Joseph R. WYATT and Clarice J. Wyatt, Plaintiffs and Respondents, v. UNION MORTGAGE COMPANY, a corporation, et al., Defendants and Appellants.
Defendants appeal from a judgment imposing $1,000 general damages, plus $200,000 punitive damages spread in varying amounts among several defendants. The judgment followed a jury verdict in favor of plaintiffs which arose out of a second mortgage transaction in which defendants were found to have acted, directly or indirectly, as mortgage loan brokers in a manner which breached a legal duty owed to plaintiffs.
In 1966, plaintiffs, husband and wife, desired to borrow money for remodeling of their home. They became aware of Union Home Loans which had advertised frequently on television stations that it loaned money in a manner in which the monthly payment included principal and interest and would repay the loan in full at the end of the stated number of months, and that, for example, an $18 monthly payment would repay a $1,000 loan in its entirety. Nothing about a “balloon” payment was expressed or implied. In fact, the company made no such loans as those advertised to anyone at anytime. Plaintiffs relied upon these television commercials and were induced to seek a loan from Union Home Loans. They visited the Sacramento office of defendant Stockton Home Mortgage Company, doing business as Union Home Loans on November 30, 1966.
Plaintiffs asked an employee about the number of days they had in which to make their payments, and the interest rate. They were told 10 days, and that there would be a “small balloon payment” at the end of the loan. The interest was described orally as five or six-tenths of one percent of the monthly balance, and when asked the annual percentage rate, they were told approximately seven to eight percent. In response to a direct question by plaintiffs, they were told it would be 10 days before a monthly payment was considered late. They were not told how much the late charge would be or that it was to be added to the balance. The statements as to annual interest and late charges were false as will be shown later.
During this visit plaintiffs signed several documents. One was an appointment of Union Home Loans as their agent to negotiate with a lender to obtain for them a loan in the amount of $1,325 at five-sixths of one percent per month on the unpaid principal payable at $20 per month in installments for 36 months, with the remaining balance due and payable on the 37th month. This last payment is the “balloon payment.” The agreement promised to pay a commission to defendant Union Home Loans of $198.75 to obtain a lender. The loan was to be secured by a second deed of trust on their home. An accompanying document, designated a Broker's Loan Statement, was signed which itemized expenses such as appraisal, title and escrow fees, and estimated the final balance of the $1,325 loan to be paid to plaintiffs as $900.25. A third document was a combined note and deed of trust promising to pay to the lenders (who are not defendants herein) the sum of $1,325, with plaintiffs' real property as security. The fourth document signed on that date was the usual escrow instructions accompanying a mortgage loan. Defendant Union Mortgage Company was the designated escrow holder.
The loan papers were presented to plaintiffs in a stack for them to sign. As to each paper, plaintiff Clarice Wyatt testified that the loan officer “flipped the papers” and explained to them that one was for brokerage fees, one for escrow “and the different ones, what they were for, but he just looked at that and showed us where to sign.”
The printed promissory note which plaintiffs signed contained, inter alia, a sentence providing that there would be a late charge paid to the “servicing agent” for each installment more than five days in arrears in an amount equal to one percent of the original amount of the note. The servicing agent was defendant Secured Investment Corporation, succeeded by Western Computer Services. Late charges were imposed whenever a payment was not received on or before the fifth day after it was due. Several of plaintiffs' payments were late, resulting in late charges which were added to the balance, plus interest, the result being that the final amount due and payable on maturity on the 37th month was approximately $1,340.
Plaintiffs attempted unsuccessfully to find another lender to refinance and pay off the balance. To avoid foreclosure, they continued to employ Union Home Loans as their broker or agent to find a lender. Through Union Home Loans they secured a new loan, the principal amount being $2,000, most of which was to pay off the approximately $1,340 balance on the first loan and the new appraisal, escrow, broker's and other servicing fees, leaving a balance on the new loan to be paid to plaintiffs of approximately $2.11. The monthly payments on this new three-year loan, dated March 7, 1970, were $45, leaving an estimated balloon payment at the 37th month of $816.18 if all payments were made on time. Again, there were late payments and the final result was principal and interest in the amount of $1,193.16. In addition, the late charges due to defendant Western Computer Services, plus interest, title policy, escrow and other charges, brought the total due up to $1,557.98. This amount the plaintiffs were finally able to obtain by refinancing their first mortgage through another lending institution (not a party) and the debt was paid off in June 1975 after this suit was filed but before trial.
The gravamen of this lawsuit is that the complex of corporate and individual defendants, acting as loan brokers for plaintiffs, conspired either to defraud plaintiffs or to breach the fiduciary duty of disclosure, or both, by deceit or failure to explain verbally the ramifications of the loans. By its general verdict for plaintiffs, the jury impliedly found there was either fraud or breach of a fiduciary duty, or both, and either or both torts were the subject of a civil conspiracy.
On appeal, defendants contend the alleged failure to explain verbally what was provided in the loan documents does not constitute fraud or breach of a fiduciary duty, as a matter of law. They argue that the documents signed by plaintiffs were “not complicated” and that the matters relating to interest and late-payment charges were “so obvious that there is no duty to affirmatively explain them.”
Defendants admit a mortgage loan broker “may have a fiduciary duty, but it does not include an obligation to explain the fundamental concepts of a loan which are obvious and ought to be known to anyone.” Defendants also refer to the fact that the purpose of reducing business transactions to writing is to avoid misunderstanding. They assert “the papers involved in this type of transaction are not complicated.”
There is no doubt a mortgage loan broker is a licensed real estate agent for a particular purpose. He does not bring buyers and sellers of real property together; instead, he brings borrowers and lenders together when the loan is to be secured by a mortgage (deed of trust) upon real property. (See Bus. & Prof. Code, s 10131.) The courts of this state have defined the relationship between a licensed real estate broker and his client and have defined the duty toward the client or principal in fiduciary terms. Thus, it has been held that “(t) he law imposes on a real estate agent ‘the same obligation of undivided service and loyalty it imposes on a trustee in favor of his beneficiary.’ ” (Batson v. Strehlow (1968) 68 Cal.2d 662, 674, 68 Cal.Rptr. 589, 597, 441 P.2d 101, 109.) The agent is charged with the duty of the fullest disclosure of all material facts concerning the transaction that might affect the principal's decision. (Rattray v. Scudder (1946) 28 Cal.2d 214, 223, 169 P.2d 371.) This is especially true when the principal or client is not knowledgeable in escrow and other property transaction matters and imposes trust and confidence in the agent. (See Earle v. Lambert (1962) 205 Cal.App.2d 452, 456, 23 Cal.Rptr. 79.) It has been established that when the acts of an agent have been questioned by his principal and the fiduciary relationship has been shown to exist, the burden is cast upon the agent to prove that he acted with the utmost good faith toward his principal and made full disclosure prior to the transaction of all facts relating thereto. (Timmsen v. Forest E. Olson, Inc. (1970) 6 Cal.App.3d 860, 871, 86 Cal.Rptr. 359.) There appears to be no sound reason why real estate mortgage loan brokers should be treated differently than ordinary real estate brokers. As stated in Realty Projects, Inc. v. Smith (1973) 32 Cal.App.3d 204, 210, 108 Cal.Rptr. 71, 75, mortgage loan brokers and their loan officers hold themselves out to prospective borrowers as loan experts who “will endeavor to obtain for prospective borrowers from lenders a loan adequate for their needs and at the lowest practicable cost.” The “bait and switch” advertising tactics employed by Union Home Loans, wherein loan applicants were lured, but were never able to obtain the type of loan advertised, violated the fiduciary relationship.
Mrs. Wyatt testified that although plaintiffs were late on some payments, they were never advised what the balance on their loan was until the expiration of the 36-month period, when they found they had made payments of $720 and reduced the original principal amount of $1,325 to $1,316.05, a reduction of only $8.95. Being unable to borrow money elsewhere since Mr. Wyatt was unemployed at the time, they had only Union Home Loans to turn to again in order to avoid foreclosure and loss of their home. Again, they went through the process of title fees, escrow, commissions and the like and borrowed $2,000 to pay off the old loan. In 1970 and 1971 there were some late payments, resulting in charges.
The record is unclear as to whether some of the late charges on the second loan were legitimately imposed by Western Computer Services. There is some evidence indicating an overcharge, which may or may not have been inadvertent. Plaintiffs claimed they were not late as many times as defendants claimed. Defendants' own records kept by Western Computer Services were not clear as to precisely what portion of the final payoff figure of $1,557.98 consisted of late charges imposed by Western Computer Services. However this does not become a crucial matter.
We have reviewed the record in the light most favorable to the prevailing party, as we must. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925-926, 101 Cal.Rptr. 568, 496 P.2d 480.) Based principally upon the facts and the law, we conclude there is substantial evidence to support the implied finding of the jury that Stockton Home Mortgage Company, doing business as Union Home Loans, had a fiduciary duty to plaintiffs which they breached, in that there was a failure to disclose or accurately explain verbally the five-day late charge or the true annual interest. They signed the written documents after having thus been lulled into not studying them.
Defendants contend there is no substantial evidence of a conspiracy. They point out the loans to plaintiffs were arranged by Stockton Home Mortgage Company, a corporation, doing business as Union Home Loans, which was a separate corporation from defendant Union Mortgage Company, a corporation, doing business as Union Home Loans, which operated as a mortgage loan broker in Southern California. Also, defendants claim the other individual and corporate defendants cannot be held liable for acts of an employee of Stockton Home Mortgage Company who misled plaintiffs, since there is no evidence (according to defendants) that any of the other defendants participated in the making of the Wyatt loans or had any knowledge of what might have been said, or not said, by an employee of Stockton Home Mortgage Company. We do not read the record so simply. The papers signed by plaintiffs, and which were before the jury as exhibits, are highly significant. The first loan papers included a deed of trust containing large-print directions that when recorded it should be mailed to “Union Mortgage Company, 2641 West Olympic Boulevard, Los Angeles, California”. As soon as the loan papers were negotiated, a letter was sent to plaintiffs on the letterhead of “Union Home Loans, 2641 West Olympic Boulevard, Los Angeles,” thanking plaintiffs for allowing them “to arrange your real estate loan.” This letter also contained directions to mail all payments to Secured Investment Corporation in Los Angeles.
The second loan was similar, except that payments were now being made to Western Computer Services in Los Angeles, which made its income in the same way as Secured Investment Corporation, by retaining late charges.[FN1] The letter of thanks for negotiation of the second loan was on a different letterhead, stating “Union Home Loans” and showing addresses in Sacramento, Oakland and San Jose. However, the signature line contained the designation “Union Mortgage Company.”
All the corporations referred to which were named as defendants were owned, controlled, managed or operated in part by the individuals named as defendants.
A conspiracy may be inferred from the nature of the acts done, the relations of the parties, the interest of the alleged conspirators, and other circumstances in connection with a tort. (Chicago Title Ins. Co. v. Great Western Financial Corp. (1968) 69 Cal.2d 305, 316, 70 Cal.Rptr. 849, 444 P.2d 481; see 4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, ss 31-33, pp. 2330-2332.) It need not be the result of an express agreement but may rest on tacit assent and acquiescence. (Holder v. Home Savings & Loan Ass'n (1968) 267 Cal.App.2d 91, 108, 72 Cal.Rptr. 704.)
In resume, the first act of significance here was the long series of media advertising, especially on television, which brought the plaintiffs into the Sacramento office of Union Home Loans. These ads stated loans would be made with payments which would repay the principal and interest in full, negating the concept of a balloon payment. These advertisements were misleading in that there was never a loan available of $1,000 repayable at $18 per month, principal and interest in full, as advertised. Moreover, it was admitted that late charges on loans were counted upon, and did actually provide a major portion of the income of the corporate combine.
All the headquarters offices of defendant corporations were in the same building on West Olympic Boulevard in Los Angeles. The individual defendants all cooperated and were engaged in some variance of either devising, supervising or processing the different phases of the combined corporate operations.
Defendants are correct in their assertion that there is no direct evidence of instructions having been given by any defendant to the employee who misled plaintiffs; nor is there direct evidence that any defendant had actual knowledge of the conversation wherein the misinformation was given. However, this is not to say there was no substantial evidence from which the jury could have found that giving such misinformation was impliedly encouraged, condoned or approved. Such evidence exists in the whole plexus or web or testimony concerning the activities of the corporations and the individuals who are defendants herein.
In this connection the “bait and switch” form of advertising assumes its share of importance in the entire picture. Tactics such as were used by the sales person in Sacramento to obtain both the first and the second loans here involved were impliedly found by the jury to be encompassed within the policies of the defendant companies and individuals herein. This finding was made pursuant to proper instructions, not challenged on appeal, to the effect that conspiracy may be inferred from the nature of the acts done, the relations of the parties and the interests of the alleged conspirators and other circumstances. The defendant corporate entities, whether all licensed as brokers or not, were each mere extensions or parts of the brokerage carried on under the name of Union Home Loans. The individual defendants were each in such positions in the corporations to have actually or impliedly assisted in the activities of the others, all with the purpose of effectuating the loan brokerage operation wherein the fiduciary obligations existed and were breached. (See de Vires v. Brumback (1960) 53 Cal.2d 643, 649-650, 2 Cal.Rptr. 764, 349 P.2d 532.)
Irving Tushner owned all or a controlling interest in each corporation. David Marks was president of Western Computer Services.[FN2] Elinore Tushner, former wife of Irving, was secretary-treasurer of two of the corporations. Esther Flink is Irving's sister. She was secretary-treasurer of one corporation and vice-president and a director of others. All had active working careers in their positions and constituted what amounted to a management team or combine. Esther Flink and Elinore Tushner were actively working at the times in question in the collection and lending phases of the overall operation.
As an appellate court, we must look only to evidence most favorable to respondent; we may not weigh the evidence, and we cannot substitute our own deductions from the evidence even if different from the jury's implied findings as to one or more defendants. (See Cecka v. Beckman & Co. (1972) 28 Cal.App.3d 5, 14, 104 Cal.Rptr. 374; Drzewiecki v. H & R Block Co., Inc. (1972) 24 Cal.App.3d 695, 705, 101 Cal.Rptr. 169; Fallert v. Hamilton (1952) 109 Cal.App.2d 399, 404, 240 P.2d 1007.) Under these rules we hold there is substantial evidence from which the jury could conclude there was a common scheme or design (conspiracy) to subvert the fiduciary duty of a real estate broker to act in the highest good faith toward plaintiffs. (See Chicago Title Ins. Co. v. Great Western Financial Corp., supra, 69 Cal.2d at p. 316, 70 Cal.Rptr. 849, 444 P.2d 481.)
Defendants contend that this action was barred by the statute of limitations. This could be true if there had been no conspiracy found by the jury, since the action was filed in July 1973, more than six years after the first loan and more than three years after the second. The statute for actions for fraud is three years. (Code Civ.Proc., s 338, subd. 4.) The statute for breach of fiduciary duty falls within the four-year statute. (Code Civ.Proc., s 343; 2 Witkin, Cal.Procedure (2d ed. 1970) Actions, s 355, p. 1193.) Since both fraud and conspiracy to breach a fiduciary duty were alleged, and since the jury could (and apparently did) find a conspiracy to breach such duty, it is the last act in the conspiracy which controls. (Schessler v. Keck (1954) 125 Cal.App.2d 827, 831, 271 P.2d 588; Kenworthy v. Brown (1967) 248 Cal.App.2d 298, 301, 56 Cal.Rptr. 461; Agnew v. Parks (1959) 172 Cal.App.2d 756, 765, 343 P.2d 118; Bedolla v. Logan & Frazer (1975) 52 Cal.App.3d 118, 136-137, 125 Cal.Rptr. 59.)
Defendants have attacked the underlying premises of the rule embraced in Schessler v. Keck, supra, and the decisions which follow it. Schessler and its companion cases represent ruling case law in California. We have examined the policy considerations underlying the rule and find no reason to depart from it.
In this case each act of collection and processing of a loan payment was an act in furtherance of the conspiracy, since the purpose of the operation was to arrange loans and collect payments. The last act here was the collection and processing of the final payment about two weeks before trial. This became the culminating act flowing from the earliest tortious act in 1966. In legal effect the two loans and acts of each defendant in connection therewith were a single basic conspiratorial activity ending with the final payment collection. (See Chicago Title Ins. Co. v. Great Western Financial Corp., supra, 69 Cal.2d at p. 316, 70 Cal.Rptr. 849, 444 P.2d 481.)
It was therefore not error, as argued by defendants, for the trial court to refuse to instruct the jury on the statute of limitations. It matters not that the court instructed the jury that plaintiffs were seeking damages for fraud, as they were, as well as for breach of a fiduciary duty. Such an instruction did not cause the lack of a statute of limitations instruction to become error, since the first cause of action is not only for the tort of fraud. It is also for breach of a fiduciary duty as part of a civil conspiracy.
The allegations upon which the prayer is based for exemplary damages assert oppressive, malicious or fraudulent conduct. These allegations can be the basis for justifying punitive damages for the conspiracy to breach the fiduciary duty, without converting that conspiracy into a cause of action for fraud alone. Otherwise stated, there is a distinction between a cause of action for fraud and allegations of malicious, oppressive or fraudulent conduct calling for punitive damages in a tort action other than for fraud where a jury has found “oppression, fraud or malice” for purposes of imposing such damages. (Civ.Code, s 3294; Ward v. Taggart (1959) 51 Cal.2d 736, 740-742, 336 P.2d 534.) The trial court properly instructed the jury as to oppression, fraud or malice as a necessary foundation for imposition of punitive damages.
Defendants contend there is insufficient evidence to justify the punitive damage awards and they are excessive as a matter of law when compared to the general damages. They then repeat arguments there is no evidence that an employee of Stockton Home Mortgage Company, doing business as Union Home Loans, who dealt with plaintiffs, had any authority to bind the company or was authorized to misinform or fail to verbally explain a loan transaction. They also argue, as to the other defendants, there is no evidence they had any knowledge of the failure of the employees of Stockton to explain the loans accurately. We have previously dealt with these arguments.
Defendants also argue there was no malice shown and accordingly no punitive damages are called for. This argument is meritless, since punitive damages need not be based on malice alone; they can be imposed whenever there is evidence to support an implied finding of “oppression, fraud, or malice, express or implied . . . .” (Civ.Code, s 3294.) There was sufficient evidence upon which the jury could have found fraud, if not oppression or malice, in the instant case, arising out of their findings on the issues of basic liability and conspiracy. (Cf. Ward v. Taggart, supra, 51 Cal.2d at p. 743, 336 P.2d 534.)
As to the amount of the punitive damages, defendants rely on principles extracted from such cases as Forte v. Nolfi (1972) 25 Cal.App.3d 656, 688, 102 Cal.Rptr. 455, which held that a punitive damage award of $20,000 was excessive as a matter of law when compared to a general damage award of $2,700. Here, the initial general damage award was $25,000 and the total punitive damage award was $200,000 spread among the eight defendants in varying amounts. However, after hearing and denial of certain defense motions relative to the verdict, the trial court granted a new trial on its own motion as to damages only, unless plaintiffs consented to a reduction of general damages to $1,000, leaving the punitive damages the same. Plaintiffs so consented.
The purpose of exemplary damages is spelled out by statute. They are “for the sake of example and by way of punishing the defendant.” (Civ.Code, s 3294.)
There is no fixed formula in the cases. Neither the Forte case nor any other of which we are aware establishes a fixed standard or ratio of punitive damages to general damages. (See 4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, s 867, pp. 3155-3156.) There exists only a general principle, that the award of punitive damages should bear a reasonable relationship to actual damage. (Schroeder v. Auto Driveway Co. (1974) 11 Cal.3d 908, 922, 114 Cal.Rptr. 603, 523 P.2d 643.)
One description of the appellate test of an award of punitive earnings is that described in Rosenberg v. J.C. Penney Co. (1939) 30 Cal.App.2d 609, 628, 86 P.2d 696, and restated in Cunningham v. Simpson (1969) 1 Cal.3d 301, 308-309, 81 Cal.Rptr. 855, 859, 461 P.2d 39, 43, as follows: “ ‘In considering whether the (award was) excessive, we realize the very familiar rule that to the jury, to a very large extent, is committed the responsibility of awarding compensation for an injury sustained. When the award as a matter of law appears excessive, or where the recovery is so grossly disproportionate as to raise a presumption that it is the result of passion or prejudice, the duty is then imposed upon the reviewing court to act.’ ”
In awarding exemplary damages, the trier of fact has a wider discretion than in awarding compensatory damages, and an appellate court should not substitute its own conclusions for the award when supported by any substantial evidence. (See Drouet v. Moulton (1966) 245 Cal.App.2d 667, 673, 54 Cal.Rptr. 278; Gruner v. Barber (1962) 207 Cal.App.2d 54, 59, 24 Cal.Rptr. 292.) In reviewing the record on motion for retrial, the trial court here found the acts of all defendants to be “shockingly reprehensible” and stated that the jury's award of punitive damages showed “remarkable restraint.” We have reviewed the record, and cannot say that the award was the result of passion or prejudice, was not supported by substantial evidence, or is excessive as a matter of law.
The judgment is affirmed.
The statute of limitations is not a bar. When the wrongful acts are part of a conspiracy the statute of limitations is tolled until the commission of the last overt act causing damage to the plaintiff in furtherance of the conspiracy. Bedolla v. Logan & Frazer (1975) 52 Cal.App.3d 118, 136-137, 125 Cal.Rptr. 59; Kenworthy v. Brown (1967) 248 Cal.App.2d 298, 301, 56 Cal.Rptr. 461; Schessler v. Keck (1954) 125 Cal.App.2d 827, 832, 271 P.2d 588; Statute of Limitations Conspiracy (1958) 62 A.L.R.2d 1401.) I examine below the policy considerations underlying Schessler which convince me not to depart from it.
First, civil conspiracy is a qualified cause of action; its existence is dependent upon the wrongful acts done by the defendant to the injury of the plaintiff. (Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 101 Cal.Rptr. 499; Widdows v. Koch (1968) 263 Cal.App.2d 228, 69 Cal.Rptr. 464.) Unlike its criminal counterpart, its wrong is not in the act of conspiring but in the damage resulting from that act. (Unruh v. Truck Insurance Exchange (1972) 7 Cal.3d 616, 631, 102 Cal.Rptr. 815, 498 P.2d 1063.) A cause of action for civil conspiracy permits a victim of a clandestine scheme to bring an action against those who have knowingly participated in the furtherance of the conspiratorial objective. Individual acts in pursuance of this objective may be difficult to prove. The wrongfulness of the act may become apparent only when the conspiracy has progressed or upon its termination. It is for these reasons that the cause of action extends the time before the statute begins to run.
Second, the scope of civil conspiracy is bifurcated. It not only reaches vertically in terms of its extended time concept but also reaches horizontally in terms of the alliances which fostered the conspiracy. A plaintiff's claim of civil conspiracy provides the string which allows him to tie together those who, acting in concert, may be responsible in damage for any overt act or acts. This allows for the possibility that an act done by one individual which is not actionable may become actionable when tied to a series of acts performed by two or more persons in furtherance of the conspiracy. (Brown v. American Federation of Television and R. Artists (1961) 191 F.Supp. 676, 680.)
From the evidence presented the trier of fact could and did find the existence of civil conspiracy. It was the collection and processing of the last payment which appears to have been the last act in this conspiracy. This was but two weeks before trial and long after the complaint was filed. The prescribed period of limitation is determined by the nature of the action in which the conspiracy appears. (Agnew v. Parks (1959) 172 Cal.App.2d 756, 765, 343 P.2d 118; Myers v. Metropolitan Trust Co. of Cal. (1937) 22 Cal.App.2d 284, 70 P.2d 992; Bedolla v. Logan & Frazer, supra, 52 Cal.App.3d at p. 136, 125 Cal.Rptr. 59.) We deal with a statute of limitations of three years (fraud) and four years (breach of fiduciary duty) which runs after the last act. Accordingly, the statute of limitations had not run on the civil conspiracy cause of action.
1. The late-charge incomes of the two corporations were quite large. For example, in 1971, Secured Investment Corporation had an income of over $600,000 from this source. In 1971 Western Computer Services income from late charges exceeded $500,000.
2. While Marks did not come to work at Western Computer Services until 1969, approximately three years after the first loan, the evidence shows he took part in meetings with Irving Tushner planning the advertising and was well involved with the principal purpose of collecting late charges during the course of the payoff and renewal of plaintiffs' loans.
REGAN, Associate Justice.
FRIEDMAN, Acting P. J., concurs.