Defendants and appellants Reginald Mason (Reginald) and Shante Mason (Shante)
Bell sold her house to Shante for $130,000. Bell then sued the Masons alleging she "suffers from mental retardation"
The defense theory is that Bell is of normal intelligence and that she knowingly entered into an arm's-length transaction with Shante for the sale of her property. At trial, the defense sought to call Dr. Samuel Black (Black) as an expert psychiatric witness to testify Bell is not mentally retarded and that she in fact has average intelligence. The trial court ruled Black could not testify regarding Bell's mental retardation or lack thereof. Although Black had reviewed, inter alia, Bell's medical records and had viewed in excess of 15 hours of her videotaped deposition, the trial court ruled that because Black had not met or personally examined Bell, the defense had failed to lay a sufficient foundation for Black to testify as to Bell's IQ or mental retardation.
In the published portion of this opinion, we conclude a sufficient foundation was shown for Black's testimony; the mere fact Black had not personally examined Bell did not preclude him from testifying as to her mental capacity. Reversal is required because the trial court's ruling amounted to prejudicial evidentiary error which eviscerated the defense case and left the jury with plaintiff's uncontroverted expert testimony that Bell is mentally retarded. (Evid. Code, § 354.)
In the unpublished portion of the opinion, we conclude that irrespective of the trial court's erroneous evidentiary rulings which inured to Bell's benefit, Bell failed to present substantial evidence to support her claims of fraud, intentional infliction of emotional distress, dependent adult abuse and conspiracy. Therefore, the trial court's evidentiary errors do not require this matter to be remanded for a new trial. Instead, we reverse and remand to the trial court with directions to enter judgment in favor of the Masons.
John Williams and Asa Williams (the godparents) were an elderly childless couple who frequently took care of Bell when she was a child. Bell went to the library and read about grant deeds and how to transfer real estate. On or about September 2, 2003, title to the Williamses' real property located on 4th Avenue in Los Angeles (the property) purportedly was transferred by grant deed to Bell as a gift. At the time, there were no encumbrances on the property.
On September 16, 2003, two weeks after obtaining title to the property, Bell obtained a $65,000 loan on the property from JMJ Financial Group (JMJ), secured by a deed of trust, at a rate of 12 percent per annum. The interest rate was high because Bell had poor credit.
In October 2003, Bell moved Asa Williams to a convalescent hospital. John Williams, who was in poor health, died in December 2003.
As will be explained in greater detail below, in November 2003, Bell entered into an agreement to sell the property to Shante for $130,000.
On April 19, 2004, Asa Williams filed a complaint (the Williams action) against Bell, Shante, Vernon Washington and Wendell Bonville (Bonville), seeking to quiet her title to the property and declaratory relief, and alleging causes of action for fraud, civil conspiracy, negligent and intentional infliction of emotional distress. Asa Williams alleged Bell "caused a transfer of title of the PROPERTY by fraudulent means by signing the name of WILLIAMS on said Grant Deed of September 2, 2003. That BELL made said illegal transfer of the PROPERTY for the sole purpose of obtaining a monetary loan in the amount of $62,000.00 and thereby placing a lien against the PROPERTY for said amount."
On July 7, 2005, Asa Williams died intestate, without leaving any heirs at law.
On October 12, 2005, Asa Williams's conservator, Harold Johnson (Johnson), entered into a settlement agreement and mutual release with Bell.
On January 9, 2007, Bell, by and through a guardian ad litem, Ella Bell Gory, filed the operative first amended complaint against the Masons, Bonville, as well as JMJ, Gateway Loans, Inc. (Gateway), and Horizon Escrow, Inc. (Horizon). The complaint sought, inter alia, to quiet title in Bell as the sole owner in fee simple of the subject real property she obtained from the Williamses. Bell alleged she obtained the property by grant deed in September 2003, and that she borrowed $64,000 against the property one month later.
The complaint alleged two distinct acts of wrongdoing.
First, Bell alleged her former boyfriend, Bonville, forged her signature on the net loan proceeds of $51,971 and converted the money to his own use.
Second, Bell alleged she was defrauded in the transaction wherein she sold the property for $130,000 to Shante. "On or about January 22, 2004, plaintiff purportedly sold the 4th Avenue Property to Shante Mason (the `Sale') pursuant to the representation that the sale was a mere sham intended to gain the necessary credit rating to furnish funds to repair the premises." (Italics added.) However, instead of treating the sale as a sham, as had been agreed, defendants treated the sale as real and evicted her from the property in 2006.
Based on these allegations, Bell asserted claims for fraud and deceit, conversion by Bonville of the $51,971 loan proceeds, financial dependent adult abuse (Welf. & Inst. Code, §§ 15600 et seq., 15610.30), breach of fiduciary duty, intentional infliction of emotional distress, conspiracy, negligence and common count for monies received. Bell sought damages, quiet title, imposition of a constructive trust and an accounting.
Prior to trial, JMJ, Gateway and Horizon were dismissed from the case, and the trial court granted summary adjudication in favor of the Masons on Bell's quiet title claim. The trial court struck Bonville's answer as a discovery sanction and entered Bonville's default. Thus, the sole claims in issue are Bell's claims against the Masons arising out of her sale of her property to Shante.
Under Bell's theory of the case, the parties had agreed to treat the $130,000 sale of the property to Shante as "a mere sham" and that Bell
To establish her mental incapacity, Bell presented the expert testimony of Dr. Catherine Scarf, a practicing psychologist. Scarf testified she had administered various performance and verbal tests to Bell, which disclosed Bell's IQ is 62, placing her in the bottom first percentile. Scarf opined Bell is incapable of entering into contracts.
Scarf explained that in diagnosing mental retardation, according to the DSM (Diagnostic and Statistical Manual of Mental Disorders), "which is what you use to diagnose mental retardation, mental retardation has to be established prior to the age of 18." Here, Scarf evaluated Bell at age 37, at which time Bell was first diagnosed with mental retardation, but Scarf opined Bell's history over the years indicated mental retardation.
Cross-examination disclosed Scarf evaluated Bell at the request of Bell's attorney, Armen Tashjian (Tashjian) (Bell's trial and appellate counsel). Cross-examination revealed the circumstances under which Scarf came to evaluate Bell. The trial court admitted into evidence exhibit 423, a letter from Tashjian to Donetta Germany that went into Bell's file. The letter stated in pertinent part: "I wish to explain briefly why Kelley Bell has an urgent need for evaluation by a psychiatrist or licensed psychologist who has practiced for at least five years. Ms. Bell is represented by this law firm in the above-referenced litigation. This lawsuit involves individuals who use deceptive tactics to take away Ms. Bell's residence, effectively rendering her homeless for several months. She seeks compensation for her damages." (Italics added.)
Thus, on August 18, 2006, Tashjian referred Bell to Scarf to obtain a capacity declaration for the court to determine whether a conservator should be appointed for Bell.
Scarf admitted intelligence tests can be "faked out" by performing below one's ability. However, Scarf asserted "you can't fake me out" because she looks at other data besides test scores. However, Scarf stated she was not familiar with what is tested on a GED examination, and therefore could not address the impact of Bell's completion of a GED on her assessment.
Scarf stated she ordinarily checks different sources to confirm whether what she was being told was accurate. In this case, however, Scarf did not consult with anyone other than Tashjian's office and Donetta Germany, who accompanied Bell to Scarf's office.
As will be discussed below, in the Discussion, the trial court precluded the defense expert, Black, a highly qualified licensed psychiatrist, from testifying "as to IQ or retardation of Ms. Bell," stating "I do not believe there's been a sufficient foundation laid for that," in that Black had not personally evaluated Bell. The trial court limited Black's testimony to depression and personality disorder. As a consequence, the jury was left with Scarf's uncontroverted expert testimony that Bell has an IQ of 62.
The defense theory of the case was that Bell lied about being a helpless person who was taken advantage of, that Bell improperly acquired the property from her godparents, immediately extracted as much equity as she could, given her poor credit, and then sold the property to Shante in order to extract additional money from the property. The defense contended Bell
Of the $130,000 purchase price,
The jury returned special verdicts, finding, inter alia, there was a conspiracy between Bonville and the Masons to defraud Bell; Reginald made a false representation of fact to Bell,
The Masons brought a motion for new trial, raising numerous grounds including (1) abuse of discretion by the trial court in its evidentiary rulings and (2) juror misconduct, based on concealment by two jurors of their personal experience with mental disabilities.
On May 19, 2009, the trial court denied the motion for new trial.
On May 26, 2009, the Masons filed a timely notice of appeal from the judgment.
On June 22, 2009, Bell moved for an award of attorney fees in the amount of $409,000, on the ground she had prevailed on her claim under the Elder Abuse and Dependent Adult Civil Protection Act, and therefore was entitled to statutory attorney fees under Welfare and Institutions Code section 15657.5, subdivision (a).
On July 23, 2009, the trial court awarded a total of $204,500 in attorney fees, including $167,100 to Tashjian.
On September 1, 2009, the Masons filed a timely notice of appeal from the postjudgment order for attorney fees.
The Masons contend the trial court erred in excluding evidence relating to critical issues in the case and thereby prevented the defense from presenting its theory of the case; the trial court erred in admitting certain evidence; Bell failed to present sufficient evidence to support her claims of conspiracy, fraud, dependent person abuse, and intentional infliction of emotional distress; the trial court erred in refusing to grant a new trial based upon juror misconduct; the judgment should be reversed due to cumulative error; and the attorney fee award to Bell should be vacated.
At trial, the defense sought to call Black as an expert psychiatric witness to testify Bell does not suffer from mental retardation and that in fact she has average intelligence. The trial court conducted a hearing outside the presence of the jury to determine the admissibility of this testimony.
The record reflects Black has solid credentials. He is a licensed psychiatrist with 38 years of experience. He is on the teaching faculty at UCLA's (University of California at Los Angeles) medical school. Further, Black read Scarf's trial testimony in its entirety and reviewed the records that Scarf produced which Scarf testified were the basis for her opinion. In addition, Black read all three volumes of Bell's deposition testimony and viewed in excess of 15 hours of her videotaped deposition testimony.
Black offered examples from his review of Bell's deposition that helped him form his opinion that Bell is not mentally retarded. Black cited Bell's ability to read rapidly and clearly from the escrow instructions, and that she remembered her credit union account number.
The trial court ruled Black could not testify regarding Bell's mental retardation or lack thereof. The trial court was not concerned with Black's training or qualifications. The trial court's sole concern was that Black had not met or personally examined Bell, and therefore the defense had failed to lay a sufficient foundation for Black to testify as to Bell's IQ or mental retardation.
Evidence Code section 801 provides: "If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: [¶] (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and [¶] (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion." (Italics added.)
The trial court's stated reliance on People v. Bassett (1968) 69 Cal.2d 122 [70 Cal.Rptr. 193, 443 P.2d 777], a death penalty case, was misplaced. In Bassett, the issue presented was whether the testimony of two prosecution
Here, Black had more than the "necessary minimum acquaintance with the case in which he [was] called to testify." (Bassett, supra, 69 Cal.2d at p. 146, fn. 22.) As noted, Black read Scarf's trial testimony in its entirety and he reviewed the records that Scarf produced which Scarf testified were the basis for her opinion. In addition, Black read all three volumes of Bell's deposition testimony and viewed in excess of 15 hours of her videotaped deposition testimony. Therefore, Black established a solid foundation for his testimony. The trial court's exclusion of Black's expert opinion that Bell has normal intelligence was clearly erroneous.
The judgment and the postjudgment attorney fee order are reversed and the matter is remanded to the trial court with directions to enter judgment in favor of the Masons. The Masons shall recover their costs on appeal.
Croskey, J., and Aldrich, J., concurred.
