Filed 9/1/20 Huynh v. Lee CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

LY CONG HUYNH,

Plaintiff and Respondent,

v.

SOON B. LEE,

Defendant and Appellant.

G057411

(Super. Ct. No. 30-2017-00914323)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Ronald L. Bauer, Judge. Affirmed.

Pacheco & Neach and Brian Neach; Soon B. Lee, in pro. per., for Defendant and Appellant.

Bryner Crosby and M. Candice Bryner for Plaintiff and Respondent.

* * *

Soon B. Lee appeals from the judgment the trial court entered on the jury’s verdict against her for more than $147,000 in compensatory damages and $100,000 in punitive damages on civil claims; this award was made to the man Lee had formerly held out as her husband, Ly Cong Huynh. Lee asserts seven different arguments for reversal; none has merit. We therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Huynh and Lee raised three children together in a 25-year relationship spanning from approximately 1989 thru until November 2014. While they did not marry, the couple held themselves out as “husband and wife,” including on title to real property. Lee managed the family finances and, as their children got older, helped Huynh in his furniture business, which included several stores.

In 2002, Huynh and Lee, along with Huynh’s sister and her husband (the Phams) purchased a fourplex rental property on Olive Street in Long Beach. Huynh successfully negotiated the purchase and, though the title and loan were initially in his name, the couples viewed the investment as a joint venture in which they were “50/50 partners,” according to Huynh.

Consistent with this arrangement, Huynh executed a grant deed in which the four investors owned the property in joint tenancy, with each couple taking title as husband and wife. The venture nonetheless remained largely informal, with Huynh initially collecting rent from the tenants. Huynh testified that when his sister took over this responsibility, he saw no need for regular accountings because she was family. Similarly, Huynh never asked any of his coventurers to formally obligate themselves on the property loan because he believed they all understood the arrangement and they trusted one other. The parties paid the monthly loan amount with income from their respective businesses.

Huynh’s furniture business struggled after the 2008 financial crisis, threatening his family with economic ruin and creditor lawsuits involving his stores. Huynh and Lee discussed their predicament and agreed to place title to their family home in Aliso Viejo (the Endless Vista property) in Lee’s name alone. Huynh executed a grant deed to that effect in October 2010. He testified Lee promised to hold his half-share of the property in trust for him as her husband; he did not require her promise to be in writing because Lee was his wife.

Huynh also executed a quitclaim deed for his share of the Olive Street rental property to Lee in June 2011. The quitclaim deed identified Huynh as a “single man,” but he testified he still considered Lee to be his wife. They continued to live together at the Endless Vista property for another three years, until Huynh came to believe the relationship was over.

Lee had previously invested in a Las Vegas condominium project with funds she inherited in 2005. According to Huynh, Lee told him the investment was for their joint benefit. As their economic troubles deepened, however, Lee informed Huynh that her inheritance could provide them no financial backstop: the Las Vegas project was embroiled in a class action lawsuit and she had spent all of her remaining inherited funds. Huynh later discovered in the course of this lawsuit that Lee took title to the Las Vegas project solely in her own name.

As their assets dwindled, the couple decided to sell their Endless Vista home and downsize to an apartment in November 2014. According to Huynh, as soon as the sale closed and the $365,000 in net proceeds was deposited in Lee’s account, she told him their relationship was finished. Huynh agreed to forego his half-share of the Endless Vista proceeds provided Lee held them for their son, Lucas. He moved out of the apartment pursuant to that agreement.

According to Huynh, Lee agreed to continue to hold his (Huynh’s) half share of their 50 percent interest in the Olive Street rental. Lee managed the rental from this point forward, consulting Huynh on only one occasion about a roofing issue. In 2015, as his financial straits worsened, Huynh asked Lee if there were any rental profits; she said there were none.

Before litigation began, Huynh was gratified to learn from his son, Lucas, that Lee had put him (Lucas) on title as half-owner of a home she purchased in Irvine, consistent with her promise to use Huynh’s half-share of the Endless Vista proceeds for their son’s benefit. Huynh later learned that Lee had Lucas deed back to her 30 percent of his interest and required the children to pay rent to live there.

In late 2016, Huynh learned of litigation between Lee and the Phams regarding the Olive Street rental property. Lee wanted Huynh’s assistance in the lawsuit; she rebuffed his suggestion to just “give everyone their 25% interest.” According to Huynh, Lee wanted more than her share and would not agree to honor his quarter share. She relented only after Huynh agreed to sign a declaration related to the Pham litigation that her attorney prepared.

When Lee’s lawyer informed Huynh in January 2017 that his signature was required to close escrow on the Olive Street property, Huynh decided to consult a lawyer. Thereafter, all parties, including the Phams, signed a stipulation that 25 percent of the net proceeds from the sale would remain in escrow pending resolution of Huynh’s and Lee’s dispute over that sum. With the stipulation in place, Huynh signed the necessary documents for the sale to close in February 2017, including for payment of the loan that was still in his name on the property. After escrow closed, Lee persuaded the escrow company to release approximately $115,000 in proceeds to her that included, according to Huynh, his 25 percent ownership share.

Huynh then filed this lawsuit against Lee, which proceeded to trial on his claims of breach of the joint venture agreement regarding the Olive Street property, promissory fraud as to that agreement, breach of the joint stipulation regarding close of escrow on the property, promissory fraud as to the stipulation, breach of fiduciary duty, and conversion. At trial, Lee claimed as offsetting expenses more than $127,000 she asserted she had put into the Olive Street rental, along with repairs to the Endless Vista property. Huynh disputed whether many of the repairs had been made, the accuracy and validity of Lee’s records, and her right to any setoff.

A jury found in Huynh’s favor on all his causes of action, awarding him $147,640 in compensatory damages while also finding Lee acted with malice, oppression, or fraud. The damages figure included $13,500 as Huynh’s share of rental profits from the Olive Street property while Lee managed it. The damages also included almost $120,000 as Huynh’s share of the Olive Street sale proceeds and $15,000 in reimbursement for one-half of Huynh’s down payment to purchase the property at the outset of the joint venture. The jury found Lee was not entitled to any setoff for her claimed expenses. In a bifurcated proceeding related to punitive damages, the jury awarded Huynh an additional $100,000.

DISCUSSION

1. Judgment Notwithstanding the Verdict

Following the jury’s verdict, Lee sought judgment in her favor as a matter of law. (Code Civ. Proc., § 629.) Judgment notwithstanding the verdict (JNOV) is appropriate “whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made.” (Id., subd. (a).)

A JNOV motion may be granted in favor of a defendant who lost at trial only when no substantial evidence supports the verdict. (Stubblefield Construction Co. v. City of San Bernardino (1995) 32 Cal.App.4th 687, 703.) On review, “‘“the appellate court must read the record in the light most advantageous to the plaintiff, resolve all conflicts in his favor, and give him the benefit of all reasonable inferences in support of the original verdict.”’” (Ibid.)

Lee contends JNOV in her favor was required because “[t]he quitclaim deed unequivocally establishes that [Huynh] gifted his interest in the Olive Street Property” to her. Consequently, she argues the jury had no basis to award Huynh damages reflecting his claimed 25 percent interest in the property. Relying on the fact that the quitclaim deed recited that the transfer to Lee was a “bonafide gift,” Lee invokes Evidence Code section 622 (hereafter section 622). Section 622 provides that “[t]he facts recited in a written instrument are conclusively presumed to be true as between the parties thereto . . . .”

Lee also relies on Evidence Code section 662, which provides: “The owner of the legal title to property is presumed to be the owner of the full beneficial title. This presumption may be rebutted only by clear and convincing proof.” At Lee’s request, the trial court instructed the jury based on this provision, as follows: “As the person on the June 2, 2011 [quitclaim deed] shown as the title holder of the [disputed] 25% interest in the Olive Street property, Ms. Lee is presumed to be the owner of the full beneficial title” of that interest. (Italics added.) The instruction continued: “This presumption can only be overcome by clear and convincing proof.”

In asserting JNOV in her favor was required, Lee ignores her own history with her sister in which Lee agreed at trial that a deed may not reflect the true state of ownership as intended between the parties. She testified that though her sister once executed a deed in her (Lee’s) favor, identifying it as a “gift,” both she and her sister nevertheless understood that her sister still owned half of the property.

In any event, Lee concedes that under California law, deeds granting property rights “are to be interpreted in like manner with contracts in general.” (Civ. Code, § 1066.) A contract may be deemed to be rescinded between the parties when it has been procured by fraud. (Civ. Code, § 1689, subd. (b)(1); Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 42.) The same has always been true of deeds: the normally preclusive effect of a deed’s written terms does not apply where a party has been induced by fraud to sign the deed. (Miller v. Criswell (1942) 54 Cal.App.2d 524, 527-528.) Consent to transfer of property ownership by deed “is not real or free when obtained through fraud, undue influence, or mistake.” (Cox v. Schnerr (1916) 172 Cal. 371, 376.)

Section 622, on which Lee relies, “‘is based upon the doctrine of estoppel by contract; i.e., a party to a contract is generally estopped to deny essential facts recited therein.’” (Citizens Business Bank v. Gevorgian (2013) 218 Cal.App.4th 602, 625.) Section 622, however, “does not bar an assertion of fraud or other grounds for rescission . . . .” (Ibid.)

Here, Huynh testified he agreed to sign the deed purportedly quitclaiming his Olive Street interest to Lee only because Lee promised she would hold it in trust for him. They made this agreement so that creditors could not take the property. According to Huynh, Lee reaffirmed this promise, which turned out to be false, in 2014 to induce him to move out of their apartment after they sold their Aliso Viejo home. At the hearing on the JNOV motion, the trial court observed, “[T]he evidence was very convincing” that protecting the couple’s assets “was the reason why the quarter interest” in the Olive Street property “was transferred to the defendant, in order to keep it out of the hands of the plaintiff’s creditors.” The court found “that evidence was clear. And that’s the essence of this case.”

Lee attempts to transform the trial court’s observations into judicial speculation that the quitclaim deed would have been invalid to defeat creditor claims under the Uniform Voidable Transactions Act (Civ. Code, § 3439 et seq.). Lee then asserts that potential invalidity of the deed as to Huynh’s commercial or leasehold creditors is “far from being a basis for a transferor to void transfers he . . . made to the transferee.” In other words, Lee returns to and rests on the quitclaim deed’s terms as conclusive evidence of her sole ownership interest “as between” her and Huynh. (§ 622.)

The jury, however, received thorough instructions regarding fraudulent misrepresentation and promissory fraud, and specifically found that Huynh “overc[a]me by clear and convincing evidence the presumption that the June 2, 2011 Quitclaim Deed (Exhibit 8) transferred Mr. Huynh’s 25% interest in the Olive Street Property to Ms. Lee.” No more was required. Section 622 cannot be used here to snatch victory for Lee from the jaws of defeat where the jury by its verdict concluded she secured Huynh’s quarter share by fraud.

The jury—and the trial court as shown by its comments—evidently found Huynh more credible than Lee in describing the true nature and circumstances of the quitclaim deed. Jurors believed Lee promised to hold Huynh’s Olive Street interest for him and, in backing away from that promise, demonstrated her fraudulent intent. The jury has sole authority to determine credibility, even when the standard of proof is clear and convincing evidence or higher. As Justice Traynor explained long ago, “It [i]s for the jury to sift the true from the false, to determine the credibility of the witnesses and the weight to be given the testimony of an individual witness, even if it was inconsistent.” (People v. Ashley (1954) 42 Cal.2d 246, 266.)

We see no inconsistencies here. “Credibility is an issue for the fact finder,” and “we do not reweigh the evidence or reassess the credibility of witnesses.” (Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622.) The jury’s credibility determinations amply support the judgment, which we are in no position to second guess on appeal. (Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 767-768.) Nor was the trial court, which therefore properly denied the JNOV motion.

2. Sufficiency of the Evidence

Lee challenges the sufficiency of the evidence to support the jury’s conclusion she and the Phams entered into a joint venture with Huynh to invest in the Olive Street rental property. After the jury determined in the parties’ first special verdict question that Huynh’s 25 percent share of the property did not belong to Lee under the quitclaim deed, the jury then answered “Yes” to the second question: “Did Mr. Huynh meet his burden of proving that Ms. Lee is liable to Mr. Huynh for breach of an oral joint venture?” The jury also answered “Yes” to related questions, finding that Huynh met his burden to prove Lee’s liability on alternate theories: “for promissory fraud relating to the oral joint venture” (special verdict Question No. 3), “for breach of fiduciary duty” (Question No. 6), and “for conversion” (Question No. 7).

The trial court instructed the jury that the total compensatory damages sought under the legal theories embraced in the foregoing questions was limited to Huynh’s alleged loss of his 25 percent share of the Olive Street property, whether as a joint venture or otherwise. That is, the court instructed the jury that Huynh’s loss, if proven, was “recoverable only once under all of the above legal theories.”

Here, Lee contends Huynh failed to prove that loss under a theory of breach of the alleged joint venture agreement allocating a 25 percent share of the Olive Street investment to each of four parties. Lee contends that there was no credible, substantial evidence of the joint venture. We are not persuaded.

In a nutshell, Huynh testified there was a joint venture on the terms he described, the jury believed him, and that resolves the question: “The testimony of a single witness, even if that witness is a party to the case, may constitute substantial evidence.” (Consolidated Irrigation Dist. v. City of Selma (2012) 204 Cal.App.4th 187, 201.) The trier of fact’s “credibility findings cannot be reversed on appeal unless that testimony is incredible on its face or inherently improbable.” (Ibid.)

There was nothing incredible or improbable about Huynh’s testimony that he and his sister, and their respective spouses, invested in a rental property together as a joint venture. A more common family investment arrangement is hard to imagine. A joint venture is merely “‘an undertaking by two or more persons jointly to carry out a single business enterprise for profit.’” (Weiner v. Fleischman (1991) 54 Cal.3d 476, 482.)

Lee now questions why Huynh did not call the Phams to testify to the terms concerning the joint venture. She also observes that the Phams did not use the word “joint venture” in their complaint against her or appear to question Huynh’s quitclaim deed to Lee, given that they sued only her, and not Huynh.

But these considerations are beside the point as Lee also did not call the Phams as witnesses. Furthermore, it was in Huynh’s interest—not the Phams’—to establish the true circumstances behind Lee’s allegedly fraudulent use of the quitclaim deed he gave her. The Phams’ interest in the property could be no more than 50 percent, and had been resolved in escrow, regardless of how Lee and Huynh held their disputed share. Having no reason to appear in the latter’s lawsuit, their absence is not surprising. In any event, Huynh testified regarding the joint venture, including purchasing the Olive Street property in his own name but on behalf of Lee, himself, and the Phams; and he testified to Lee’s use of the quitclaim deed to defraud him of his interest. The jury believed him. That is enough.

Lee also suggests there could be no joint venture where “there was no evidence [of] any ‘joint’ management” of the property, and the couples appeared to alternate taking profits from the rental: first the Phams for eight or so years while Huynh’s sister managed it, then Huynh and Lee for a similar period when Huynh ran into financial difficulty, and then Lee when she took over management of the property. Once “the intention to form a joint venture [is established as] being otherwise present,” however, ‘“[t]here is no requirement . . . that the parties must agree upon the post acquisition management and operation of the property.”’ (Holmes v. Lerner (1999) 74 Cal.App.4th 442, 458.) They need not jointly micromanage every aspect of the investment together.

As the trial court correctly instructed the jury, the parties may agree to delegate control of their joint venture, either expressly or as “implied by the parties’ conduct.” (CACI No. 3712.) Huynh’s testimony supported the conclusion that the joint investors agreed to what amounted to serial, alternating management. Lee fails to present any reasoned argument why parties to a joint venture may not agree to take turns managing their investment, including making distributions that they deem to be equal over a cycle or period of their choice, followed by a final division upon sale of the property. The evidence supported the conclusion this is the arrangement the parties agreed to by their conduct. The Phams and Lee then made their final division between each other in escrow, and the jury’s verdict accomplished the same between Lee and Huynh. We see no merit in Lee’s challenge to the joint venture.

3. Statute of Limitations

Lee contends the two-year statute of limitations for breach of an alleged oral agreement precluded Huynh’s joint venture claim. (Code Civ. Proc., § 339(1).) In particular, Lee challenges the $13,500 in “net profits” that the jury awarded Huynh. That figure represented Huynh’s quarter share of $2,000 in monthly Olive Street rental profits that accrued during Lee’s sole management of the property from December 2014 until it was sold in February 2017.

Lee argues that because the damages extended back to December 2014, when the jury evidently concluded Lee “breached the alleged joint venture agreement . . . by not paying over Mr. Huynh’s monthly share,” Huynh exceeded the statute of limitations by not filing his lawsuit until more than two years later, in April 2017. Lee raises a similar timeliness objection to the $15,000 the jury awarded Huynh for paying Lee’s share of the $30,000 down payment each of the two couples made on the Olive Street property because it was “years ago, in 2002.”

Huynh counters that the statute of limitations does not apply because, when he and Lee separated in November 2014, he “had no reason to believe that [Lee] was not holding up her end of [her] promise.” Huynh moved out of the couple’s apartment based on their understanding that Lee would use their assets—including any rental proceeds—for the children’s benefit. He later learned Lee breached this agreement by requiring the children to pay rent to live at home, and by requiring their son, Lucas, to deed back 30 percent of his 50 percent interest in the property to her. Lee also told Huynh there were no profits from the Olive Street property when he asked her in 2015, while the jury concluded differently in its verdict.

The discovery rule tolling the running of a limitations period until the plaintiff has reason to suspect harm is more familiar in the tort context, but may apply to breaches of contract committed in secret. (NBCUniversal Media, LLC v. Superior Court (2014) 225 Cal.App.4th 1222, 1233.) This is particularly true where the breach of contract also constitutes a breach of fiduciary duty, as Huynh alleged here. (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1397.)

Lee argues in her reply brief that while Huynh “was certainly entitled to make [these] arguments,” the issue of whether any potential limitations period had been triggered or was tolled should have been presented to the jury. Lee implies the trial court prevented the jury from considering the issue; she does not say how. Lee also fails to establish that she timely raised this affirmative defense.

Lee’s reliance on the statute of limitations ultimately fails for two reasons. First, as the appellant, it is her duty to set out the circumstances of alleged trial court error as it arose below. (Lonely Maiden Productions, LLC v. GoldenTree Asset Management, LP (2011) 201 Cal.App.4th 368, 384; Cal. Rules of Court, rule 8.204(a)(1)(C).) We do not examine asserted error divorced from its context because the proceedings may make clear the trial court’s reasoning or otherwise show that there was no error.

Lee provides no context here, merely asserting broadly that Huynh’s claims “are barred by the statute of limitations.” For all we can tell from Lee’s briefing, the defense is being raised for the first time on appeal. “‘The appellate court is not required to search the record on its own seeking error.’” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) Failure to support an appellate challenge with the necessary record citations forfeits the claim. (Ibid.)

Lee’s claim also fails because the statute of limitations is an affirmative defense. (Adams v. Paul (1995) 11 Cal.4th 583, 597.) It therefore must be raised promptly, usually in the defendant’s answer or by demurrer. (County of Los Angeles v. Commission on State Mandates (2007) 150 Cal.App.4th 898, 912; Minton v. Cavaney (1961) 56 Cal.2d 576, 581.) “[F]ailure to properly plead the statute of limitations waives the defense.” (Martin v. Van Bergen (2012) 209 Cal.App.4th 84, 91.)

Lee does not include her answer in her appellant’s appendix. In any event, nothing suggests Lee specified in her answer the limitations statute under which she claimed Huynh’s claims were time barred as required by Code of Civil Procedure section 458. “[F]ailure to allege the appropriate subdivision of the statute of limitations waives the defense.” (Richard B. LeVine, Inc. v. Higashi (2005) 131 Cal.App.4th 566, 573, fn. 4.)

Moreover, Lee never sought judgment on the pleadings based on a limitations period or otherwise. Instead, she contended from the outset of the case through trial that there were no rental profits to share with Huynh because of her alleged expenses for the Olive Street property. Huynh defended the case on that basis, disputing her expenses.

The trial court warned Lee during trial that “‘if you are going to go down the path of arguing . . . it was entirely all expenses,”’ then the court would allow Huynh to challenge that claim factually. Lee does not challenge this ruling; she fails to reference it. The jury rejected Lee’s claimed expenses, denying her any offset. On this record, Lee’s belated invocation of an asserted limitations period furnishes no basis for reversal of the jury’s verdict.

4. Tort Claims

Lee contends Huynh could not validly assert tort claims or recover tort damages because his claims sounded in contract, not tort. She asserts Huynh’s tort claims merely duplicate his oral contract claim because “they are all premised on the existence of the joint venture.” Specifically, Lee challenges Huynh’s claims for Promissory Fraud re: Joint Venture Agreement (4th Cause of Action), Breach of Fiduciary Duty (5th Cause of Action), Conversion (6th Cause of Action), and Promissory Fraud re: Stipulation (8th Cause of Action). Lee apparently did not demur to these claims; at least she furnishes no record of doing so.

Lee’s challenge fails. She relies on a “general rule precluding tort recovery for noninsurance contract breach” articulated in Freeman & Mills, Inc. v. Belcher Oil Co. (1995) 11 Cal.4th 85, 102 (Freeman). But Freeman itself stated this guideline applies only “in the absence of violation of ‘an independent duty arising from principles of tort law’ [citation] . . . .” (Ibid.) Freeman involved nonactionable “bad faith denial of the existence of, or liability under, the breached contract.” (Ibid., italics added.) In denying the existence of a contract or liability thereunder, the defendant’s litigation strategy was no different than a standard breach of contract defense. Allowing tort remedies in such circumstances “could potentially convert every contract breach into a tort” for “essentially telling the promisee, ‘See you in court’ . . . .” (Id. at p. 103.)

Cases since Freeman have recognized there is no similar danger for claims of promissory fraud or other independent tort violations, which are separately actionable from an underlying breach of contract claim. (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 989-990 (Robinson); Erlich v. Menezes (1999) 21 Cal.4th 543, 551 (Erlich).) Promissory fraud, for example, involves a narrower class of cases than mere breach of contract, where the promisor not only failed to perform (the gravamen of a breach claim), but never intended to do so, resulting in “an implied misrepresentation of fact that may be actionable fraud.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Tort recovery is therefore proper “where the contract was fraudulently induced.” (Erlich, at p. 552.) As Robinson explained, “‘[W]hen one party commits a fraud during the contract formation or performance, the injured party may recover in contract and tort.’” (Robinson at p. 990.)

Similarly, failing to perform a contract is not a tort, ‘“‘“unless that omission is also an omission of a legal duty.”’”’ (Erlich, supra, 21 Cal.4th at p. 551.) The breach of fiduciary duties owed to fellow joint venturers may constitute “not only a breach of contract but [also] a tort[,] particularly where the tort is of such a nature that it terminates the joint venture, wrongfully destroys it and results in the conversion by the co adventurer of the entire assets to his own use.” (Boyd v. Bevilacqua (1966) 247 Cal.App.2d 272, 288.) The facts here furnished ample basis for the jury to award Huynh damages in tort, including punitive damages (see id. at pp. 276, 283) for conversion, breach of fiduciary duty, and promissory fraud.

5. Punitive Damages

Lee challenges the sufficiency of the evidence to support the jury’s award of punitive damages, including the amount. Viewing the matter in the light most favorable to her position, she argues that punitive damages are unwarranted where “the tortious conduct was the result of a mistake of law or fact, honest error of judgment, over zealousness, mere negligence or other such noniniquitous human failing.” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1288, fn. 14.)

Unfortunately for Lee, the jury was not persuaded by this argument. The jury found that, far from an honest mistake or mere negligence, Lee defrauded Huynh. The evidence supports the jury’s special verdict finding that she acted “with malice, oppression or fraud” in engaging in promissory fraud, breach of fiduciary duty, and converting her husband’s joint assets. Lee’s pattern of taking profitable property for herself, and allocating losses to Huynh, supports the jury’s verdict. There was also evidence that she siphoned $208,000 from Huynh’s furniture stores, depositing the money in small increments for herself after they separated. The jury’s fraud finding alone suffices as the legal predicate for punitive damages. (Civ. Code, § 3294; CACI No. 3941.)

Lee claims the punitive damages were excessive. The jury did not think so, despite her claim that her annual income was only between $40,000 and $60,000, and despite her testimony that, as she phrases it on appeal, “her son is living with her and having to go through a potential lifetime of surgeries stemming from being hit by a drunk driver.” As respondent points out, there was ample evidence that her net worth was significantly more than she claimed. This included $260,000 in proceeds from the sale of her parents’ home, which she invested in other real properties that she “flipped” to earn approximately $345,000, an investment account totaling about $100,000, and substantial appreciation in her Irvine home. Ample evidence supports the jury’s punitive damages award.

6. Litigation Privilege

Lee contends the litigation privilege (Civ. Code, 47) bars as a matter of law Huynh’s 7th and 8th causes of action for, respectively, breach of the stipulation in the Pham-Lee litigation and escrow to withhold distribution of funds pending resolution of Huynh’s claim to them and promissory fraud in entering into the stipulation.

Huynh responds that the litigation privilege is an affirmative defense not included in Lee’s answer, and raised only in a nonsuit motion following Huynh’s case in chief, and therefore the defense was waived. (See Tschirky v. Superior Court (1981) 124 Cal.App.3d 534, 538.) Huynh also contends the privilege does not protect conduct that is a breach of contract, a fraud in the inducement to enter into the stipulation, and conversion of escrowed funds. We find it difficult to believe the litigation privilege immunizes and therefore operates as legislative endorsement or tacit approval of such conduct, but we need not decide the issue. Huynh pled his causes of action in the alternative, all for the same relief, and ample evidence supports the judgment on the grounds discussed above.

7. Evidentiary Rulings

Finally, Lee contends the trial court erroneously excluded and admitted evidence. We review evidentiary rulings under the deferential abuse of discretion standard (Evans v. Gordon (2019) 41 Cal.App.5th 1094, 1102), which Lee fails to surmount here.

Lee argues the court improperly excluded—with the explanation “[n]o harm, no foul”—evidence that Huynh took out a loan on the Olive Street property in his own name. Lee contends evidence of the loan obtained by Huynh solely in his name would have shown that the parties were not jointly managing the rental, as she insists is necessary for a joint venture. As discussed, however, there is no such requirement and instead the parties to a joint venture may delegate management as they wish.

Lee also argues the court erroneously admitted “irrelevant” evidence related to her acquisition of cemetery lots in her own name with community funds; evidence of the grant deed under which she and Huynh took title “as husband and wife” to their marital home in Aliso Viejo; and testimony regarding whether she “put Lucas on title to the . . . house in Irvine” because she could not qualify for a loan in her name. As to including Lucas on the Irvine home title, Huynh understood that she did so to honor their agreement to use Huynh’s share of the proceeds of their Aliso Viejo home for their son’s benefit. All of this evidence was relevant to show the couple’s joint assets and Lee’s pattern of using them for her own benefit. There was no error.

DISPOSITION

The judgment is affirmed. Respondent is entitled to his costs on appeal.

GOETHALS, J.

WE CONCUR:

FYBEL, ACTING P. J.

THOMPSON, J.

Parties and Attorneys
Huynh v. Lee
Case Number G057411
Party Attorney

Ly Cong Huynh : Plaintiff and Respondent
M. Candice Bryner
Law Offices of M. Candice Bryner
780 Roosevelt, Suite 206
Irvine, CA 92620

Soon B. Lee : Defendant and Appellant
134 Capricorn
Irvine, CA 92618 Pro Per