Filed 3/19/14 Chen v. Sutherland CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

XUEMEI CHEN et al., Plaintiffs and Respondents,

v. RICHARD R. SUTHERLAND,

Defenda nt, Cross-complainant and Appellant;
THOMAS E. FRANCIS,
Defendant, Cross-defendant and Respondent. H037956 (Santa Clara County Super. Ct. No. CV133580)

I. INTRODUCTION Respondents Xuemei Chen, Cheong Ang, and Richard C. Conroy invested a total of $474,000 in an investment scheme involving the purchase and sale of heavy equipment. After losing nearly all of thei r money, respondents filed a lawsuit against Katherine K. Sutherland, M.D. (Katherine) 1 and her husband, appellant Richard R. Sutherland (Richard), who respond ents believed had induced th em to participate in the

1 We will hereafter refer to appellant Katherine Sutherland and her husband, Richard Sutherland, by their first name s for purposes of clarity and meaning no disrespect.2 fraudulent investment scheme and were th erefore responsible for their losses under contract and tort theories of liability. Resp ondents also named as a defendant Thomas E. Francis, M.D., who was involved in the fraudulent investment scheme. During the three-week jury trial, Richard dismissed his cross-complaint against Francis, in which he had sought indemnific ation, apportionment of fault, declaratory relief, and damages. The jury found that Katherine had no liability, that Richard and Francis were partners, and that Richard an d Francis were liable to respondents for compensatory damages. Th e judgment entered in Decembe r 2011 awarded respondents Chen and Ang the total amount of $546,394. 66 and respondent Conroy the total amount of $116,103.29. On appeal, Richard contends that the ju dgment should be re versed because the trial court erred in (1) adm itting evidence of Richard’s dism issed felony convictions in
violation of Penal Code sec tion 1203.4 and Evidence Code s ection 788, subdivision (c); (2) refusing the jury instructions prop osed by Richard on caus ation, agency, and partnership; and (3) denyi ng Richard’s Code of Civ il Procedure section 473, subdivision (b) motion fo r relief from his voluntary dismi ssal of his cross-complaint for indemnification against Francis. For the re asons stated below, we find no merit in
Richard’s contentions and therefore we will affirm the judgment.
II. FACTUAL AND PROC EDURAL BACKGROUND A. The Pleadings In 2009, plaintiffs Chen, Ang, and Conr oy filed a complaint against defendants Richard, Katherine, and Francis. 2 The parties’ trial briefs i ndicate that the causes of
action that remained for trial against all three defendants were fraud and deceit, negligent

2 The complaint also named several other defendants who were not involved in the trial and are not involved in the present appeal.3 misrepresentation, unjust enrichment, and re scission. As against Richard and Francis only, causes of action remained for breach of contract and common count for money lent. Richard filed a cross-complaint against Fran cis in 2010. By the time of trial, the operative pleading was the second amended cross-complaint, 3 which sought indemnification, apportionment of fault, and declaratory relief, and also stated causes of
action for breach of contract and rescission.
B. Trial Evidence The trial on the complaint and the second amended cross-complaint began on November 15, 2011. The following is a su mmary of the witness testimony and other evidence presented at trial. 4 1. Chen and Ang Meet the Sutherlands In March 2008, Chen, a data analyst, and Ang, a soft ware engineer, moved to a
house in Los Altos. 5 Richard and Katherine lived in a house across the street. Chen and Ang gave a housewarming part y in May 2008 where they met their neighbors Richard
and Katherine for the first time . During the housewarming part y, Richard told Chen that “he was retired from [l]aw.” Richard had ac tually been suspended from the practice of law by the California State Bar after suffering felony convictions for perjury, offering a forged document as genuine, and falsifyi ng documents to be used as evidence. 6 Richard ultimately resigned from the California Stat e Bar in 1997 with disciplinary charges

3 The second amended cross- complaint was not in cluded in the reco rd on appeal.

4 The record reflects that the trial te stimony included the playing of the video deposition of Michael Lee Weaver, but the deposition was not transcribed and was not included in the record on appeal.

5 Chen and Ang were marri ed in August 2010.

6 This court affirmed the judgmen t on Richard’s fel ony convictions in People v. Sutherland (Feb. 8, 1999, H016872 [nonpub. opn.].)4 pending that arose in a different matter. However, Richard understood that a 2001 court
order had set aside his convictions after the tr ial court granted his application under Penal
Code section 1203.4. He had also received le gal advice that the court order meant he had no obligation to reveal that he had once been convicted of felony offenses.
Chen next met Richard and Katherine at a neighborhood block party on July 4, 2008. During her conversation with Richard, Chen asked him what he had been doing after retiring from law. Richard replied that he “had been doing some investments.”
Chen was interested because th eir “investments in the stock market were really bad.” Richard responded that since he did not take any risks at his age he was investing in low risk investments, including viaticals 7 and “the Heavy Equipment Arbitrage Program.” 8 2. The Heavy Equipment Arbitrage Program On July 12, 2008 , Chen received an email from Richard regarding the heavy equipment arbitrage program. Chen forwarded the email to Ang. One paragraph in the email was entitled “Executive Summary—Jupiter Heavy Equipment Arbitrage Partners.” Among other things, the Executive Summary stat ed that its principals were Richard and Francis and described Richard as a graduate of Harvard Law School who had 25 years of experience as a “successful business and real estate litigator.” This description was intended by Richard “to create a sense of trus t in [his] education, [his] business ability and [his] training.” The Executive Summary al so included an explanation of the heavy equipment arbitrage program: “Large construction proj ects outside the United States are proceeding

7 “A viatical is a sale of the life insu rance policy of a termin ally ill person to an investor so that the insured ha s money for support prior to d eath. When the insured dies, the investor receives a portion, or all, of the beneficiary proceeds of the policy.” ( People v. Cole (2007) 156 Cal.App.4t h 452, 466, fn. 15.)

8 Arbitrage transactions involve “[t]he simultaneous buying and selling of a given commodity to capitalize on a price differential.” ( People v. Vineberg (1981) 125 Cal.App.3d 127, 132-133.)5 at a record pace, whether one is talking about China, India, Dubai, other parts of the
Middle East or South and Central America. The demand for heavy equipment to perform these tasks is virtually unprecedented. Domes tic but primarily foreign buyers search the globe for new and used heavy equipment to me et their needs. Generally, the cost of a used piece of machinery normally runs betw een $100,000 and $500,000 per piece. . . . [¶] . . . What happens is that an order for a particular machine, new or used, comes into our joint venture broker-dealer partner. Ou r broker-dealer partner, with order in hand,
then searches his sources in the United States for a machine with which to fill the order. With the purchase order already in hand, our broker-dealer partner purchases the equipment for immediate resale to the foreign buyer. The pr ofit is the difference between the purchase price and the resale price of the equipment, reali zed when payment is received by the broker dealer. . . . [¶] The equipment is not shippe d to the foreign buyer (or domestic buyer as the case may sometimes be), unless and until full payment therefor has been received by the broker-dealer partne r and the funds deposited into a bank trust
account.” The Executive Summary al so described the risk of investing in the heavy equipment arbitrage program: “There is a possibility that although an order has been placed for a particular piece of heavy equipmen t with the broker-dea ler has subsequently used funds from Jupiter to purchase the equipment [ sic ], the buyer may default on the purchase. In such an event, the broker-dealer would then set about to find a subsequent buyer for the piece of machinery. The pr ice at which the broker-dealer sells the equipment might be at a lower pri ce or [it] may take longer to find a buyer. . . . It is an extremely rare event for an order to be pl aced with the broker-deal er and to have the buyer default on the purchase after the broke r-dealer had acquired the ordered piece of equipment. There has been no default on a ny payment from the broker-dealer in four years of experience. . . . The principal is in essence secured by the machinery which is owned free and clear of any lie ns and encumbrances.”6 Richard and Francis intentionally omitted the name of the Georgia broker-dealer, Wendell Spell, from the Executive Summary. 3. The July 13, 2008 Meeting with the Sutherlands On July 13, 2008, Chen and Ang met with Richard and Ka therine to discuss investing in viaticals and the h eavy equipment arbitrage program. 9 The meeting took place in the Sutherlands’ home. With regard to the heavy equipmen t arbitrage program, Richard explained that Francis, who was described in the Executive Summary as a principal, was located in Georgia, had been a friend of the Sutherla nds for 30 years, and had introduced the heavy equipment arbitrage program to them. Richard also explained how the program worked, stating that “[t]he machine ha[d] been sold before it was purchased” and the Georgia broker-dealer need ed investors rather than bank credit to purchase the heavy equipment due to the sp eed of the transactions. Jupiter Heavy Equipment Arbitrage Partners was a busine ss that Richard and Francis were starting
where investors would receive a fixed rate of 2 percent on their investments. Richard also informed Chen and Ang th at before the end of July 2 008, when the Jupiter business would start, he and Francis we re offering “ad hoc deals” with a much higher return than 2 percent. As to risk, Richard stated during the Ju ly 13, 2008 meeting with Chen and Ang that their money invested in heavy equipmen t would be safe because Francis maintained a separate trust account for investors’ funds. Chen recalled that Richard also stated that the risk of investing in the heavy equipm ent arbitrage program was “very minimal, almost no risk, because the machine has been pr esold and that the worst case scenario is that the buyer disappeared or doesn’t want to buy it anymore and we will be stuck with

9 The parties disagreed during their tria l testimony as to whether Katherine was present when Richard was describing the he avy equipment arbitrage program during the July 13, 2008 meeting. Katherine testified that she had left the room before that discussion took place; Chen recalle d that Katherine was present.7 the piece of machine. Then we just have to find another buyer to sell it.” Richard told Chen and Ang that he and Katherine had “i nvested a lot of money in the business as well,” and that the Sutherlands had done “due diligence” by traveling to Georgia where they met Spell (the broker-dealer) and “saw th e machines on the lot.” By the time of the July 13, 2008 meeting, the investments that Richard and Katherine had made in the heavy equipment arbitrage program exceeded $700 ,000. Chen trusted Richard and she and Ang le ft the meeting “feeling very lucky that [they could] be included in th is kind of private opportunity. . . . We just felt like they have done all the work, all the preparation work and we kind of just to enjoy the ride or enjoy the benefits.” They told Richard to let them know if anything came up. 4. Chen, Ang, and Conr oy Decide to Invest After their meeting, Richard sent Chen an d Ang an email dated July 14, 2008, in
which he stated that he had “left the stock ma rket in 2000.” Richard also stated: “So, now I keep it simple. I know who the players are. I mean, I really do know them. I know what the process is. I understand perfectly how the . . . heavy equipment operations work. I know and u nderstand what the risks are, and they are among the least of anything I know, even banks. . . . [¶] [I ] have a lot of family and friends who have invested with [Katherine] and me. But n one have more money invested in these programs than do [Katherine] and I. We take these responsibilities very, very seriously. We look forward to helping y ou build a great fund to put your children through college and to live a pretty darned stress-free existence.” In another email dated July 14, 2008, Rich ard advised Chen that he had just gotten a call from his “partner, Tom [Francis], back in Georgia. Two orders for machines costing $87,000 have just come in. You can have one or both. Th e payout is 4.25% of the $87,000 in four weeks.” Chen discussed the investment offer with Ang and with Conroy, her ex-husband and friend. Richard telephoned Conroy and to ld him that he had “checked out the operation” of the heavy equipment arbitrage program and that it “was a8 partnership, it was low risk and that [his] mo ney was safe.” After deciding that the heavy equipment arbitrage program presented a good opportuni ty, Ang wired $87,000 to
Francis and received a bill of sale from Franci s that was stamped by Spell. Conroy also wired $87,000 to Francis and recei ved a bill of sale from him. The next investment opportu nity was presented to Chen in Richar d’s July 18, 2008 email, which stated: “There is now a $428,0 00 contract available that pays 4.5% in 5 weeks. Some others have already pitched in to buy the machine. If you have any interest in coming in on the purchase of this machine, let me know and if so, how much?” Chen and Ang decided to invest $100,000 to purchase a fraction of the machine. Richard then sent Chen a memorandum dated July 18, 2008, in which he stated that in five weeks they would be paid 4.5 percent on their $100,000 investment, and could elect to have the principal returned to them or rolle d over into another investment. After making the $100,000 investment, Chen received a July 25, 2008 email from Richard stating that there was “a $310,000 c ontract available” with a return of 3.25 percent to 3.75 percent, depe nding on the time of the payoff. Richard also stated in the email, “Remember, the money isn’t simply ‘floa ting’ out there. It is always connected directly to a specific machine. Also, if you have family or friends looking for a safe and better place to put some money, we welcome referrals.” Chen recalled that Richard periodically to ld her to give his name to family or friends who were interested in doing “sou nd investments.” Richard also encouraged Chen and Ang to invest more in the heavy equipment arbitrage program by taking out a
line of credit on their house. Richard and Fr ancis profited on others’ investments in the heavy equipment arbitrage program under the following arrangement: After the investor was paid his or her profit on the deal (as de termined by Spell), Spel l and Francis split the remaining gross profit and Francis, in turn, ga ve Richard one-half of Francis’s profit. Richard’s role was to bring in the invest ors, present to them the deal offered by Francis (including the availab ility of a machine, the cost, the profit, and the timeframe),9 write memoranda confirming the investors’ pu rchases, and direct them to wire their money to Francis, who would then provide th e investor with the bill of sale he had received from Spell. The investors’ funds “p assed through” Franci s’s checking account and “went directly to Mr. Spe ll’s entities.” Francis did not inspect the equipment and had no knowledge of the equipment’s purchasers or whether the purchasers actually existed.
Richard denied that he and Francis had ever formed a partnership. Francis acknowledged that he and Richard occasionally refe rred to each other as partners. In August 2008, Richard offered Chen and Ang anothe r investment opportunity. Specifically, Richard’s August 6, 2008 email offered them “10% on $900,000 (or a portion thereof . . .), paid in 4 to 6 weeks.” Because Chen and Ang had not yet received any return on their previous i nvestments, they did not invest in that opportunity. They had previously made a third i nvestment of $200,000 for an in terest in machines with a price of $1.4 million. Richard confirmed the $200,000 investment in a memorandum dated August 7, 2008. The me morandum also stated that Ch en and Ang would be paid a 10 percent return in six weeks and could elect to roll the principal into a new investment or have the principal returned. Richard ad vised them that they were responsible for paying the wire transfer fees to Francis. However, Richard admitted during his trial testimony that he never did anything to verify that the equipment that the investors were buying actually existed or to acquaint himsel f with standard practices in the used heavy equipment industry.
5. Standard Practices in the Used Heavy Equipm ent Industry An expert on standard practices in the used heavy equipment industry, Jack Thomson, testified on behalf of plaintiffs. Thomson is the president of Thomson Equipment Company, which buys, sells, a nd rents used construction equipment. Thomson founded the company in 1985 and at the time of trial was president of the Independent Equipment Dealers Association.10 Thomson explained his process for pur chasing a used piece of construction equipment. First, if he is buying from a c ontractor, he needs to know the company name and the nature of the business, since some industries are harder on equipment than others. After determining the company name, Thoms on performs a lien search, since, unlike a motor vehicle, construction eq uipment does not have a title. If the piece of equipment has a lien on it, Thomson has to pay off the lien. Thomson is very careful when he purchas es a piece of equipment at auction. He would not buy the equipment without a thoro ugh inspection and verification of the prior owner, the usage, and the maintenance program. Thomson would also want to know the number of hours on the hour meter, which indi cates the total number of hours a piece of equipment has run. Used construction eq uipment usually has a purchase price of $150,000 to $200,000 and can cost as much as $60,000 to repair. Most of the used construction equipment that Thomson purchases is for resale. Sometimes it is purchased for re sale to a specific buyer who needs a particular piece of equipment for a construction job. If Thomson does not know the buyer, he will investigate the buyer’s financial condition a nd prior jobs in the construction industry before making the sale. In Thomson’s ex perience with intern ational sales, the transactions are handled through a freight fo rwarder in the United States who is sent a certified bill of sale, a commercial invoice, a nd a power of attorney or letter stating that the freight forwarder can act on the seller’s behalf. The bills of sale that Thomson
examined in this case could no t have been used to document a foreign transaction since the serial numbers did not match the equipment.
Thomson reviewed the bill of sale that was provided to Chen and Ang for their $87,000 investment and noticed several discrepancies. The bill of sale included a VIN number, although construction equipment has se rial numbers rather than VIN numbers
since VIN numbers are for licensed vehicles su ch as cars. Also, th e VIN number did not correspond to the correct seri al number for the heavy equipm ent described on the bill of11 sale and the price was “way overstated.” Add itional bills of sale that were provided to Chen and Conroy for their heavy equipment investments had similar discrepancies. 6. Chen, Ang, and Conroy Fail to Receive the Promised Returns Sometime in August 2008, when no profit or return of principal had been received on the first investment made by Chen and An g, Chen started asking Richard a lot of questions. Richard forwarde d her questions to Francis and Chen then began to communicate directly with Francis regarding her concerns. Francis explained, in an August 18, 2008 email to Chen, that their principal could be returned with 60 to 90 days notice. Chen had thought that their principal would be automatically returned if they did
not elect to roll it over into another investme nt. In an August 21, 2008 email she asked Francis how he could keep track of the principal and indicate d it would be better to have the principal returned. Richard replied to Chen’s queries in an August 21, 2008 email, in which he asked her to be patient since Francis was a full-ti me practicing physicia n and the person “ ‘on the ground’ ” in Georgia. Chen understood that Richard and Francis were partners and that Francis was the person who was in direct contact with Spell an d took care of the investment deals after the money was wired from California. In an August 27, 2008 email, Richard advised Chen that the mach ine she had bought with the initial $87,000 investment “exists and is sitting on a lot. It has a specific iden tification number. The broker simply hasn’t received the money fo r it yet. You would be welcome to go to
where the machine is to inspect it.” In September 2008 Chen received a prof it of approximately $3,500 on th e $87,000 investment and Conroy received a profit of $3,698.00 on his $8 7,000 investment. In an October 12, 2008 email, Richard explained th at one reason for the delay in receiving a
return on their other investments was that th e machines had been so ld to a Middle East country during Ramadan. By October 17, 2008, Richard had contacted the county sheriff12 and the FBI. Richard understood that Spell’s “theft” of the funds invested by Chen, Ang, and Conroy took place after they made their investments. 10 Chen, Ang, and Conroy never received any additional paymen t of profit or any return of the principal they had invested in the heavy equipment arbitrage program. Chen
testified that if she had known about Richar d’s criminal history, she would not have
entered into an investment with him. Richar d, Katherine, and Fran cis assert that they also lost money that they had invested in the heavy equipment arbitrage program. C. Dismissal of Cross-Complaint On the morning of December 5, 2011, th e last day of trial testimony, Richard voluntarily dismissed his cross- complaint against Francis. The next day, Richard’s attorney requested relief from the voluntary dismissal of the cross-complaint under Code
of Civil Procedure section 47 3, subdivision (b) on the ground that he had mistakenly
dismissed Richard’s claim for indemnification against cross-defendant Francis. The trial court denied Richard’s request for relief a nd the case proceeded to jury verdict. D. Special Verdict and Judgment The jury rendered its special verdict on D ecember 9, 2011. The special verdict form asked the jurors to make findings on whether defendants were partners and on plaintiffs’ claims for breach of contract, negligent misrepresentation, concealment, intentional misrepresentation, and econo mic damages. The jurors found that (1) defendants Richard and Francis were part ners; (2) Richard and Francis were liable for breaching the contract for heav y equipment that they had en tered into with plaintiffs; (3) Richard was liable for neglig ent misrepresentation of an important fact to plaintiffs; (4) Richard was liable for making a false represen tation of an important fact to plaintiffs

10 The complaint alleged that “[o]n Oct ober 16 and 18, 2008, [Richard] admitted in emails to Chen that th eir broker-dealer partner had taken $14,000,000 in funds, deserted his family and that the FBI was lo oking for him,” but no ev idence was presented at trial to support this allegation.13 and either knowing that the representation wa s false or making the representation with a reckless disregard for the truth; (5) the tota l economic loss of plaintiffs Chen and Ang was $286,552; and (6) the total economic lo ss of plaintiff Conroy was $61,552. The judgment entered on December 19, 2011, provided that plaintiffs would take nothing by way of their comp laint from defendant Katherine and that plaintiffs would recover compensatory damages and prejudgm ent interest from defendants Richard and Francis. Chen and Ang were awarded the total amount of $546,394.66 plus costs and Conroy was awarded the total amount of $116 ,103.29 plus costs. Judgment was entered
in favor of cross-defendant Francis on Richar d’s cross-complaint, pursuant to Richard’s voluntary dismissal of the cross-complaint. Plaintiffs subsequently filed a request for dismissal of th e complaint as to defendant Francis only and Francis’s dismis sal was entered on January 31, 2012. Richard filed a timely notice of appeal from the December 19, 2011 judgment.
III. DISCUSSION A. Evidentiary Error
Richard’s first contention on appeal is that the trial court committed prejudicial error in admitting evidence of his felony co nvictions because there is a reasonable probability that, absent the error, the jury would have re ached a more favorable result. 1. Evidence Admitted Regardin g Richard’s Felony Convictions
The record reflects that Rich ard brought a motion in limin e to exclude evidence of, and any reference to, his felony convictions. He argued that his felony convictions had been expunged under Penal Code sec tion 1203.4 (hereafter, section 1203.4) 11 pursuant to

11 Section 1203.4, subdivision (a)(1) provides in part: “In any case in which a defendant has fulfilled the cond itions of probation for the entir e period of probation, or has been discharged prio r to the termination of the period of probation, or in any other case in which a court, in its discretion and th e interests of justice, determines that a defendant should be granted th e relief available under this section, the defendant shall, at any time after the termination of the period of pr obation, if he or she is not then serving a14 a trial court order filed on Febr uary 23, 2001, and therefore he had no duty to disclose his prior convictions to plaintiffs. Richard al so argued that his felo ny convictions were inadmissible under Evidence Code section 788, subdivision (c), 12 which prohibits an attack on the credibility of th e witness who has been convic ted of a felony where the accusatory pleading against the witness has been dismissed pu rsuant to section 1203.4.
The trial court denied Richard’s motion in li mine, finding that the evidence of Richard’s felony convictions was relevant in light of Richard’s representation of himself as a successful retired attorney and was not un duly prejudicial under Evidence Code section
352.
The evidence admitted with regard to Richard’s felony convictions included the the October 15, 1996 jury verd ict finding Richard guilty of two counts of perjury, one

sentence for any offense, on probation for an y offense, or charged with the commission of any offense, be permitted by the court to wit hdraw his or her plea of guilty or plea of nolo contendere and enter a plea of not guilty; o r, if he or she has been convicted after a plea of not guilty, the court sha ll set aside the verdict of guilty ; and, in either case, the court shall thereupon dismiss the accusations or information against the defendant and except as noted below, he or she shall th ereafter be released from all penalties and disabilities resulting from the offe nse of which he or she has been convicted, except as provided in Section 13555 of the Vehicle Code. . . . However, in any subsequent prosecution of the defendant for any other offense, the pr ior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismisse d. The order shall state, and the probationer shall be informed, that the order does not relieve him or her of the obligation to disclose the conviction in response to any direct que stion contained in any questionnaire or application for public office, fo r licensure by any state or lo cal agency, or for contracting with the California St ate Lottery Commission.”

12 Evidence Code section 788, subdivisi on (c) provides: “For the purpose of attacking the credibility of a witness, it may be shown by the examin ation of the witness or by the record of th e judgment that he has been convic ted of a felony unless: [¶] .



### . . [¶] The accusatory pleading agains t the witness has been dism issed under the provisions of Penal Code Section 1203.4, but this exce ption does not apply to any criminal trial where the witness is being prosecut ed for a subsequent offense.”15 count of offering a forged docu ment as genuine, and one coun t of falsifying documents to
be used in evidence. The February 23, 2001 trial c ourt order was also admitted into
evidence. The order states in part: “IT IS HEREBY OR DERED AS FOLLOWS: [¶] The court enters a plea of not guilty on behalf of the de fendant, RICHARD R. SUTHERLAND, vacates the guilty verdict, [a nd] dismisses the complaint against him pursuant to Penal Code section 1203.4.” Add itionally, Richard testified that he had been suspended from the practice of law by the California Stat e Bar after suffering felony convictions for perjury, offering a forged do cument as genuine, and falsifying documents
to be used as evidence. During closing argument regarding pl aintiffs’ claims of concealment and intentional misrepresentation, plaintiffs’ atto rney argued that Richard had misrepresented that he was a successful retired lawyer and concealed the fact that he had lost his entitlement to practice law due to his perj ury convictions and hi s resignation from the State Bar with disciplinary charges pending. Richard’s attorney responded during his closing argument that Richard had successfu lly completed probation and his convictions
had been dismissed. The trial court gave a special jury instru ction regarding the felo ny convictions that stated in part: “A record of Richard R. Su therland’s felony convictions is in evidence. After Richard Sutherland had completed hi s probation for the felony convictions, by order filed February 23, 2001, the court en tered its order granting Richard Sutherland’s application as follows: ‘The court enters a plea of not guilty on beha lf of the defendant, Richard R. Sutherland, vacates the guilty verdict, dismisse s the complaint against him pursuant to Penal Code section 1203.4.’ Therea fter, with an excepti on not applicable in this case, he was released from all penaltie s and disabilities resulti ng from the offenses for which he was convicted. [¶] As used in that section, ‘penalties and disabilities’ have reference to criminal penalties and disabilities or to matters of a kindred nature. The statute does not purport to ‘expunge’ the prior convictions. You may consider the16 convictions, along with all the evidence in the case, in dete rmining the issues presented for your consideration.”
2. The Parties’ Contentions According to Richard, the trial court erred in admitting evid ence of his felony convictions because the court’s interpreta tion of section 1203.4 would require “a
rehabilitated defendant” to include inform ation about his or her dismissed felony conviction in a sales presenta tion in order not to mislead a prospective business contact
about the rehabilitated defendant’s character or standing in the community. Absent the court’s evidentiary error, Richard argues, “the ju ry would have found this case to be just exactly what it was: the cu mulative error of a group of otherwise sophisticated, well educated, affluent individuals who all thou ght they had discovere d the exception to the rule that ‘If something seems too good to be true, it probably is.’ ” Richard further argues that the trial c ourt committed reversible error because the court instructed the jurors that they could consider the felo ny convictions in determining the issues presented for their considerati on, which allowed the jurors to improperly
consider the convictions on the issue of Ri chard’s credibility in violation of Evidence Code section 788, subdivision (c). Plaintiffs respond that the trial court co rrectly determined th at Richard’s felony convictions were not expunged under section 1203.4 and could be used against him in certain circumstances beyond thos e specifically enumerated in the statute. According to plaintiffs, section 1203.4 cannot be construed to give Richard “a license to affirmatively misrepresent his professional status in th e course of a prospectus for a financial investment.” Plaintiffs explain that the evidence of Richard’s felony convictions was properly offered to prove the fa lsity of Richard’s representations that he was a successful attorney who had retired from th e practice of law. They also emphasize that the trial court did not expressly instruct the jurors th at they could consider Richard’s convictions on the issue of his credibility. Even assuming that the jurors had not been informed of17 Richard’s felony convictions, plaintiffs argue , there was ample evid ence to show that Richard made false or grossly misleading re presentations about the purchase of heavy equipment.
3. Section 1203.4 Section 1203.4 “permits a felon who has completed proba tion to apply to have the felony conviction dismissed. ‘A grant of relief under section 1203.4 is intended to
reward an individual who su ccessfully completes probati on by mitigating some of the consequences of his [or her] conviction and, with a few exceptions, to restore him [or her] to his [or her] former st atus in society to the extent the Legislature has power to do so [citations].’ [Citation.]” ( Sanders v. Walsh (2013) 219 Cal.App.4th 855, 872.) With certain exceptions not applicab le here, Evidence Code s ection 788, subdivision (c) prohibits the admission of a felony convic tion dismissed under section 1203.4 for the purpose of attacking the credibility of a witness. (See ibid .) It also has been held that dismissal of a felony conviction under sectio n 1203.4 enables a defendant “to ‘truthfully represent to friends, acquaintances and pr ivate sector employers that he has no conviction.’ [Citation.]” ( People v. Arata (2007) 151 Cal.App.4th 778, 788 ( Arata ); but

see People v. Holman (2013) 214 Cal.App. 4th 1438, 1465 ( Holman ) [statement in Arata that probationer who obtains relief under sect ion 1203.4 may truthfu lly represent he or
she has no conviction is dictum and there is no direct holding to support it]; see also People v. Guillen (2013) 218 Cal.App.4th 975, 998 [“dictum in Arata may overstate the case somewhat”].) However, “[s]ection 1203.4 does not, pr operly speaking, ‘expunge’ the prior
conviction. The statute does not purport to render the convi ction a legal nullity. Instead it provides that, except as elsewhere stated, the defendant is ‘released from all penalties and disabilities resulting from the offense.’ The limitations on this relief are numerous and substantial . . . .” ( People v. Frawley (2000) 82 Cal.App.4th 784, 791; see also18 Holman, supra, 214 Cal.App.4th at p. 1463 [sec tion 1203.4 does not expunge the conviction or render the conviction a legal nullity].) 4. Analysis
We will resolve Richard’s claim of evidentiary error under the applicable standard of review, as set forth in this court’s decision in Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 281: “We review a tria l court’s evidentiary rulings for abuse of discretion. [Citation.] This is particularly so with respect to ru lings that turn on the relevance of the proferred evidence. [Citatio n.] This standard is not met by merely arguing that a different ruling w ould have been better. Discreti on is abused only when in its exercise, the trial court ‘exceeds the bounds of reason, all of the circumstances before it being considered.’ [Citation.] There must be a showing of a clear case of abuse and miscarriage of justice in order to warrant a reversal. [Citation.] A trial court will abuse its discretion by action that is arbitrary or ‘ “that transgresses the confines of the applicable principles of law.” ’ [Citations.] In appeals challenging discretionary trial court rulings, it is the appellant’s burden to establish an abuse of discretion. [Citations.]” The California Supreme Court has instruct ed that “[t]he phrase ‘miscarriage of justice’ has a settled meaning in our law, having been explained in the seminal case of People v. Watson (1956) 46 Cal.2d 818 []. Thus, ‘a “miscarriage of justice” should be declared only when the court, “after an ex amination of the entire cause, including the evidence,” is of the “opinion” th at it is reasonably probable th at a result more favorable to the appealing party woul d have been reached in the absen ce of the error.’ [Citation.] ‘We have made clear that a “proba bility” in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility. ’ [Citation.]” ( Cassim
v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800 ( Cassim ).) The parties have not directed us to any le gal authorities that address the admissibility of a defendant’s fe lony convictions in a civil ju ry trial, for a purpose other than attacking witness credib ility, where the convictions have been dismissed pursuant to19 section 1203.4. Under the applicable standard of review, however, we need not
determine whether the trial court erred in ru ling that neither section 1203.4 nor Evidence Code section 788, subdivision (c) barred the ad mission of Richard’s felony convictions at the jury trial in the present ca se. Even assuming that the tr ial court erred in admitting the evidence regarding Richard’s felony convictions, we must determine whether it is reasonably probable that Rich ard would have achieved a mo re favorable result in the absence of that evidence, “[ e]xamining the entire case, in cluding the evid ence adduced,
the instructions delivered to the jury, and the entirety of [plaintiffs’] argument.” (See
Cassim , supra , 33 Cal.4th at p. 802.) 13 Having carefully reviewed the record, we are convinced that it is not reasonably probable that Richard would ha ve achieved a more favorable result at trial in the absence of the evidence regarding hi s felony convictions. (See Cassim , supra , 33 Cal.4th at p. 802.) Most significantly, we note that Rich ard testified without ob jection that he had resigned from the California State Bar in 19 97 with disciplinary charges pending. Richard also admitted in his testimony that (1) he had represented to plaintiffs that he was a retired attorney; (2) stated in the Executive Su mmary for the heavy equipment arbitrage program that he provided to pl aintiffs that he had a 25-yea r career as a successful real estate and business litigator; and (3) admitted th at this description was intended “to create a sense of trust in [his] education, [his] bus iness ability and [his] tr aining.” Therefore,
even if the evidence of Richard’s felony convictions had been excluded, there was
evidence to show that Richard had intentionally misrepresented that he was a successful retired attorney in order to ga in plaintiffs’ trust, when the truth was that he ceased to

13 At oral argument, Richard emph asized this court’s decision in Service by Medallion, Inc. v. Clorox (1996) 44 Cal.App.4th 1807 as supporting his contention that admission of his felony convictions was erro r because the felony convictions were not relevant to the intrinsic meri ts of the heavy equipment inve stments. Since our analysis assumes, without deciding, th at admission of the felony conv ictions was error, we need not further address this contention.20 practice law in 1997 because he had resi gned from the California State Bar with disciplinary charges pending. Moreover, we agree with plaintiffs th at ample evidence apart from Richard’s felony convictions was presented with regard to his credibility and the misrepresentations he had made with respect to investing in the heavy equipment arbitrage program. For example, Richard encouraged Chen and Ang to invest in the heavy equipment arbitrage program in an email dated July 14, 2008, in which he stated : “I know who the players are. I mean, I really do know them. I kno w what the process is. I understand perfectly how the . . . heavy equipment operations work . I know and understand what the risks are, and they are among the least of anything I kn ow, even banks.” Then , in a July 25, 2008 email, Richard told Chen that “the money isn’ t simply ‘floating’ out th ere. It is always connected directly to a specific machine.” Similarly, in an August 27, 2008 email,
Richard advised a concerned Chen that th e machine she had bou ght with the initial $87,000 investment “exists and is sitting on a lot. It has a specific identification number. The broker simply hasn’t recei ved the money for it yet. Yo u would be welcome to go to
where the machine is to inspect it.” In his trial testimony, Richard admitted— contrary to what he had been telling Chen and Ang in the above emails—that he had done nothing to verify that the equipment that the investors were buying ac tually existed and that he had also done nothing to acquaint himself with standard practices in the us ed heavy equipment industry. Based on this evidence alone, the jurors could reasonably find that Richard lacked credibility. The jurors could also reasonably determine from this evidence that Richard had intentionally, negligently , or with a reckless disregard of the truth made misrepresentations to plaintiffs about impor tant facts concerning the heavy equipment arbitrage program. Accordingly, we find no merit in Ri chard’s contention that the trial court
committed reversible error in admitting the evidence of his fe lony convictions, since it is21 not reasonably probable that he would have achieved a more favorab le result at trial in
the absence of that evidence. (See Cassim , supra , 33 Cal.4th at p. 802.)
B. Instructional Error
Richard’s second contention on appeal is that the trial court erred in refusing the jury instructions that he pro posed on causation, agency, and partnership. We will address the applicable standard of review before turni ng to each of the three types of instructional error claimed by Richard.
1. Standard of Review “A party is entitled upon request to co rrect, nonargumentativ e instructions on every theory of the case advanced by him [o r her] which is supported by substantial evidence. The trial court may not force the litigant to rely on abstract generalities, but must instruct in specifi c terms that relate the party’s th eory to the particular case. [Citations.]” ( Soule v. General Motors Corp. (1994) 8 Cal. 4th 548, 572 ( Soule ).) However, “[t]he trial court is not required to give every instruction offered by a litigant. [Citation.] Irrelevant, confusing, incomplete or misleading instru ctions need not be given. [Citations.]” ( Harris v. Oaks Shopping Center (1999) 70 Cal.App.4th 206, 209.) “ ‘The propriety of jury instructions is a question of law that we review de novo. [Citation.]’ [Citation.] When th e contention on appeal is that th e trial court failed to give a requested instruction, we review the record in the light most fa vorable to the party proposing the instruction to determine whethe r it was warranted by substantial evidence. [Citation.]” ( Alamo v. Practice Managem ent Information Corp. (2013) 219 Cal.App.4th 466, 475 ( Alamo ).)
Where the trial court has co mmitted instructional error, it is well established that “[a] judgment may not be reversed on appeal , even for error involving ‘misdirection of the jury,’ unless ‘after an examination of the entire cause, including the evidence,’ it appears the error caused a ‘miscar riage of justice.’ (Cal. Cons t., art. VI, § 13.) When the error is one of state law only, it generally does not warrant reversal unless there is a22 reasonable probability that in the absence of the error, a re sult more favorable to the appealing party would ha ve been reached. [Citation] [¶ ] Thus, when the jury receives an improper instruction in a civil case, prejudi ce will generally be found only ‘ “[w]here it seems probable that the jury’s verdict may have been base d on the erroneous instruction . . . . ” ’ [Citations] That asse ssment, in turn, requires evaluation of several factors, including the evidence, counsel’s argum ents, the effect of other instructions, and any indication by the jury itself th at it was misled. [Citation.]” ( Soule , supra , 8 Cal.4th at p. 574.)
2. Instructional Error—Causation
Richard contends that the trial court erre d in refusing three jury instructions on causation that he requested, including modified versions of Judicial Council of California Civil Jury Instructions (C ACI) No. 430 and CACI No. 433, as well as a special instruction on contract damages ba sed on Civil Code section 3300. 14 Background As requested by Richard, modified CACI No. 430 stated: “A substantial factor in causing harm is a factor that a reasonable person would consid er to have contributed to
the harm. It must be more than a remote or tr ivial factor. It does not have to be the only cause of the harm. [¶] Conduct is not a subs tantial factor in causing harm if the same
harm would have occurred without that conduct.” Modified CACI No. 433, as requested by Richard, stated: “Defendant, Richard Sutherland, claims that he is not responsibl e for plaintiffs’ harm because of the later criminal conduct of Wendell Spell. Defenda nt, Richard Sutherland, is not responsible

14 Civil Code section 3300 states: “For the breach of an obligation arising from contract, the measure of damages, except where otherwise expre ssly provided by this code, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the or dinary course of thin gs, would be likely to result therefrom.”23 [for] plaintiffs’ harm if defendant proves both of the followi ng: [¶] 1. Th at the criminal conduct of Wendell Spell happened after the conduct of defendant, Richard Sutherland; and [¶] 2. That defendant, Richard Su therland, did not know and could not have reasonably foreseen that anothe r person would be likely to take advantage of the situation created by defendant’s conduct to commit this type of act.” The special jury instruction based on Civil Code section 3300 that Richard requested stated: “In a contract action, th e damages recoverable by an aggrieved party are those proximately caused by the breach.”
The trial court stated on the record that “[t]he Court does not propose to give [CACI No.] 430 or [CACI No.] 433 because th e details of the instructions, including
issues of causation and reliance and the like are both completely and adequately covered
in the CACI instructions on fraud and i nvolvement.” In a ha ndwritten note on the proposed jury instruction based on Civil Code section 3300 the court similarly stated: “Damages instructions were adequately covered in other instructions.” The Parties’ Contentions We understand Richard to argue that the trial court’s refusal to give the instructions he requested on causation impr operly prevented the jurors from considering his defense theory that “he was not responsible for Plaintiffs’ harm because of the later criminal conduct of Wendell Spell.” Richard contends that his argument is supported by juror question No. 1, which stated: “Given a vote of ‘y es’ on [special verdict question No.] 16 [Was plaintiff’s or plaintiffs’ reliance on any of defendant’s or defendants’ representation(s) a substantial factor in causing harm to each plaintiff?] as harmed. In [s pecial verdict question No.] 17 [if your answer to question No. 16 is yes, then answer question No. 17 (What are plaintiffs’ damages?)], is an amount of grea ter than zero required?” The trial court
answered: “Harm in an economic sense is not zero or nothing.” According to Richard, juror question No.1 shows th at the jurors “thought it wa s possible . . . that the economic24 harm to Plaintiffs was due to other factors (such as, perhaps, Wendell Spell’s criminal activity.” Plaintiffs argue to the contrary that the trial court properly refused the CACI No. 433 instruction requested by Richard beca use there were no facts or circumstances to show an unforeseeable, interv ening cause that would “cut off” Richard’s liability. Plaintiffs also argue there was no need to give an additional instruction defining “substantial factor,” such as the version of CACI No. 430 proposed by Richard, because the special verdict forms expre ssly required the jurors to find that defendants’ conduct was a substantial factor in causing plainti ffs’ harm before liab ility could attach for negligent and intentional misrepresentation. Additionally, plaintiffs argue the evidence was clear that Richard’s misrepresentations “played a significant role in inducing plaintiffs to purchase the equipment.” Analysis It has been held that “[c]riminal conduct which causes injury will ordinarily be
deemed the proximate cause of an injury, supers eding any prior negligence which might otherwise be deemed a contributing cause. [Citation.] However, ‘[i]f the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whethe r innocent, negligent, intentionally tortious or criminal does not preven t the actor from being liable for harm caused thereby.’ [Citations.]” ( Koepke v. Loo (1993) 18 Cal.App. 4th 1444, 1449 ( Koepke ).) Accordingly, we have reviewed the record in the light most favorable to Richard
in order to determine whether the trial court erred because the instructions requested by Richard were warranted by substantial evid ence that Spell’s criminal conduct caused plaintiffs’ harm. (See Alamo , supra , 219 Cal.App.4th at pp. 475- 476.) We find that the
evidence is insufficient. The only showing that Richard ma de regarding Spell’s alleged criminal conduct was in his trial testimony, as set forth in the following colloquy:25 “[RICHARD’S ATTORNEY]: To your knowledge, did Mr. Spell’s theft of funds that you deposited with Tom Fr ancis take place after you ma de those deposits with Dr.
Francis? “[RICHARD]: It took place after I sent the money. “[RICHARD’S ATTORNEY]: Likewise, is it your understanding that Mr. Spell’s theft of funds, specifically the plaintiffs’ fund s in this case, took place after the Plaintiffs
had made their investments? “[RICHARD]: Yes.”
It is axiomatic that the a ttorney’s questions are not evid ence. (Evid. Code § 140.) It is also axiomatic that “the testimony of a witness concerning a particular matter is inadmissible unless he [or she] has personal knowledge of the matter.” (Evid. Code, § 702, subd. (a); see Heater v. Southwood Psychiatric Center (1996) 42 Cal.App.4th 1068, 1074, fn. 4.) In the absence of any indication that Richard’s testimony regarding Spell’s theft was based on personal knowledge rather than his “understanding,” there was no evidence to show that Spe ll had stolen the funds that plaintiffs had invested in the heavy equipment arbitrage prog ram. The instructions prop osed by Richard on substantial factor and superseding cause were not warranted becaus e there was not substantial evidence for the jurors to fi nd that Spell had committed criminal conduct that was the proximate cause of plai ntiffs’ harm. (See Koepke , supra , 18 Cal.App.4th at pp. 1449- 1450.) Moreover, “it is improper to give an in struction that lacks s upport in the evidence, even if the instruction correctly states the law [citation].” ( Hart v. Browne (1980) 103 Cal.App.3d 947, 965.)
We also find no merit in Richard’s claim that the trial court erred in refusing his proposed special instruction that was based on Civil Code section 3300. The special jury instruction stated: “In a contract action, th e damages recoverable by an aggrieved party are those proximately caused by the breach.” As this court has stated, “A party is not entitled to have the jury instru cted in any particular fashi on or phraseology, and may not26 complain if the court correctly gives the subs tance of the applicable law. [Citation.]” ( Thompson Pacific Construction, Inc. v. City of Sunnyvale (2007) 155 Ca l.App.4th 525, 553 ( Thompson Pacific ).)
The record reflects th at the trial court instructed the jurors as follows with respect
to breach of contract: “To recover damages from defendan ts Richard Sutherland and Thomas Francis, M.D. for breach of contract, plaintiffs must prove all of the following: [¶] 1. That plaintiffs and defendants Richard Sutherland and Th omas Francis, M.D. entered into a contract; [¶] 2. That plai ntiffs did all, or substantially all, of the significant things that the contract required th em to do; [¶] 3. That all conditions required by the contract for defendants Rich ard Sutherland and Thomas Francis, M.D.’s performance have occurred; [¶] 4. Th at defendants Richard Sutherland and Thomas Francis, M.D. failed to do something that th e contract required them to do; and [¶] 5. That plaintiffs were ha rmed by that failure.” We find that the trial court’s jury instru ction on breach of cont ract correctly gave the substance of the applicable law. (See Thompson Pacific , supra , 155 Cal.App.4th 525, 553.) “ ‘To be entitled to damages for breach of contract, a plaintiff must plead and prove (1) a contract, (2) plaintiff’s pe rformance or excuse for nonperformance, (3) defendant’s breach, and (4 ) damage to plaintiff. [C itations.]’ [Citation.] Implicit in the element of damage is that the defenda nt’s breach caused the plaintiff’s damage. ” ( Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305 , 1352, italics added.) Thus,
the trial court did not err in refusing Richard’s proposed spec ial instruction because “[i]t is not error . . . to refuse to give an instru ction requested by a party when the legal point is covered adequately by the instructions that are given. [Citation.]” ( Arato v. Avedon (1993) 5 Cal.4th 1172, 1189, fn. 11.) 3. Instructional Error—Agency
Richard contends that the trial court erre d in refusing the instructions that he proposed on his defense theory “that he was an agent (or a ‘finder’) for his co-defendant,27 respondent, Francis, and/or Wendell.” Acco rding to Richard, the trial court’s refusal “completely foreclos[ed] a defens e verdict on that theory.” Background
The record reflects that Ri chard proposed several spec ial instructions regarding agency that the trial court refused, as fo llows: (1) “An agent who makes an untrue statement to a third party based on false in formation provided by the principal is not liable unless agent had notice that statement was false.”; (2) “Where the agent has disclosed the name or names of the principals to the plaintiffs and the principals[’] names appear on the contract, it is deemed that the plaintiffs intended to bind the principals and not the agent.”; (3) “Where an agent’s co nduct has resulted in mere economic loss and not physical damage to person or property, the agent is not liable to third persons such as plaintiffs in this case.”; (4) “Where the agent has disclosed th e identity of the principal in the contract, the principal and not the agen t is held liable for any breach.”; and (5) “Agreement to share in profits from sale of heavy machinery wh ere there was no joint ownership, joint liability or jo int control of the business a nd where there was no sharing of overhead expenses was one of agency and not partnership.” The record on appeal does not indicate the trial court’s reasoning in refusing Richard’s proposed special instructions on agency. The Parties’ Contentions
Richard contends that the trial court comm itted instructional e rror in refusing to instruct on agency because th ere was substantial evidence that he was the agent of Francis. Richard points to th e evidence of his arrangement with Francis, whereby Francis
told him “what investments were availabl e, the cost, likely profit and timing,” the investors sent their money directly to Fran cis, and Francis provided the investors with bills of sale in Francis’s name only. Add itionally, since plaintiffs only sought economic loss, Richard argues that he c ould not be liable to third partie s for breach of contract since an agent is not liable for economic losses.28 Plaintiffs acknowledge that “[i]t is the law that an agen t is not normally personally liable on a claim for economic damages if the cont ract is in the name of the principal.” They argue, however, that the only written c ontract documents in this case identified Richard as a principal, since the memoranda documenting plaintiffs’ investments in the heavy equipment arbitrage program were pr epared by Richard on his letterhead and signed by him. Analysis It is well established that “[a]n appella nt must affirmatively demonstrate error through reasoned argument, citation to the appellate record, and discussion of legal authority. [Citations.] Accordingly, we ca nnot conclude that the refusal to give an instruction was error absent an adequate showing that the proposed instruction was proper. [Citation.]” ( Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 685 ( Bullock .)
Richard has not met his burden to show that any of his five proposed special instructions on agency were proper since he does not expressly address the propriety of any of those instructions in his argument on appeal. He makes only a general argument
that the trial evidence showed that he was the agent of Francis and therefore the trial court’s refusal to give the special instructi ons he proposed on agency prevented him from establishing an agency defense. Accordingl y, since Richard has “not shown that any particular proposed instruction was proper,” we determine that Richard has not shown error in the denial of any of his proposed agency instructions. ( Bell v. H.F. Cox, Inc

. (2012) 209 Cal.App.4th 62, 81.) 4. Instructional Error—Partnership Richard argues that the trial court erred in refusing all of the special instructions that he proposed on partners hip because the instru ctions that the trial court gave on partnership prevented the jury from finding, as the evidence showed, that he and Francis were not partners.29 Background
The record reflects that Ri chard proposed the following 11 special instructions on partnership: (1) “A partnership is an entity distinct from its partne rs.”; (2) “The mere fact that compensation to one or all of the parties is dependent upon the enterprise producing a profit, and that such profit is shared in proportions, does not constitute the arrangement of a co-partnership. Profit testing is not the test of partnership.”; (3) “The sharing of gross returns does not by itself es tablish a partnership, even if the persons sharing them have a joint or common right or interest in property from which the returns are derived.”; (4) “Joint tenancy, tenancy in common, tenancy by the entireties, joint property, common property, or part ownership does not by itself establish a partnership, even if the co-owners share profits made by the use of the property.”; (5) “A payment from business profits is a lawful method to co mpensate a party for referral services. The fact that Thomas Francis paid a referral fee to defendant, Richard Sutherland, does not, by itself, mean that defendant Richard Suth erland and Thomas Fran cis were conducting business as partners.”; (6) “A partnership is not liable for pr operty sold an d delivered to one partner in his individual capacity. A part nership is not liable to a plaintiff where the property was taken in the name of the indi vidual member and the deposit was taken and retained by him.”; (7) “A contract executed by an individual is presumed to be the
contract of the individual a nd not of a partnership to whic h the individual belongs. The party alleging liability of the partnership for th e contract signed by an individual bears the burden of proof on this issue.”; (8) “The party alleging the existence of a partnership has the burden of proving that fact by a preponderan ce of the evidence.”; (9) “In the absence of joint ownership, joint liab ility, and joint control of a busi ness, an agreement to share the profits, alone, does not establish that a bu siness is a partnership.”; (10) “A limited liability company is not a partnership.”; and (11) “An agreement to share the profits of a business does not create a partnership unl ess each partner has equal rights in the management and conduct of th e partnership business.”30 The trial court placed a handwritten note on the first of Richard’s proposed partnership instructions that states: “T he court refused the following partnership instructions offered by Richard [and] Katherin e Sutherland, M.D. . . . because the [court]
concluded that the instructions given were appropriate.” The Parties’ Contentions According to Richard, the trial court im properly failed to give instructions that would have permitte d the jurors to find that the evid ence showed that he and Francis were not partners. Specifically referring to two proposed special instructions on profit sharing and on equal rights in the manageme nt and control of the business, Richard argues that “[t]he court’s refusal to give thes e instructions prevente d the jury from even considering the factors (such as lack of joint control and the lack of an agreement to share losses) that would have allowed it to find th ere was no partnership.” Richard also argues that a special instruction gi ven by the trial court that was entitled “ ‘Presumption of the Existence of an Partnership’ ” 15 improperly “shifted the jury ’s focus to the ‘presumed’ partnership” and “very likely misled the jury and affected the verdict.” Plaintiffs respond that the special in structions that the trial court gave on partnership were properly derived from variou s provisions in the Corporations Code and that the two instructions pr oposed by Richard on profit sh aring and equal rights in management and control of the business were based on decisions that predate the modern Corporations Code. Plaintiffs also argue th at the evidence established the elements of actual and apparent partnershi p between Richard and Francis (for example, they referred to themselves as partners and were associat ed in a common endeavor with an agreement

15 “(Special Instruction 5) Presumption of the Existence of a Partnership” states: “The sharing of gross returns do es not by itself establish a part nership, even if the persons sharing them have a joint or common right of interest in property from which the returns are derived. [¶] A person who stands to receive a share of the profits is presumed to be a partner absent evidence that the profit is a payment unrelated to the earnings of the partnership.”31 to split the profits), and therefore the trial c ourt correctly instructed the jurors on both actual and apparent partnership. Analysis We reiterate that “[a]n appellant must affirmatively demonstrate error through reasoned argument, citation to the appellate record, and discussion of legal authority. [Citations.] Accordingly, we cannot conclude that the refusal to gi ve an instruction was error absent an adequate show ing that the proposed instruc tion was proper. [Citation.]” ( Bullock , 159 Cal.App.4th at p. 685.) Richard has again failed to meet this burden. Of the 11 special instructions on partne rship that Richard requested and the trial court refused, he only mentions two—one on profit sharing and one on equal rights in the management and control of the business—in his argument on appeal. Richard does not support his argument that these two special instructions should have been given with any citation to legal authority regarding the approp riate instructions on pa rtnership, with the exception of his contention that his proposed special instruction on equal rights in the management and control of the business was properly derived from Corporations Code section 16401, subdivision (f). 16 Instead, Richard makes the conclusory a ssertion that the absence of these two instructions prevented the ju rors from considering factors that would have allowed the jurors to find that he and Francis were not partners. He provides no legal authority for the proposition that a special instruction ba sed on Corporations Code section 16401, subdivision (f) is necessary for the trier of fact’s de termination of partnership. 17

16 Corporations Code section 16401, su bdivision (f) states: “Each partner has equal rights in the management and conduct of the partnership business.”

17 The CACI instruction on partnership st ates: “A partnership and each of its partners are responsible for the wrongful con duct of a partner acting within the scope of his or her authority. [¶] You must decide wh ether a partnership existed in this case. A partnership is a group of tw o or more persons who own a business in which all the partners agree to share the profits and losses. A partnership can be formed by a written or32 Accordingly, we determine that Richard has not shown error in the trial court’s refusal of his proposed special instructions on partnership. C. Code of Civil Proced ure section 473, subdivision (b) Motion for Relief Richard’s final contention on appeal is that the trial court abused its discretion in denying his Code of Civil Procedure section 4 73, subdivision (b) (her eafter, section 473, subdivision (b)) motion for re lief from his voluntary dismissal of his cross-complaint against Francis. Background On the morning of December 5, 2011, the last day of trial testimony, Richard dismissed his cross-complaint against Francis, as indicated in the following colloquy. “THE COURT: The developm ent that just happ ened was that [Ric hard’s attorney] indicated in chambers this morning thatRichard Sutherland will dismiss the crosscomplaint against Dr. Tom Francis. Do es he need to do that right now? “[RICHARD’S ATTORNEY]: That’s correct . We are going to dismiss that. Mr. Sutherland is present in court. Do you agree to that, sir? “[RICHARD]: Yes, sir, I do.” The next day, December 6, 2011, Ri chard’s attorney re quested relief from Richard’s voluntary dismissal of the cro ss-complaint, pursuant to section 473, subdivision (b) as follows: “[RICHARD’S ATTORNEY]: Your Honor, the first thi ng . . . is based upon a mistake that I made yesterday, and I’m aski ng for relief under [section] 473(b), of the Code of Civil Procedure. [¶] What I di d was — my intention wa s to dismis[s] [the]

oral agreement or by an agre ement implied by the parties’ conduct.” (CACI No. 3711.) Corporations Code section 16202, subdivision (a) provides in part: “the association of two or more persons to carry on as coowners a business fo r profit forms a partnership, whether or not the persons inte nd to form a partnership.”33 Cross-Complaint for damages. In other words, I was not putting on any evidence regarding damages, but mistakenly included in the dismissal of the Cross-Compliant was the indemnification cause of action. [¶] I did not intend nor my client in particular nor I, intended to get rid of the indemnification. I’m asking for [relief] under [section] 473(b) to be allowed to proceed with that cause of action because two-fold: [¶] Number 1, it was my mistake. I don’t think my client should be penalized for that. [¶] Number 2, no additional testimony was or is needed for that cause of action. My thought process was that we would not proceed on the breach of c ontract cause of action, the common cause, cause of action, the other causes of action, but did not mean to give up my client’s right
to seek indemnification in the event the jury fo und he is liable, but Dr. Francis is equally liable and [Richard] should be indemnified for any losses. [¶ ] . . . [¶] “[THE COURT]: Do you have jury in structions and forms of verdict on any portion of the Cross-Complaint that you brought here today? “[RICHARD’S ATTORNEY]: I don’t. I just wanted to bring it to the court’s attention and make a ruling. [¶] . . . [¶] I ad mit it was definitely my mistake. This falls on me and no one else. Candidly, when I went back into chambers and I told the Court that we would be able to shorten it up becaus e I had talked to my client and prevailed upon him that I didn’t thin k it was worth pursuing the Cr oss-Complaint for damages. [¶] I just didn’t think abou t the indemnification or the second cause of action [for] apportion[ment] of fault.”
The trial court denied Richard’s request for relief under section 473, subdivision (b) on the grounds that Richard had offered no jury instruction or verdict form with respect to the cross- complaint and “it would be very prejudicial at this time [to grant relief] with the case having been submitted and without pr oviding really an opportunity for Dr. Francis to defend the Cross-complaint, it would just be a violation of rights.”34 The Parties’ Contentions Richard argues that his motion for relie f under section 473, subdivision (b) should have been granted because it wa s promptly made and “[i]t is clear that [his] counsel was not guilty of ‘inexcusable neglect’.” He furt her contends that ther e would have been no prejudice to Francis in granting relief from th e dismissal of the cr oss-complaint since no additional testimony was needed and only “a sm all amendment” to the special verdict and jury instructions was necessary. In response, Francis contends that (1 ) the appeal must be dismissed because Richard failed to include the order denyin g his motion for relief under section 473, subdivision (b) in his notice of appeal and no timely sufficien t notice of appeal was filed; (2) even if the notice of appeal is sufficient, Richard lacks standing to appeal since he is not aggrieved in the absence of any entitlement to recover on an inde mnity theory; (3) the
trial court did not abuse its di scretion because the motion did not either comply with the requirements for mandatory relief under sec tion 473, subdivision (b) or include a showing of excusable neglect or mistake adequate for discretionary relief; and (4) granting the motion would result in prej udice because the case was submitted to the jury without Francis having the opport unity to defend the cross-complaint. Analysis As a threshold matter, we consider whether the trial court’s order denying
Richard’s motion for relief from his voluntar y dismissal of the cross-complaint is appealable. The order was expressly incl uded in the December 19, 2011 judgment, which stated, “Judgment is entered in favo r of defendant and cross-defendant Thomas Francis on the cross-complaint of defend ant and cross-complainant RICHARD R. SUTHERLAND, pursuant to the voluntary dismi ssal of said cross-complaint, as recited
on the record.” Since the order was include d in the judgment, it was appealable. (See Bias v. Wright (2002) 103 Cal.App.4th 811, 817 [judg ment incorporating order granting motion was a final appealable judgment unde r Code of Civil Procedure section 904.1,35 subdivision (a)(1)]; see also Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 611 [order denying motion to vacate dismissal un der section 473 is appealable].) Moreover, Richard’s notice of a ppeal clearly stated that he was appealing from the December 19, 2011 judgment.
We will therefore consider the merits of the order denying Richard’s motion under section 473, subdivision (b) for relief from his voluntary dismissal of the cross-complaint. The California Supreme Court has instructed that a party may obtai n relief under section 473, subdivision (b) from a voluntary dismissal. ( Zamora v

. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 254-255 ( Zamora ).) We understand Richard to argue that he was entitled to either mandatory or discretionary relief under section 473, subdivision (b). This court stated the requirements for obtaining mandatory relief under section 473, subdivision (b) in Huh v. Wang (2007) 158 Cal.App.4th 1406. “In certain cases of attorney fault, section 473(b) requires the trial court to gr ant relief. The mandatory relief provision states in pertinent part: ‘Not withstanding any other requirements of this section, the court shall, when ever an application for relie f is made no more than six months after entry of judgment, is in proper form, and is accompan ied by an attorney’s sworn affidavit attesting to his or her mistak e, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the c ourt finds that the default or dismissal was not in fact caused by the a ttorney’s mistake, inadverten ce, surprise, or neglect.’ (§ 473(b).) [¶] . . . ‘If the prerequisite s for the application of the mandatory relief provision of section 473, subdivision (b) exis t, the trial court does not have discretion to refuse relief.’ [Citation.]” ( Id. at p. 1414.)
The record reflects that Richard failed to comply with the requirements for obtaining mandatory relief, since his attorney did not submit a sworn affidavit of fault in36 support of his motion for relie f under section 473, subdivision (b ). We therefore turn to the question of whether the trial court e rred in denying discretionary relief from Richard’s voluntary dismissa l of the cross-complaint. “As relevant here, the discretionary relie f provision of secti on 473, subdivision (b) provides that: ‘The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inad vertence, surprise, or excusable neglect.’ ” ( Zamora , supra, 28 Cal.4th at p. 254.) Thus, “ ‘[a ] party who seeks relief under section
473 on the basis of mistake or inadvertence of counsel must demonstrate that such mistake, inadvertence, or general neglect wa s excusable because th e negligence of the attorney is imputed to his [or her] client and may not be offered by the latter as a basis for relief.’ [Citation.]” ( Id. , at p. 258.) “In determining whether the attorney’s mistake or inadvertence was excusable, ‘the court inquires whet her “a reasonably prudent person under the same or similar circumstances” might have made the same error.’ [Citation]. In other words, the discretionary relief provision of section 473 on ly permits relief from attorney error ‘fairly imputable to the client, i.e., mistakes anyone could have made.’ [Citation.] ‘Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable. To hold otherwise would be to eliminate the express statutory requirement of excusability and effec tively eviscerate the concept of attorney malpr actice.’ [Citation.]” ( Zamora , supra , 28 Cal.4th at p. 258.)
The standard of review is abuse of discretion. “ ‘A ruling on a motion for discretionary relief under section 473 shall not be disturbed on appeal absent a clear showing of abuse.’ [Citation.]” ( Zamora , supra , 28 Cal.4th at p. 257.) “Where the mistake is excusable and the party seeking re lief has been diligent, courts have often granted relief pursuant to the discretionary re lief provision of section 473 if no prejudice to the opposing party will ensue. [Citations.]” ( Id . at p. 258.)37 In the present case, the trial court de termined that Richard did not make a sufficient showing of excusable mistake. When Richard’s a ttorney made his oral motion for relief from Richard’s voluntary dismissal of the cross-complaint, the attorney stated that “my intention was to dismis[s] [the] Cros s-Complaint for damages. In other words, I was not putting on any evidence regarding damages, but mistakenly included in the dismissal of the Cross-Compliant was the indemnification cause of action. [¶] I did not intend nor my client in particular nor I, inten[ d] to get rid of the indemnification. I’m asking for [relief] under [section] 473(b) to be allowed to proceed with that cause of action because . . . [¶] Number 1, it was my mistake. . . . [¶ ] . . . [¶] I just didn’t think
about the indemnification or th e second cause of action [for] apportion[ment] of fault.” Richard’s attorney did not offer any further explanation that demonstrated that the
mistake was excusable because “ ‘ “a reas onably prudent person under the same or similar circumstances” might have made the same error.’ [Citation].” ( Zamora , supra , 28 Cal.4th at p. 258.) We therefore conclude that the trial court did not abuse its discretion in denying Richard’s motion for re lief under section 473, subdivision (b) from his voluntary dismissal of the cross-complaint.38 IV. DISPOSITION The December 19, 2011 judgm ent is affirmed. Costs on appeal are awarded to respondents.

_____________ _______________ _______________ BAMATTRE-MANOUKIAN, ACTING P.J.

WE CONCUR:

_____________ _____________ MÁRQUEZ, J.

_____________ _____________ GROVER, J.