1

Filed 1/25/22 Marriage of Lane and Crouch CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

FIRST APPELLATE DISTRICT

DIVISION TWO

In re the Marriage of 

KATHERINE LANE and 

DAVID CROUCH.

KATHERINE LANE,

Appellant,

v.

DAVID CROUCH,

Appellant.

 A154434

 (San Mateo County

 Super. Ct. No. F0122077)

ORDER MODIFYING 

OPINION AND DENYING 

PETITION FOR REHEARING

BY THE COURT:

The opinion filed herein on December 27, 2021, is modified as follows:

1. The paragraph beginning on page 36 and concluding on 

page 37 is deleted. The first full paragraph on page 37 is deleted. The 

first sentence of the second full paragraph on page 37 is deleted and 

replaced with the following: 
2

Crouch is in plain effect challenging the sufficiency of the 

evidence to support the family court’s determination that he had 

committed a breach of fiduciary duty that warranted an award 

under subdivision (g). As already noted, he is required to set out 

all of the pertinent evidence in his brief. (Fink, supra, 25 Cal.3d. 

877, 887.) As he does with several other of his arguments, 

Crouch makes no attempt to satisfy this requirement.

2. The paragraph commencing on page 40 and concluding on 

page 41 is deleted and replaced with the following:

This evidence was more than ample to support the family court’s 

determinations that Crouch had breached his fiduciary duties 

with respect to the Cunitz and Tang-Greenbaum transactions, 

and that his conduct warranted sanction according to 

subdivision (g) of section 1100. (Schleich, supra, 8 Cal.App.5th 

267, 276.) We now turn to Lane’s appeal that the court erred in 

not imposing the sanction authorized by subdivision (h).

This modification does not effect a change in the judgment. The 

petition for rehearing is denied.

Date: ____________ ___________________Richman, Acting P.J.
1

Filed 12/27/21 Marriage of Lane and Crouch CA1/2 (unmodified opinion)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

FIRST APPELLATE DISTRICT

DIVISION TWO

In re the Marriage of 

KATHERINE LANE and 

DAVID CROUCH.

KATHERINE LANE,

Petitioner and Appellant,

v.

DAVID CROUCH,

Respondent and Appellant.

 A154434

 (San Mateo County

 Super. Ct. No. F0122077)

This marital dissolution action is sadly typical for its 

protracted bitterness. It is notably untypical in that the case took five 

years to get to trial; the matter was submitted for decision only after, 

the family court’s words, “32 days of trial and three days of closing 

argument”; the trial generated 30 volumes of reporter’s transcripts; and 

the register of action requires 243 pages. Issues of spousal and child 

support were determined, but are not challenged on appeal. The same 

is true with respect to many other financial issues.

The most contentious issue concerns a construction company that 

was the main source of income and support for the family throughout 
2

the marriage. The family court found that David Crouch 

“singlehandedly impaired” Katherine Lane’s “interest [in the business] 

by trying to destroy and/or dissipate it.” The court further found that 

Crouch “stopped working the . . . business,” and went to work for Zega 

Builders, a construction company owned by a man who had been 

Crouch’s partner before separating from Lane. According to the court, 

Crouch “went to work for Zega, gave Zega his name, designs and 

reputation, all of which were critical to the business. He . . . gave Zega 

his employees, trucks and other assets.” In short, in violation of his 

fiduciary duties to Lane, Crouch essentially handed the business to 

Zega on a silver plate. Then, as the trial was nearing its end, Zega paid 

Crouch $2.2 million, which Crouch called as a “bonus,” a 

characterization the family court rejected. 

Nevertheless, the family court concluded that Crouch’s “breach of 

fiduciary duty . . . [did] not rise to the level of Family Code[1]

[section] 1101[, subdivision] (h) which would have mandated [sic] an 

award” to Lane of “100% of the value” of the business. 

Both parties have appealed the judgment.2

1

 Statutory references are to this code unless otherwise 

indicated.

2

 After the family court filed its Final Orders And Statement Of 

Decision, Crouch moved for reconsideration. The court granted 

reconsideration to the extent that it issued Findings and Order After 

Hearing augmenting its reasoning in the Final Orders And Statement 

Of Decision. Both parties treat the Final Orders as the functional 

equivalent of a final, appealable, judgment in their respective notices of 

appeal. We think it takes both orders to make a final judgment, and 

construe both notices of appeal as reaching the two orders that together 

constitute an appealable judgment. 
3

Crouch contends the family court erred in five ways: (1) in 

concluding he violated his fiduciary duties to Lane; (2) in valuing the 

business using the amount of the “bonus” paid him; (3) in “failing to 

credit [him] for the tax liability on the $2,200,000 payment received 

pre-judgment”; (4) in treating a parcel of real property as a community 

asset; and (5) in ordering him to make certain reimbursements. We 

conclude all of these claims are without merit.

On her appeal, Lane presents the most far-reaching contention. 

She argues that, having found that Crouch had violated his fiduciary 

duties, the family court erred in awarding her only half of the value of 

the business, not the 100% allowed by Family Code section 1101 

(section 1101). There is authority for Lane’s argument that in some 

situations it is “mandatory” for the family court to award one party the 

full value of the community asset. But “mandatory” is subject to a 

critical condition: the family court, as the trier of fact, has concluded 

that one or more of the criteria specified in the section’s subdivision (h) 

has been proven. That was not the case here, where the trier of fact 

expressly found that the evidence of Crouch’s manifold breaches of his 

fiduciary duties did not satisfy one of those criteria, namely, that 

Crouch was “guilty of oppression, fraud, or malice,” the standard for 

punitive damages in civil actions that is incorporated by reference into 

section 1101. 

Lane asks this court to conclude that the family court erred in 

not making that determination, and that correcting such error requires 

this court to decide that, because both fraud and malice are shown, as a 

matter of law, the criteria for a mandatory award are established by 

the record. In effect, Lane is proposing that this court should award 
4

her punitive damages in the face of an express determination by the 

trier of fact not to award those damages. So far as we can discover, no 

California reviewing court has ever overruled such a decision by a trier 

of fact. This court will not be the first.

We will affirm the judgment.

BACKGROUND

The extensive record, viewed most favorably in support of the 

judgment (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 693−694), 

supports the following recitals:

Crouch, who is Australian, met Lane in the United States in 

1999. The following year, they moved to Australia and married. They 

moved back to California in 2002. They separated for good in July 

2013, when Lane filed for dissolution of their marriage.

Crouch and Lane lived at 16 Anderson Way in Menlo Park. They 

lived on earnings from David Crouch Customs Homes (sometimes 

DCCH), whose primary business was designing and building singlefamily residences. It appears accepted by both parties that DCCH 

came into existence after the parties married. Crouch ran the business 

and oversaw its finances. Lane’s involvement was minimal. She had 

no access to the firm’s accounts, or Crouch’s Australian bank accounts. 

Her involvement in the couple’s personal finances was limited to use of 

one checking account for household expenses. Crouch made all deposits 

into this account. Lane was unaware that in 2007 Crouch bought land 

in Australia with community funds. Title was in his name alone. 

It was soon after making this purchase that Crouch began 

pressing for the couple to return to Australia. This period also saw 

DCCH’s operations severely and adversely impacted by the 2008 
5

economic downturn. About 2011-2012, when the business returned to 

profitability, Crouch resumed pressuring Lane to move to Australia. 

With no great enthusiasm, she agreed, because Crouch had given her 

an ultimatum: “either I move to Australia with him, or he was going to 

leave the family. Divorce me—I don’t have my name on anything—and 

he was going to take the kids.” Lane agreed, but only “[b]ecause our 

marriage was in terrible shape, and I felt like he was trying to get me 

to Australia, file for divorce, and I wouldn’t be able to bring the kids 

home.” 

In anticipation of the move, Crouch “stopped looking for work.” “I 

was pretty much looking at walking away from the company, shutting 

it down. And then, at the eleventh hour, that’s when I got contacted by 

Ken Friedman in late February, early March of 2013, [who was] 

interested about getting into the business.” Crouch and Friedman 

discussed Friedman buying an interest in DCCH and making it a 

partnership. Crouch told Lane that Friedman was going to buy DCCH 

for $400,000. Friedman testified he thought that sum would only buy a 

half interest. Crouch did not tell Friedman of any intent to shut down 

DCCH when Crouch and Lane moved to Australia. Friedman started 

working—without pay—for several days a week at DCCH to gain “onthe-job training” in the construction business. 

More concretely, in May 2013, Friedman and his wife entered 

into a joint venture with Crouch and Lane for the purchase, remodel, 

and resale of 5 Carolina Lane in Atherton. The Friedmans loaned 

Crouch and Lane $2 million (half of the purchase price). Title to the 

property was transferred to an LLC. Shortly thereafter, Crouch—who 

had previously claimed not to be “liquid”—paid back $1 million. 
6

In May 2013, Crouch, Lane, and their two children moved from 

their Anderson Way home into the unrenovated Carolina Lane 

property. Two months later, Lane and the children moved back to 

Anderson Way, and she filed for dissolution. 

According to Friedman, he created Zega Builders in August of 

2013 “but there was nothing in it until June of 2014 . . . , when I 

started to make payroll.” In June and July 2014, Crouch joined a 

number of former DCCH workers—whom Crouch had fired from 

DCCH—as employees of Zega. As of that time DCCH “was running out 

of money and . . . pretty much all [its] projects were finished up for 

Carolina, and by that point, I [Friedman] owned Carolina.” Zega paid 

Crouch $12,000 per month for 32 hours work, later increasing to 

$180,000 annually for full-time work. Prior to joining, Zega, the DCCH 

workers had been “supervised” by Friedman on DCCH work. Zega 

completed a number of projects that had been started by DCCH. 

Friedman testified that he expected Crouch to bring to Zega any new 

projects that might come his (Crouch’s) way. 

In February 2014, Crouch and Lane sold their interest in the 

Carolina Lane property to the Friedmans in exchange for return of the 

$1 million already paid, and discharge of all other obligations and debts 

relating to the property. 

In addition to whatever salary he drew from Zega, between July 

and September of 2016, Crouch was twice “loaned” $100,000 by Zega. 

Neither was memorialized in writing. Neither produced discussion of 

repayment by Crouch. 

On March 16, 2017, Crouch testified that he received only one 

“bonus” from Zega, for $100,00, at the end of 2016. Two months later, 
7

on May 15, 2017, as the trial was nearing its end, Crouch testified that 

within the prior 30 days, he received “additional compensation” of $2.2 

million that was deposited in the DCCH account. Crouch did not object 

when his counsel termed this payment a “bonus.” 

Additional information will be provided as needed in connection 

with discussion of the parties’ contentions on these appeals.

DISCUSSION

I. The Business

A. The Governing Law

“[A]ccountability for the management of community assets is a 

fundamental aspect of the fiduciary duties owed between spouses.” 

(In re Marriage of Prentis-Margulis & Margulis (2011) 198 Cal.App.4th 

1252, 1269.)

Section 721, subdivision (b), provides in relevant part that 

“spouses are subject to the general rules governing fiduciary 

relationships that control the actions of persons occupying confidential 

relations with each other. This confidential relationship imposes a 

duty of the highest good faith and fair dealing on each spouse, and 

neither shall take any unfair advantage of the other.”

“From the date of separation to the date of the distribution of the 

community . . . , each party is subject to the standards provided in 

section 721, as to all activities that affect the assets and liabilities of 

the other party, including . . . [¶] . . . [¶] . . . [¶] (3) The operation or 

management of a business . . . in which the community may have an 

interest.” (§ 2102, subd. (a).) “[E]ach party has a continuing duty to 

immediately, fully, and accurately update and augment that disclosure 

to the extent there have been any material changes so that . . . each 
8

party will have a full and complete knowledge of the relevant 

underlying facts.” (§ 2100, subd. (c).)

Section 1100 provides further that “[e]ach spouse shall act with 

respect to the other spouse in the management and control of the 

community assets and liabilities in accordance with the general rules 

governing fiduciary relationships which control the actions of persons 

having relationships of personal confidence as specified in [s]ection 721, 

until such time as the assets and liabilities have been divided by the 

parties or by a court. This duty includes the obligation to make full 

disclosure to the other spouse of all material facts and information 

regarding the existence, characterization, and valuation of all assets in 

which the community has or may have an interest and debts for which 

the community is or may be liable . . . .” (§ 1100, subd. (e).)

To enforce these fiduciary duties, a petition for dissolution 

includes a restraining order prohibiting both parties the transfer or 

disposition of any property without consent or order of the family court, 

except those made in the usual course of business or for the necessities 

of life. (§ 2400, subd. (a)(2).) Violating the restraining order may result 

in statutory sanctions. (In re Marriage of McTiernan & Dubrow (2005) 

133 Cal.App.4th 1090, 1102−1103.)

Section 1101, subdivision (a), establishes a claim for damages for 

breach of a spouse’s fiduciary duty: “A spouse has a claim against the 

other spouse for any breach of the fiduciary duty that results in 

impairment to the claimant spouse's present undivided one-half 

interest in the community estate, including, but not limited to, a single 

transaction or a pattern or series of transactions, which transaction or 
9

transactions have caused or will cause a detrimental impact to the 

claimant spouse’s undivided one-half interest in the community estate.”

Section 1101, subdivision (g) provides that “[r]emedies for breach 

of the fiduciary duty by one spouse, including those set out in sections 

721 and 1100, shall include, but not be limited to, an award to the other 

spouse of 50 percent, or an amount equal to 50 percent, of any asset 

undisclosed or transferred in breach of the fiduciary duty plus 

attorney’s fees and costs.” 

Subdivision (h) of section 1101 states: “Remedies for the breach 

of the fiduciary duty by one spouse, as set forth in sections 721 and 

1100, when the breach falls within the ambit of section 3294 of the 

Civil Code shall include, but not be limited to, an award to the other 

spouse of 100 percent, or an amount equal to 100 percent, or an amount 

equal to 1000 percent, any asset undisclosed or transferred in breach of 

the fiduciary duty.”

Section 3294 of the Civil Code, of course, is the statutory 

authorization for punitive damages, specifically “for the breach of an 

obligation not arising from contract, where it is proven by clear and 

convincing evidence that the defendant has been guilty of oppression, 

fraud, or malice . . . .”

As should be obvious from the statutory language, fiduciary 

duties apply to assets that are, or might be, community assets. It does 

not apply to separate property. (In re Marriage of Schleich (2017) 

8 Cal.App.5th 267, 278−279 (Schleich).)

B. The Relevant Family Court Determinations 

The family court made numerous factual findings pertinent here 

that, with minor editorial changes, begin with the following three:
10

“(14) [DCCH] is a community asset and is awarded to [Lane] at a 

value of $2,089,748, the value nearest to the time of trial. The court 

finds that $2,200,000 paid to DCCH on April 14, 2017 is a DCCH asset, 

not a bonus, from which the court deducted appropriate business 

expenses.

“(15) [Crouch] breached his fiduciary duty under . . . 1101 as it 

relates to DCCH. [Crouch] singlehandedly impaired [Lane’s] [one-half] 

interest by trying to destroy and/or dissipate it. Evidence was clear 

that DCCH was the main source of income and support for the family 

throughout the marriage. The court finds [Crouch] stopped working the 

DCCH business. He went to work for Zega; gave Zega his name, 

designs, and reputation, all of which were critical to the business. He 

essentially gave Zega his employees, trucks, and other assets. Zega 

used [Crouch] for his contractor’s license and contacts. Zega got the 

benefit of [Crouch’s] contacts. Zega essentially had the entire DCCH 

business.

“(16) [Crouch’s] breach of fiduciary duty in regard to DCCH does 

not rise to the level of Family Code [section] 1101[, subdivision] (h) 

which would have mandated an award to [Lane] of 100 percent of the 

value of DCCH.” 

The family court subsequently augmented the following: 

Crouch’s breach of fiduciary duty “as it related to DCCH is supported 

by sufficient evidence as (i) the value of DCCH had dissipated due to 

[Crouch’s] breach given [Crouch’s] expert testimony that the value 

dipped to a negative $78,805, (ii) the parties did not agree to ‘wind 

down’ DCCH as evidence by [Crouch’s] own testimony at trial, 

(iii) [Crouch] gave everything of value at DCCH to Zega Builders, Inc.” 
11

“The court’s finding as to the value of DCCH at the time nearest 

trial is supported by sufficient evidence in that

“(i) Family Code [section] 1101 allows the court to award the 

asset at a value according to the date the asset is awarded by the court.

“(ii) The court is not mandated to consider only the experts’ 

opinion as to value and was able to value the business without 

additional expert testimony.

“(iii) The court had evidence which could have resulted in an 

even higher value of DCCH including considering the $2,200,000 as 

income in 2017 for work done in 2016 could have resulted in an even 

higher value of DCCH under the excess earnings approach used by

Lucy Chung, or adding into the DCCH earnings the profits made by 

real estate sales not captured in the company’s tax returns.

“(iv) [Crouch’s] post-separation efforts were compensated by Zega 

Builder’s Inc. through [Crouch’s] receipt of W-2 income, including a 

$100,000 bonus in 2016 leaving the $2,200,000 as DCCH’s, not 

[Crouch’s].

“(v) [Crouch] had ample opportunity to present evidence 

regarding any tax liability at trial in regard to the $2,200,000 check 

and presented none. 

“(vi) The tax consequences, if any, to DCCH are awarded to 

[Crouch] and need not be contemplated by the court in assessing its 

value; ‘the trial court need not speculate on such possibilities, however, 

or consider tax consequences that may or may not arise after the 

division of the community property.’ Weinberg v. Weinberg [(1967)]

67 Cal.2d 557 at [p.] 566, and 
12

“(vii) The court’s finding as to the value of DCCH is equitable as 

the court did not order reimbursement to the community for any funds 

[Crouch] withdrew from DCCH; nor personal expenses of [Crouch’s] 

paid by DCCH from the date of separation to the date of the award of 

DCCH to [Crouch].” 

C. Standards of Review

“The existence and scope of a fiduciary duty is a question of law 

that we review de novo. [Citation.] However, ‘the factual background 

against which we [answer that question] is a function of a particular 

case’s procedural posture.’ [Citation.] Thus, to the extent the court’s 

decision below ‘turned on the resolution of conflicts in the evidence or 

on factual inferences to be drawn from the evidence, we consider the 

evidence in the light most favorable to the trial court’s ruling and 

review the trial court’s factual determinations under the substantial 

evidence standard. [Citation.]’ [Citation.] Where there is a fiduciary 

duty, breach of the duty is a question of fact. [Citation.] We review the 

trier of fact’s finding a breach occurred for substantial evidence, 

resolving all conflicts and drawing all reasonable inferences in favor of 

the decision.” (In re Marriage of Kamgar (2017) 18 Cal.App.5th 136, 

144 (Kamgar).) “We review for abuse of discretion the trial court’s 

decision concerning the appropriate remedy for breach of fiduciary 

duty.” (Id. at p. 150.)

“ ‘When a trial court’s factual determination is attacked on the 

ground that there is no substantial evidence to sustain it, the power of 

an appellate court begins and ends with the determination as to 

whether, on the entire record, there is substantial evidence, 

contradicted or uncontradicted, which will support the determination, 
13

and when two or more inferences can reasonably be deduced from the 

facts, a reviewing court is without power to substitute its deductions for 

those of the trial court. If such substantial evidence be found, it is of no 

consequence that the trial court believing other evidence, or drawing 

other reasonable inferences, might have reached a contrary 

conclusion.’ ” (In re Marriage of Goodwin-Mitchell & Mitchell (2019) 

40 Cal.App.5th 232, 238–239.) “ ‘[I]t is well established that the trial 

court weighs the evidence and determines issues of credibility and 

these determinations and assessments are binding and conclusive on 

the appellate court.’ ” (In re Marriage of Berman (2017) 15 Cal.App.5th

914, 920.)

We recently reiterated that “ ‘ “as with any challenge to the 

sufficiency of the evidence, it is the appellant’s burden to set forth not 

just the facts in its favor, but all material evidence on the point. 

‘ “Unless this is done the error is deemed to be waived.” ’ ” [Citation.]’ 

[Citation.]” (Pilliod v. Monsanto Co. (2021) 67 Cal.App.5th 591, 641–

642.) This principle applies in family law appeals. (E.g., In re 

Marriage of Fink (1979) 25 Cal.3d 877, 887 (Fink); In re Marriage of 

Davenport (2011) 194 Cal.App.4th 1507, 1530−1532.)

The family court “has broad discretion to determine the manner 

in which community property is divided and the responsibility to fix the 

value of assets and liabilities in order to accomplish an equal division. 

[Citations.] The trial court’s determination of the value of a particular 

asset is a factual one and as long as that determination is within the 

range of the evidence presented, we will uphold it on appeal.” (In re 

Marriage of Duncan (2001) 90 Cal.App.4th 617, 631−632 (Duncan).) 

And “A family court’s discretion in dividing marital property includes 
14

the authority to award a marital business to one spouse as a means to 

achieve equity in the division of property.” (In re Marriage of Gréaux &

Mermin (2014) 223 Cal.App.4th 1242, 1251.)

We review rulings on division of property and imposition of 

sanctions for abuse of discretion. (Schleich, supra, 8 Cal.App.5th 267, 

276.) 

D. The Finding That Crouch Breached His Fiduciary 

Duty

Under the caption “David did not breach his fiduciary duty with 

respect to DCCH,” Crouch puts forth several arguments. There are 

related issues that will be considered here for analytical coherence and 

convenience. 

(1) Crouch acknowledges that under the plain language of 

section 721, subdivision (b), he owed Lane “a duty of the highest good 

faith and fair dealing,” but he then appears to dilute that command by 

importing the less punctilious duties of a partner as defined in the 

Corporations Code, specifically section 16404 of the Uniform 

Partnership Act of 1994. Whatever impact Crouch may have intended 

is lost when he concedes that “Sections of the Corporations Code not 

specified in section 721 are not incorporated into the Family Code 

fiduciary duty.”

Crouch then reasons: “DCCH was undisputedly community 

property. Thus, [Crouch] and [Lane] had equal interests in it. 

[Citations.] Both parties therefore had parallel fiduciary duties to each 

other with respect to DCCH until it was divided by the court. 

[¶] [Lane] stopped working at DCCH in or around June 2013. [Crouch] 

stopped over a year later, in July 2014. [Crouch’s] fiduciary duties do 

not extend to the duty implicitly found by the court for him (but, 
15

inconsistently, not for [Lane]) to carry on working at their community 

business, or to be responsible . . . for its loss of value, in the absence of 

gross negligence or intentional misconduct not present here.”

This reasoning is completely at odds with the family court’s 

findings. The court did not require either party to continue working for 

the business, but it implicitly did assume that if either did it would not 

be with the intent of actually harming the business. Crouch did not 

wind up the business or attempt a bona fide sale. Crouch and Lane 

might, in the abstract, have had reciprocal “fiduciary duties,” but they 

could hardly be called “parallel,” if for no other reason than Crouch had 

greater knowledge of the business as well as actual possession and 

control of its physical assets. Because Crouch was in charge of DCCH, 

it was he who “singlehandedly” tried to “dissipate or destroy” Lane’s 

interest in the business. That amounts to “gross negligence or 

intentional misconduct” in anybody’s book.

(2) Crouch next argues that he “did not breach his fiduciary duty 

by going to work for Zega,” “by taking steps to wind down DCCH’s 

activities in 2012 based on his desire to change his work.” He believes 

that the family court “did not find that [he] stopped working at DCCH 

and went to work for Zega for any bad-faith reason such as in order to 

deprive [Lane] of funds, or that his conduct was grossly negligent, 

reckless, intentional misconduct, or in violation of law.” 

This is not only hair-splitting, it is simply wrong. The family 

court did expressly find that Crouch’s conduct was “in violation of law,” 

namely, the Family Code statutes codifying the obligations of spousal 

fiduciary duty. A finding of breached fiduciary duty would certainly 
16

cover much of the same ground as a finding of bad faith.3 The word 

“destroy” imparts a mental intent that excludes the possibility of 

negligent, or even reckless, conduct. There can be no dispute that 

attempting or actually destroying a community asset is contrary to the 

statutory duties discussed above, particularly section 1101, 

subdivision (e) and section 2100, subdivision (c).

As for Crouch being motivated by a simple “desire to change his 

work,” the record is clearly otherwise: Crouch stayed in the 

construction business, in the same area, and continued on an almost 

full-time basis, but with the new intent. Recalling that Zega did not 

even have a contractor’s license, one is tempted to conclude that Zega 

was just as much an alter ego of Crouch as was DCCH.

As for “winding down” DCCH, the family court found that “the 

parties did not agree to ‘wind down’ DCCH,” which is the equivalent of 

finding that Crouch unilaterally tried to “wind down” the business in a 

way that would be maximally disadvantageous to Lane.

There follows six pages in Crouch’s brief narrating events—from 

Crouch’s perspective—culminating with the following: “The evidence 

falls far short of establishing gross negligence or intentional 

misconduct. The lower court’s conclusion that [Crouch] breached his 

fiduciary duty by going to work for Zega radically expands the scope of 

a party’s fiduciary duty with respect to operating a business. Finding a 

3

 Breach of fiduciary duty has commonly been equated with 

fraud. (E.g., Flores v. Arroyo (1961) 56 Cal.2d 492, 494−495; In re 

Marriage of Coffin (1976) 63 Cal.App.3d 139, 154−155; Baker v. Baker

(1968) 260 Cal.App.2d 583, 586.)
17

breach on these facts was a misunderstanding of law and therefore an 

abuse of the court’s discretion.” 

Crouch does not expressly mount a direct attack on the 

sufficiency of the evidence to support the family court’s crucial finding 

that he breached his fiduciary duty to Lane “by trying to destroy” the 

business. However, such an attack is unquestionably the predicate for 

Crouch’s argument. Only by accepting his exculpatory version of 

events can Crouch launch his legal arguments: “Finding a breach on 

these facts was a misunderstanding of law and therefore an abuse of the 

court’s discretion.” 

Yet accepting this alternative narrative would entail 

disregarding a number of fundamental principles of appellate review, 

namely: (1) that the judgment is presumed correct until the appellant 

proves otherwise (Jameson v. Desta (2018) 5 Cal.5th 594, 608−609); 

(2) that the reviewing court will presume that all factual findings made 

by the trier of fact are supported by the evidence (Fink, supra, 

25 Cal.3d 877, 887); (3) that “ ‘an appellant who contends this some 

particular finding is not supported is required to set forth in his brief a 

summary of the material evidence upon that issue. Unless this is done, 

the error . . . is deemed to be waived’ ” (ibid.); and, as already 

mentioned, (4) that the reviewing court will credit all inferences and 

deductions that favor the trier of fact’s finding or conclusion. (In re 

Marriage of Goodwin-Mitchell & Mitchell, supra, 40 Cal.App.5th 232, 

239.) Clearly, these principles will not permit an appellant to present a 

highly selective recitation of the record that ignores contrary evidence 

and deductions that are supportive of the finding and the judgment. 

And, we reiterate, the existence of a breach of fiduciary duty is a 
18

question of fact. (Kamgar, supra, 18 Cal.App.5th 136, 144; Marzec v. 

Public Employees’ Retirement System (2015) 236 Cal.App.4th 889, 915.)

Accordingly, we must reject Crouch’s conclusory assessment that 

“The evidence falls far short of establishing gross negligence or 

intentional misconduct.”4 This means we also must reject Crouch’s 

argument that the family court’s “conclusion . . . radically expands the 

scope of a party’s fiduciary duty with respect to operating a business” 

because it ignores the evidence that Crouch was not merely trying to 

“operate a business,” but intended to “destroy” Lane’s community 

property interest in the business. It also follows that Crouch has no 

basis for asserting that the family court “misunderstood” the law and 

abused its discretion.

(3) Crouch next moves to the matter of taxes. He contends that 

“the fiduciary breach found by the court with respect to [his] 

management of DCCH does not permit the court to assign the entire 

tax burden to him without offset.” Crouch reasons that “If a spouse’s 

conduct benefits the community, related liability is community as well, 

and cannot be characterized as solely one party’s separate debt. 

[Citation.] The community manifestly gained by [Crouch’s] conduct 

which gave rise to the tax liability, in that the community received 100 

percent of the benefit of the bonus earned by [Crouch] while working 

for Zega, constituting a huge increase in the value of DCCH.” This 

reasoning is unavailing.

4

 By contrast, Lane spends more than 30 pages in her brief 

detailing the evidence establishing Crouch’s “Breaches of Fiduciary 

Duty with Respect to DCCH.” 
19

First, the family court expressly rejected the characterization of 

the $2.2 million payment Crouch received from Zega was a “bonus.”

Second, what Crouch characteries as “gain” to the community 

was called attempted destruction of a community asset by the family 

court. As for “gain,” the word seems inappropriate in the context of 

Crouch’s foiled plan to transmute community property into his separate 

property. 

Third, and most decisive, was the family court’s conclusion that 

Crouch “had ample opportunity to present evidence regarding any tax 

liability at trial in regard to the $2,200,000 check and presented none.” 

Crouch points to nothing in his brief to impeach the court’s conclusion.5 

He does not even claim that he made an offer of proof.

In these circumstances, the word “speculative” is more than 

apposite to describe the subject of tax liability.

5

 Indeed, in her brief Lane drives the point even deeper: “Nor 

did [Crouch] make any attempt to demonstrate any specific tax liability 

during the six months between the court’s July 28, 2017 oral ruling 

assigning the DCCH business to [Crouch] . . . and its January 19, 2018 

written tentative decision. [¶] . . . [¶] The first time [Crouch] 

presented any figure depicting purported tax liability was on February 

15, 2018, in his objections to the tentative decision. Without further 

explanation or any evidentiary support, he simply stated he ‘estimates 

that the corresponding total 2017 tax liability for the DCCH revenue 

awarded to [him] in the amount of $2,172,940 is $1,054,547.’ . . . Using 

identical language, [Crouch] repeated his $1,054,547 ‘estimate’ in his 

points and authorities accompanying his motion for new trial. These 

two unsworn documents are the only places in the record that the 

$1,054,547 figure is mentioned. [¶] Indeed, nowhere in the record is 

there any explanation for how the $1,054,547 figure was derived, who 

calculated it, or whether they were competent to make tax 

calculations.” 
20

Instead, Crouch argues “the issue was not forfeited” because he 

“appropriately preserved this issue for review by raising it at the first 

available opportunity.” But “the issue” is not whether the issue of the 

“tax burden” was preserved for review, but whether Crouch can 

demonstrate from the record that he did present evidence on the issue, 

and that that evidence was, as Lane notes, sufficient to discharge his

“burden to prove that the division of community property would result 

in his claimed $1,054,547 tax liability.” He does not.

(4) The family court found that Crouch’s breach of fiduciary duty 

“as it related to DCCH is supported by sufficient evidence as (i) the 

value of DCCH had dissipated due to [Crouch’s] breach given [Crouch’s] 

expert testimony that the value dipped to a negative $78,805, (ii) the 

parties did not agree to ‘wind down’ DCCH as evidenced by [Crouch’s] 

own testimony at trial, (iii) [Crouch] gave everything of value at DCCH 

to Zega Builders, Inc.” Crouch contends “the negative fluctuation in 

DCCH’s value” does not demonstrate a breach of his fiduciary duties. 

“Fluctuation” is hardly the right description—“attempted destruction” 

is better. 6 For the clear import of the family court’s findings is that 

Crouch did his best to destroy the value of DCCH, a seemingly 

profitable enterprise, and the primary community asset. The 

“fluctuation” to a negative value for the business showed how close he

came to achieving that goal. The nosedive of DCCH’s worth was

attributable to Crouch’s breach of fiduciary duty not to harm the 

“operation or management of a business . . . in which the community 

[has] an interest.” (§ 2102, subd. (a)(3).)

6 The word used by Lane’s counsel was “sabotage.” 
21

(5) Crouch then gives the “fluctuation” argument a unique spin: 

“The court abused its discretion by failing to apportion the value of 

DCCH between the community and [Crouch] given his post-separation 

efforts.” He reasons that DCCH was worth no more than $638,000

when he and Lane separated. And he goes on, measured by the “bonus” 

Zega gave him, DCCH’s value increased to $2.2 million, an increase 

that was due to his efforts and for which he should be compensated. 

The illogic of this reasoning is stunning. Crouch is in effect 

admitting that he kept control of the DCCH assets he supposedly sold 

to Zega. This is not only contrary to his position at trial, it is itself an 

independent violation of his fiduciary duties, specifically, each and 

every one of the obligations enumerated in subdivision (a) of section 

2102.7 It is no surprise that Crouch does not point to any evidence in 

the record showing that he even attempted to comply with those 

7

 “(a) From the date of separation to the date of distribution . . . , 

each party is subject to the standards provided in Section 721, as to all 

activities that affect the assets . . . of the other party, including, but not 

limited to, the following activities:

 “(1) The accurate and complete disclosure of all assets . . . .

 “(2) The accurate and complete written disclosure of any 

investment opportunity, business opportunity, or other incomeproducing opportunity that presents itself after the date of 

separation . . . .

 “(3) The operation or management of a business or an 

interest in a business in which the community may have an interest.”

 Moreover, section 721 provides that among a spouse’s predistribution duties is the responsibility for “[a]ccounting to the spouse, 

and holding as a trustee, any benefit or profit derived from any 

transaction by one spouse without the consent of the other spouse that 

concerns the community property.” (§ 721, subd. (b)(3).)
22

obligations. Even more fundamentally, Crouch is arguing that he 

should be allowed to profit from breaching his fiduciary duties.

Crouch cites In re Marriage of Dekker (1993) 17 Cal.App.4th 842, 

for the proposition that “Apportionment is required when ‘more than 

minimal’ effort is devoted to the business.” Dekker is clearly 

distinguishable because Crouch’s post-separation efforts were patently 

less than minimal. Indeed, the family court found that Crouch did 

more than try to put DCCH into hibernation, he tried to “dissipate” if 

not “destroy” it. 

(6) Citing the principle that “[p]icking one year’s net income, 

where income rises or falls from year to year, is not a reasonable basis 

for determining value” (In re Marriage of Rosen (2002) 105 Cal.App.4th

808, 821), Crouch tells us the family court “erred in in valuing DCCH 

at $2,089,748 based on a one-time bonus paid for [Crouch’s] postseparation efforts.” We do not agree.

As previously shown, the family court refused to accept Crouch’s 

characterization of the $2.2 million payment he received from Zega was 

a “bonus.” The court did not specially explain the reasoning behind 

that refusal, but the logic is easy to discern. 

“The Court finds the $2,200,000 paid to DCCH . . . is a DCCH 

asset, not a bonus . . . . [¶] The Court finds [Crouch] stopped working 

the DCCH business. He went to work for Zega, gave Zega his name, 

designs, and reputation[,] all of which were critical to the business 

[DCCH]. He essentially gave Zega his employees, trucks, and other 

assets. Zega used [Crouch] for his contractor’s license and contacts. 

Zega got the benefit of [Crouch’s] contacts. Zega essentially had the 

entire DCCH business.”
23

The relevant point of the Rosen decision is that a family court is 

better advised to find an annual average for a community asset’s value 

instead of picking a single, atypical, year, which risks producing an 

inflated figure. (In re Marriage of Rosen, supra, 105 Cal.App.4th 808, 

818−821.) As a general rule, for most situations, it is sound. But the 

family court was looking at an unusual situation, one where averaging 

was not feasible.

The clear import of the family court’s findings is that Crouch 

caused DCCH to de facto go out of business. It may have retained a 

legal identity, but as a functioning business, DCCH had ceased to exist. 

There is no indication that it was generating income during the years it 

was effectively merged with Zega. As such, there was nothing to 

average. The family court had only the opposing experts’ opinions of 

the value of DCCH about the time of the parties’ separation in July 

2013 (Crouch’s expert—$92,699; Lane’s expert—$638,000). So, when it 

came time for the family court to decide the issue in 2018, it was 

entirely reasonable for the court to conclude that in these 

circumstances averaging was not feasible. Averaging might have been 

possible had the experts been able to factor in the $2.2 million “bonus,” 

but the peculiar timing of its disclosure made that impractical. 

It should also be remembered that, having found that Crouch had 

breached his fiduciary duties to Lane, the family court was operating in 

the context of section 1101, which obliged the court to select “the 

highest value at the date of the breach of the fiduciary duty, the date of 

the sale or disposition of the asset, or the date of the award by the 

court.” (§ 1101, subd. (g).)
24

As already shown, whether there is a fiduciary duty is an issue of 

law, whether it has been breached is an issue of fact. (Kamgar, supra, 

18 Cal.App.5th 136, 144.) The Family Code statutes already quoted 

leave no possibility for dispute that spouses have myriad fiduciary 

duties with respect to each other, and to property, up to the moment 

the marital estate is divided. These duties are established by law. 

Crouch has failed to demonstrate that the family court’s findings as to 

Crouch’s manifold breaches of those duties are factually inadequate. 

Insofar as the findings affect divisions of property, or constitute the 

imposition of sanctions, Crouch has also failed to establish the abuse of 

discretion needed for reversal. (Schleich, supra, 8 Cal.App.5th 267, 

276; Duncan, supra, 90 Cal.App.4th 617, 631−632.)

E. The Value Of The Business

As previously shown, fixing the value of an asset in the marital 

estate is a factual issue entrusted to the family court’s discretion. 

(Duncan, supra, 90 Cal.App.4th 617, 631−632.) The family court set 

the assets of DCCH at the trial at $2.2 million, the amount of payment 

made by Zega. After deducting “appropriate business expenses” the 

court fixed the value of DCCH at $2,089,748. Crouch desires that we 

overturn this determination. We will not do so.

(1) The major thrust of Crouch’s contention is that the $2.2 

million was simply a “bonus” compensating him for his work and efforts 

for Zega. The family court having concluded that the payment was in 

truth “a DCCH asset, not a bonus,” Crouch is challenging a finding of 

fact, which means in plain effect that he is arguing it is not supported 

by substantial evidence. (See, e.g., In re Marriage of Nichols (1994) 27 

Cal.App.4th 661, 670 [“The valuation of a particular asset is a factual 
25

question for the trial court, and its determination will be upheld on 

appeal if supported by substantial evidence”].)

We reject Crouch’s contention for two reasons, First, it is deemed 

waived because he failed to set out all the relevant evidence in his brief. 

(Fink, supra, 25 Cal.3d 877, 887.) Second, Crouch examines this issue 

in isolation, refusing to recognize that it cannot be removed from its 

context, which is, as found by the family court, the persuasive evidence 

of Crouch’s pervasive scheme to violate his numerous fiduciary duties 

to Lane.

(2) Turning to the family’s court augmentation (see fn. 2, ante), 

Crouch asserts that “the court’s explanation of the evidence supporting 

its valuation of DCCH does not cure its abuse of discretion.” Crouch 

does not identify precisely what the court did that involved the exercise 

of discretion. Insofar as he may think the discretion involved was 

deciding whether to treat the Zega payment as his separate property or 

the property of DCCH, abuse of that discretion would require Crouch to 

demonstrate there is no substantial evidence to support the court’s 

decision to reject his claim that the $2.2 million payment was a bonus. 

(Duncan, supra, 90 Cal.App.4th 617, 631−632.) Again, this assumes we 

pay no attention to his widespread breaches of his fiduciary duties.

(3) Crouch next focuses on parts of the family court’s 

augmentation of finding 15, reasoning as follows: First, “(ii) The Court 

is not mandated to consider only the experts’ opinion as to value and 

was able to value the business without additional expert testimony.” 

Crouch makes this excerpt his caption for the following: “[Crouch] does 

not dispute that in appropriate circumstances the court may consider 

more than experts’ opinions; however, in this case the court erred in its 
26

approach, for all the reasons set forth above.” If those reasons are 

Crouch’s prior efforts to examine items without regard for the fiduciary 

issue, they have already been rejected, and cannot be reanimated with 

such cursory explanation.

(4) Next for Crouch is “(iii) The court had evidence which could 

have resulted in an even higher value of DCCH including considering 

the $2,200,000 as income in 2017 for work done in 2016 could have 

resulted in an even higher value of DCCH under the excess earnings 

approach[] used by Lucy Chung, or adding into the DCCH earnings the 

profits made by real estate sales not captured in the company’s tax 

returns.” To which Crouch reasons: “The court’s speculation that it 

could have considered or even adopted other evidence which arguably 

could have resulted in a higher valuation by another expert does not

establish that the court’s actual approach was reasonable or within the 

range of evidence presented on valuation. Further, even if the 

$2,200,000 income were considered in 2017 under a different 

methodology, that would not remove the necessity of considering the 

accompanying tax burden.” 

Initially, we do not view the family court in indulging in 

speculation. Quite the contrary: the court was clearly signaling that it 

had concluded there was “evidence which could have resulted in an 

even higher value of DCCH.” (Emphasis added.) Beyond that, the 

valuation accepted by the court was eminently reasonable because the 

court could conclude this was the valuation on the entirety of Crouch’s 

post-separation transaction with Friedman/Zega that was fixed by 

Friedman and Crouch. In effect, the family court simply accepted 

Crouch’s own valuation of DCCH. He will not be heard now to call that 
27

decision unreasonable. (Cf. Evid. Code, § 813, subd. (a)(2) [“The value 

of property may be shown only by the opinion of . . . [¶] . . . [¶] The 

owner . . . of the property or property interest being valued”].)

(5) Crouch then looks to this part of the family court’s reasoning: 

“[Crouch’s] post-separation efforts were compensated by Zega Builder’s 

Inc. through [Crouch’s] receipt of W-2 income, including a $100,000 

bonus in 2016 leaving the $2,200,000 as DCCH’s, not [Crouch’s].” 

Crouch argues that even his “receipt of earned income from Zega 

does not relieve the court’s obligation to allocate the value of DCCH 

between separate and community interests, given [Crouch’s] 

substantial post-separation efforts. The court failed to meet its duty ‘to 

quantify the contributions of the separate capital and community effort 

to the increase’ [citation.] Instead, the court awarded 100 percent of 

the value of DCCH, including all of the post-separation increase, to the 

community, on the theory that [Crouch] was adequately compensated 

by his income from a third party, Zega.” “[T]he court here was 

obligated to determine to what extent the increased value of DCCH was 

attributable to [Crouch’s] post-separation effort versus the capital value 

of DCCH as of the date of separation, and then allocate the increase 

accordingly. [¶] Given that DCCH was propelled by the efforts of 

[Crouch] alone, the court should have determined the value of DCCH as 

of the date of separation and attributed to the community that amount 

plus a fair return, allocating the rest to [Crouch].” 

This is revisionist reasoning. The idea of allocating value to 

DCCH as of the time of separation was considered by the parties’ 

experts, but rejected by the family court—which Crouch has already 

conceded was within the court’s discretion to do so. Given Crouch’s 
28

pervasive breach of his fiduciary duties, the court found that “the value 

of DCCH had dissipated due to [Crouch’s] breach.” It is therefore more 

than surprising to see Crouch as treating DCCH as having a value and 

viability that Crouch did his best to, again as the court found, 

“dissipate” if not “destroy.” As for Crouch’s own interest in DCCH, he 

virtually handed it to Friedman/Zega. Crouch went from being the 

owner of DCCH to a salaried employee of Zega. There was no evidence 

that the assets and goodwill Crouch brought with him to Zega produced 

a single dollar of income to DCCH. It has already been shown that the 

figure of $2.2 million was presumably fixed by Friedman and Crouch as 

the value of DCCH at the time it was returned to Crouch in the form of 

a “bonus.” 

Finally, as previously noted, the family court was making its 

decision in the context of section 1101, subdivision (g), which statute 

obligated the court to value the asset at the highest of three possible 

dates—“the date of the breach of the fiduciary duty, the date of the sale 

or disposition of the asset, or the date of the award by the court.” The 

$2.2 million payment was the event closest in time to “the date of the 

award,” so it was natural that it was selected for fixing the value of 

DCCH. In these circumstances, and given the family court’s discretion 

on this matter (Duncan, supra, 90 Cal.App.4th 617, 631−632), it cannot 

be said that the court’s decision exceeded the bounds of reason.

(6) Crouch’s next target is the finding that “[Crouch] had ample 

opportunity to present evidence regarding any tax liability at trial in 

regard to the $2,200,000 check and presented none.” Concerning this, 

he states only “This point is rebutted in section IV(B)(1)(c) above.” No, 

it isn’t. (See section D. (3), ante.)
29

(7) The family court concluded: “The tax consequences, if any, to 

DCCH are awarded to [Crouch] and need not be contemplated by the 

court in assessing its value; ‘the trial court need not speculate on such 

possibilities, however, or consider tax consequences that may or may 

not arise after the division of the community property.’ 

Weinberg v. Weinberg (1967) 67 Cal.2d [557] at [p.] 566.” Crouch 

asserts that “This point is rebutted in section IV(B)(1)(a) and (b) 

above.” No, it isn’t. (See section D. (3), ante.)

(8) The family court stated that the “finding as to the value of 

DCCH is equitable as the court did not order reimbursement to the 

community for any funds [Crouch] withdrew from DCCH; nor personal 

expenses of [Crouch’s] paid by DCCH from the date of separation to the 

date of the award of DCCH to [Crouch].” This is just another way for 

Crouch to argue that he was denied “the fruit of his years of postseparation labor,” a subject already addressed. Moreover, it is hard to 

understand why Crouch sees himself harmed by language which 

declines to order him to make “reimbursement to the community.”

It should be kept in mind that this was just one of six reasons 

cited by the Family Court as supporting its decision how to fix a value 

for DCCH, and those six reasons were augmentation to what the court 

had already said in paragraph 15 of its original Final Orders. Thus, 

even if this particular argument had merit, it would lack the potency to 

require overturning the valuation fixed by the family court—a 

valuation, not incidentally, that is but a single aspect of Crouch’s 

breaching his fiduciary duties.

(9) Lastly, under the heading of the timing of the bonus, “The 

court noted that he bonus was ‘very delayed’ and stated that ‘DCCH 
30

clearly could and should have earned [it] earlier,’ but did not explicitly 

premise its order on that basis. Regardless, no evidence supports the 

court’s finding that DCCH ‘could and should have earned earlier’ the 

bonus [Crouch] was paid for his work on 5 Carolina.” Indeed, the 

suspiciousness of the timing of $2.2 million payment to Crouch is close 

to res ipsa loquitur.

8

With Crouch conceding that the family court “did not explicitly

premise its order on that basis,” he is tacitly admitting he is attacking 

dictum. Moreover, the court’s words were in the form of remarks made 

at a hearing, not actual language from the judgment. (See fn. 2, ante.) 

It is well-settled that oral remarks or comments made by a trial court 

may not be used to attack subsequently-entered findings, order, or 

judgment. (Farwell v. Sunset Mesa Property Owners Assn., Inc. (2008) 

163 Cal.App.4th 1545, 1552−1553; Jie v. Liang Tai Knitwear Co. (2001) 

89 Cal.App.4th 654, 667, fn. 9.)

In sum, Crouch’s fundamental argument on appeal, that directed 

toward the business, has no merit. Likewise his arguments directed to 

the two other rulings, those involving (1) 1425 Bay Laurel and 

(2) Cunitz and Tang-Greenbaum.

8

 The circumstances bring to mind the stratagem used in In re 

Marriage of Rossi (2001) 90 Cal.App.4th 34, which involved to failure to 

disclose a winning lottery ticket. The ticket was purchased by a 

workplace group that included the wife. The husband did not learn of 

the windfall until after the marriage was dissolved. The Court of 

Appeal affirmed the trial court rejecting the former wife’s claim that 

“the lottery winnings [were] her separate property because the share 

she received was a gift” from the other members of the pool. (Id at 

pp. 39, 41.)
31

F. Crouch’s Other Two Arguments Have No Merit

Introduction

As indicated above, throughout his brief, Crouch places 

considerable stress on the repeated references to the statutory directive 

that the family court “shall . . . divide the community estate of the 

parties equally.” (§ 2550.) This is the ordinary approach and goal, but 

it is not an inflexible command. The Family Code has several 

provisions that allow deviation, including these two:

“As an additional award or offset . . . the court may award from a 

party’s share the amount the court determines to have been 

deliberately misappropriated by the party to the exclusion of the 

interest of the other party in the community estate.” (§ 2602.)

“If a party fails to comply with any provision of this chapter 

[(Fam. Code, § 2100 et seq.)], the court shall, in addition to any other 

remedy provided by law, impose money sanctions against the 

noncomplying party. Sanctions shall be in an amount sufficient to 

deter repetition of the conduct or comparable conduct, and shall include 

reasonable attorney’s fees, costs incurred, or both, unless the court 

finds that the noncomplying party acted with substantial justification 

or that other circumstances make the imposition of the sanction 

unjust.” (§ 2107, subd. (c).)

As also indicated above—and indeed, addressed in detail in 

connection with Lane’s appeal—section 1101 sets out remedies for 

breaches of spousal fiduciary duties, particularly subdivisions (g) and 

(h) quoted above. And the family court expressly found that Crouch 

“breached his fiduciary duty under Family Code 1101 as it relates to 

DCCH,” which led to two other issues Couch raises on appeal—issues 

to which we now turn.
32

1425 Bay Laurel

Prior to the time Lane and Crouch separated, DCCH entered into 

a joint venture with a Mr. Triant to demolish and rebuild the residence 

at 1425 Bay Laurel, which Triant owned. DCCH agreed to provide a 

nominal sum ($1,960) and “certain services” to the project. When the 

project was “completed,” DCCH’s 49 percent ownership interest would 

vest. 

In September 2013, after Lane and Crouch separated, and before 

the project was completed, the joint venture agreed to sell it for $5.5 

million. Contemporaneously, and before the sale was complete, DCCH 

and Triant made a supplemental agreement that DCCH would finish 

the project for $500,000. Crouch did not advise Lane of any of these 

agreements. 

Shortly before the escrow on the sale closed, DCCH and Triant 

executed yet another side agreement, which in essence changed the 

procedure for DCCH’s 49 percent ownership percentage to vest. 

Approximately a week later, DCCH received a check for $377,287.39, 

which was deposited into Lane’s and Crouch joint account.9 Thereafter, 

in accordance with an agreement between DCCH and the buyer to 

complete the Bay Laurel property, DCCH received two post-separation 

payments, totaling $500,000. 

The family court found as follows:

9

 According to Lane: “In the fall of 2014, by stipulation, 

$300,000 of the $377,287 was divided equally between [Lane] and 

[Crouch], leaving an undistributed balance of $77,287.” 
33

“The community shall be reimbursed $304,107[10]from [Crouch] 

for the sale of 1425 Bay Laurel, Menlo Park, CA. The court finds this 

property sold three months after separation, and accepts [Lane’s] 

rendition of the undistributed funds. The court denies [Crouch’s] 

separate property claim for reimbursement with regard to 1425 Bay 

Laurel.” 

“The community [interest] of the portion of the post-sale 

construction contract to DCCH for 1425 Bay Laurel was supported by 

sufficient evidence as (a) [Crouch] was 49 percent vested in the 1425 

Bay Laurel partnership, (b) [Crouch] unilaterally controlled the 

$500,000 payment to DCCH as payment for construction as opposed to 

a portion of the purchase price of the home, (c) DCCH invoicing lagged 

behind actual work done, and (d) [Crouch] was compensated for postseparation work on 1425 Bay Laurel by his draws from DCCH and 

payment of his personal expenses by DCCH.” 

Crouch argues that the family court erred in treating all profit 

from the project as a community asset, “without allocating to [him] any 

portion at all for his post-separation efforts from July 2013 until 

sometime after December 2014 in creating that profit.” His position is 

straightforward: “From and after separation in July 2013, [he] was 

entitled to receive his separate property interest from working on that 

property.” Crouch fails to establish error.

10

 Again, according to Lane: “This figure represented the 

$77,287 of earlier proceeds from the sale of the project that had not yet 

been distributed to the parties, plus the $500,000 that DCCH received 

from the owners post-sale, minus $273,180 for [Crouch’s] construction 

costs.” 
34

Although the family court did not make an express finding that 

Crouch breached his fiduciary duties with respect to this project, the 

finding (¶ 15) quoted above is broad enough to cover 1425 Bay Laurel. 

The language used by the court about how Crouch “unilaterally 

controlled the $500,000 payment,” and the tenor of the other 

“substantial evidence” cited, is compatible with the implicit conclusion 

that Crouch was acting in his own interest, not the community’s. The 

matter of DCCH’s vested percentage could, and apparently was, treated 

by the family court as a ploy to reduce the amount that might be 

treated as a community asset. In other words, 1425 Bay Laurel was 

another instance where Crouch breached his fiduciary duties by 

manipulating the timing, classification, and destination of cash monies.

What Crouch terms “his separate property interest from working 

on that property” overlooks the undisputed fact that DCCH’s 

involvement with 1425 Bay Laurel began prior to Crouch and Lane 

separating. It was therefore, at least presumptively, a community 

asset. 

There is a natural appeal to Crouch’s claim that his postseparation work bring the project to completion should not go 

uncompensated. But it does not address the family court’s finding that 

Crouch “was compensated for post-separation work on 1425 Bay Laurel 

by his draws from DCCH and payment of his personal expenses by 

DCCH” (emphasis added). Crouch does not make an effective reply to 

the following sentences in Lane’s brief that devastate the foundation of 

Crouch’s argument: “[Crouch’s] own QuickBooks records, as analyzed 

by [Lane’s] forensic accountant . . . showed that during the entirety of 

the $500,000 construction project, DCCH incurred only a minimal 
35

amount—$173.61—in job-related costs. This would seem to belie 

[Crouch’s] testimony that DCCH had three to four months of work left 

to perform under the $500,000 contract. The QuickBooks report would 

have shown labor or subcontractor expenses if there had been any, and 

there were none. [¶] . . . The evidence suggested that the construction 

was substantially complete prior to sale, and that the $500,000 

component of the transaction was only there to provide tax benefits to 

the buyers. . . . [Who] moved into the home shortly after the sale, so it 

certainly was in livable condition.” (Emphasis added.) In short, there 

was a substantial basis for the family court to conclude that the 

$500,000 figure was not a genuine reflection of the amount of 

remaining work DCCH was expected to provide. 

Were all this not enough, Crouch makes no genuine effort to 

demonstrate that the 30 volumes of reporter’s transcripts are 

completely bereft of evidence upon which the family court could rely to 

make this finding by setting out all the relevant evidence on the 

challenged point. (See Fink, supra, 25 Cal.3d 877, 887; In re Marriage 

of Davenport, supra, 194 Cal.App.4th 1507, 1530−1532.)

Cunitz and Tang-Greenbaum 

The family court directed that “[Crouch] shall reimburse the 

community $134,097 for the funds diverted to Australia in the Cunitz 

and Tang-Greenbaum transactions.” The court had already found that 

“the real property at 98 Longbrush, Kiama, Australia”—which had 

been purchased with those funds—“is characterized as community 

property and is awarded to [Lane] at a value of $1,492,000 (US) 

reduced by any debt thereon.” 
36

Crouch charges this was error because “when [the] payments 

were made from a community source (the funds two clients named 

Cunitz and Tang-Greenbaum owed to DCCH, a community business) to 

acquire a community asset, the Longbrush property, that created no 

characterization or allocation issue. The court double-dipped by 

charging [Crouch] for them because the community has already 

received the benefit of the payments.” 

The family court did not exactly disagree with this argument, but 

trumped it with an overriding legal decision: “There is no double 

dipping by the community in the award of the reimbursement of the 

Tang-Greenbaum transaction as the funds were unilaterally diverted 

by [Crouch] to the purchase of Longbrush such that the remedy of 

reimbursing the community is appropriate under Family Code 

[section] 1101[, subdivision] (g).”11

As has already been discussed, invocation of subdivision (h) of 

section 1101 is the nuclear option of family law. In cases where the 

breach of fiduciary duty is sufficiently egregious as to come “within the 

ambit of section 3294 of the Civil Code”—that is, the threshold for 

punitive damages because of clear and convincing evidence of 

oppression, fraud, or malice—the court is authorized to award the 

victim spouse “an amount equal to 100 percent[] of any asset . . . 

transferred in breach of the fiduciary duty.” Thus, the family court 

considered that Crouch’s conduct went so far beyond run-of-the-mill 

11

 Although the family court mentioned only the TangGreenbaum payments, the parties appear to assume that the Cunitz 

payments are also included in the court’s conclusion and covered by its 

reasoning. We, too, proceed on that assumption.
37

breach of fiduciary duty as to warrant what amounts for forfeiting the 

entirety of his interest in the Longbrush property.

We recently stated: “ ‘ “Whether to award punitive damages and 

how much to award were issues for the jury and for the trial court on 

the new trial motion. All presumptions favor the correctness of the 

verdict and judgment.” [Citation.] We review the evidence supporting 

awards of punitive damages for substantial evidence. “As in other 

cases involving the issue of substantial evidence, we are bound to 

‘consider the evidence in the light most favorable to the prevailing 

party, giving him the benefit of every reasonable inference, and 

resolving conflicts in support of the judgment.’ ” [Citation.] We are 

mindful that in light of the heightened burden of proof under Civil Code 

section 3294, subdivision (a) “we must review the record in support of 

these findings in light of that burden. In other words, we must inquire 

whether the record contains ‘substantial evidence to support a 

determination by clear and convincing evidence.’ ” [Citations.] 

“However, as with any challenge to the sufficiency of the evidence, it is 

the appellant’s burden to set forth not just the facts in its favor, but all 

material evidence on the point. ‘ “Unless this is done the error is 

deemed to be waived.” ’ ” [Citation.]’ [Citation.]” (Pilliod v. Monsanto 

Co., supra, 67 Cal.App.5th 591, 641–642.)

As he does with several other of his arguments, Crouch makes no 

attempt to satisfy these requirements. The briefest comparison of 

Crouch’s brief with that filed by Lane makes this obvious beyond any 

doubt. In fairness to the family court, and to keep the historical record 

clear, we set forth—with nonsubstantive modifications we have 

added—the precis of evidence in Lane’s brief:
38

“[Crouch] wanted the family to move to Australia, but [Lane] did 

not. In March 2007, without [Lane’s] consent, [Crouch] used 

community funds to purchase . . . Longbrush . . . in [his] hometown in 

Australia, taking title in his name only. The purchase price for 

Longbrush was $2 million Australian (approximately $1,580,000 U.S. 

dollars), funded with a $400,000 Australian down payment and a 

$1.6 million Australian mortgage from Commonwealth Bank. [Crouch] 

also spent community funds on the maintenance of Longbrush.” 

“On February 26, 2007, at [Crouch’s] instruction, DCCH client 

Herb Cunitz transferred $22,819.66 Australian ($18,055 U.S.) that he 

owed to DCCH to an escrow account in Australia. On March 1, 2007, 

also at [Crouch’s] instruction, Cunitz transferred $85,240 Australian 

($67,144 U.S.) that Cunitz owed to DCCH to [Crouch’s] IMB bank 

account in Australia. [Crouch] testified that he applied the Cunitz 

funds towards the down payment for Longbrush, the home in Australia 

that he purchased in March 2007.

“On February 15, 2011, four years after Longbrush was acquired, 

the Tang-Greenbaum family, a DCCH client, transferred $48,951.80 

Australian ($48,895 U.S.) that they owed to DCCH to [Crouch’s] 

mother’s bank account in Australia. [Crouch] did not tell [Lane] about 

this transfer. [¶] At trial, [Crouch] claimed that his mother had loaned 

the community a total of $270,614.66 Australian from February 26, 

2007 to April 28, 2011 towards the purchase and upkeep of Longbrush, 

including approximately $122,000 Australian towards the down 

payment. According to [Crouch], the Tang-Greenbaum transfer came 

about because his mother had supposedly pushed him to repay the 

money she had lent the community for the Longbrush mortgage, so he 
39

had the Tang-Greenbaum family send funds to his mother’s account in 

partial repayment of the loan.

“Just two days after the Tang-Greenbaum transfer, however, 

[Crouch’s] mother transferred $48,951.80 Australian to [Crouch’s] 

Commonwealth Bank account in Australia. According to [Crouch], his 

mother (who did not testify at trial) had purportedly reconsidered 

asking for repayment.

“Years later, in 2009 or 2010, [Crouch] and his mother created 

and signed what purported to be a February 26, 2007 balloon note to 

document a $122,819.66 Australian loan to [Crouch] from his mother. 

At the same time that [Crouch] created the February 2007 balloon note, 

he and his mother signed blank balloon notes to be filled in later by 

[Crouch]. During discovery, [Crouch] produced a document purporting 

to be a balloon note for a February 17, 2011 loan from his mother to 

[Crouch] in the amount of $48,951.80 Australian.” 

“[Thus], [Crouch’s] representation that he ‘directed certain 

payments from . . . Tang-Greenbaum towards the acquisition of 

Longbrush’ is plainly wrong. The Tang-Greenbaum transfer took place 

four years after Longbrush was purchased. . . . Years later, [Crouch] 

tried to create loan “documentation,” including purported loan 

agreements signed in blank by his mother. The court rejected 

[Crouch’s]claims regarding his mother’s Longbrush ‘loans,’ holding it 

was not a community debt and that the supposed loans ‘were not what 

they were purported to be.’ ”12

12

 Lane also adds this about Crouch’s “double dipping” claim: 

“[A]s to both Cunitz and Tang-Greenbaum, the ‘asset . . . transferred in 

breach of the fiduciary duty’ was not Longbrush at all (which was 

divided 50/50 as community property), but rather was entirely different 
40

As already shown, it was for the trier of fact—in this case the 

family court itself—to decide whether the evidence made out 

oppression, fraud, or malice.13 At a minimum, the evidence was more 

than sufficient for the family court to conclude that Crouch committed 

fraud and/or acted with malice. As for then concluding that a sanction 

property—client payments owed to DCCH, to which [Lane] was 

statutorily entitled to ‘an award . . . of 50 percent, or an amount equal 

to 50 percent, of . . . ,’ independent of her community property interest 

in Longbrush. (Fam. Code, § 1101, subd. (g).) No ‘double dip’ occurred 

here. . . . [¶] . . .[¶] Here, the [judgment] comported with the 

mandatory language of subdivision (g) and penalized [Crouch] for 

having ‘unilaterally diverted’ funds owed by DCCH clients (and having 

done so in a manner difficult to detect).” 

13

 If a jury had been empaneled, it would have been instructed 

with CACI No. 3948 as follows:

“You may award punitive damages against [name of individual 

defendant] only if [name of plaintiff] proves by clear and convincing 

evidence that [name of individual defendant] engaged in that conduct 

with malice, oppression, or fraud.

“ ‘Malice’ ” means that a defendant acted with intent to cause 

injury or that a defendant’s conduct was despicable and was done with 

a willful and knowing disregard of the rights or safety of another. A 

defendant acts with knowing disregard when the defendant is aware of 

the probable dangerous consequences of the defendant’s conduct and 

deliberately fails to avoid those consequences.

“ ‘Oppression’ means that a defendant’s conduct was despicable 

and subjected [name of plaintiff] to cruel and unjust hardship in 

knowing disregard of [his/her/nonbinary pronoun] rights.

“ ‘Despicable conduct’ is conduct that is so vile, base, or 

contemptible that it would be looked down on and despised by 

reasonable people.

“ ‘Fraud’ means that a defendant intentionally misrepresented or 

concealed a material fact and did so intending to harm [name of 

plaintiff].”
41

was appropriate under section 1101 (and/or section 2602), we conclude 

there was no abuse of the discretion vested in the family to compensate 

Lane for Crouch’s breach of his fiduciary duties. (Schleich, supra, 

8 Cal.App.5th 267, 276.) For each, and all, of the reasons set forth

above, we conclude that Crouch’s attacks on the rulings made by the 

family court have no merit. And we turn to Lane’s appeal, to conclude

that it also has no merit.

Lane’s Appeal Has No Merit

We have discussed above Crouch’s violations of section 1101, and 

their effect on him. Lane believes the family court was required to go 

farther. The sole contention in her brief is captioned “The Trial Court’s 

Findings Mandate Family Code Section 1101, subdivision (h), 

Remedies.” She reasons that by reason of Crouch’s fiduciary breaches 

both expressly and implicitly found by the family court, “these findings 

bring [Crouch’s] breaches squarely ‘within the ambit of Section 3294 of 

the Civil Code’ and require Family Code section 1101, subdivision (h), 

remedies,” and “the 100 percent remedy is mandatory when conduct 

meets subdivision (h) standards.” And, she adds, unlike “an ordinary 

civil case” where a party is never entitled to punitive damages, 

“subdivision (h) borrows Civil Code section 3294’s definitions of 

whether an award is permissible and makes the minimum 100 percent 

remedy mandatory and nondiscretionary if that threshold is met.” 

“[Lane] is entitled to the subdivision (h) remedy as a matter of 

right if [Crouch’s] actions found by the court meet Civil Code section 

3294’s ‘oppression, fraud, or malice’ definitions. . . . [¶] Here, the 

court’s own findings establish that [Crouch] committed both malice and 

fraud, within the meaning of Civil Code section 3294, and the court’s 
42

finding that [Crouch’s] DCCH breach ‘does not rise to the level’ of 

Family Code section 1101, subdivision (h) must be reversed.” And, at 

the conclusion of her brief, “Lane hereby requests that [this] court 

modify the judgment to provide that [she] is entitled to ‘an amount 

equal to 100 percent’ of the value of the DCCH business as of the date 

of trial, $2,089,749, rather than her community property 50 percent 

share of that amount currently provided in the judgment.” The request 

is denied.

According to the leading practice guide: “The § 1101(h) threshold 

evidentiary burden is difficult to meet.” (Hogoboom & King, Cal. 

Practice Guide: Family Law (The Rutter Group 2021) ¶ 8:625.5.) That 

burden requires a party to present clear and convincing evidence that 

the other party has committed malice or oppression or fraud, as those 

terms are defined in Civil Code section 3294, in the course of breaching 

a fiduciary duty.14 But implicit in this formulation is a critical 

addition—the trier of fact has to agree that the case for what is 

14

 “As used in this section, the following definitions shall apply:

 “(1) ‘Malice’ means conduct which is intended by the defendant 

to cause injury to the plaintiff or despicable conduct which is carried on 

by the defendant with a willful and conscious disregard of the rights or 

safety of others.

 “(2) ‘Oppression’ means despicable conduct that subjects a 

person to cruel and unjust hardship in conscious disregard of that 

person’s rights.

 “(3) ‘Fraud’ means an intentional misrepresentation, deceit, or 

concealment of a material fact known to the defendant with the 

intention on the part of the defendant of thereby depriving a person of 

property or legal rights or otherwise causing injury.” (Civ. Code, 

§ 3294, subd. (c).)
43

equivalent to punitive damages was made. This is the rock on which 

Lane’s argument founders.

In the days before federal due process imposed restrictions on the 

amount of punitive damages that can be assessed, the classic statement 

on punitive damages came from our Supreme Court in 1911:

“A plaintiff, upon establishing his case, is always entitled of right 

to compensatory damages. But even after establishing a case where 

punitive damages are permissible, he is never entitled to them. The 

granting or withholding of the award of punitive damages is wholly 

within the control of the jury, and may not legally be influenced by any 

direction of the court that in any case a plaintiff is entitled to them. 

Upon the clearest proof of malice in fact, it is still the exclusive 

province of the jury to say whether or not punitive damages shall be 

awarded. A plaintiff is entitled to such damages only after the jury, in 

the exercise of its untrammeled discretion, has made the award.” 

(Davis v. Hearst (1911) 160 Cal. 143, 173.)

This language was repeated in 1948 and is still good. (Brewer v. 

Second Baptist Church (1948) 32 Cal.2d 791, 801; 6 Witkin, Summary 

of Cal. Law (11th ed. 2021) Torts, § 1784, pp. 1208-1209; 23 Cal.Jur.3d 

(2021) Damages, § 159, p. 299, Crosskey et al, Cal. Practice Guide: 

Insurance Litigation (The Rutter Group 2021) ¶ 13:196, p. 13-59.)

Punitive damages are fact-specific “since the degree of 

punishment depends on the peculiar circumstances of each case.” 

(Hannon Engineers, Inc. v. Reim (1981) 126 Cal.App.3d 415, 431; 

accord, Johnson & Johnson v. Superior Court (2011) 192 Cal.App.4th

757, 762; Spinks v. Equity Residential Briarwood Apartments (2009) 

171 Cal.App.4th 1004, 1053.)
44

Lane points to authority such as In re Marriage of Rossi, surpa, 

90 Cal.App.4th 34,

15 where the word “mandatory” is used in connection 

with a subdivision (h) penalty. And here the family court expressly 

found that “[Crouch’s] breach of fiduciary duty in regard to DCCH does 

not rise to the level of Family Code 1101(h) which would have 

mandated an award to [Lane] of 100 percent of the value of DCCH.” 

Lane would have this court set aside this determination, contending 

that a breach of spousal fiduciary duty ipso facto entitles the injured 

spouse to the extreme remedy of subdivision (h). That cannot be.

Lane’s argument obliterates the distinction between 

subdivision (g) and subdivision (h). Both are predicated on a breach of 

fiduciary duty, as determined by the family court. Lane’s proposed 

construction would make subdivision (g)—which allows for 50 percent

as opposed to subdivision (h)’s 100 percent—superfluous, a result 

courts strive to avoid. (E.g., Arntz v. Superior Court (2010) 

187 Cal.App.4th 1082, 1097; Donnellan v. City of Novato (2001) 

86 Cal.App.4th 1097, 1103.) Lane would have any breach subject to the 

maximum penalty, leaving no scope for the more moderate corrective 

action enacted by the Legislature with subdivision (g). “[T]he canon 

against surplusage is strongest when an interpretation would render 

15

 Rossi presented a paradigmatic instance of fraud: wife wins 

the lottery, files for divorce, and never tells husband about the winning 

ticket. Upon learning, the ex-husband persuaded the family court to 

set aside the judgment for the former wife’s fraud and breach of 

fiduciary duty, and award him the entirety of the lottery proceeds 

under subdivision (h). The Court of Appeal stated: “This case presents 

precisely the circumstances . . . that . . . subdivision (h) is intended to 

address.” (In re Marriage of Rossi, supra, 90 Cal.App.4th 34, 42.)
45

superfluous another part of the same statutory scheme.” (Marx v. 

General Revenue Corp. (2013) 568 U.S. 371, 386.)

An even more fundamental objection is that Lane’s construction 

of subdivision (h) is illogical. The family court, as the trier of fact, 

would have the power to find, as an issue of fact, that the actions or 

omissions of a party amount to a breach of fiduciary duty. But 

subdivision (h) has a requirement not found in subdivision (g)—that 

“the breach falls within the ambit of section 3294 of the Civil Code.” 

Such a determination can only be made by the family court as the trier 

of fact. Lane’s proposed construction would allow the court to make the 

initial finding of breach, but would deny it the power to decide whether 

“the breach falls within the ambit of section 3294 of the Civil Code.” 

Such a schizoid view of the judicial function makes no sense, and we 

cannot accept that the Legislature codified it in section 1101.

It is a bedrock principle of civil law that the trier of fact can 

award compensatory damages, but decline to award exemplary or 

punitive damages. This principle was included in the Supreme Court 

excerpt quoted above. The essence of Lane’s argument is to have this 

court overturn our Supreme Court’s flat statements that (1) “even after 

establishing a case where punitive damages are permissible, [a party] 

is never entitled to them,” as well as (2) “A plaintiff is entitled to such 

damages only after the jury, in the exercise of its untrammeled 

discretion, has made the award.” (Davis v. Hearst, supra, 160 Cal. 143, 

173.) Substitute “the family court” for “the jury,” and we have the 

precise situation before. Lane would have this court decide that a trier 

of fact no longer has “the untrammeled discretion” or “the exclusive 
46

province . . . to say whether or not punitive damages shall be awarded.” 

(Ibid.)

That would be without precedent. The only California decision 

near to being on point is emphatically contrary to Lane. That case is 

Sumpter v. Matteson (2008) 158 Cal.App.4th 928, 930, 936, which, 

citing Brewer, rejected plaintiff’s claim that the Court of Appeal should 

assess punitive damages as a matter of law despite jury’s refusal to 

award them.

Our research has not discovered, in the entire nation, a single 

reported decision where a reviewing court overruled a trier of fact and 

awarded punitive damages. (See 22 Am.Jur.3d (2013) Damages, § 566, 

p. 528.) The point is accurately, if perhaps a bit too brutally, made by a 

Maryland court: “No matter how compelling a punitive damages award 

might seem to be under the facts of a given case, should the fact-finder 

for any reason opt against making such an award, the plaintiff has no 

redress.” (Darcars Motors of Silver Spring, Inc. v. Borzym (Md. Ct. 

Spec. App. 2001) 818 A.2d 1159, 1186, emphasis added.)

The point is not hard to understand in operation. For example, a 

family court judge could decide that the fiduciary breach was minor or 

unintentional or quickly corrected. The leading treatise concedes that 

“innocent” breaches can be easily committed. (Hogoboom & King, Cal. 

Practice Guide: Family Law, supra, ¶ 8:618, p. 8-236.) Or the court 

could decide that the breach would be sufficiently redressed with an 

award of sanctions under sections 721 and 2107. (See In re Marriage of 

Prentis-Margulis & Margulis, supra, 198 Cal.App.4th 1252, 1270 citing 

In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1477.) 
47

Finally, the court could conclude that proof of the breach was not clear 

and convincing.

Lane’s argument would also have this court turn its back on the 

established principle that a reviewing court will not reweigh the trial 

evidence to overturn the decision of the trier of fact on punitive 

damages.16 (E.g., Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 398; 

Johnson v. Monsanto Co. (2020) 52 Cal.App.5th 434, 460 [“it is not our 

role to reweigh the evidence in support of punitive damages”]; 

Colombo v. BRP US Inc. (2014) 230 Cal.App.4th 1442, 1462.)

Acceding to Lane’s construction would also punch a hole in the 

line of decisions that while a breach of fiduciary duty can support an 

award of punitive damages (Maglica v. Maglica (1998) 66 Cal.App.4th

442, 448; Heller v. Pillsbury, Madison & Sutro (1996) 50 Cal.App.4th

1367, 1390; Devers v. Greenwood (1956) 139 Cal.App.2d 345, 351), 

breach by itself will not support an award of punitive damages unless 

malice, fraud or oppression is also found by the trier of fact. (Scott v. 

Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715; Lackner v. 

North (2006) 135 Cal.App.4th 1188, 1210, Tomaselli v. Transamerica 

16

 Lane argues that the decision to award the subdivision (h) 

sanction is a conclusion of law that we should review de novo. We 

disagree. It is clear that a civil jury confronting the issue of awarding 

punitive damages has a two-part inquiry. First, it decides the 

historical facts of what the defendant did or failed to do. Second, it 

then considers whether the defendant’s acts or omissions meet the 

definitions of malice, fraud, or oppression. (See fns. 8, ante, & 15, post.) 

The first is unquestionably an issue of fact. Under the authorities cited 

in the text, the second is treated as equivalent to an issue of fact. If the 

two parts are not so treated, it would be nonsensical to speak of the 

“untrammeled discretion” of the jury or trier of fact as to whether the 

plaintiff will be awarded punitive damages. 
48

Ins. Co. (1994) 25 Cal.App.4th 1269, 1287, Flyer’s Body Shop Profit 

Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1154; 

Delos v. Farmers Group, Inc. (1979) 93 Cal.App.3d 642, 656−657.)

For each and all of these reasons, we cannot agree with Lane that 

this court should decide that the family court erred as a matter of law 

in concluding when it decided that Crouch’s breaches of his spousal 

fiduciary duties did not, in the language of subdivision (h), “fall[] within 

the ambit of section 3294 of the Civil Code.”

DISPOSITION

The judgment is affirmed. The parties shall bear their respective 

costs of appeal.
49

_________________________

Richman, Acting P.J.

We concur:

_________________________

Stewart, J.

_________________________

Miller, J.

Lane v. Crouch (A154434)