Holcomb v. UPP Entertainment Marketing

Filed 8/26/08 Holcomb v. UPP Entertainment Marketing CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Lisa Hart Cole, Judge. Affirmed.

Law Office of Lorraine L. Loder and Lorraine L. Loder, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Appellant Anita Holcomb appeals from a judgment in favor of respondent UPP Entertainment Marketing, Inc. (UPP), under which Holcomb was required to restore funds paid by UPP for rental of a property from a third party during the 2005 Sundance Film Festival (the Festival). Holcomb had acted as UPPs agent in the transaction and when a dispute arose, the owners agent returned UPPs payment to Holcomb. Holcomb contends substantial evidence does not support the judgment, which was rendered under a breach of contract theory. We conclude the judgment was proper under a theory of money had and received, and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Complaint

UPP brought suit against Holcomb for breach of contract, money had and received, and fraud.^[1] The claims were based on UPPs intended 10-day rental of a house located in the Solamere subdivision near Park City, Utah (the House) during the 2005 Festival. According to the complaint, UPP intended to use the House for marketing purposes for the . . . Festival, to take promotional photographs of celebrities in attendance. The complaint alleged that Holcomb breached an agreement between the parties by failing to disclose UPPs intended use to the Solamere Homeowners Association (the Association) and failing to disclose to UPP that its intended use could violate the Associations conditions, covenants and restrictions (CC&Rs).^[2] As damages for the breach, the complaint sought refund of the amount allegedly paid to rent the House -- $27,587.50 -- and the additional amount UPP paid to obtain alternate accommodations for the Festival. Alternatively, UPP sought recovery of $27,587.50 as money had and received.

B. Evidence at Trial

The matter was tried to the court. The evidence established that UPP was a marketing firm whose business involved persuading celebrities to align themselves with its clients products by prominently using or wearing them. UPPs purpose for renting the House was to provide a place where its clients could convene with celebrities who had come to Park City for the Festival and give them products (a process referred to by the witnesses as gifting) in the presence of photographers and publicists, thereby gaining favorable publicity for the products.

Holcomb described her business as find[ing] properties that are suitable for [the] uses of my corporate/entertainment clients for special events. She described the Festival as her biggest event. In arranging for UPP to rent the House, Holcomb did not deal directly with the property owner, but with Kerry Cunningham, president of Alpine Ski Properties (Alpine), a property management company in Park City that represented the owner.^[3]

1. Prior Dealings Between the Parties

Holcomb had found rentals for UPP in or near Park City during the Festival twice before, in 2002 and 2003 (for the 2003 and 2004 Festivals).^[4] After locating a rental house for UPP in 2003, Holcomb sent a letter seeking deposit of the entire sum due, half by September 2003 and the other half by October 2003. The letter stated that the following cancellation policy would apply: Cancel 90 days or more prior to arrival date (up to and including 10/13/03), forfeit $400.00. Cancel 90 to 60 days prior to arrival date (10/14/03 thru 11/12/03), forfeit the [initial] deposit ($17,956.88). Cancel 60 days or less prior to arrival (11/13/03 thru 1/13/04 or later), forfeit full amount. In October 2003, UPP cancelled that reservation and agreed to forfeit $400. UPPs representative told Holcomb at the time that UPP could not get enough of [its] clients on board to justify taking that particular rental, a large house.

Several months after cancelling the original rental, UPPs representative Julia Heslin asked Holcomb to find another rental for the 2004 Festival, stating in her e-mail: [S]ome of our clients would like for us to go to the film festival on their behalf. Holcomb asked Heslin to fill out a questionnaire to clarify UPPs requirements. Heslins response stated UPP did not intend to throw parties, but might host dinners for up to 10 guests. Holcomb learned the House was available and proposed that UPP rent it, informing Heslin in an e-mail of two restrictions on its use: All cars must be parked either in the garage or on the garage pad, totaling no more than 5 cars at one time and [o]ccupancy is restricted to 12 persons at any one time. Holcomb wrote a separate e-mail to Heslin stating that she had been down this road before in connection with the hugely successful Reebok Wellness House at the 2002 Sundance Festival, and offering to supply connections to publicity people, chefs, interns and the like.

UPP occupied the House during the 2004 Festival. Prior to checking in, Heslin signed a Solamere Subdivision Rental Contract. In addition to specifying the occupancy limits (12) and the maximum number of vehicles allowed to park on or near the property (4), the rental contract stated: [the House] is for residential use only and [the Association] strictly forbids parties, gatherings or meetings that exceed the maximum capacity as stated on this document.

2. 2005 Rental

Shortly after the 2004 Festival, Heslin contacted Holcomb to express satisfaction with the rental and to reserve the House for the following year. Holcomb sent a confirmation stating when the deposits were due and providing the cancellation policy, which said: Cancellations prior to November 1[,] lose $350. Cancel between Nov. 1 and Dec. 1, lose 3 [nights] rental or 33%, whichever is higher. Cancellations after Dec. 1, no refund unless rebooked.

Several months prior to the 2005 Festival, UPP sent a written solicitation to clients and prospective clients. The solicitation identified celebrities who had appeared at UPPs rentals in 2003 and 2004, and stated that its rentals had become a hot spot for influencers to hang out and pick up cool gifts. It described the House as a private and . . . beautiful back drop for interviews that included food, beverage[s], etc. and as a meeting place at which celebrities could interact with the [clients] brand and the brand representative in a personal and direct manner. Through the solicitation, UPP offered its marketing services and the use of the House for $20,000 per client. That price included an area for the clients product inside the House, two invitations to visit the House and meet guests, and access to a process for scheduling appointments for celebrities to stop by the House to pick up products. The solicitation stated that UPP intended to provide two additional services in 2005: (1) two photographers would be available all day every day and (2) food would be served every day. The solicitation also stated UPP will develop a media strategy that includes pre-event, at event and post-event media relations efforts and follow-up to maximize coverage and would offer the House as a location that is private and has a beautiful backdrop for interviews and includes hospitality (food, beverage, etc.) to publicists, agents, managers, etc. and to media.

The Association learned of the contents of the solicitation and concluded that UPPs intended use of the House would violate its residential-use-only policy and would likely result in violation of the limitations on people and automobiles allowed to be present at any given time. The Association informed Cunningham the rental could not proceed. Cunningham informed Holcomb and Holcomb informed UPP. Cunningham asked that UPP provide a written notice of cancellation so that the property could be offered to other prospective renters. On December 17, 2004, UPP sent a notice of cancellation to Holcomb.^[5] Holcomb and Cunningham tried to re-rent the property, but were unsuccessful.

UPP located alternate accommodations at a price of $46,105. UPP vice president Rasnick demanded a refund of the amount deposited for rental of the House from Holcomb and Cunningham. Cunningham sent Holcomb an e-mail, stating: I am cutting a check right now refunding all [UPPs] money. . . . You can take it from here and decide what to do, but I dont want to go any further on this. Cunningham subsequently returned to Holcomb the amount Alpine had received.^[6] In May 2005, Cunningham informed UPP via letter that she had sent a check in the amount of $27,587.50 to Holcomb with the expectation that a refund would be made to UPP and that Alpine had also paid the owner for the unused booking.

3. Disputed Facts

At trial, the primary contested facts were whether the activities UPP proposed to conduct at the House in 2005 were substantially different from its 2004 use, and whether Holcomb had knowledge of UPPs past activities and intended use. UPP vice president Steven Rasnick, who had had no dealings with Holcomb in 2003 or 2004 and was not involved in the decision to re-rent the House for the 2005 Festival, was the sole witness for UPP. He testified that the activities UPP intended to conduct in 2005 -- the activities described in the solicitation -- did not represent a dramatic difference from those of the prior year. During 2004, UPP hosted 10 to 12 people at a time at the events held in the House, including the celebrity, a representative of UPPs client, a photographer, and a public relations person. It did the same at the 2005 Festival.

Holcomb testified to her understanding that in 2004, UPP had used the House to have . . .  clients over and cook them lunch at quiet, intimate gathering[s] in the daytime only. She denied knowing UPP charged clients a fee for the activities conducted in the House. She did not view its 2004 activities as violative of the Associations residential use only policy because she did not believe using the House to display products and photograph celebrities who picked up gifts constituted commercial use as long as the numbers conformed to the restrictions stated.^[7] In Holcombs view, however, the proposed 2005 usage described in the solicitation had a commercial aspect to it, due to its apparent scale and the $20,000 participation fee.

Holcomb also testified briefly concerning her dealings with UPPs Heslin, in 2003 and 2004. With respect to the refund received from Cunningham, Holcomb testified that she was holding the money in trust . . . to decide what to do with it and that if funds are available, it was her intention to reimburse Alpine, less her commission and minus costs, if she prevailed.

C. Judgment

After hearing and considering the evidence, the trial court ruled in favor of UPP on the contract cause of action. The court found that Holcomb knew the nature and extent of the usage that [UPP] intended for the property . . . knew that there was a commercial nature associated with the usage of this property . . .  went ahead and tried to satisfy the desires of her client irrespective of that and did not get the right house for [UPP].^[8]

The court also found that Holcomb had received a full refund of the rental deposit, and that there was no agreement between Holcomb and Cunningham regarding reimbursement of any portion of the funds. Therefore, the court concluded, the money that was returned . . .  by Alpine to Ms. Holcomb, should be returned to [UPP].

Judgment was entered in favor of UPP in the amount of $27,587.50. This appeal followed.

DISCUSSION

A. Standard of Review

Holcomb contends the evidence does not support the judgment.^[9] A party who claims insufficiency of the evidence takes on a daunting burden. (Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 678, quoting In re Marriage of Higinbotham (1988) 203 Cal.App.3d 322, 328-329.) When a trial courts factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, italics omitted; accord, Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1489.) The substantial evidence standard of review is applicable to appeals from both jury and nonjury trials. (Jameson v. Five Feet Restaurant, Inc. (2003) 107 Cal.App.4th 138, 143.)

Another firmly established rule of decision is that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion. (Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329.)

On appeal, Holcomb contends that the evidence did not establish an express promise on her part to find a property suitable for UPPs specific needs or an agreement to bear the risk of any problem that might arise concerning use of the property. In awarding judgment on the contract cause of action the court made two findings: (1) Holcomb did not get the right house for UPP; and (2) Holcomb received back from Cunningham all of the funds deposited by UPP to pay for the rental. Holcombs contentions focus on the former finding, but ignore the latter. The judgment entered is fully supported by the courts second finding, albeit under a theory of money had and received rather than breach of contract as set forth in the courts order. Thus, the judgment may be affirmed as a correct decision given under a different legal theory.

B. Holcomb Had No Legal Claim to the Money Refunded by Cunningham

As an alternative to its claim for breach of contract and contract damages, UPP sought a refund of the money it had paid under a claim for money had and received. An action for money had and received lies wherever one person has received money which belongs to another, and which in equity and good conscience should be paid over to the latter. (Weiss v. Marcus (1975) 51 Cal.App.3d 590, 599.)

It is undisputed that Cunningham refunded the entirety of UPPs payment to Holcomb, foregoing Alpines own fees and taking upon herself the obligation to make the owner whole. By refunding UPPs rental fee -- and independently reimbursing the owner -- Cunningham effectively bore the burden of the contracts frustration. All that remained was for Holcomb to return UPPs payment to UPP. Rather than do so, Holcomb retained funds to which she had no legal entitlement, along with a $5,000 commission she had previously deducted.^[10]

Holcombs basis for claiming an entitlement to retain all the funds in the face of UPPs claim for refund is unclear. She does not dispute that Cunningham expected the refund to be forwarded to UPP. Nor does she suggest she received any assignment of rights Alpine or the owner might have had to assert a claim to the funds. (See Powers v. Ashton (1975) 45 Cal.App.3d 783, 789 [failure to establish delegation of right to sue from real party in interest fatal to plaintiffs claims].) In short, Holcomb cannot defeat UPPs claim for a refund by asserting rights only Alpine or the owner might have claimed.

We note additionally that Holcomb failed to demonstrate an entitlement to her commission, as she provided no evidence concerning the terms of her agreement with UPP and no proof that her commission survived cancellation of the rental agreement. (See Division of Labor Standards Enforcement v. Dick Bullis, Inc. (1977) 72 Cal.App.3d Supp. 52, 58 [The right of a broker to recover [a] commission must be measured primarily by the terms of his employment.]; Billings v. Rexford Park Apts. (1966) 244 Cal.App.2d 317, 323 [where no evidence of separate commission agreement between broker and principal, if the sale is not consummated the commission does not become due].)^[11]

C. The Trial Court Properly Ordered Restitution of the Rent Paid by UPP.

Although the trial court stated its judgment was on the contract cause of action, the recovery awarded to UPP was not in the nature of breach of contract damages. UPP presented evidence that it paid thousands more for an alternate rental for the 2005 Festival, but the court made no award for UPPs increased expenses. The court awarded UPP only restitution of the funds it had deposited with Holcomb, and which had been returned to her. This is the proper measure of recovery on UPPs action for money had and received. (See Bennett v. California Custom Coach, Inc. (1991) 234 Cal.App.3d 333, 339; Lubecks Investment Co. v. Voris (1924) 68 Cal.App. 652, 655-657.) Accordingly, we affirm the judgment.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

WILLHITE, Acting P. J.

SUZUKAWA, J.

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^[1] Holcomb was also sued under two fictitious names, A. Holcomb Rentals and Space & Time.

^[2] Holcomb filed a cross-complaint for intentional infliction of emotional distress, tortious interference with business advantage, defamation, and slander based on UPPs pre-litigation efforts to obtain a refund. Neither the cross-complaint nor the fraud claim are pertinent to this appeal.

^[3] Holcomb, Cunningham, and UPP vice president Steve Rasnick were the primary witnesses at trial.

^[4] Holcomb testified that properties in or near Park City are rented as much as a year in advance of the Festival (which takes place in January) and most are booked by June of the preceding year.

^[5] The notice stated: Based upon our inability to use the [House] for our stated purpose due to threats by the [Association], we are submitting our notice of cancellation. This cancellation is in no way intended to be viewed as a default upon our agreement, as the property owner was fully aware of our plans. We expect that an equitable solution will be reached and that we will be reimbursed for our payment.

^[6] Cunningham returned all of the funds Holcomb had forwarded, foregoing Alpines fees. Holcomb had taken her $5,000 fee before forwarding UPPs payment to Alpine.

^[7] During the examination of Holcomb, the court expressed the view that use of the House to display and distribute gifts was not a residential use. Holcomb explained her belief that the difference between residential use and commercial use has to do with numbers and impact on the neighborhood.

^[8] The court stated its findings were based in part on Holcombs e-mail to UPP in connection with the 2004 rental in which she stated she had been down this road before with the Reebok Wellness House and offered UPP access to publicity people, chefs, interns, and the like.

^[9] No respondents brief was filed. The rule we follow in such circumstances is to examine the record on the basis of appellants brief and to reverse only if prejudicial error is found. [Citations.] (Votaw Precision Tool Co. v. Air Canada (1976) 60 Cal.App.3d 52, 55; accord, Lee v. Wells Fargo Bank (2001) 88 Cal.App.4th 1187, 1192, fn. 7; Carboni v. Arrospide (1991) 2 Cal.App.4th 76, 80, fn. 2; see Rule 8.220(a)(2); In re Bryce C. (1995) 12 Cal.4th 226, 232 233.)

^[10] In fact, it appears Holcomb received more than she had originally forwarded to Cunningham, as the refund from Cunningham included a security deposit of $5,000 which she mistakenly believed UPP had paid in addition to the rental fee.

^[11] As a practical matter, this may be moot. The amount sought by UPP -- $27,587.50 -- is the precise amount refunded by Cunningham to Holcomb who had previously withheld her $5,000 commission. As noted above, the discrepancy appears to be the result of an error. Holcomb should, of course, have returned the $5,000 overpayment to Cunningham.