Feaster v. Wynn

Filed 6/7/07 Feaster v. Wynn 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

I. INTRODUCTION

Jay Wynn and his daughter Dalya Wynn appeal from a trial court judgment holding them liable for fraud, negligence, and violations of the Home Equity Sales Contract Act, Civil Code section 1695 et seq. (HESCA), and the Elder Abuse Act, Welfare and Institutions Code, section 15600 et seq. Appellants contend there is insufficient evidence to support the judgment. We affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Background

Irene Feaster lived in a house at 1427 Garvin Avenue in Richmond that she had owned since 1972. In 1998 and 1999, she experienced health and financial troubles, and her house went into foreclosure. She filed for bankruptcy and put her home up for sale via an Internet listing. She owed about $110,000 on the property, and she listed the house for $136,000.

During this same period of time, Feaster became ill with double pneumonia and suffered a heart attack. After she was released from the hospital, but while she was still confined to her bed, Feaster received two visitors. The first was a man Feaster described as a real estate guy who offered her $1,000 and a place to stay if she would deed her property to him. She took this to mean that she would have a place to live for the rest of her life, plus $1,000.

Shortly thereafter, Jay Wynn came to Feasters home. Feaster told Wynn that she was in foreclosure and about the first offer she had received for the house, i.e., that she had been offered $1,000 and a place to stay. Wynn responded by telling Feaster that he could do better, and, during the course of their conversation, said he would pay her $10,000. Feaster understood Wynns statements as an offer of $10,000 plus a place to staynot just an additional $9,000 more than the other real estate agent had offered. Moreover, she did not think she would have to leave her house.

Between December 1999 and February 2000, Wynn prepared a number of documents for Feaster to sign, including two grant deeds giving him control of the property. He assisted Feaster with the paperwork, coming to her sickbed to help her sign forms and driving her to appointments with a notary public. Wynn filed one of the grant deeds giving him an interest in the property with the county recorders office. However, Wynn provided Feaster with no consideration in exchange for this interest. That is, he executed a $10,000 deed of trust against the property in Feasters name and assured her that she was going to end up getting all her money. But he did not put any of his own money down for the house and did not plan to pay Feaster until he resold it.

Wynn also did not provide Feaster with written notice that, because the sale involved a house in foreclosure, she could cancel the contract within five days. Furthermore, after Feaster signed the deeds, Wynn inserted a false statement on the grant deeds that Feaster had given the property to him as a gift, so he could avoid paying transfer taxes. This was not the first time he had written in the word gift on a deed in such a transaction.

After obtaining an interest in Feasters property, Wynn also executed a $35,000 deed of trust against the property in the name of his daughter, Dalya Wynn, although she had not made any loans related to the property. Wynn said he did so because he owed his daughter some money, and also because he thought it would put him in a better bargaining position to refinance the property. Feaster was not aware of the deed of trust against her property. This was also not the first time Wynn and his daughter have given each other loans by recording deeds of trusts against third-party properties.

In the meantime, just a few weeks after adding his name to the title, Wynn sold the house for $172,500 to another buyer. Upon sale of the house, $35,000 was wired to Dalya Wynns bank account, and she spent the money in various ways. The trial court summed up the transaction when questioning Jay Wynn during the bench trial: [s]o youre acting as a broker, but instead of taking a standard five or six percent commission, youre taking $35,000. It was an arrangement that, the trial court said, stinks to high heaven.

Feaster was paid $6,000 from the proceeds of the sale of her house from Wynn to the new buyer. She also received an eviction notice from the houses new owner. The eviction notice surprised and startled Feaster because she did not think she had to leave the home under the terms of her agreement. She also did not know the house had been re-sold. The eviction notice was never enforced, and Feaster lived in the house rent-free. Unbeknownst to her, Wynn and the new owner arranged to withhold the remaining $4,000 balance until she vacated the house. The check in her name for the remaining $4,000 was left with the mortgage company instead of given to Feaster and was later cashed by someone who forged her signature; thus, she never received the full $10,000 Jay Wynn promised to pay her.

B. Proceedings in the lower court

On March 11, 2003, Feaster filed a verified complaint against Jay and Dalya Wynn and other parties to the transaction, including a title company and mortgage company. Her causes of action included, among other things, fraud, negligence, elder abuse, and violations of HESCA. In addition to damages, Feaster sought special damages and attorneys fees. The other parties settled, leaving only the Wynns as parties to the suit. During a one-day trial on August 25, 2003, appellants represented themselves.

On October 2, 2003, the trial court issued a statement of decision holding Jay and Dalya Wynn jointly and severally liable to Feaster for fraud, elder abuse, and violations of HESCA. The court also held Jay Wynn liable for negligence.

The Wynns filed an opposition to the statement of decision, objecting to the findings. They also filed a motion to reconsider the statement of decision. The court treated this filing as a motion for a new trial, which it denied. On December 18, 2003, the court entered judgment, awarding Feaster damages of $29,000, exemplary damages of $87,000, and attorneys fees and costs.

This timely appeal followed. Feaster has since died, and no briefs have been filed on her behalf.

III. DISCUSSION

A. Sufficiency of the Evidence

1. Standard of Review

An appellate court considering a claim of insufficient evidence does not reweigh that evidence. Instead, we determine whether, after resolving all conflicts favorably to the prevailing party, and according the prevailing party the benefit of all reasonable inferences, there is substantial evidence to support the judgment. [Citation.] (Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 465, disapproved on other grounds in Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 352, fn.17.) Substantial evidence is evidence that is solid, reasonable, and credible. (Department of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813.)

In other words, our review of a trial courts decision begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the trial courts decision. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, italics omitted.) The substantial evidence standard also applies to both express and implied findings of fact in a trial courts statement of decision issued after a non-jury trial. (Michael U. v. Jamie B (1985) 39 Cal.3d 787, 792-793, superceded by statute on another ground as noted in In re ZachariaD. (1993) 6 Cal.4th 435, 448).

2. Fraud

The elements of a fraud are: (1) misrepresentation of a material fact; (2) knowledge of falsity; (3) intent to deceive the plaintiff and induce reliance; (4) justifiable reliance; and (5) resulting damages. (Civ. Code, 1572, 1709-1710; Agosta v. Astor (2004) 120 Cal.App.4th 596, 603 (Agosta).)

Appellants first contention is that there is insufficient evidence that Wynn made an actionable misrepresentation of fact to Feaster. The trial court found that Wynn promised Feaster that he could do better than the prior offer she had received and that there were two possible interpretations of this representation. Wynns statements could be construed as either (1) a promise to provide Feaster with a place to live and $10,000, or (2) a promise to provide Feaster with just $10,000. Under the first interpretation, Wynns promise was fraudulent because the Wynns did not and never intended to take any action to ensure Feaster a place to live. In the second instance, the court found fraud because a payment of $10,000 was not a better offer than the earlier offer that Feaster had received that also included a place to stay.

Substantial evidence supports the trial courts finding of an actionable misrepresentation of fact. If we construe Wynns offer to Feaster as a promise to pay her $10,000 and give her a place to stay, substantial evidence shows he did not intend to take and, indeed, took no steps to ensure Feaster had a place to stay. Instead, the Wynns pocketed $35,000 of her equity, leaving her with just a fraction of the money promised and no place to live.

Alternatively, if Wynns offer was to compensate Feaster for her property with $10,000 alone, Wynns promise to do better was unfounded and fraudulent. Substantial evidenceand common sense, for that matterindicates that a place to live for the rest of ones life is higher in value than the mere $10,000 Wynn promised under this interpretation of the offer. As the trial court said, an offer of money alone was clearly not better than an offer including housing. In fact, Feaster said several times at trial that remaining in the house was of paramount importance to her, noting that If I had a place to live, why would I want anything else?

Appellants argue that Wynns statement that his offer to Feaster was better than the first offer she received was non-actionable opinion. This argument mischaracterizes the evidence regarding Wynns misrepresentation. Wynn did not opine that his offer was better than the first offer; rather, he promised Feaster a better offer than the one she had already received.

A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud. (Agosta, supra, 120 Cal.App.4th at p. 603, quoting Lazar v. Superior Court (1996) 12 Cal.4th 631, 638; Civ. Code, 1710.) In Agosta, for example, the court found that an employer could be liable for fraud when it induced plaintiffwho was weighing other job offersto join its radio station sales team by offering him terms it never intended to honor. (Agosta, supra, at p. 599.) Thus, Wynns statement was not just opinion but a misrepresentation of fact couched in a promise and designed to induce Feaster to turn over control of her house to him.

Appellants next contend that Feaster did not establish justifiable reliance as a matter of law, relying on Hadland v. NN Investors Life Insurance Company, Inc. (1994) 24 Cal.App.4th 1578 (Hadland). In Hadland an insurance agent offering to sell health insurance to the plaintiffs told them coverage under the policy he offered was as good if not better than the coverage under their prior policy. (Hadland, supra, 24 Cal.Ap.4th at p. 1581.) After plaintiffs suffered losses not covered by the policy, they sued. An order granting a nonsuit as to plaintiffs fraud claim was affirmed on appeal. (Id. at p. 1586.)

The Hadland court found that plaintiffs could not establish justifiable reliance on the agents statement, as a matter of law, in light of the general rule that the receipt of a policy and its acceptance by the insured without an objection binds the insured as well as the insurer and he [or she] cannot thereafter complain that he [or she] did not read it or know its terms. It is a duty of the insured to read his [or her] policy. (Hadland, supra, 24 Cal.App.4th at p. 1586.)

Attempting to analogize this case to Hadland, appellants point out that the real estate sale contract that Feaster signed in this case expressly stated that possession of the house would be given to the buyer upon the payment of $10,000. Therefore, appellants reason, any reliance on the alleged verbal promise of a place to stay was unreasonable as a matter of law. Appellants reliance on Hadland is misplaced, however, because the present case does not involve an insurance policy; thus, the rule imposing a duty on an insured to read his or her policy does not apply here. Moreover, in contrast to Hadland, the misrepresentations in this case did not relate to the content or interpretation of a written agreement between the parties but were instead oral misrepresentations that induced Feaster to sign over her only valuable asset to Wynn.

Finally, Dalya Wynn contends she is not liable for fraud because there is insufficient evidence that she conspired to defraud Feaster. The elements of conspiracy include: (1) the formation and operation of the conspiracy, (2) wrongful conduct in furtherance of the conspiracy, and (3) damages arising from the wrongful conduct. (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571.)

The trial court found that Dalya Wynn conspired with and aided and abetted Jay Wynn in the fraud. The court explained: By taking a deed of trust against the property of Plaintiff, having herself provided no consideration, she facilitated the fraud. Indeed the court found that [Dalya Wynns] involvement was solely to assist Jay Wynn in completing the fraud described above.

Again, we find substantial evidence to support the trial courts findings. Dalya Wynn conceded at trial that she was given a $35,000 deed of trust against the property. She also testified that, upon the sale of Feasters house to another buyer, $35,000 was wired to her bank account which she promptly spent without questioning the deposit. Furthermore, she testified that this was not the first time that she and her father had engaged in such a real estate transaction that involved deeds of trust against third-party property. From this evidence the court reasonably inferred that Dalya Wynn knew of and was a party to the fraudulent transaction. Further, although Dalya claimed her father owed her money, the trial court was not persuaded and found, instead, that Dalya took the deed of trust in order to facilitate the fraud. Of course, we defer to the trial courts assessment of Dalya Wynns credibility. Therefore, we find substantial evidence supporting the trial courts determination that Dalya Wynn conspired to defraud Feaster.

3. HESCA

The purpose of HESCA is to protect homeowners facing foreclosure. (Civ. Code, 1695, subd. (a).) The Legislature has found that homeowners in foreclosure are particularly vulnerable to people using unjust or fraudulent tactics to unfairly acquire their home. (Ibid.; Segura v. McBride (1992) 5 Cal.App.4th 1028, 1034-1035.) Thus, HESCA requires that such homeowners are to be provided with sufficient information to allow them to make informed decisions about their property. (Civ. Code,  1695, subd. (d)(1).) These provisions are to be liberally construed to further the Legislatures purpose. (Id., subd. (d)(2).)

Civil Code section 1695.6, subdivision (a) requires that a buyer of a residence in foreclosure (or equity purchaser) must, among other things, provide a statement that the owner can rescind the transaction within five days. The cancellation notice must be written in 12-point type that is either bold or in capital letters. (Civ. Code,  1695.5.) Until the buyer complies with that provision, the seller may cancel the contract. (Civ. Code,  1695.5, 1695.6.)

Jay Wynn concedes that he violated Civil Code section 1695.6, subdivision (a). But Dalya Wynn contends that she cannot be held liable for conspiring to violate section 1695.6, subdivision (a) because that provision applies only to the equity purchaser of a property and she was not the equity purchaser in this case. Citing Applied Equipment Corporation v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503 (Applied Equipment), Dalya Wynn maintains she cannot be liable for conspiring to violate a statute that she was incapable of violating herself.

In Applied Equipment, our Supreme Court held that a party to a contract cannot be liable for conspiring to interfere with its own contract. (7 Cal.4th at p. 521.) The court reasoned that [b]y its nature, tort liability arising from conspiracy presupposes that the coconspirator is legally capable of committing the tort, i.e., that he or she owes a duty to plaintiff recognized by law and is potentially subject to liability for breach of that duty. (Id. at p. 511.) A party to a contract does not owe a tort duty to refrain from interference with its performance and, therefore, that party cannot be bootstrapped into tort liability by the pejorative plea of conspiracy. (Id. at p. 514.)

Applied Equipment does not shield Dalya Wynn from liability for violating HESCA. That case stands for the proposition that an alleged coconspirator must be legally capable of committing the tort charged and that he or she must owe a duty to the plaintiff which potentially subjects him or her to liability for breaching that duty. (Applied Equipment, supra, 7 Cal.4th at p. 511.) Here, Dalya Wynn was legally capable of violating HESCA and, like her father, owed Feaster a duty not to violate the provisions of that statute. In other words, the mere fact that Dalya Wynn did not directly violate the statute does not establish that she was incapable of violating that provision. Nor does it shield her from liability as a conspirator. As the trial court found, Dalya took affirmative acts in furtherance of the agreement to violate this statute, which ultimately resulted in damages to Feaster. Under these circumstances, Dalya does not escape liability simply because her co-conspirators name appeared on the deed, while hers did not.

Appellants also contend there is insufficient evidence that they violated section 1695.13, a provision prohibiting purchasers from taking unconscionable advantage of a seller protected by HESCA. (Code Civ. Proc., 1695.13.) The record before us supports the conclusion that appellants, acting solely in their financial interest, took advantage of an ill and elderly single woman in a dire financial situation who was about to lose her home and that they made false promises to induce her to transfer title to that home without any regard as to the consequences or damages she would suffer. Therefore, we find ample evidence to support the unconscionable advantage finding in this case.[1]

Boquilon v. Beckwith (1996) 49 Cal.App.4th 1697 (Boquilon), the only case upon which appellants rely, does not alter our conclusion. There, a couple took out a personal loan to cover gambling debts from a real estate agent they met through a mutual friend. (Id. at p. 1703.) Later, they received a foreclosure notice because they could not keep up with house payments. (Ibid.) In order to help them out of trouble, the real estate agent bought the property, refinanced it, and then resold it. (Id. at pp. 1704-1707.) The court held that the agent violated section 1695.6 of the HESCA because she failed to include the required notice of cancellation, but it did not find a violation of section 1695.13, the unconscionable advantage provision. (Id. at p. 1710.) In essence, the court found that the agents main purpose was not to take control of the property but, rather, to help the former homeowners out of financial trouble as a favor to a mutual friend. (Id. at p. 1721.)

Unlike the evidence in Boquilonwhich showed that the real estate agent was trying to alleviate the property owners financial woesthe evidence here indicates that Jay and Dalya Wynns main goal was to obtain control of Feasters only valuable asset, so they could profit by flipping the house and diverting the earnings to themselves without putting any money down.

Appellants claim that the courts sole basis for finding unconscionable behavior was the fact that Wynn flipped the house. This is untrue. The substantial evidence in support of the courts finding includes, as discussed above, unfulfilled promises to compensate Feaster for her property, an undisclosed deed of trust to Dalya Wynn, and false claims the property was a gift to avoid paying taxes. In short, as the trial court said here, it was an arrangement that stinks to high heaven.

4. Negligence

Wynn contends the negligence finding against him must be reversed for all of the reasons that the finding he violated HESCA must be reversed. We are perplexed by this argument because, although appellants do challenge some of the courts findings with respect to the HESCA claim, they expressly concede that Wynn violated that statute.

In any event, as the trial court found, HESCA confers a duty upon an equity purchaser to protect the owner of a house in foreclosure by providing him or her with information. Wynn breached this duty. Thus a violation of this statute constitutes negligence. (Civ. Code,  1695, et seq.; see also Evid. Code,  669, subd. (a) [failure to exercise due care is presumed when a person violates a statute and causes injury to a member of the class the statute is designed to protect].)

5. Elder Abuse Act

Financial abuse of an elder includes tak[ing], secret[ing], appropriat[ing], or retain[ing] real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or both. (Welf. & Inst. Code, 15610.30, subd. (a)(1).) The purpose of the Elder Abuse Act is to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect. (Estate of Lowrie (2004) 118 Cal.App.4th 220, 226 (Estate of Lowrie ), quoting Delaney v. Baker (1999) 20 Cal.4th 23, 33.) An elder is someone aged 65 or older. (Welf. & Inst. Code, 15610.30.)

Appellants argue they are not liable for violating the Elder Abuse Act because Feaster did not produce evidence of her age at trial and therefore failed to establish that she is protected by the Act. It does appear that direct evidence of Feasters age was not presented at trial. However, several circumstances lead us to conclude that appellants conceded in the lower court that Feaster came within the protection of the Elder Abuse Act.

First, Feaster filed a verified complaint in which she alleged that she was 72-years old when she dealt with Jay Wynn in 1998 and 1999. She also alleged that she is over the age of 65 and thus is an elder person within the meaning of and pursuant to Welfare and Institutions Code section 15610.27. In their separate answers to Feasters verified complaint, neither of the Wynns expressly nor implicitly questioned Feasters age.[2] Furthermore, in the sections of their answers addressing the cause of action for violating the Elder Abuse Act, appellants specifically denied that they committed financial elder abuse, appropriated Feasters property, and took it with an intent to defraud. However, neither of them expressly disputed Feasters allegation that she is protected by the provisions of the Elder Abuse Act.

Second, Wynn implicitly conceded that Feaster was at least 65 on the first day of trial when he sought, but was denied, a continuance. After Feasters attorney opposed the request, the court addressed Wynn, who was representing himself, and stated: Hes got an elderly client. She obviously wants to go to trial, and I think is entitled to preference under the statutes to go to trial. Wynns sole response to this statement: Okay. A party entitled to preference because of her age must be over the age of 70. (Code Civ. Proc.,  36.)

Finally, neither appellant objected to or otherwise questioned the trial courts express finding that Feaster is an elder, over the age of 65. This finding was included in the courts tentative statement of decision. Appellants opposed the tentative statement but did not challenge or even mention the courts finding regarding Feasters age. Instead, in their opposition, appellants referred to Feaster as this elderly Plaintiff.

Under these circumstances, we find that appellants conceded in the court below that Feaster was a person subject to the protection of the Elder Abuse statute. A party who concedes liability at trial effectively waives any error on the liability issues. (Hom v. Atchison, Topeka and Santa Fe Railway Co. (1964) 61 Cal.2d. 602, 605-605; see also Bank of America v. Lamb Finance Co. (1956) 145 Cal.App.2d 702, 708; Scafidi v. Western Loan & Bldg. Co. (1946) 72 Cal.App.2d 550, 561.) By the same token, a defendant who concedes that the plaintiff is protected by the statute that the defendant is charged with violating waives the right to raise that issue on appeal.

B. Damages

In calculating damages under HESCA, courts must consider proof of the difference between what a seller received for the property and the fair market value at the time of the transfer. (Channell v. Anthony (1976) 58 Cal.App.3d 290, 314-315.) Here, the trial court found that the fair market value of Feasters home was $172,500. This finding was supported primarily by evidence that Wynn sold the house for that amount shortly after he convinced Feaster to transfer it to him.

Appellants contend that $172,500 does not represent the fair market value of the house because the justification for asking that much for the house was evidence of comparables from out of the region. According to appellants, the actual fair market value of the house was $125,000. We reject this self-serving argument for several reasons.

First and foremost, appellants have simply ignored the fact that the price at which the house sold is evidence of its fair market value. By contrast, the figure they propose is $7,000 less than Wynns purchase price and nearly $50,000 less than what it sold for a few weeks later. Second, appellants offer no authority for the proposition that out-of-the-region comparables are irrelevant to the equation, particularly when those comparables were used to secure the purchase price. Thus, we affirm the courts finding that the fair market value of the house was $172,500.

Appellants also contend that the court erred by finding that Feaster sustained $29,000 in actual damages. When the court calculated damages at trial, it determined that $110,000 of the $172,500 sales price went to pay off debt owed on the house, another $20,000 or so went to closing costs and fees, $10,000 was promised although not fully delivered to Feaster, and then $35,000 of the equity went to Dalya Wynn when it should have gone to Feaster. Thus, the court calculated, Jay and Dalya Wynn took $35,000 of money rightfully slated for Feaster without any consideration. Therefore, the court said in its statement of decision that Feaster was owed this $35,000, minus the $6,000 she had already received, for a total of $29,000. We affirm this calculation under the facts available on the record before us.

C. Attorneys Fees

Appellants contend there is insufficient evidence to support an award of attorneys fees under the Elder Abuse Act. At the time of trial, section 15657 of the Act stated: Where it is proven by clear and convincing evidence that a defendant is liable for . . . financial abuse as defined in Section 15610.30, and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, in addition to all other remedies otherwise provided by law: (a) The court shall award to the plaintiff reasonable attorneys fees and costs.[3] (Former Welf. & Inst. Code, 15657, subd. (a).)

Substantial evidence before us justifies the trial courts determination that both financial abuse and fraud were established by clear and convincing evidence. [4] Appellants took advantage of an elderly and unwell woman who was in serious financial distress by making false promises that induced her to give up title to her only valuable asset. They secured that title without paying Feaster any money and acted throughout the transaction solely for personal financial gain. Moreover, they acted without any regard as to whether Feaster would ultimately receive just consideration for the loss of her property.

Furthermore, appellants overlook the fact that Feaster was also awarded attorney fees under HESCA. Section 1695.7 of HESCA states that An equity seller may bring an action for the recovery of damages or other equitable relief against an equity purchaser for violation of any subdivision of Section 1695.6 or 1695.13. The equity seller shall recover actual damages plus reasonable attorneys fees and costs. (Civ. Code,  1695.7) Because we affirm liability under this statute, we also find that attorneys fees and costs were properly awarded pursuant to HESCA.

IV. DISPOSITION

The judgment is affirmed.

_________________________

Haerle, Acting P.J.

We concur:

_________________________

Lambden, J.

_________________________

Richman, J.

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[1] This finding, which we affirm, establishes that Feaster was entitled to treble damages under section 1695.7 of HESCA.

[2] Each did generally deny the material allegations in the complaint.

[3] The Legislature amended the Elder Abuse Act in 2004 to lower the standard for awarding attorneys fees to a preponderance of the evidence in financial abuse cases. (Welf. & Inst. Code, 15657, 15657.5.)

[4] Where the trial court has determined that a party has met the clear and convincing burden, that heavy evidentiary standard then disappears. On appeal, the usual rule of conflicting evidence is applied, giving full effect to the respondents evidence, however slight, and disregarding appellants evidence, however strong. [Citation.] (Ensworth v. Mullvain (1990) 224 Cal.App.3d 1105, 1111, fn.2.).