
share at $100,000. It is unclear whether the parties considered the extinguishment of the
lien as a rough ($10,000 deficient) substitute for the $100,000 cash value of half of
Karanikolas’s half-share, but arguably Karanikolas could have contended Skorick owed
her an additional $10,000 to acquire half of her half-share.

                                               8
modification was an agreement to simply “undo” the original contract and compensate
the steps Skorick had taken to fulfill it. Under this scenario, Skorick relinquished his
right to any claims against Appellants in exchange for the return of the money he paid
toward obtaining ownership interests. Even if at trial Skorick appeared to be mistaken
about precisely what he was relinquishing, the jury could have found that the rescission
was proper because the parties intended to simply “undo” the original deal, which
contemplated the transfer of interests but which never materialized because Skorick had
not met its terms.
        In addition, the jury reasonably could have found Karanikolas and Skorick’s
marriage was an implied, but unmet, condition of the original agreement. Karanikolas
testified that Skorick made payments only because she and Skorick thought they would
be married. She also testified that she thought Skorick would become an owner only
after they married. Both parties agree that Skorick stopped making payments to or on
behalf of Pape after he and Karanikolas ended their relationship. From these facts and
testimony, the jury could have reasonably found that marriage was an implied term of the
contract, and the demise of Karanikolas and Skorick’s relationship was grounds for
unwinding the contract.
        2.    The statute of limitations does not bar the money had and received
claim
         Appellants contend that Skorick’s money had and received claim is time barred.
According to Appellants, case law dictates that a money had and received claim accrues
at the receipt of the funds and must be brought within two years of that date. (Whittle v.
Whittle (1907) 5 Cal.App. 696, 699; Fall v. Lincoln Mortgage Co. (1931) 115 Cal.App.
651, 654 [“Ordinarily an action for money had and received must be commenced within
two years after the money is received”].) Appellants argue Karanikolas and Pape
received the money in 2010 and 2011 under the original agreement but Skorick did not
bring his suit until 2013.
         Skorick agrees a money had and received claim must be brought within two
years from when the cause of action accrues, but disputes when the cause of action here

                                             9
accrued. He argues a plaintiff must demand return of the money before the cause of
action accrues (Rose v. Foord (1892) 96 Cal. 152, 154), and he did not demand return of
the money until after the modification in 2012.
        We agree with Skorick, given the facts of this case. When Skorick made
payments to Appellants in 2010 and 2011, Skorick and Karanikolas were still in a
relationship and planning a future together which included joint ownership of the
property. According to Skorick, during 2010 and 2011 he was in the process of making
payments to Appellants over a four-year period and that Appellants were applying the
payments he had made and would apply future payments toward his ownership interest.
Skorick also mistakenly believed that when he moved out in 2011 Appellants had used
his payments to give him a three-eighths ownership interest in the property. If Skorick in
fact believed Appellants had used his payments to make him an owner, it is logical that
he did not ask for the return of his money when he moved out or in the following months.
His testimony regarding his request in 2012 to Karanikolas to refinance supports this
position. He testified he believed that any money he received as the result of Karanikolas
refinancing would be because he had equity in the property, not because Karanikolas was
repaying him at his request. It was only after the parties agreed to modify the contract
that Skorick thought Appellants owed him money. Therefore, the money had and
received cause of action did not accrue until after the modification had been made and
Appellants refused to return Skorick’s money.
B.      Appellants did not demonstrate the verdicts were “fatally inconsistent”
       Appellants argue that the special verdicts were “fatally inconsistent” and warrant a
new trial. (David, supra, 226 Cal.App.4th at p. 585 [“ ‘The proper remedy for an
inconsistent special verdict is a new trial’ ”].) Special verdicts are inconsistent when they
are “beyond possibility of reconciliation under any possible application of the evidence
and instructions.” (Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 540, overruled on
other grounds by Soule v. General Motors Corp. (1994) 8 Cal.4th 548.) “The appellate
court is not permitted to choose between inconsistent” special verdict answers (City of
San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 682

                                             10
(City of San Diego)) and, if the verdicts are inconsistent, the court may “not infer findings
in favor of the prevailing party” (Zagami, Inc. v. James A. Crone, Inc. (2008) 160
Cal.App.4th 1083, 1092 (Zagami)).
       Appellants have not shown the special verdicts were “fatally inconsistent.” In
regard to the breach of contract special verdict against Karanikolas, Appellants claim “the
jury found that [Karanikolas] and [Skorick] entered into a contract in April of 2010,
whereby Skorick purchased a 25% interest in the . . . Property in exchange for his
payment of $90,000.”6 Not so. The jury merely answered yes to the question, “Did John
Skorick and Kristen Karanikolas enter into a contract?” The jury did not necessarily find
that Skorick purchased a quarter interest in the property based on its responses. Instead,
and given the evidence, the jury could have determined that Skorick agreed to pay off
Karanikolas’s ex-husband’s $100,000 lien in exchange for a quarter interest in the
property, assuming he and Karanikolas wed.
       Appellants further claim the jury found that “[p]ursuant to the November 2012
modification, Skorick relinquished his interest in the . . . Property in exchange for the
return of his $90,000. Karanikolas did not return the $90,000, thereby causing [Skorick]
damage in the amount of $90,000.” Again, not so. The jury merely answered “yes” to
the questions, “Was the contract modified in November 2012 to require Kristen
Karanikolas to return $90,000 to John Skorick?” and “Did John Skorick do all, or
substantially all of the significant things that the modified contract required him to do?”
and “no” to the question, “Did Kristen Karanikolas return $90,000 to John Skorick?”
The jury did not necessarily find that Skorick had an actual interest and agreed under the
modification to relinquish it. Based on the facts and given the limited special findings, a
reasonable interpretation of the special verdicts is that the jury found that the parties




       6 The  substance of the analysis for Karanikolas and Pape is interchangeable on the
issue of inconsistent verdicts and therefore we apply the substantive analysis to Pape as
well. We use Karanikolas’s name and facts for convenience because the special verdicts
are specific to Karanikolas and Pape.

                                              11
merely mutually agreed to rescind their agreement because Karanikolas and Skorick
decided not to wed.
       In regard to the money had and received special verdict, the jury answered “yes”
to the question, “Did Kristen Karanikolas receive money from John Skorick that was
intended to be used for the benefit of John Skorick?” and “no” to the questions, “Was the
money used for the benefit of John Skorick?” and “Has Kristen Karanikolas given the
money back to John Skorick?”
       Appellants argue the “jury’s verdict forms are irreconcilably in conflict [sic],
because the $90,000 [Skorick] gave Karanikolas was used for his purchase of one-quarter
interest in the real property, and thus was used for [Skorick’s] benefit as payment toward
that purchase. Yet, in Special Verdict #2, the jury expressly found that the money was
not used for the benefit of” Skorick. We disagree for two reasons.
       First, the first sentence of Appellant’s contention contains conflicting statements.
One phrase states that the money Skorick gave Karanikolas “was used for his purchase of
one-quarter interest in the real property,” but a later phrase says the money was used “as
payment toward that purchase.” (Italics added.) Perhaps the sentence is merely
ineloquently worded, but those two phrases have different meanings and repeat Skorick’s
misunderstanding of his interests. Again, Skorick did not actually acquire even a
fractional interest in the property at any point and therefore the first phrase (“used for his
purchase”) is incorrect; the second phrase (used “as payment toward that purchase”) is
more correct. (Italics added.) Yet even considering only the accurate second phrase, we
still cannot say that the jury necessarily found in its breach of contract special verdict that
Skorick benefited from the contract at issue. Appellants’ analysis assumes the contract at
issue is the original contract, but this is not so. The relevant contract is the oral
modification or rescission. After Skorick and Appellants agreed to rescind their contract,
Appellants kept Skorick’s money, claiming it was a gift. Skorick was left without a
marriage, without an ownership interest, and without his cash. Assuming this version of
the facts, Skorick was not benefited after the parties agreed to unwind their deal.



                                              12
       Second, Appellants cite no persuasive authority that these types of special verdicts
are inconsistent.7 For example, many of Appellants’ cited cases concern conflicts
between special and general verdicts, but those conflicts are governed by a standard
different from the one for conflicting special verdicts.8 In addition, reversed cases with
conflicting special verdicts have dissimilar facts.9 For example: A jury valuing a piece
of equipment as $15,500 in one special verdict but $30,000 in another (Zagami, supra,
160 Cal.App.4th at pp. 1093–1094) or a jury valuing units of land as $445,000 in one
special verdict but $850,000 in another (City of San Diego, supra, 126 Cal.App.4th at
p. 673). As other examples: A jury indicating a car was negligently designed in one
special verdict but had no design defect in another (Lambert v. General Motors (1998)
67 Cal.App.4th 1179, 1182) or a jury finding that defendants had not misrepresented facts
to the plaintiff in one special verdict but finding that defendants had intentionally or
recklessly misrepresented an important fact in another (Singh v. Southland Stone, U.S.A.,
Inc. (2010) 186 Cal.App.4th 338, 359). Finally: A jury exonerating a retailer but also
finding a wholesaler liable, even though as a matter of law if the wholesaler was liable




       7 Appellants even cite some cases where the court held the verdicts were
consistent. (E.g., Hasson v. Ford Motor Co., supra, 19 Cal.3d 530; David, supra,
226 Cal.App.4th 578.)
       8 “[P]rinciples  governing review of a claim of inconsistency in a verdict depend on
the type of verdict rendered. . . . [¶] Inconsistency between special findings of fact and a
general verdict is analyzed under a different set of rules[—]Code of Civil Procedure
section 625 . . . .” (City of San Diego, supra, 126 Cal.App.4th at pp. 678–679.)
       9 The  facts were also different in the cases Appellants cited that are governed by
Code of Civil Procedure section 625. For example, in Shaw v. Hughes Aircraft Co.
(2000) 83 Cal.App.4th 1336, 1344–1346, a jury found that a defendant had breached the
covenant of good faith even though it found that the defendant had not breached the
underlying contract. Unlike here, both causes of action stemmed from the same legal
theory (breach of contract). Or, in Morris v. McCauley’s Quality Transmission Service
(1976) 60 Cal.App.3d 964, 970, a jury awarded damages to an injured child’s guardian
but not to the child, even though the guardian’s claims were derivative of the child’s.
Unlike here, one cause of action was directly predicated on another.

                                             13
the retailer was also. (Cavallaro v. Michelin Tire Corp. (1979) 96 Cal.App.3d 95, 99–
100.) No such apparent discrepancy occurred here.
       If anything, case law suggests special verdicts based on the same set of facts, but
different legal theories, may be decided by a jury so long as the damages award is not
duplicative. In Zagami, the court allowed a jury to render special verdicts in connection
with a breach of contract cause of action, but also on common counts of goods and
services rendered10 and open book account,11 based on the same set of facts. (Zagami,
supra, 160 Cal.App.4th at p. 1086.) After informing counsel that the draft special verdict
forms based on these three causes of action were “ ‘confusing’ ” in that they “ ‘ posed a
risk of allowing ‘duplicative damages,’ ” the “court instructed the jury that if it found
liability on more than one cause of action, an award of damages would be limited to the
value of the [property] and rent, and only one damage figure would apply to each and
every cause of action.” (Id. at p. 1088.) Here, although the jury found Appellants liable
on overlapping causes of action, it does not appear, and Appellants do not argue, that the
jury awarded Skorick duplicative damages.
       We will not hold the special verdicts were “fatally inconsistent” when the jury
could have found Skorick did not necessarily benefit from the oral modification, and the
jury did not award duplicative damages.




       10 The  elements of a goods and services received cause of action are: “1. That
[name of defendant] requested, by words or conduct, that [name of plaintiff] [perform
services/deliver goods] for the benefit of [name of defendant]; [¶] 2. That [name of
plaintiff] [performed the services/delivered the goods] as requested; [¶] 3. That [name of
defendant] has not paid [name of plaintiff] for the [services/goods]; and [¶] 4. The
reasonable value of the [goods/services] that were provided.” (CACI No. 371.)
       11 The  elements of an open book account cause of action are: “1. That [name of
plaintiff] and [name of defendant] had (a) financial transaction(s); [¶] 2. That [name of
plaintiff] kept an account of the debits and credits involved in the transaction(s); [¶]
3. That [name of defendant] owes [name of plaintiff] money on the account; and [¶]
4. The amount of money that [name of defendant] owes [name of plaintiff].” (CACI
No. 372.)

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C.     The court did not prejudice Appellants by not admitting the verified
complaint
       We review evidentiary rulings for abuse of discretion. (Shaw v. County of Santa
Cruz (2008) 170 Cal.App.4th 229, 281.)
       Appellants argue the trial court erred in failing to admit Skorick’s original verified
complaint because the complaint impeached Skorick. According to Appellants, Skorick’s
operative FAC and his position at trial were incompatible with his original complaint. In
the original complaint, Skorick (1) asserted he had an interest in the property based on the
original agreement but (2) did not assert he and Appellants entered into a subsequent oral
modification whereby he relinquished his interest in the property. In his FAC and at trial,
however, Appellants contend Skorick claimed he had an interest in the property and
relinquished it through a modification to the original agreement. Appellants argue that if
the court had admitted the original complaint, they could have impeached Skorick by
showing that he had proposed fundamentally conflicting positions: First by filing for an
interest in the property and never mentioning the existence of a subsequent oral
modification and then by arguing the parties had modified the agreement and he had
given up his interests.
       At trial, however, the court permitted Appellants’ counsel to cross-examine
Skorick about the allegations made in the complaint. According to the judge, the
pleadings, in terms of the legal theories and causes of action, were not proper to bring
before the jury because they represented counsel’s trial strategy, not the factual substance
of Skorick’s allegations. The judge reasoned that it would confuse the jury to present it
with the original complaint, only to explain that while it was not to consider the lawyers’
legal strategies in the form of theories or causes of action, it could consider the factual
allegations.
       We uphold Skorick’s award for two reasons. First, Appellants provided no case
law requiring that a court must admit a verified pleading in writing and present it to a jury
in order to satisfy the opposing party’s right to impeach a witness on the facts. Second,
even if the court could have admitted the pleading and given a limiting instruction,

                                              15
Appellants presented no convincing argument the result of the trial would have been
different. Appellants had the opportunity to demonstrate to the jury through cross-
examination that Skorick had not originally alleged the oral modification and then argue
at closing that Skorick fabricated the modification only later as a matter of convenience
as a way to overcome a statute of frauds issue. In absence of demonstrable prejudice or
error, we will not reverse the court’s refusal to admit the verified complaint. (Cal. Const.,
art. VI, § 13.)
                                      DISPOSITION
       The judgment is affirmed. Skorick is awarded his costs on appeal under California
Rules of Court, rule 8.278.
       NOT TO BE PUBLISHED.


                                                  LUI, J.
We concur:


       ROTHSCHILD, P. J.


       CHANEY, J.




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