Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 03CC15022, Gregory Munoz.
Michael Shanks and Sandra Shanks, in pro. per., for Plaintiffs, Cross-defendants and Appellants.
Kellison & Vasquez and Sylvia Kellison for Defendant, Cross-complainant and Respondent.
OPINION
ARONSON, J.
In April 2002, defendant Genevieve Wall evicted plaintiffs Sandra and Michael Shanks from a three-acre property she owned in Perris, California. At the time of the eviction, plaintiffs maintained a flock of parrots and other exotic birds they bred and cared for on the premises. With adequate legal notice, Wall warned plaintiffs to remove their personal property within 15 days, on condition they pay reasonable storage costs, or she would sell their personal property at a public sale.
For six days after the eviction, Wall and her caretakers allowed plaintiffs onto the property to feed and care for the birds, and plaintiffs removed some of the animals. But when they brought along a third person, who Wall believed to be a potential purchaser of the flock, Wall excluded plaintiffs from the premises.
Wall never conducted a public sale of the birds or other personal property left behind by plaintiffs. Rather, in July 2002, she relocated the birds to her 32-acre ranch in Riverside County. She spent about $90,000 constructing aviaries and making other improvements to accommodate the birds.
In December 2003, plaintiffs filed a complaint against Wall for conversion. Wall cross-complained for quantum meruit, seeking recovery of sums expended on the birds. At the time of trial in April 2006, Wall and her relatives continued to care for the flock at Wall’s ranch. A jury found against plaintiffs and awarded Wall $180,000. According to the special verdict, the jury found plaintiffs had “consented” to the conversion, and had “requested” that Wall care for their birds.
Because no evidence supports the jury’s conclusion concerning consent or any putative request, we reverse the judgment.
I
Facts And Procedural Background
Sandra Shanks became serious about raising and breeding exotic birds after the birth of her daughter in 1982. Sandra or her husband, Michael, met Wall, an estate planning lawyer, at a club meeting for avian aficionados. Wall funded avian lobbying and convention trips, and in 1996 helped plaintiffs and their birds relocate from suburban Torrance to a mobile home on an approximate three-acre parcel in Perris, California. Breeding and caring for the birds, including raising desirable hand-fed specimens, demanded most of Sandra’s time. The couple derived income from the flock by selling the offspring.
Wall made most of plaintiffs’ lease payments on the Perris property between 1996 and 1998. She also gave the Shanks $10,000 to obtain an option to buy the property. In 1998, plaintiffs exercised the option and acquired the parcel. Wall loaned them the money to buy the property, securing the loan with a deed of trust. Between 1998 and 2001, plaintiffs made between six and nine mortgage payments to Wall. Wall foreclosed on the property in May 2001. She filed an unlawful detainer action in March 2002, and obtained judgment in the unlawful detainer action in April 2002.
The unlawful detainer judgment, which is not in the record, apparently set $25 a day as the fair rental value for the property. The sheriff’s department evicted plaintiffs on April 23, 2002. Wall’s sister permitted plaintiffs to retrieve their personal property and birds from their mobile home. Plaintiffs removed some baby birds and other items.
Wall notified plaintiffs they had 15 days to pay reasonable storage fees and to remove their personal property. The notice read as follows: “If the cost incurred by the property owner is not paid, or if the property left behind is not claimed by the tenant before the end of the 15-day period, the property owner may either sell the property at public sale and keep from the proceeds of the sale the cost of storage and of the sale of the property, if the property is valued at less than $300, the property owner may dispose of the property or retain it for his own use.” The notice also provided: “If the property is stored on the landlord’s premises, the reasonable cost of storage is the fair rental value of the space necessary for the time of storage.”
Plaintiffs have not included any of the exhibits as part of the appellate record, but trial counsel read into evidence some of the documentary exhibits admitted at trial. Wall has transmitted some photographic exhibits of the Perris property and Wall’s ranch, jury instructions, the judgment, and a printout of the civil register of actions.
For six days after the eviction, Wall’s caretakers permitted plaintiffs access to the property to feed the birds and did not prevent them from removing birds or belongings. Plaintiffs retrieved a few birds and some other items.
But on the sixth day, plaintiffs brought Vandar Awesome on the property to look at the collection. Awesome owned 2.5 acres about three miles away and had his own flock of about 3,000 birds. Awesome had offered to allow the Shanks to keep their birds on his property in exchange for the baby birds of the flock, and cleared out 15 of his 88 aviaries for the Shanks to use. When the plaintiffs and Awesome arrived at the property, Richard Daspit, the caretaker and Wall’s son-in-law, confronted the trio, asking, “What are you doing here?” Michael replied, “I’ve come to get our birds,” and Daspit retorted, “You ain’t getting nothing.”
Having telephoned Awesome earlier in a fruitless attempt to dissuade him from dealing with the Shanks, Wall directed Daspit to exclude plaintiffs from the premises. As she explained at trial, she told Daspit “enough was enough; they can’t come back.” She testified Michael Shanks was “not going to operate his business while he sold off birds.” Daspit informed plaintiffs they could not take anything off the property unless they paid storage fees. Plaintiffs claimed they offered $25 a day, the amount specified as the fair rental value in the unlawful detainer judgment, but Daspit demanded $2,750. Sandra claimed she told Daspit this was ridiculous and they would talk to their attorney. Unfortunately for all concerned, the parties never resolved the standoff.
Wall hired help, including relatives living on the property, to care for the birds. Wall testified she paid her caretakers in cash or by covering their expenses. She immediately gave two of the more valuable specimens, a male and female Hispaniolan parrot, one of which Wall owned, to her sister for safekeeping. She placed a few other birds with friends and relatives. Wall instructed her caretakers not to remove any of plaintiffs’ personal property from the premises, although they did shift some to another location on the property. At the time of the trial, plaintiffs’ personal property, other than the birds, remained on the Perris parcel.
On May 7, 2003, plaintiffs’ attorney sent Wall a letter stating his clients “have been and currently stand ready to remove their property. In that regard your assistance is requested to schedule a mutually convenient time so that my clients may recover their business and personal property.” Plaintiffs did not enclose a check for storage costs. Wall responded by letter two days later, accusing plaintiffs of taking advantage of her. She totaled her financial outlays over the years, and demanded $6,160 to release the birds and other property. Asked at trial why she would not return the birds, Wall testified she did not believe the Shanks had anywhere to put them and she did not want to let them use the Perris property as a storage facility while they sold the birds.
Plaintiffs took no further action for over a year. Meanwhile, Wall made preparations to move the birds. In mid-May, she hired someone to grade a portion of her 32-acre ranch off Ortega Highway in Riverside County. Later in the month, she hired a company to construct aviaries and other structures. In July, she relocated most of the birds to the ranch because she believed she could better protect the birds from theft and disease there. Few, if any, of the birds that stayed at the Perris property survived. Wall also paid to spay and neuter several feral cats at the Perris property and paid for veterinary eye treatment for one kitten.
Wall admitted at trial nothing prevented her from noticing a public sale in May 2002. She did not intend to auction the birds because she felt obliged to take care of them. She explained further that she was unsure if the birds constituted property subject to public sale, she had no experience conducting an auction, and she feared the Shanks would disrupt the process by attending the sale and threatening to sue. She also feared publicizing the location of the birds might result in their theft. Because animal shelters did not want the birds, Wall concluded she was stuck with the birds and had to take care of them. She learned of rumors concerning an outbreak of Exotic Newcastle Disease (END), which might require destruction of the birds, during the summer of 2002. The government imposed a quarantine from October 2002 to October 2003.
In June 2003, plaintiffs’ new lawyer wrote a letter to Wall asking for an accounting of the plaintiffs’ property Wall retained after the eviction. Wall did not respond.
At trial, the parties offered conflicting accounts and opinions concerning the number of birds at the time of the eviction and the value of the flock. Both sides presented expert testimony. Plaintiffs and their expert valued the birds from $100,000 to over $250,000, and Michael Shanks estimated the personal property left behind, including bird equipment, appliances, and tools, at over $20,000. Wall’s expert set the wholesale or auction value of the birds at approximately $31,000. An attorney for the water company serving Wall’s ranch testified Wall pleaded with her not shut off water for nonpayment because she could not find another place for the birds, stating she had paid $100,000 for them and did not want them to die.
Plaintiffs filed a complaint against Wall in December 2003 for conversion, seeking a constructive trust to return the birds and other property, and other causes of action that were subsequently dismissed. Wall cross-complained seeking quantum meruit, and other causes of action that did not reach the jury.
In April 2006, the jury returned a special verdict, finding Wall intentionally took possession or prevented plaintiffs from having access to their personal property for a significant period of time or failed to follow the requirements for disposing of the personal property. But it found plaintiffs “consent[ed] to Wall’s actions,” which defeated their conversion claim. The jury also unanimously found plaintiffs requested “by words or conduct” that Wall “perform services and/or deliver goods for the benefit of Michael and Sandra Shanks.” The jury found the reasonable value of the goods and services Wall provided amounted to $180,000. The trial court rejected plaintiffs’ constructive trust claim.
II
Discussion
A. Plaintiffs’ Failure to Comply with Appellate Rules of Court
Defendant correctly points out plaintiffs’ brief and appendix, filed in propria persona, do not comply with the California Rules of Court. Among other failings, the brief does not cite to the record, and includes facts outside the record. Plaintiffs did not provide a reporter’s transcript of the trial, but Wall at least augmented the record with one. Plaintiffs’ appendix lacks page numbers, and is not in chronological order. It also contains multiple copies of the same documents.
Defendant’s brief addressed plaintiffs’ noncompliance with the court rules but did not address plaintiffs’ contentions. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 [failure to abide by appellate procedures may result in forfeiture of claims, including challenge to sufficiency of the evidence].) After delving into the record and entertaining oral argument, we elected to vacate submission of the cause and to request supplemental briefing. We invited defendant to submit a supplemental brief addressing which, if any, statutes govern this case, and whether legally sufficient evidence supported the jury’s findings. Defendant filed a supplemental brief. Plaintiffs received time to respond to defendant’s supplemental brief, but did not do so.
An appellate court may return an appellants’ brief and appendix for corrections and refiling, strike the brief or appendix, or both, with leave to file anew, or disregard appellants’ noncompliance and address the issues. (Cal. Rules of Court, rule 8.204(e).) While self-represented nonattorneys are not entitled to special treatment and must follow the rules governing appellate litigation (McComber v. Wells (1999) 72 Cal.App.4th 512, 523), our discretion extends to employing reasonable steps to ensure litigants are heard (Cal. Code Jud. Ethics, canon 3B(8) & Advisory Com. com thereto). Because due process requires every judgment to be supported by substantial evidence, we will not lightly find a forfeiture on this issue. (Cf. People v. Butler (2003) 31 Cal.4th 1119, 1128.) With these principles in mind, we have elected to address plaintiffs’ claims.
B. Plaintiffs’ Contentions
Although plaintiffs’ precise arguments are difficult to decipher, they generally challenge the sufficiency of the evidence to support the jury’s special verdict finding they consented to defendant’s denial of access to their personal property or defendant’s intentional taking of their personal property. They also argue no substantial evidence shows they consented to defendant’s failure to follow the statutory requirements for disposing of the personal property. As to the cross-complaint, plaintiffs again challenge the sufficiency of the evidence to support the jury’s finding they requested Wall to perform services or deliver goods for their benefit in the amount of $180,000. They contend instead they were physically prevented from removing their property by defendant’s caretaker and Wall ignored their attempts to tender storage costs. They seek reversal of the judgment, including the quantum meruit award, and return of their birds and other property.
C. Law Governing Unlawful Detainer, Eviction, and Disposition of Personal Property
By foreclosing on plaintiffs’ trust deed securing her loan, Wall succeeded to their title and right to possession. (See 4 Miller & Starr, Cal. Real Estate (3d ed. 2000) §§ 10:220-10:221, pp. 737-745 [detailing results under power-of-sale and judicial foreclosure].) After giving proper notice, the foreclosing party may evict persons in possession, including the trustors, by a number of methods, including the unlawful detainer proceedings Wall initiated here. (See 4 Miller & Starr, Cal. Real Estate, supra, p. 738; 7 Miller & Starr, Cal. Real Estate, supra, § 19:218, p. 680; Code Civ. Proc., § 1161a [unlawful detainer].) Unlawful detainer remedies are limited to recovery of possession and past due rent. (7 Miller & Starr, Cal. Real Estate, supra, p. 663.) A judgment in the unlawful detainer action awards restitution of the premises. (7 Miller & Starr, Cal. Real Estate, supra, § 19:230, p. 731.)
All further statutory references are to the Code of Civil Procedure, unless otherwise noted.
Enforcement of the judgment is by a writ of possession or restitution issued to the levying officer, typically the sheriff. (7 Miller & Starr, Cal. Real Estate, supra, § 19:232, pp. 739-740; § 715.010 et seq.; § 715.040.) The writ itself must contain a statement that if the real property is not vacated within five days from the date of service of the writ, or if posted, within five days of service on the judgment debtor, the levying officer will remove the tenants from possession. (§ 715.010, subd. (b)(2).) Disposition of personal property remaining on the premises after eviction must be accomplished “in accordance with the procedures applicable between landlord and tenant.” (7 Miller & Starr, Cal. Real Estate, supra, § 19:232, p. 745.) Accordingly, the sheriff’s writ must include, as here, a statement that any personal property remaining on the real property may be sold or otherwise disposed of if the debtor does not pay the judgment creditor the reasonable costs of storage within 15 days. (§ 715.010, subd. (b)(3).)
A judgment creditor who enters the premises lawfully but wrongfully takes possession of the judgment debtor’s personal property without complying with the procedures for unlawful detainer may be liable to the judgment debtor for damages for a conversion of the debtor’s property. (7 Miller & Starr, Cal. Real Estate, supra, § 19:233, p. 748.) A conversion occurs when the judgment creditor refuses to permit the tenant to remove property at a time when the tenant has a right of removal regardless whether there is a manual taking of the property. (Ibid.) The removal of the property and its storage in the tenant’s name without any other exercise of dominion over it is not a conversion, but the tenant may recover actual damages suffered by reason of injury to the property or the loss of its use. (Ibid.)
Three statutes refer to the duties of a judgment creditor or landlord regarding personal property left on the premises by a vacating or evicted occupant. Civil Code section 1965 applies where the landlord has not had to resort to eviction and the vacating tenant requests return of the property. Two other schemes apply in other circumstances, as we describe below. (§ 1174 et seq.; Civ. Code, § 1980 et seq.) Following one of these three procedures inoculates landlords and judgment creditors obtaining a judgment of possession from liability that might otherwise arise from keeping, handling, or disposing of the tenant’s goods. (§ 1174, subd. (l); Civ. Code, §§ 1965, subd. (f); 1989, subd. (c).) Conversely, a defendant failing to utilize the procedures risks conversion liability. (Friedman et al., Cal. Practice Guide: Landlord-Tenant (The Rutter Group 2007) § 9:574, p. 9-146 (Friedman et al., Landlord-Tenant).)
Section 1174 et seq. governs disposition of property where, as here, the tenant vacates under a writ of possession. (Friedman et al., Landlord-Tenant, supra, § 9:588, p. 9-148.) Section 1174, subdivision (g), requires the landlord to store the personal property in a place of safekeeping until it is either released pursuant to subdivision (h) or disposed of pursuant to subdivision (i). Section 1174, subdivision (i), provides that personal property not released to the tenant or other authorized person pursuant to subdivision (h) “shall be disposed of pursuant to section 1988 of the Civil Code” (section 1988). Section 1988, subdivision (a), provides for a public sale by competitive bidding of all remaining personal property unless the landlord reasonably believes the total resale value is less than $300, in which case the landlord may retain the property for his or her own use or dispose of it in any manner.
Section 1174, subdivision (h), requires the landlord to release the personal property upon the tenant’s request under Civil Code section 1965 or to the tenant or another party under Civil Code section 1990. In either case, the landlord is entitled to recoup reasonable costs for storage, including storage on his or her property. (See Civ. Code, §§ 1965, subd. (a)(3); 1990, subd. (c) [“If the landlord stores the personal property on the premises, the cost of storage shall be the fair rental value of the space reasonably required for such storage for the term of the storage”].)
The time and place for the sale must be published at least once a week for two successive weeks in a newspaper of general circulation in the county of sale. (Gov. Code, § 6066; § 1988, subd. (b).) Publication cannot commence until expiration of the latest deadline for reclaiming the property and the last publication must occur no less than five days before the sale date. (§ 1988, subd. (b).) Anyone may bid at the sale, including the tenant, landlord, or other owner of the property. (§ 1988, subd. (a).) The landlord may recoup his or her costs for storage, advertising and sale from the proceeds. (§ 1988, subd. (c).) Indeed, even if the tenant redeems his or her personal property on the eve of sale, the landlord remains entitled not only to the cost of storage but also any advertising or other reasonable costs to prepare for the sale. (Civ. Code, § 1987, subd. (b); see Friedman et al., Landlord-Tenant, supra, § 9:609, pp. 9-152-9-153.)
Here, section 1988 required Wall to sell plaintiffs’ property at a public sale by competitive bidding because the undisputed value of the birds exceeded $300. The sale could have been conducted within five days after publication of a second published notice of the sale. If, as Wall asserted, plaintiffs had failed to pay storage costs or tendered an inadequate amount, the statute authorized Wall to recoup her costs from the sale. Wall admitted nothing prevented her from noticing a public sale in early May, but explained she did not want to do this because she felt obliged to care for the birds.
None of Wall’s various arguments excused her failure to follow the statutory mandates for disposing of property left on the premises by occupants she evicted. The only exception for animals in the statutes governing disposition of personal property did not apply to the birds. (Civ. Code, § 1981, subd. (d) [noting exception for “estray” animals subject to Food & Agr. Code]; see Food & Agr. Code, §§ 17001.5 [“‘estray’ means any impounded or seized bovine animal, horse, mule, sheep, swine, or burro whose owner is unknown”]; 17041, 17092 [providing for care and disposition by sale of such animals].)
Nor did Walls have the option of dispensing with the sale merely because she feared a public sale would not yield a fair price. To the contrary, the statutory scheme’s notice requirements contemplate competitive bidding to ensure market value. In any event, the former occupant bears the risk the property will be undervalued at auction and that he or she will have to make up any shortfall to cover storage costs. Presumably, the landlord’s primary interest is in recovering those costs. If Wall wanted to keep the birds, she could have bid for them.
Plaintiffs also would have been free to bid at the sale and, had they won, would have been required to pay Wall’s reasonable costs after the sale. Because plaintiffs were entitled to bid, Wall could not avoid the sale based on her fear they would show up and threaten to sue her. Wall expressed no fear for her personal safety. She would not have had to release the birds if plaintiffs could not pay any difference between the sale proceeds and her costs. (See Friedman et al., Landlord-Tenant, supra, § 9:610, p. 9-153 [seller may demand all outstanding reasonable storage costs to date before releasing claimed property, even if, for example, former occupant seeks only a portion of the property left on the premises].) If a postsale dispute arose concerning the manner in which Wall conducted the sale, her costs, or plaintiffs’ ability to pay, these issues could have been resolved through legal proceedings, if necessary.
Nor could Wall avoid a sale over concern the birds would be stolen. None of the property disposition statutes require the seller to disclose where he or she stores the property. If Wall did not want to reveal the location of her ranch to potential thieves, she had the option to conduct the sale elsewhere, selling the birds singly or in small groups. If, for her convenience, Wall preferred to conduct one large sale, and practicalities such as feeding and housing the birds dictated disclosing her ranch as the location, she could have hired additional security for the 19 days or so leading up to the sale and recovered the reasonable costs from the sale. Finally, the evidence was undisputed that the END scare did not surface until summer at the earliest. The government did not impose a quarantine until October. Consequently, nothing prevented a public sale in late May.
Wall’s failure to follow statutory procedures exposed her to liability for conversion of the property, even if her failure to undertake a sale stemmed from a good faith belief she could provide the best home for the birds or from an honest mistake concerning her obligation under the statutes. (See Newhart v. Pierce (1967) 254 Cal.App.2d 783, 793 [“mistaken belief . . . is no defense to a cause of action for conversion. . . . [Citation.] A taking clouded by mistake is no less a wrongful taking”].) We now consider whether the evidence supports the jury’s conclusion plaintiffs consented to Wall’s conduct.
D. No Evidence Supports the Jury’s Consent Finding
Plaintiffs challenge the sufficiency of the evidence to support the jury’s finding they consented to the dispossession of their personal property. In reviewing the sufficiency of the evidence in a civil appeal, the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the trier of fact’s conclusion. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) The testimony of a single witness, including a party to the action, suffices if the trier of fact deems the witness credible. (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 134.) “The trier of fact . . . is the sole arbiter of all conflicts in the evidence, conflicting interpretations thereof, and conflicting inferences which reasonably may be drawn therefrom; it is the sole judge of the credibility of the witnesses [and] may disbelieve them even though they are uncontradicted if there is any rational ground for doing so . . . .” (Pescosolido v. Smith (1983) 142 Cal.App.3d 964, 970-971.)
“‘Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion claim are: (1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages. Conversion is a strict liability tort. The foundation of the action rests neither in the knowledge nor the intent of the defendant. Instead, the tort consists in the breach of an absolute duty; the act of conversion itself is tortious. Therefore, questions of the defendant’s good faith, lack of knowledge, and motive are ordinarily immaterial. [Citations.]’” (Mendoza v. Rast Produce Co., Inc. (2006) 140 Cal.App.4th 1395, 1404-1405; see also 5 Witkin, Summary of Cal. Law (10th ed., 2005); see Rest.2d Torts, § 222A; 18 Am.Jur.2d, Conversion, § 1, pp. 145-146, fns. omitted [conversion is “‘“a distinct act of dominion wrongfully exerted over another’s personal property in denial of or inconsistent with his title or rights therein . . . without the owner’s consent and without lawful justification”’”].) Put another way, it is “the ‘intentional exercise of dominion or control over achattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.’” (Ananda Church of Self-Realization v. Massachusetts Bay Ins. Co. (2002) 95 Cal.App.4th 1273, 1281.)
Conversion does not consist solely of taking property, but may also consist of preventing the owner from taking possession of his property. (Zaslow v. Kroenert (1946) 29 Cal.2d 541, 550.) The liability of one in possession of real property for the conversion of personal property found on it depends on whether the defendant’s conduct indicates an assumption of control or ownership over the goods. The refusal of one in possession of real property to permit, upon demand, the owner of chattels left there to remove his goods may constitute conversion. (Id. at pp. 549-550.)
A landlord who evicts his tenant and takes possession of premises along with the tenant’s personal property, becomes an involuntary bailee of the tenant’s property. (Bank of America v. Taliaferro (1956) 144 Cal.App.2d 578, 583; Warwick v. Macchiaroli (1929) 96 Cal.App. 133, 135; see also, § 1174, subd. (g); Mozzetti v. Superior Court (1971) 4 Cal.3d 699, 708; Civ. Code, § 1846, subd. (a).)
During deliberations, the jury asked for the court to “define consent in question #3.” The court responded, “It means the act of permitting.”
Compare the following, more detailed instruction cited favorably by the Supreme Court, where the trial court informed the jury “that ‘in a legal sense the word ‘consent’ means capable, deliberate, free and voluntary assent or agreement to, or concurrence in, some act or purpose, implying physical and mutual power and free action which is unclouded by threats, or duress. It presupposes that the person to be affected has knowledge of his rights. If, therefore, consent is given or obtained by means of unwarranted threats, or is given by a person without full knowledge of his rights, such a consent has no force or effect whatsoever, and the legal effect of consent given under such circumstances is the same as though no consent were given’; that ‘he who consents to an act is not wronged by it’; and that ‘If you believe that when the defendants called upon plaintiff to surrender the merchandise which was then in plaintiff’s possession, the plaintiff did not dispute defendants’ right to the goods, or set up a claim to them against the defendants, but freely consented thereto, then the defendants committed no conversion.” (Klett v. Security Acceptance Co. (1952) 38 Cal.2d 770, 789, fn. 12.) Plaintiffs did not object to the trial court’s clarifying instruction here, nor suggest one tailored to the facts of the case, and they do not raise an instructional challenge on appeal.
While there is no conversion where an owner either expressly or impliedly assents to or ratifies the taking, use or disposition of his property (Virtanen v. O’Connell (2006) 140 Cal.App.4th 688, 716; see Rest.2d Torts, § 252), there is no evidence plaintiffs approved or agreed to the dominion Wall asserted over their birds and other property. In her supplemental brief, Wall contends plaintiffs consented to her holding their property by failing to “take such action as a reasonable person would take,” such as “moving their property out before the eviction [or] moving it within the six days” Wall afforded them. But the undisputed evidence is that plaintiffs attempted to do just that, having found a home for the birds with someone besides Wall. On learning this, Wall excluded them from the property and prevented them from removing the birds or other property. Undeterred, plaintiffs tried again, utilizing a lawyer to request the birds’ return. Wall refused to release the birds unless plaintiffs paid $6,160 in costs. Plaintiffs rejected this amount as unreasonable. Plaintiffs’ failure to pay this disputed amount does not constitute substantial evidence they endorsed Wall’s actions.
In her supplemental brief, Wall faults plaintiffs for not taking her to court to challenge the $6,160 figure. She argues plaintiffs could have paid the sum and then sought reimbursement through judicial proceedings, if it proved unreasonable. Wall overlooks, however, that plaintiffs invoked the law’s aid by filing their conversion action. Relying on the doctrine of laches, Wall takes plaintiffs to task for waiting 20 months to sue her for conversion. She asserts plaintiffs acquiesced to her control over their property by waiting longer than a reasonable person would to contest her actions. The flaw in Wall’s argument, however, is that the statute of limitations for conversion is three years. (§ 338, subd. (c).) Consequently, the delay necessary to assert laches is lacking because “lapse of time is separately embodied in statutes of limitations.” (Lam v. Bureau of Security & Investigative Services (1995) 34 Cal.App.4th 29, 36.)
Of course, Wall would be entitled to argue that plaintiffs’ delay was inconsistent with the high dollar and sentimental value they claimed to place on the birds. But this argument addresses damages, which the jury never reached because it concluded, without substantial evidence, that plaintiffs consented to Wall’s interference with their property. The verdict form instructed the jury to only decide whether plaintiffs were “harmed” and, if so, whether Wall’s “conduct [was] a substantial factor in causing plaintiffs’ harm” if the jury concluded plaintiffs did not consent to Wall’s conduct. Because no evidence supports the jury’s consent conclusion, we must reverse the judgment.
E. A Reasonable Fact Finder Could Not Reach the Issue of Alleged “Quantum Meruit” Benefit to Plaintiffs Without Assessing Harm, if Any, from Conversion
Because the jury never reached the question of harm, we conclude the jury’s quantum meruit award on Wall’s cross-complaint must also be reversed. The special verdict form indicates that because the jury concluded plaintiffs “consent[ed]” to Wall’s conduct, plaintiffs thereby also impliedly “request[ed]” that Wall “perform services and/or deliver goods” for plaintiffs’ benefit, or more specifically, to benefit their birds. But because, as discussed, no substantial evidence supports the jury’s consent conclusion, the request conclusion predicated on that purported consent also fails.
Moreover, as a matter of logic, competing claims of harm and benefit are inextricably intertwined and where the jury erroneously fails to consider one (harm), the danger is high the jury’s estimation of the other will be distorted. The prejudice is palpable here. California law permits a bailor to treat a conversion as a fictional sale or implied-in-law contract of sale. (H. Russell Taylor’s Fire Prevention Service, Inc. v. Coca Cola Bottling Corp. (1979) 99 Cal.App.3d 711, 719.) In other words, the party converting another’s property may be deemed to own that property by virtue of the conversion, in which case, here, Wall would have conferred no benefit on plaintiffs by providing for her own birds. But because the jury never determined the value of the birds or any other conversion harm allegedly suffered by plaintiffs, and because the trial court failed to impose a constructive trust or employ another mechanism that would enable the plaintiffs to sell the birds, Wall — in effect — ended up owning both the birds and a $180,000 judgment. Such a distorted result cannot stand, leaving aside whether a converting party may confer a benefit on the other party when, as here, there is no evidence of consent. For all the foregoing reasons, we reverse the judgment.
III
Disposition
The judgment is reversed. Plaintiffs are entitled to their costs of appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., MOORE, J.