Filed 11/19/21 Powell v. Idleman CA2/7

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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

LUPE POWELL,

Plaintiff, Cross-defendant

and Appellant,

v.

LUCIE IDLEMAN,

Defendant and Crossdefendant;

JONATHAN CHRISTODORO, 

Defendant, Crosscomplainant and Respondent. 

B302926

(Los Angeles County

Super. Ct. No. BC626424)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Richard J. Burdge, Jr. Reversed in part and 

remanded with directions.
2

Law Offices of Daniel P. Powell and Daniel P. Powell; 

Esner, Chang & Boyer, Stuart B. Esner, Andrew N. Chang, and 

Kevin K. Nguyen for Plaintiff, Cross-defendant and Appellant.

The Samini Firm, Bobby Samini and Nicole C. Prado for 

Defendant, Cross-complainant and Respondent. 

___________________________

INTRODUCTION

Lupe Powell’s daughter, Lucie Idleman, bought a house 

with her friend and business partner, Jonathan Christodoro. The 

partners planned to remodel and resell the house within a few 

months. Not long into the project, Idleman, without informing 

Christodoro, asked Powell to provide additional funding. 

Idleman subsequently abandoned the project, Powell came 

forward and contributed her time and almost $300,000 to 

complete the renovation, and the house eventually sold 

18 months after Idleman and Christodoro bought it. 

Powell sued her daughter (who later filed for bankruptcy) 

and Christodoro to recover her expenditures. Christodoro filed a 

cross-complaint against Powell for aiding and abetting Idleman’s 

breach of fiduciary duty, fraudulent concealment, and 

constructive fraud. Christodoro alleged Idleman did not obtain 

permits for the project, used unlicensed construction workers, 

and got her mother involved in the renovation, all without 

Christodoro’s knowledge or consent. Christodoro alleged that, as 

a result, he lost money on the project.

A jury awarded Powell nothing on her complaint, and 

awarded Christodoro $107,374.21 on his cross-complaint. Powell 

appeals, arguing that the trial court erred in instructing the jury 
3

on a licensing law for contractors that she claims Christodoro 

raised for the first time at the close of evidence, that substantial 

evidence did not support the jury’s verdict Powell aided and 

abetted Idleman’s allegedly tortious conduct, and that 

Christodoro’s expert on damages disavowed the very evidence on 

which the jury based its award of $107,374.21 in damages. We 

conclude that Powell forfeited her argument the trial court erred

in instructing the jury on the licensing law and that the trial 

court did not err in allowing Christodoro, at the end of the trial,

to argue the licensing law barred Powell from recovering on her 

complaint. But we agree with Powell that substantial evidence 

did not support the jury’s verdict against her for aiding and 

abetting. Therefore, we affirm the portion of the judgment 

against Powell on her complaint and reverse the portion of the

judgment against her on Christodoro’s cross-complaint.

FACTUAL AND PROCEDURAL BACKGROUND

A. Idleman and Christodoro Agree To Buy and “Flip” 

Property in Rancho Palos Verdes

Idleman and Christodoro met in 2002 and became friends. 

Idleman was a licensed real estate agent in California, and 

Christodoro was a businessman in New York. In 2014 Idleman 

and Christodoro began buying houses in Southern California,

intending to improve the properties and sell them for a profit 

(also known as “flipping”).

1 Christodoro generally provided funds 

1 “To ‘flip’ is ‘[t]o buy and then immediately resell . . . real 

estate in an attempt to turn a profit.’” (U.S. v. Sloan (7th Cir. 

2007) 505 F.3d 685, 690, fn. 9.)
4

to buy and renovate the houses, Idleman oversaw the renovations 

and listed the properties for sale, and the two partners divided

the profits. 

In late 2014 Idleman and Christodoro agreed to buy a 

house in Rancho Palos Verdes the parties call the Newridge 

Property for $1.065 million. Christodoro made the down payment 

of $397,950 and obtained two short-term “hard money” loans for 

the remainder of the purchase price.2 After the sale closed, 

Idleman sent Christodoro a one-paragraph email titled 

“investment memo,” stating that the renovation would begin the 

first week of December 2014 and take approximately two months, 

that the project would have a budget of $150,000, that the house 

would sell for $1.6 million to $1.75 million, and that the parties 

would split the net proceeds equally. Christodoro provided 

$75,000 of the $150,000 renovation budget and, according to him, 

Idleman agreed to provide $80,000. Christodoro said Idleman’s 

“role” in the project was “to do all of the work with all of the 

required licenses, permits, plans, general contractor required 

under law.” Christodoro admitted, however, there was no written 

contract stating the terms of the partnership.

B. Idleman Brings Powell into the Project

Powell, a licensed real estate agent, had experience buying 

and improving investment properties. Powell said that in 

December 2014 Idleman asked her to “invest” in the Newridge 

Property because Idleman’s “partner [was] not sending money for 

2 “[A] so-called hard money loan, as the name implies, is 

characterized by its short term and high rate of interest.” 

(514 Broadway Inv. Trust v. Rapoza (D.R.I. 2011) 816 F.Supp.2d 

128, 131, fn. 1.)
5

the remodel.” Powell decided to help her daughter because she 

wanted to “heal” their estranged relationship, to help Idleman

succeed, and to see her grandchildren more often. Powell said 

that, in exchange for investing in the project, Idleman promised 

Powell she would get the real estate listing on the house and 

receive a portion of the profits from the sale. Powell said her 

investment was supposed to be “short-lived,” until Christodoro 

sent Idleman more money. There was no written agreement 

between Powell and Idleman, no budget, and no agreed share of 

the profits on the sale. But Powell said Idleman agreed to repay 

Powell’s investment at the close of escrow. 

In February or March 2015 Powell had a dispute with the

general contractor Idleman hired for the project, and the 

contractor quit. Powell began going to the job site more often and 

helped hire a new construction crew, but Powell said Idleman 

was still “running the job.” But then Idleman too “abandoned”

the project, and at times did not return Powell’s phone calls for 

days or weeks. 

After Idleman quit, Powell went to the job site daily, hired 

and paid construction workers, supervised their work, and 

procured materials. Powell said she did these things because she 

had already invested a lot of money in the project and wanted to 

get her money back. Powell did not ask whether any of the 

workers at the site (including those she hired) were licensed 

because she was not “running the show.” 

The record does not indicate why the project took longer 

than Idleman’s original estimate of two months, but Powell’s 

active role at the jobsite did not end until May 2015. Powell 

listed the property for sale in August 2015. By that time, Powell 

claimed, she had invested over $300,000. 
6

Christodoro did not know about or authorize Powell’s 

investment or involvement in the Newridge Property. For her 

part, Powell knew Christodoro was an owner of the property, but 

she never attempted to contact him. Powell explained she had no 

reason to contact Christodoro because she communicated with 

Idleman, who was Christodoro’s partner and one of the owners of 

the property. 

C. The Newridge Property Eventually Sells, but Powell 

Does Not Receive Any of the Proceeds 

The Newridge Property went into escrow in January 2016. 

An inspection revealed that Idleman had not obtained permits for 

the project and that there was a problem with a structural beam. 

Christodoro testified he spent approximately $50,000 to fix the 

structural beam and to obtain the necessary permits,

3 which 

brought his total investment to “over $700,000.” 

In March 2016 Powell sent the escrow agent a document 

titled “Demand for Payment” that purported to instruct the 

escrow company to pay her $180,000 from the seller’s proceeds 

“[f]or work and materials paid in connection with the sale of [the 

Newridge Property].” Idleman signed the document; Christodoro 

did not. According to Christodoro, he first learned of Powell’s 

involvement in the Newridge Property from the Demand for 

Payment, and he instructed the escrow agent not to honor it. The 

escrow agent said she did not pay the demand because she 

received conflicting instructions from the property’s owners and

the amount requested was not secured against the property. 

3 The parties disputed at trial whether Christodoro or 

Idleman obtained the “after-the-fact” permits. 
7

Escrow eventually closed in May 2016 at a sale price of 

$1,599,000. After paying off Christodoro’s loans, related fees 

(including late fees), and real estate commissions,4 the escrow 

company distributed $507,399.45 to Christodoro and $95,000 to 

Idleman. Neither Christodoro nor Idleman reimbursed Powell for 

any of the money she had invested in the property, and 

Christodoro claimed he lost over $200,000 on the project. 

D. Powell Sues Christodoro and Idleman, Christodoro 

Sues Powell and Idleman, and Christodoro Prevails 

Powell filed this action on July 8, 2016, alleging causes of 

action against Christodoro and Idleman for breach of contract, 

money lent or paid, and unjust enrichment. Christodoro filed a 

cross-complaint, alleging causes of action against Idleman for 

breach of fiduciary duty, fraud by concealment, and constructive 

fraud and causes of action against Powell for aiding and abetting 

each of those torts. Christodoro alleged Idleman breached her 

fiduciary duties to him by, among other things, failing to obtain 

“all proper permits and/or licenses to perform” the work on the 

Newridge Property, failing to perform the work competently, and 

“enter[ing] into an alleged agreement and/or partnership with 

her mother Powell in that Powell was to furnish the same and/or 

similar services (i.e. expertise as a licensed California real estate 

agent) with respect to the renovation and/or remodeling and 

eventual sale of the Newridge Property,” which Idleman “kept 

4 Christodoro testified he learned Powell was a listing agent 

for the Newridge Property when he learned about the problem 

with the structural beam. The record suggests, however, neither 

Idleman nor Powell was listed as the seller’s broker or agent in 

connection with the property’s ultimate sale. 
8

secret” from Christodoro. Christodoro alleged that Idleman 

fraudulently concealed Powell’s involvement and investment and 

that such conduct also constituted constructive fraud. 

Christodoro also alleged Idleman represented herself as a

“general building contractor” but did not have a California 

contractor’s license until May 27, 2016 when she “associated” 

herself with the license held by her corporation, D’Oro 

Development, Inc. 

In his cause of action against Powell for aiding and abetting 

breach of fiduciary duty, Christodoro alleged Powell knew 

Idleman owed Christodoro certain fiduciary duties and knowingly 

participated in Idleman’s breaches of those duties by, among 

other things, keeping secret Powell’s involvement and investment 

in the project and failing to obtain “all proper permits and/or 

licenses to perform” the work on the property. In his causes of 

action against Powell for aiding and abetting fraudulent

concealment and constructive fraud, Christodoro alleged Powell 

“knowingly participated in the foregoing tortious misconduct in 

conscious disregard of Christodoro’s rights and aided and abetted 

Idleman in her fraudulent conduct and accompanying breaches of 

fiduciary duties for her own personal gain.” 

A jury found against Powell on all of her causes of action 

against Christodoro, and found for Christodoro on his causes of 

action against Powell for aiding and abetting breach of fiduciary 

duty and constructive fraud. The jury awarded Christodoro 

$107,374.21 in damages against Powell,

5 and the trial court 

5 Counsel for Christodoro informed the jury Idleman was not 

present at the trial because “she filed [for] bankruptcy, and her 

claims were adjudicated in that court.” The docket in the record 
9

entered judgment. The trial court denied Powell’s motions for 

judgment notwithstanding the verdict and for a new trial, and 

Powell timely appealed from the judgment. 

DISCUSSION

A. Powell Forfeited the Argument the Trial Court Erred

in Instructing on the Contractors State License Law,

and the Trial Court Did Not Err in Allowing 

Christodoro To Argue the Law Precluded Powell from 

Recovery

Powell argues the trial court erred in instructing the jury 

on the Contractors State License Law (Contractors Law) (Bus. & 

Prof. Code, § 7000 et seq.)6 and in allowing Christodoro to present 

a new defense to Powell’s complaint on the penultimate day of 

the trial. The first argument is forfeited; the second is meritless. 

1. The Contractors State License Law

The Contractors Law “governs construction business in 

California in a manner intended to ‘“‘protect the public from 

incompetent or dishonest providers of building and construction 

services.’”’” (Manela v. Stone (2021) 66 Cal.App.5th 90, 102; see 

Pacific Caisson & Shoring, Inc. v. Bernards Bros. Inc. (2011) 

198 Cal.App.4th 681, 687.) The Contractors Law “sets forth the 

indicates the trial court entered a stay on September 19, 2018 

pending bankruptcy proceedings. Idleman is not a party to this 

appeal.

6 Undesignated statutory references are to the Business and 

Professions Code. 
10

general rule that ‘no person engaged in the business or acting in 

the capacity of a contractor, may bring or maintain any action . . . 

for the collection of compensation for the performance of any act 

or contract where a license is required . . . without alleging that 

they were a duly licensed contractor at all times during the 

performance of that act or contract.’” (Manela, at p. 102; see 

§ 7031, subd. (a).)7 Thus, “a contractor ‘is ineligible to recover

any compensation under the terms of [section 7031], if, at any

time during performance of an agreement for contractor services, 

he or she was not duly licensed.’” (Manela, at p. 102; see 

MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works 

Co., Inc. (2005) 36 Cal.4th 412, 425; see also White v. Cridlebaugh

(2009) 178 Cal.App.4th 506, 518 [“The [Contractors Law] shields 

persons who utilize the services of an unlicensed contractor from 

lawsuits by that contractor to collect payment for unlicensed 

work.”].) 

“The California Supreme Court has given a broad, literal 

interpretation to the shield provision in section 7031.” (White v. 

Cridlebaugh, supra, 178 Cal.App.4th at p. 518.) “The statutory 

language demonstrates the Legislature’s ‘intent to impose a stiff 

all-or-nothing penalty for unlicensed work’” that “applies 

‘[r]egardless of the equities.’” (Id. at pp. 518-519; see 

7 Section 7031, subdivision (a), provides in relevant part that 

“no person engaged in the business or acting in the capacity of a 

contractor, may bring or maintain any action, or recover in law or 

equity in any action, in any court of this state for the collection of 

compensation for the performance of any act or contract where a 

license is required by this chapter without alleging that they 

were a duly licensed contractor at all times during the 

performance of that act or contract regardless of the merits of the 

cause of action brought by the person . . . .”
11

MW Erectors, Inc. v. Niederhauser Ornamental & Metal Works 

Co., Inc., supra, 36 Cal.4th at p. 426; Hydrotech Systems, Ltd. v. 

Oasis Waterpark (1991) 52 Cal.3d 988, 997; Manela v. Stone, 

supra, 66 Cal.App.5th at p. 102.) Moreover, “a contractor seeking 

damages must allege and prove it held a valid license before it 

can prosecute any claim for damages.” (Jeff Tracy, Inc. v. City of 

Pico Rivera (2015) 240 Cal.App.4th 510, 517.) Because section 

7031, subdivision (d), “places the burden of proof on the 

contractor” to prove he or she is properly licensed, a defendant’s 

general denial puts licensing at issue, even if not asserted as an 

affirmative defense. (Id. at pp. 517-518; see Advantec Group, Inc. 

v. Edwin’s Plumbing Co., Inc. (2007) 153 Cal.App.4th 621, 624, 

626-628 [“faced with an answer that makes a general denial, the 

contractor is required by section 7031, subdivision (d), to prove 

the allegation of licensure, and can do so only by producing a 

verified certificate”].)

The Contractors Law defines “contractor” as “any person 

who undertakes to or offers to undertake to, or purports to have 

the capacity to undertake to, or submits a bid to, or does himself 

or herself or by or through others, construct, alter, repair, add to, 

subtract from, improve, move, wreck or demolish any 

building . . . .” (§ 7026; see Ahdout v. Hekmatjah (2013) 

213 Cal.App.4th 21, 31; WSS Industrial Construction, Inc. v. 

Great West Contractors, Inc. (2008) 162 Cal.App.4th 581, 

587-588.) “‘[B]oth the person who provides construction services 

himself and one who does so “through others” qualifies as a 

“contractor.”’” (Ahdout, at p. 31; see WSS, at p. 593.) Section 

7031 “‘applies not only to formal agreements, but governs “any

act or contract for which a license is required.” . . . [Citation.] 

The statute applies whether or not a party is operating under an 
12

executed contract when performing tasks that require licensure.’” 

(Ahdout, at p. 32; see WSS, at p. 592.) The Contractors Law 

exempts from the requirement to use licensed contractors “ownerbuilders” under certain circumstances. (§ 7044; see Ranchwood 

Communities Limited Partnership v. Jim Beat Construction Co.

(1996) 49 Cal.App.4th 1397, 1415-1416 [the “owner-builders” 

exemption exempts “owners doing their own work or hiring 

licensed subcontractors, etc.”].) The statute also creates a 

rebuttable presumption that, where an owner-builder offers a 

building for sale within one year of completion of construction, 

the construction was for purposes of sale. (§ 7044, subd. (b)(1).)

2. Relevant Proceedings

Christodoro did not list the Contractors Law as an 

affirmative defense in his answer to Powell’s complaint. On 

August 30, 2018, a year before the trial, the parties submitted an 

initial list of proposed jury instructions, and that list did not 

include any instructions relating to the Contractors Law. But the 

parties identified and litigated the issue later in the case. Two 

weeks before the trial began, the parties submitted a list of 

disputed instructions that included CACI Nos. 4560 (Recovery of 

Payments to Unlicensed Contractor) and 4561 (Damages—All 

Payments Made to Unlicensed Contractor). Throughout the trial, 

counsel for Christodoro asked Powell, the individuals Powell 

hired or paid to work on the Newridge Property, and Powell’s 

husband, Daniel Powell (who was also counsel for Powell), 

whether Powell or any of the workers she hired were licensed 

contractors. All of the witnesses said either that the workers

were not licensed or that the witnesses did not know. In response 

to the question whether “there was a licensed general contractor 
13

in charge of the Newridge project at any time,” Daniel Powell,

said, “I just knew [Idleman] was an owner-builder.” 

On September 9, 2019, the day before the trial ended, 

Christodoro asked the trial court to instruct the jury “on the legal 

standards under the [Contractors Law]” in connection with 

Christodoro’s unclean hands defense. Christodoro argued Powell 

had unclean hands “because she did not have a valid contractor’s 

license during all times when she was performing services in 

relation to the renovation of the [Newridge Property].” 

Christodoro further argued Powell’s testimony demonstrated she 

“was acting as a ‘contractor’” within the meaning of the 

Contractors Law, which therefore barred her claims against him

because she did not have a contractor’s license. Consistent with 

the list of disputed jury instructions the parties submitted on 

August 30, 2018, Christodoro asked the trial court to instruct the 

jury with CACI Nos. 4560 and 4561 and with three special jury 

instructions based on the Contractors Law, including the ownerbuilder exception.8 

The trial court considered Christodoro’s request after both 

sides rested on September 9, 2019. Counsel for Powell argued 

Christodoro’s request was “a classic trial by ambush” because the 

Contractors Law “was never a part of [the] case.” Counsel for 

Powell asserted that neither Christodoro’s responses to her 

interrogatories about Christodoro’s affirmative defenses and his

cross-complaint nor the previous lists of proposed jury 

instructions mentioned the Contractors Law. Counsel for Powell 

also argued that Christodoro did not call an expert witness to 

8 The proposed special jury instructions related to the scope 

of projects subject to the Contractors Law, the definition of 

“contractor,” and the owner-builder exception. 
14

testify about the “ambiguities” of the owner-builder exception or 

the Contractors Law more generally and that the Contractors 

Law did not apply because Powell acted as a “bank,” not a 

“contractor.” Counsel for Powell argued Powell would suffer 

prejudice if the court gave the requested instructions because 

Powell did not have an opportunity to consult with experts or to 

present testimony from the “appropriate people to address [the] 

issue.” 

Counsel for Christodoro responded that “licensing and 

contracting requirements are in the cross-complaint” and that 

substantial evidence supported giving the instructions on the 

Contractors Law, in part because Daniel Powell testified the 

owner-builder exception applied. The trial court, observing that 

Powell’s interrogatories did not “specifically ask about the 

paragraph in which the cross-complaint talks about licenses,”

ruled it would give CACI No. 4560 and the three special 

instructions, but not CACI No. 4561. 

3. Powell Forfeited Her Argument the Trial Court 

Erred in Instructing the Jury on the 

Contractors Law

In a civil case, “‘[a] party is entitled upon request to correct, 

nonargumentative instructions on every theory of the case 

advanced by him [or her] which is supported by substantial 

evidence.’” (Haytasingh v. City of San Diego (2021) 

66 Cal.App.5th 429, 457; see Choochagi v. Barracuda Networks, 

Inc. (2020) 60 Cal.App.5th 444, 467.) Each party must propose 

complete and comprehensive instructions in accordance with that 

party’s theory of the case; in the absence of a request, the court 

has no duty to instruct the jury on its own motion. (Metcalf v. 
15

County of San Joaquin (2008) 42 Cal.4th 1121, 1130-1131;

Agarwal v. Johnson (1979) 25 Cal.3d 932, 950-951, disapproved

on another ground in White v. Ultramar (1999) 21 Cal.4th 563, 

574, fn. 4; Hurley v. Department of Parks & Recreation (2018) 

20 Cal.App.5th 634, 655.) “‘Neither a trial court nor a reviewing 

court in a civil action is obligated to seek out theories plaintiff 

might have advanced, or to articulate for him that which he has 

left unspoken.’” (Metcalf, at p. 1131; see Transport Ins. Co. v. 

TIG Ins. Co. (2012) 202 Cal.App.4th 984, 1008.)

When the trial court gives a jury instruction that “is correct 

as far as it goes but which [the appellant argues] is too general or 

is incomplete for the state of the evidence, a failure to request an 

additional or a qualifying instruction [forfeits] a party’s right to 

later complain on appeal about the instruction which was given.” 

(Suman v. BMW of North America, Inc. (1994) 23 Cal.App.4th 1, 

9; accord, Scofield v. Critical Air Medicine, Inc. (1996) 

45 Cal.App.4th 990, 1011; see Hurley v. Department of Parks & 

Recreation, supra, 20 Cal.App.5th at p. 655 [“a party may not 

argue on appeal that the court failed to give a specific instruction 

when that party did not request such instruction”]; 7 Witkin, Cal. 

Procedure (2020 supp.) Trial, § 260 [“In order to complain of 

failure to instruct on a particular issue, the aggrieved party must 

request the specific proper instruction.”].)

Powell does not argue that substantial evidence did not 

support instructing the jury on the Contractors Law or that the

instructions the trial court gave misstated the law. Instead, she 

argues that the Contractors Law does not “prevent a partner or 

her agent from obtaining reimbursement from the partnership”

and that this “exception” to the Contractors Law applied because 

Powell acted as an authorized partner or agent of Idleman or 
16

because Christodoro was otherwise liable for Idleman’s 

obligations. In essence, Powell argues the trial court should have 

instructed the jury that, under the circumstances of this case, the 

Contractors Law did not apply because there is an exception for 

partners or agents of partners.

9 Powell, however, did not make 

this argument during trial or propose an instruction on this 

theory. Therefore, she forfeited her argument. (See Metcalf v. 

County of San Joaquin, supra, 42 Cal.4th at p. 1131 [where “‘“the 

court gives an instruction correct in law, but the party complains 

that it is too general, lacks clarity, or is incomplete, he must 

request the additional or qualifying instruction in order to have 

the error reviewed,”’” and a party’s “failure to request any 

different instructions means he may not argue on appeal the trial 

9 Although Powell argues “the law does not allow the 

[Contractors Law] to be used as a shield for the avoidance of a 

partnership obligation,” the Supreme Court in Lewis & Queen v. 

N. M. Ball Sons (1957) 48 Cal.2d 141 identified but did not reach 

that issue. (See id. at pp. 151-152 [declining to decide “whether 

an action for an accounting against a partner or joint venturer is 

‘an action for the collection of compensation’ within section 

7031]”.) Several courts of appeal have held the Contractors Law 

does not prevent an unlicensed contractor from seeking payment 

from a partner or joint venture in certain circumstances. (See 

Wold v. Luigi Consentino & Sons (1952) 109 Cal.App.2d 854, 858 

[lack of a contractor’s license “‘does not preclude a party [in a 

partnership or joint venture] from instituting proceedings for 

dissolution of the venture and an accounting’”]; Galich v. Brkich

(1951) 103 Cal.App.2d 187, 190-191 [same]; Norwood v. Judd

(1949) 93 Cal.App.2d 276, 286 [Contractors Law was “not passed 

for the benefit of a greedy partner who seeks to keep for himself 

all of the fruits of the partnership enterprise to the exclusion of 

another partner entitled to share therein”].)
17

court should have instructed differently”]; Agarwal v. Johnson, 

supra, 25 Cal.3d at pp. 948-949, 950-952 [defendants forfeited the 

argument the court should have given an instruction 

distinguishing between the defendants’ liability for compensatory 

and punitive damages where the instruction the court gave 

correctly stated the law and the defendants did not request an 

instruction making that distinction]; Conservatorship of Gregory

(2000) 80 Cal.App.4th 514, 520-521 [defendants’ failure to 

request an instruction on the statutory definitions of terms used 

in another instruction forfeited the argument the instruction was 

misleading, where the instruction given accurately stated the 

law].)

4. The Trial Court Did Not Err in Allowing 

Christodoro To Raise the Contractors Law

“‘Surprise’ as a ground for a new trial denotes some 

condition or a situation in which a party to an action is 

unexpectedly placed to his detriment. The condition or situation 

must have been such that ordinary prudence on the part of the 

person claiming surprise could not have guarded against and 

prevented it. Such party must not have been negligent in the 

circumstances.” (Wade v. De Bernardi (1970) 4 Cal.App.3d 967, 

971; see Hata v. Los Angeles County Harbor/UCLA Medical 

Center (1995) 31 Cal.App.4th 1791, 1806-1807, disapproved on 

another ground in Quigley v. Garden Valley Fire Protection Dist.

(2019) 7 Cal.5th 798, 815, fn. 8.) Thus, for a trial court to grant a 

new trial based on surprise, “[t]he surprise must have 

detrimentally impacted the party moving for a new trial, but the 

movant must not have been able to prevent or guard against it by 

ordinary prudence.” (McCoy v. Pacific Maritime Assn. (2013) 
18

216 Cal.App.4th 283, 305; see Hata, at p. 1806.) We review a 

trial court’s denial of motion for new trial on the ground of 

surprise for abuse of discretion. (See Denton v. City and County 

of San Francisco (2017) 16 Cal.App.5th 779, 794; Wade, at 

p. 971.)

Powell argues the trial court erred in allowing Christodoro 

“to inject the [Contractors Law] issue despite never raising it 

during pleadings and discovery and only arguing it on the second 

to last day of trial” and in denying her motion for a new trial on 

the ground of surprise. The record does not support Powell’s 

arguments. Christodoro’s claims against Powell were based in 

part on Idleman’s failure to have or obtain the required licenses 

for the Newridge project. Specifically, Christodoro alleged he

relied on Idleman to obtain all the required permits and licenses 

for the project. And Christodoro asked the trial court to instruct 

the jury with CACI Nos. 4560 and 4561 on August 16, 2019, two 

weeks before the first day of trial, not as Powell asserts, on 

September 9, 2019. 

Moreover, as discussed, counsel for Christodoro asked 

Powell and virtually every witness Powell called to testify at trial

whether they were licensed contractors, putting Powell on notice 

that the licensing issue was central to the case. Counsel for 

Powell (who, as stated, was Powell’s husband) even raised at trial 

the issue of the owner-builder exception to the Contractors Law. 

Powell was hardly surprised about the role the Contractor’s Law 

played in the case.

Finally, Powell’s testimony relating her day-to-day 

activities at the Newridge Property constituted substantial 

evidence she acted as a “contractor” under the Contractors Law. 

(See Vallejo Development Co. v. Beck Development Co. (1994) 
19

24 Cal.App.4th 929, 939-940 [company “act[ed] ‘in the capacity of 

a contractor’” by “perform[ing] only administrative and oversight 

functions” for a construction project]; General Ins. Co. of America 

v. St. Paul Fire & Marine Ins. Co. (1974) 38 Cal.App.3d 760, 763, 

765 [where a surety took over the day-to-day operations of a 

construction project for its principal, which “was in financial 

difficulties,” the “manner in which [the surety] chose to discharge 

[its] function” rendered it a “contractor” under section 7026].) As 

a result, Powell had the burden of alleging and proving she had 

the appropriate contractor’s license. (See Jeff Tracy, Inc. v. City 

of Pico Rivera, supra, 240 Cal.App.4th at pp. 517-518; Advantec 

Group, Inc. v. Edwin’s Plumbing Co., Inc., supra, 153 Cal.App.4th 

at p. 627.) Powell cannot fault Christodoro for failing to raise 

earlier in the case something she had the burden to prove. 

B. Substantial Evidence Did Not Support the Jury’s 

Findings Powell Aided and Abetted Idleman’s Breach 

of Fiduciary Duty or Constructive Fraud

1. Applicable Law and Standard of Review

“California imposes liability ‘“‘on one who aids and abets 

the commission of an intentional tort if the person (a) knows the 

other’s conduct constitutes a breach of duty and gives substantial 

assistance or encouragement to the other to so act or (b) gives 

substantial assistance to the other in accomplishing a tortious 

result and the person’s own conduct, separately considered, 

constitutes a breach of duty to the third person.’”’” (Berger v. 

Varum (2019) 35 Cal.App.5th 1013, 1025; see IIG Wireless, Inc. v. 

Yi (2018) 22 Cal.App.5th 630, 653-654 (IIG Wireless); Navarrete 

v. Meyer (2015) 237 Cal.App.4th 1276, 1286.) Christodoro did not 
20

allege that Powell owed him an independent duty of care or a 

fiduciary duty or that she breached any such duty. Therefore, 

Christodoro’s causes of action for aiding and abetting breach of 

fiduciary duty and constructive fraud were based on the first type 

of aiding and abetting, which meant Christodoro had to prove 

Powell had “actual knowledge of the specific primary wrong[s]

[she] substantially assisted.” (Casey v. U.S. Bank Nat. Assn.

(2005) 127 Cal.App.4th 1138, 1145 (Casey); see IIG Wireless, 

supra, 22 Cal.App.5th at pp. 653-654; Nasrawi v. Buck 

Consultants LLC (2014) 231 Cal.App.4th 328, 343; American 

Master Lease LLC v. Idanta Partners, Ltd. (2014) 

225 Cal.App.4th 1451, 1475 (American Master Lease); Schulz v. 

Neovi Data Corp. (2007) 152 Cal.App.4th 86, 93.)

“‘“[W]hile aiding and abetting may not require a defendant 

to agree to join the wrongful conduct, it necessarily requires a 

defendant to reach a conscious decision to participate in tortious 

activity for the purpose of assisting another in performing a 

wrongful act.”’” (American Master Lease, supra, 225 Cal.App.4th 

at pp. 1475-1476; see IIG Wireless, supra, 22 Cal.App.5th at 

p. 654; Navarrete v. Meyer, supra, 237 Cal.App.4th at p. 1287, 

fn. 3; Casey, supra, 127 Cal.App.4th at p. 1146.) Thus, 

Christodoro had to prove that Powell knew Idleman “was 

engaged in a breach of fiduciary duty” or constructive fraud and 

that Powell “provided assistance or encouragement to aid in the 

breach.” (Hooked Media Group, Inc. v. Apple Inc. (2020) 

55 Cal.App.5th 323, 333; see Casey, at p. 1146 [“‘The words “aid 

and abet” as thus used have a well understood meaning, and may 

fairly be construed to imply an intentional participation with 

knowledge of the object to be attained.’”].) The failure to prevent a 

breach of fiduciary duty or fraud, even if the defendant knows the 
21

breach or fraud is occurring, is not enough to prove aiding and 

abetting breach of fiduciary duty or fraud. (See Contreras v. 

Dowling (2016) 5 Cal.App.5th 394, 417, fn. 12; Austin B. v.

Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 879.)

“‘When a party contends insufficient evidence supports a 

jury verdict, we apply the substantial evidence standard of

review.’” (Duncan v. Kihagi (2021) 68 Cal.App.5th 519, 541; see

Flagship Theatres of Palm Desert, LLC v. Century Theatres, Inc.

(2020) 55 Cal.App.5th 381, 413.) “‘We must “view the evidence in 

the light most favorable to the prevailing party, giving it the 

benefit of every reasonable inference and resolving all conflicts in 

its favor.”’” (Duncan, at p. 541; see Flagship Theatres, at p. 413 

[in reviewing a verdict for substantial evidence, “we must resolve 

all conflicts in the evidence in favor of the respondent, and 

‘indulge in’ ‘all legitimate and reasonable inferences . . . to uphold 

the verdict if possible’”].)

2. Christodoro Failed To Show Powell Had Actual 

Knowledge That Idleman’s Conduct Breached 

Idleman’s Duties to Christodoro

To review the sufficiency of the evidence supporting

Christodoro’s causes of action for aiding and abetting breach of 

fiduciary duty and constructive fraud, we must first identify the 

torts underlying Christodoro’s causes of action. (See Nasrawi v. 

Buck Consultants LLC, supra, 231 Cal.App.4th at pp. 343-344;

Casey, supra, 127 Cal.App.4th at p. 1149.) At trial, Christodoro

claimed Idleman breached her fiduciary duties by using

unlicensed contractors, failing to obtain permits for the Newridge 

Property, and involving her mother in the project without 

Christodoro’s knowledge, including by borrowing money from her. 
22

Christodoro claimed Idleman committed constructive fraud by 

failing to disclose Powell’s involvement in the Newridge Property. 

Powell does not argue Christodoro failed to prove Idleman

breached her fiduciary duties to Christodoro or committed

constructive fraud. To prove Powell aided and abetted Idleman’s 

wrongful conduct, however, Christodoro also had to prove

(1) Powell knew of Idleman’s conduct; (2) Powell knew Idleman’s 

conduct breached her fiduciary duties to Christodoro and induced

him to act to his detriment;

10 (3) Powell provided substantial 

assistance or encouragement to Idleman in committing those 

breaches and engaging in the fraudulent conduct; and (4) Powell’s

conduct was a substantial factor in causing Christodoro’s harm.

(See Nasrawi v. Buck Consultants LLC, supra, 231 Cal.App.4th 

at pp. 343-344; American Master Lease, supra, 225 Cal.App.4th at 

p. 1477.)11 

10 “‘Constructive fraud “arises on a breach of duty by one in a 

confidential or fiduciary relationship to another which induces 

justifiable reliance by the latter to his prejudice.”’” 

(Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 

223 Cal.App.4th 1105, 1131; see Michel v. Moore & Associates, 

Inc. (2007) 156 Cal.App.4th 756, 762 [a breach of fiduciary duty 

constitutes constructive fraud when a fiduciary “fail[s] to share 

material information with the principal”]; see also Civ. Code, 

§ 1573.)

11 Some cases have suggested aiding and abetting an 

intentional tort also requires specific intent to facilitate the 

wrongful conduct. (See Nasrawi v. Buck Consultants LLC, supra,

231 Cal.App.4th at p. 343; Schulz v. Neovi Data Corp., supra,

152 Cal.App.4th at p. 95.) We need not decide whether specific 

intent was an element of Christodoro’s causes of action because, 

even if it is not, substantial evidence did not support the verdict. 
23

Christodoro elicited testimony from Powell that she did not 

know whether certain subcontractors she hired or paid were 

licensed and that she never contacted or even attempted to 

contact Christodoro about the Newridge Property. But 

Christodoro never introduced any testimony or other evidence 

showing Powell had any knowledge of the licensing and 

permitting requirements for the Newridge Property, whether 

Idleman (whom Christodoro did not call to testify at trial) failed 

to procure necessary licenses or permits, or whether Idleman was 

keeping Christodoro in the dark about not having the required 

licenses or permits or about Powell’s involvement. And there was

no evidence Powell had any knowledge about whether Idleman 

spoke to or otherwise communicated with Christodoro, or about 

whether Idleman told Christodoro about Powell’s involvement.

Nor was there any evidence Powell knew Idleman’s conduct 

breached Idleman’s fiduciary duties to Christodoro or misled him 

to his detriment. And there was no evidence Powell ever told or 

encouraged Idleman not to use licensed construction workers, not 

to obtain necessary permits, or not to tell Christodoro about 

Powell’s involvement. Thus, Christodoro failed to show Powell 

knowingly and substantially assisted Idleman in breaching her 

fiduciary duties to Christodoro or fraudulently withholding 

information from him.

Christodoro argues substantial evidence supported the 

verdict because he presented evidence (1) Powell and Idleman 

acted as partners; (2) Powell knew Idleman and Christodoro had 

agreed to flip the property; (3) Powell knew Idleman stopped 

working on the property “after Idleman and Christodoro struck a 

deal about ‘flipping’” it; and (4) Powell compounded Idleman’s 

mismanagement of the project. None of this evidence showed
24

Powell had actual knowledge Idleman concealed anything from 

Christodoro or otherwise breached her fiduciary duties to him,

nor did the evidence Christodoro cites support an inference of 

such knowledge. (See Roy v. Superior Court (2011) 

198 Cal.App.4th 1337, 1349 [“‘[s]ubstantial evidence includes 

circumstantial evidence and the reasonable inferences flowing 

therefrom’”].) To the extent Christodoro relies on evidence of 

Powell’s partnership with Idleman to show Powell knew of 

Idleman’s breaches of duty and constructive fraud (as he did in 

opposition to Powell’s motion for judgment notwithstanding the 

verdict), evidence of Powell and Idleman’s partnership, without 

more, did not demonstrate Powell had the requisite knowledge 

for aiding and abetting liability.

12 And Christodoro presented no

evidence Powell made a conscious decision to participate in 

tortious activity for the purpose of assisting Idleman in 

performing any wrongful act. (See Berger v. Varum, supra, 

35 Cal.App.5th at p. 1025; see also IIG Wireless, supra,

22 Cal.App.5th at p. 654 [plaintiff corporation failed to identify 

12 Counsel for Christodoro stated in his closing argument at 

trial that Powell and Idleman were partners and that “the 

intention of their partnership was to improve [the Newridge 

Property], to do it without licensed contractors, and to put it on 

the market and sell it.” Counsel for Christodoro told the jurors 

that, if they found Powell and Idleman were partners, then 

“that’s enough. They’ve already completed the stated goal of 

their partnership,” and therefore Powell was liable for aiding and 

abetting. Counsel for Christodoro’s argument appears to have 

suggested that a factfinder can impute the knowledge element of 

a cause of action for aiding and abetting an intentional tort from 

the existence of a partnership, a questionable proposition. In any 

event, Christodoro does not make this argument on appeal. 
25

any facts demonstrating that the girlfriend of the corporation’s 

majority shareholder “reached a conscious decision” to assist the

shareholder in breaching his fiduciary duty to the corporation 

when she started a new company with the shareholder to engage 

in the same business]; cf. People ex rel. Harris v. Sarpas (2014) 

225 Cal.App.4th 1539, 1564 [substantial evidence supported the 

jury’s verdict of aiding and abetting unfair business practices 

where the defendant “permitted the known unlawful practices to 

continue”]; People v. First Federal Credit Corp. (2002) 

104 Cal.App.4th 721, 734-735 [same].) 
26

DISPOSITION

The judgment is reversed. The trial court is directed to 

enter a new judgment in favor of Christodoro on Powell’s 

complaint and in favor of Powell on Christodoro’s crosscomplaint. The parties are to bear their costs on appeal.

SEGAL, J.

We concur:

PERLUSS, P. J.

IBARRA, J.*

* Judge of the Santa Clara County Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.