Filed
5/29/13 Lanning v.
Kramer CA2/7
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opinion has not been certified for publication or ordered published for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
SEVEN
NANSEE LANNING et al.,
Plaintiffs and Appellants,
v.
ANDREW KRAMER et al.,
Defendants and Respondents.
B227686
(Los Angeles
County
Super. Ct.
No. SC099461)
ANDREW KRAMER,
Plaintiff and Appellant,
v.
GEORGE LANNING et al.,
Defendants and Respondents.
B231249
(Los Angeles County
Super. Ct. No. SC107434)
APPEALS
from judgments of the Superior Court of
County, Norman P. Tarle, Judge.
Affirmed in part; reversed in part.
Silverman
Sclar Shin & Byrne; Silverman, Shin, Byrne & Gilchrest and Robert M.
Gilchrest for Nansee Lanning, Justin Lanning, George Lanning and The George and
Nansee Lanning Revocable Trust.
Ferguson Case Orr Paterson,
Wendy C. Lascher and John A. Hribar for Andrew Kramer, Matthew Kramer, Rosalinda Kramer, West
Hollywood Center for Compassionate Healing, Inc. doing business as The Sunset
Shop, Inc.
___________________________
INTRODUCTION
We consider
together two appeals from judgments in two trial court cases which share a
common factual background and involve some of the same parties. The first, No. B227686, is from a 2010
judgment in Lanning v. Kramer, Los
Angeles County Superior Court, No. SC099461.
The plaintiffs are George Lanning (George L.), his wife Nansee Lanning
(Nansee L.), their son Justin Lanning (Justin L.), collectively the Lannings,
and The George and Nansee Lanning Revocable Trust, for which the trustees were
George L. and Nansee L. The defendants
are Andrew Kramer (Andrew K.), his mother Rosalinda Kramer (Rosalinda K.), his
son Matthew Kramer (Matthew K.), collectively the Kramers, and his business,
West Hollywood Center for Compassionate Healing, Inc. (WHCCH), doing business
as The Sunset Shop, Inc.
The second
appeal, No. B231249, is from a 2010 judgment in Kramer v. Lanning, Los Angeles County Superior Court, No.
SC107434. The plaintiff is Andrew
K. The defendants are George L., Nansee
L., The Lanning Family Trust, George L. and Nansee L. as trustees, and The
George and Nansee Lanning Revocable Trust, George L. and Nansee L. as trustees.
The Lanning
Trust owned the commercial building and other real property commonly known as
the Sunset Building, at 8919-8923½ West Sunset Boulevard in West
Hollywood. The building has commercial
and residential units. In September
2006, George L. and Nansee L., as Trustees of the Lanning Trust, entered into a
written lease with Andrew K. for a portion of the Sunset Building, specifically
8921, 8923 and 8923½ West Sunset Boulevard (Premises)
for a medical marijuana dispensary known as The Sunset Shop (Dispensary).
In January
2007, Andrew K. and the Trust entered into an escrow agreement for Andrew K. to
purchase the Sunset Building from the Lanning Trust. Andrew K. paid the Trust a $1 million deposit
to be returned if the purchase did not close by a specified date. The Lanning Trust gave Andrew K. two
promissory notes, one for $600,000 and another for $400,000, to secure
repayment of the deposit to Andrew K.
The purchase did not close, and the parties cancelled the agreement.
In
September 2007, George L. sent Andrew K. a letter offering to purchase the
Dispensary for a purchase price of $1,450,000 plus $300,000 for inventory. In November or December, Andrew K. and George
L. with Nansee L. executed a term sheet entitled Deal Points as of 11/7 (Deal
Points Memo). The Deal Points Memo
included various dollar amounts, descriptive phrases and dates, but no sentences
or paragraphs tying them together.
In late
December 2007, George L., Nansee L. and Justin L. took over operation of the
Dispensary. They received all revenues
from its operation. Andrew K. remained
involved, and the Lannings paid him a consulting fee. On July 15, 2008, the Lannings met with
Andrew K. and informed him the consulting arrangement was terminated.
On July 17,
2008, before the Lannings arrived to open the Dispensary for business, Andrew
K. had the locks on the Premises changed, took over the Premises and had his
mother, Rosalinda K., his son, Matthew K., and security personnel come to the
Premises. The Lannings were not allowed
to enter the Premises; they were confronted and warned to leave by members of
the Kramer group. Justin L. called law
enforcement for assistance. When the
sheriff’s deputies arrived, Rosalinda K. told the deputies that the Kramers had
the right to be on the Premises and showed them a copy of the Lease. The deputies declined to take further action
on the basis that the dispute was a civil matter. Members of the Kramer group entered the
residence of George L. and took property the Lannings used in operating the
Dispensary.
The
Lannings initiated litigation against the Kramers as more fully explained
below. The Kramers subsequently
initiated action against them. As a
result of a judgment of possession entered in favor of the Lannings in one of
the actions, on June 8, 2009, the Lannings regained possession of the
Premises and the Kramers and related business entities vacated the Premises.
PROCEDURAL BACKGROUND
The
Lannings filed their complaint in Lanning
v. Kramer (Super. Ct. L.A. County, 2010, No. SC099461) on August 19, 2008
(Main Action). On September 2, 2008,
George L., as trustee for the Lanning Trust, filed an unlawful detainer action
against Andrew K. (Lanning v. Kramer
(Super. Ct. L.A. County, 2009, No. 08U02832)) (UD Action).
The
Lannings filed their Second Amended Complaint (SAC) in the Main Action on
September 4, 2009. Three causes of
action related to the Kramers’ conduct in retaking and retaining possession of
the Premises from July 18, 2008 to June 8, 2009: forcible entry and forcible
detainer of the Premises (second), trespass (third), and intentional infliction
of emotional distress (fourth). Five of
the causes of action arose from the alleged agreement by Andrew K. to sell the
Dispensary and its inventory to the Lannings (Sale Agreement). The causes of action alleged Andrew K.’s
breach of the agreement to sell the Dispensary to the Lannings (first) and, for
the period of forcible detainer, “intentional interference with contractual
relations with the Sunset Shop’s customers†(fifth), “conversion of the Sunset
shop and all its inventory and business equipment†(sixth), “an accounting of
the Sunset Shop’s drug revenue†(seventh), and “a constructive trust of the
Lannings’ estimate of the profits of the marijuana dispensary†(eighth). The Lannings also alleged, for the duration
of the detainer period, breach of an implied-in-fact lease agreement against
Andrew K. for rent and damage to the Premises (ninth), and unjust enrichment
from Andrew K.’s Dispensary operation during the forcible detainer period
(tenth).
The
Lannings requested relief as follows: a sum in excess of $13,500,000 in general
damages, including, inter alia, revenues the Lannings lost from the sale of
medical marijuana as the result of Andrew K.’s forcible detainer and revenues
Andrew K. collected from the sales during forcible detainer, punitive damages
for the intentional torts, and attorney’s fees and costs.
In the UD
Action, the trial court issued a judgment of possession to George L., as
trustee of the Lanning Trust, in April 2009.
The judgment was enforced and, on June 8, 2009, the Lannings took
possession of the Premises from the Kramers.
In January
2010, Andrew K. filed a motion for summary judgment in the Main Action seeking
dismissal of the SAC. The trial court
granted the motion for summary judgment as to the first, fifth, sixth, seventh,
and eighth causes of action.
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The trial
court found that the alleged Sale Agreement was void, in that the terms were
too uncertain and vague to be enforceable.
The court continued that, even if the agreement were sufficiently
certain, it would be unenforceable, in that it would be unlawful under the
federal Controlled Substances Act (21 U.S.C. §§ 812, 841(a)(1), 844). The court found that the “performance of this
agreement to buy/sell a marijuana dispensary and $300,000 worth of inventory
. . . would require the transfer of possession of marijuana, a
controlled substance . . . with the intent to distribute thatâ€
marijuana. The court noted that
marijuana is identified as a “controlled substance†subject to the Act. (21 U.S.C. §§ 802(6), (16) & 812(c),
Schedule I, (c)(10).) The court stated
that California’s “Proposition 215 does not conflict with the Controlled
Substances Act because in passing Proposition 215, California has merely
exercised its state powers not to punish certain marijuana offenses under state
law when a doctor has recommended its use to treat a medical condition.†If the dispensary sale transaction were legal
under California law, according to the court, that “does not change the fact
[that] under federal law, any person’s knowing and intentional acts ‘to manufacture,
distribute, or dispense, or possess with intent to manufacture, distribute, or
dispense, a controlled substance’ [such as marijuana] are unlawful. 21 USC § 841(a)(1); see also 21 USC [§]
844(a).â€
The
Lannings then filed a third amended complaint (TAC) pursuant to the trial
court’s grant of leave to amend, to add the Lanning Trust as a named plaintiff
and remove the former first, fifth, sixth, seventh and eighth causes of
action. The Lannings’ remaining causes
of action were for forcible entry and detainer (first), trespass (second), intentional
infliction of emotional distress (third), breach of implied in fact contract
(lease agreement) (fourth) and unjust enrichment (fifth). In paragraph 74, the Lannings expanded the
list of ways Andrew K. had been unjustly enriched to include (a) money they
paid Andrew K. prior to December 26, 2007, (b) money they paid to Andrew K.
between December 26, 2007 and July 17, 2008, the period the Lannings operated
the Dispensary, and (c) the benefits Andrew K. obtained while operating the
Dispensary during the forcible detainer period.
Andrew K.
moved to strike newly added portions of the TAC, except the addition of the
Trust as a named plaintiff. After a
hearing on the motion to strike, the trial court granted the motion to strike
as to certain additions, including but not limited to, the sources listed as
unjustly enriching Andrew K. in paragraph 74, items (a), (b) and (c) insofar as
(c) sought net profits from Andrew K.’s operating the Dispensary during the
forcible detainer period. At the
hearing, the court also ruled on the Lannings’ motion for leave to amend to add
the new portions to the TAC. The
requested amendments sought, inter alia, restitution of purchase money paid to
Andrew K. pursuant to the alleged Sale Agreement as well as restitution of any
benefits, including net profits, obtained by Andrew K. from operating the
Dispensary during the forcible detainer period.
The trial court denied leave to amend “insofar as any claim is added
which essentially revives any part of the contract claims which the court
previously stated it would not enforce.
That includes the claims for rescission of the agreement to purchase the
dispensary, claims for damages arising from operation of the dispensary, and
legal fees to resolve disputes with the City of West Hollywood over the
operations of the dispensary.â€
In April
2010, Andrew K. filed suit against the Lannings, alleging they had not repaid
in full the two promissory notes the Lannings gave as security for the $1
million deposit he paid them in seeking to purchase the Sunset Building in 2007
(Andrew Kramer v. George Lanning et al.,
2010, L.A. Super. Ct. case No. SC107434) (Note Action). Andrew K. alleged the Lannings still owed him
$408,000 on the second note.
The Main
Action was tried before a jury in June 2010.
In a prior proceeding, the court had found that Andrew K. committed a
forcible entry and forcible detainer of the Premises, beginning on July 18,
2008. The jury rendered its verdict on
June 23, 2010, finding that Rosalinda K., Michael K. and the remaining Kramer
defendants committed a forcible entry and forcible detainer. On this cause of action, the jury awarded
damages of $236,613.68 against Andrew K. and $600 each against the other
defendants. The jury found the Kramer
defendants committed a trespass and awarded damages of $23,286.75 against
Andrew K. and $75.88 each against the other defendants. The jury found Andrew K. was liable for
intentional infliction of emotional distress, with damages of $25,000 to George
L. and damages of $10,000 each to Nansee L. and Justin L. It also found Rosalinda K. and Matthew K.
liable for intentional infliction of emotional distress and assessed damages
against Rosalinda K. and Matthew K. each for $1,000 for each of the three
Lannings.
The jury
also found Andrew K. was entitled to a set off in the amount of his security
deposit, $23,210.87. The jury found by
clear and convincing evidence that Andrew K., WHCCH, and The Sunset Shop, Inc.
acted with malice, oppression, or fraud, and accordingly, the Lannings were
entitled to punitive damages. However,
the jury did not assess any such damages.
The
Lannings filed a motion for a new trial on damages only. The Kramers filed a motion for judgment
notwithstanding the verdict. The trial
court denied both motions. Judgment and
notice of entry of judgment were issued in the Main Action on July 16, 2010.
In the Note
Action, the trial court sustained the Lannings’ demurrer without leave to
amend. On December 29, 2010, the trial
court entered a judgment of dismissal of the Note Action.
A. The Lannings’ Contentions
1. Summary Judgment as to the Causes of Action
Related to the Alleged Sale
Agreement
The
Lannings contend that the trial court erred in granting Andrew K.’s motion for
summary judgment as to their causes of action for breach of the alleged Sale
Agreement, intentional interference with contractual relations, conversion,
accounting and a constructive trust.
Specifically, the Lannings claim the trial court erred in ruling that
the alleged Sale Agreement was unlawful pursuant to the federal Controlled
Substances Act (21 U.S.C. §§ 812, 841(a)(1), 844), that by law, an illegal
contract/transaction may not be the basis of an action and, therefore, each of
the causes of action was subject to summary judgment, given that existence of a
valid sale agreement was an essential element of each of them.
We review a
trial court’s grant of a summary judgment motion de novo. (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) Code of Civil Procedure section 437c,
subdivision (c), provides that a “motion for summary judgment shall be
granted if all the papers submitted show that there is no triable issue as to
any material fact and that the moving party is entitled to a judgment as a
matter of law.â€
Initially,
a moving defendant has the “burden of showing that a cause of action has no
merit,†such as by showing “that one or more elements of the causes of action
. . . cannot be established,†or that there is a complete defense to
the cause of action. (Code Civ. Proc.,
§ 437c, subds. (o), (p)(2); Aguilar
v. Atlantic Richfield Co., supra,
25 Cal.4th at p. 854.) If the
defendant meets that burden, “the burden shifts to the plaintiff
. . . to show that a triable issue of one or more material facts
exists as to that cause of action†or as to the defense proffered by the
defendant. (Code Civ. Proc.,
§ 437c, subd. (p)(2); Aguilar,
supra, at p. 849.) We review the validity of the trial court’s
ruling and not the reasons given for it by the trial court. (Byars
v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1146.)
At the
March 9, 2010 hearing on Andrew K.’s motion for summary judgment, counsel for
the Lannings began argument by addressing the issue of the illegality of the alleged
Sale Agreement under federal law. The
court then invited argument on its tentative conclusion that the agreement was
void and unenforceable because of its vagueness and uncertainty as to the
parties’ actual agreement.
The court
found the alleged Sale Agreement, the Deal Points Memo, “was
incomprehensible . . . .
It might be a contract, but, at the same time, it might be a shopping
list.†There followed brief argument by
counsel that the agreement had been partially performed and its terms could be
determined from the performance shown by records submitted as exhibits to their
supporting declarations. The court found
that there remained questions about the authenticity of the documents purported
to be records of payments under the agreement.
Ultimately, the trial court adopted its tentative decision as its final
written decision. It found that “the
contract at issue here, it is ‘so vaguely expressed as to be wholly
unascertainable’ and is therefore void.
Civ[il] Code [section] 1598.†It
then went on to address the illegality issue, finding that, in any event, the
agreement was illegal and unenforceable.
On appeal,
the Lannings do not challenge the trial court’s determination that the alleged
Sale Agreement was void for uncertainty and vagueness. The record reveals this was not an
inadvertent oversight, but rather the Lannings chose to challenge only the
court’s determination of the agreement’s illegality. In their reply brief, for example, they
assert that the determination the agreement was void for uncertainty and
vagueness “is inconsequential†to their appeal.
Where an appellant does not contend the trial court erred in making a
determination, the appellant forfeits any claims concerning that determination. (Quinn
v. U.S. Bank NA (2011) 196 Cal.App.4th 168, 189-190; Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852
[“When an appellant fails to raise a point . . . we treat the point
as [forfeited].â€].) The Lannings
therefore forfeited any claim of error with respect to the trial court’s
determination that the alleged Sale Agreement was void for uncertainty and
vagueness.
Andrew K.
maintains that the trial court properly determined that the alleged Sale
Agreement was void for uncertainty and vaguenesss, and that was a sufficient
basis for the court to grant his motion for summary judgment. We agree.
When the material facts are
undisputed, as in this case, whether a contract exists is a question of law
which we independently review on appeal.
(Bustamante v. Intuit, Inc.
(2006) 141 Cal. App. 4th 199, 208.) According
to Civil Code section 1550, the
essential elements of a contract are: “1.
Parties capable of contracting; [¶] 2. Their consent; [¶] 3. A lawful
object; and, [¶] 4. A sufficient cause or
consideration.†“‘Under California law, a
contract will be enforced if it is sufficiently definite (and this is a
question of law) for the court to ascertain the parties’ obligations and to
determine whether those obligations have been performed or breached.’ [Citation.]â€
(Bustamante,
the written contract are the seller, the buyer, the price to be paid, the time
and manner of payment, and the property to be transferred, describing it so it
may be identified [Citations.]†(King
v. Stanley (1948) 32 Cal.2d 584, 589, disapproved on another ground in
344, 351, fn. 4.) Civil Code
section 1598 provides: “Where a
contract has but a single object, and such object is unlawful, whether in whole
or in part, or wholly impossible of performance, or so vaguely expressed as to
be wholly unascertainable, the entire contract is void.â€
“‘[T]he modern trend of the law
favors carrying out the parties’ intentions through the enforcement of contracts
and disfavors holding them unenforceable because of uncertainty. [Citations.]’
[Citation.]†(
Cal.App.4th 1157, 1192.) To that end, a
“contract will
be enforced if it is possible to reach a fair and just result even if, in the
process, the court is required to fill in some gaps.†(Ersa
Grae Corp. v. Fluor Corp. (1991) 1 Cal.App.4th 613, 623.) Nevertheless, “[w]here a contract is so uncertain and
indefinite that the intention of the parties in material particulars cannot be
ascertained, the contract is void and
unenforceable . . . .
Unless the court has ascertainable provisions of agreement before it,
there is no contract on which the court may act.†(Cal.
Lettuce Growers v. Union Sugar Co. (1955) 45 Cal.2d 474, 481.) “To be enforceable, a promise must be definite enough that a
court can determine the scope of the duty and the limits of performance must be
sufficiently defined to provide a rational basis for the assessment of
damages.†(Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761,
770.)
It is undisputed that the parties
never reduced the alleged Sale Agreement to the customary form of a written
contract. George L. sent Andrew
K. a letter entitled
“‘Offer To Purchase’ the Dispensary . . . for a ‘Purchase Price’
totaling $1,450,000 and for $300,000 for ‘Inventory.’†There is no signed acceptance of the offer by
Andrew K. The parties acknowledge that
part of their agreement was the two-page Deal Points Memo. Their separate statements of undisputed facts
reveals that the parties did not even agree on what the object was of the Deal
Points Memo. According to the Lannings,
Andrew K. agreed to sell them the Dispensary.
According to Andrew K., he agreed to grant them a license to operate the
Dispensary, contingent upon their satisfaction of certain conditions.
The Deal
Points Memo was not in the form of a written
contract and was virtually devoid of complete sentences. There were dates, dollar amounts and cryptic
phrases alongside the amounts, but no indication regarding, for example, who
was required to pay or entitled to receive the dollar amounts, when payment was
to be made or what the payment entitled the recipient to do or own. The memo states “300,000.00 owed for
remainder,†with no identification of what “remainder†is intended or the
person responsible for payment or entitled to receive payment. There are references to “Loan taken over†and
“Loan Payment,†but no identification of the loan or its purpose. The memo states “1,850,000.00 Total Sale for
home,†but includes no description, legal or by address, of the “home†or
identity of the buyer or the seller.
There is a handwritten note under the heading “Payment Schedule†which
states “$10,000/wk salary until
recipient or even what “business†must be “paid in full.â€
According to the Lannings,
other terms of the parties’ alleged Sale Agreement were implied from the
conduct of the parties after they executed the Deal Points Memo. As evidence of the conduct, the
Lannings provided sets of handwritten documents described as ledgers, which
purportedly were evidence of their payments and debts to Andrew K. under the
alleged Sale Agreement. However, the handwritten ledgers were
also so vague as to be incomprehensible as evidence of the terms and conditions
of the alleged Sale Agreement. Each
ledger set forth a brief caption, a column of dates (many with no year designation),
a corresponding column of dollar amounts and, in most cases, another column of
dollar amounts which sometimes was marked as the balance column.
such as initials or what appeared to be a name of a particular type of medical
marijuana.
The alleged
Sale Agreement lacks clarity and is so vague as to render indiscernible the
elements necessary to formation of a contract, that is, the persons
contracting, the object of the contract, price or other consideration, time
payment is due, or consent by all parties to any such terms and conditions
necessary for the enforcement of the agreement.
(Civ. Code, § 1550; King v. Stanley, supra, 32 Cal.2d at p. 589.)
The trial court properly determined that, as a matter of law, the
alleged Sale Agreement was “so uncertain and indefinite that the intention of
the parties in material particulars cannot be ascertained†and, as a result the
agreement was void and unenforceable. (
supra, 45 Cal.2d at p. 481.)
The
existence of the alleged Sale Agreement was an essential element to the
Lannings’ first, fifth, sixth, seventh and eighth causes of action in the
SAC. Andrew K. met his burden of showing
that the Lannings could not establish the essential element, in that the
Lannings did not possess, and could not reasonably obtain, evidence needed to
prove the existence of the alleged Sale Agreement. (Code Civ. Proc., § 437c,
subds. (o), (p)(2); Aguilar v.
Atlantic Richfield Co., supra, 25
Cal.4th at pp. 854-855.) The
Lannings have failed to meet their burden to show a triable issue of material
fact exists with regard to the enforceability of the alleged Sale
Agreement. (Code Civ. Proc.,
§ 437c, subd. (p)(2); Aguilar,
supra, at p. 849.) For these reasons, as a matter of law, Kramer
was entitled to the grant of his motion for summary judgment as to the first,
fifth, sixth, seventh and eighth causes of action. (Code Civ. Proc., § 437c,
subd. (c); Kahn v. East Side Union
High School Dist. (2003) 31 Cal.4th 990, 1002-1003.)
Inasmuch as
the alleged Sale Agreement was in any event void for vagueness and uncertainty,
we need not reach the Lannings’ contention that the trial court erred in
finding the alleged agreement was void for illegality. The result would be the same.
Preclusion of Restitution Damages for Consideration Paid for Dispensary
As part of
the changes to the TAC, the Lannings amended their unjust enrichment cause of
action (fifth) to seek restitution of the consideration they paid Andrew K. for
the Dispensary as well as disgorgement of Andrew K.’s profits from the
Dispensary during the forcible detainer period.
As we noted previously, in paragraph 74 in the fifth cause of action,
the Lannings expanded the list of ways Andrew K. had been unjustly enriched to
include (a) money they paid Andrew K. prior to December 26, 2007, (b) money
they paid Andrew K. between December 26, 2007 and July 17, 2008, the period the
Lannings operated the Dispensary, and (c) the benefits Andrew K. obtained while
operating the Dispensary during the forcible detainer period.
The
Lannings contend that the trial court erred in granting Andrew K.’s motion to
strike the additions. The Lannings argue
that the court’s comment that restitution damages were not recoverable, in that
determination of them required reference to the void Sale Agreement, was not
supported by the law of unjust enrichment.
They cite cases in which some part of a contract was void as illegal,
precluding damages based on breach of contract, but the plaintiff was deemed
entitled to equitable relief, i.e., restitution, “for any amounts he may have
expended in [the] performance of the agreement.†(Dunkin
v. Boskey (2000) 82 Cal.App.4th 171, 197; see also Hernandez v. Lopez (2009) 180 Cal.App.4th 932, 938-939 [allegations
in pleading showed benefit paid to the defendant as consideration for the
contract and were sufficient to permit restitution to the plaintiff].) The equitable doctrine of unjust enrichment “applies where the plaintiffs,
while having no enforceable contract, nonetheless have conferred a benefit on
the defendant which the defendant has knowingly accepted under circumstances
that make it inequitable for the defendant to retain the benefit without paying
for its value. [Citation.]†(Hernandez,
supra, at p. 938.)
We turn our
focus, however, to the court’s initial statement that, in prior proceedings on
cross-motions for summary judgment, the court gave the Lannings “leave to amend
the complaint as to the causes of action for forcible detainer, trespass, and
unjust enrichment . . . to name the [T]rust as a plaintiff. The Lannings filed a [TAC] . . . in
which the Lannings have done so.
However, . . . the Lannings did not stop there, and have added
various words and phrases throughout the TAC.
. . . [M]ost of the changes . . . are changes
concomitant with the addition of a named plaintiff and update the TAC with
developments in this case since the SAC was
filed . . . . Such
amendments are permissible because they merely respond to the court’s reason
for granting leave to amend. . . . The Lannings have not sought, and the court
did not previously grant, leave for the Lannings to add any new claims for
damages in the complaint . . . .†The court noted that, for that reason, it was
inclined to strike “[e]verything in the TAC ¶74 . . . except the
language ‘Kramer, WHCCH and SSI have been unjustly enriched as a result of the
conduct alleged above by failing to pay rent to the Trust from July 18, 2008 to
June 8, 2009. In addition, Kramer,
WHCCH and SSI caused over $75,000 in damage[s] to the units in which the Sunset
Shop operated while they forcibly detained the same.â€
We agree
that the Lannings’ additional claims for unjust enrichment went far beyond the
limited scope of the leave to amend to add the Trust as a named plaintiff. (See Patrick
v. Alacer Corp. (2008)167 Cal.App.4th 995, 1015 [plaintiff’s amendment
adding a new cause of action was permissible, in that it was within the
specified scope of the trial court’s grant of leave to amend];
(1967) 248 Cal.App.2d 770, 785 [plaintiff may amend to name new parties where
trial court expressly grants leave to do so; plaintiff may not add new parties,
however, where, after a demurrer is sustained, plaintiff has been granted leave
to amend to state a cause of action].)
The Lannings had not obtained leave to amend through a noticed motion
for leave to amend before filing the TAC with the added material, as required
pursuant to Code of Civil Procedure section 473, subdivision (a)(1). (Lee v. Bank of America
(1994) 27 Cal.App.4th 197, 217 and fn. 15.)
Rather they sought leave to amend as a way to oppose Andrew K.’s motion to strike.
The general policy of liberality in
granting leave to amend does not apply where the cause of action or the issues
involved in it are “radically changed,†or the amendment would “operate to the
disadvantage or prejudice of the adverse party.†(Price
v. Mason-McDuffie Co. (1942) 50 Cal.App.2d 320, 325-326.) An amendment should not require a
defendant “to answer a wholly different legal liability or obligation from that
originally stated.†(
Cal.2d 13, 20.) The trial court did not
abuse its discretion in refusing to grant leave to amend with regard to the
cause of action (fifth) for unjust enrichment.
3. Use of
Andrew K.’s Special Verdict Form; Joint and Severable Liability
for Intentional Torts
The
Lannings contend that the trial court erred in submitting Andrew K.’s special
verdict form, which required the jury to specify the amount of damages
attributable to each Kramer defendant if the jury found them liable, to the
jury and in rejecting all their objections.
They claim that, by law, all of the Kramer defendants must be held
jointly and separately liable for the total amount of damages assessed by the
jury for the intentional torts.
According to the Lannings, allowing such apportionment abrogated the
principle of joint and several liability of all of the tortfeasors who conspire
to commit the same tort.
The
Lannings cite Hughey v. Candoli
(1958) 159 Cal.App.2d 231 as support for their contention, but that case also
supports the use of a special verdict form allowing the jury to state the
amount of damages caused by each defendant, as Andrew K.’s form did. The Hughey
court stated that, generally, “‘“[w]here several persons act in concert and
damages result from their joint tort, each person is held for the entire
damages . . . ,â€â€™â€ and the same result applies even if
persons are not acting in concert, but “‘“the results produced by their acts
are indivisible,â€â€™â€ such as “‘“[d]eath, burning of a building or the sinking of
a boat . . . .â€â€™â€ (
“‘“segregation as to causation can be established,â€â€™â€ each tortfeasor bears
“‘the burden of establishing that his own wrong did not contribute to the
damages, or the extent to which it did so.’â€
(Ibid.) In the instant case, the jury apparently
decided that each Kramer defendant met that burden and specified the damages
against each defendant accordingly.
The facts
do not support the Lannings’ claim that the torts produced indivisible results
requiring that defendants be held jointly and severally liable for all
damages. (See Hughey v. Candoli, supra,
159 Cal.App.2d at p. 240.) The torts
were not single discrete events, but rather they continued over a long period
of time. For the duration of the
forcible entry and forcible detainer, Andrew K. was present virtually every
day, but Rosalinda K. and Matthew K. were not.
As Andrew
K. points out, the jury was instructed as to the indivisibility of damages
caused by defendants if they acted as members of a conspiracy in carrying out
the tortious conduct. At the Lannings’
request, the trial court instructed the jury on the elements required to find a
conspiracy (CACI No. 3600), as well as the indivisibility of the damages caused
by a conspiracy (CACI No. 3601, also D-9).
The court stated: “If you decide
that defendants join the conspiracy to commit the
torts . . . , then they are responsible for all acts done
as part of the conspiracy, whether they occurred before or after they join the
conspiracy.â€
The
Lannings’ special verdict form did not request a specific finding as to
conspiracy. The form only had one line
for entry of damages. The court rejected
the Lannings’ form, reasoning that the form did not allow for the possibility
of the jury finding that the Kramer defendants did not act in a conspiracy and
needing spaces for specification of the amount of damages as to each
defendant. As the Lannings observed in
their opening brief, “[b]ecause the apportionments [in the final verdict] were
different [for each Kramer defendant], the only conclusion that reconciles the
apportionment is that the jury concluded that there was no conspiracy amongst
defendants.†The trial court did not
err in permitting use of Andrew K.’s special verdict form.
“Tort of Another†Attorney’s Fees
In the TAC,
the Lannings amended their prayer for attorney’s fees to include fees
authorized by “the ‘tort of another’ doctrine.â€
The jury found that Andrew K., Rosalinda K., and Matthew K. had
committed the tort of forcible entry and forcible detainer of the
Premises. Among other things, the
evidence showed that, on the day of their forcible entry, Rosalinda K. and
Matthew K. spoke to the sheriff’s deputies who responded to the Lannings’
telephone call for help, and Rosalinda K. showed them a copy of the Lease
between the Lannings and Andrew K. Upon
seeing the Lease, a deputy said that the situation appeared to be a civil
matter, and the deputies left.
Thereafter, the Lannings filed the UD Action against Andrew K. to regain
possession of the Premises. The Lannings
sought to recover the attorney’s fees they expended in the UD Action from Rosalinda
K. and Matthew K. as damages in
the Main Action under the “tort of another†doctrine. The trial court ruled that the doctrine did
not apply.
On appeal,
the Lannings claim the court erred, and the doctrine did apply. The gist of the Lannings’ argument is that,
but for the wrongful conduct of Rosalinda K. and Matthew K. in representing to
the sheriff’s deputies that they and Andrew K. had a legal right to be in
possession of the Premises under the Lease, the Lannings would not have had to
file and prosecute the UD Action.
Therefore, the Lannings assert, they are entitled to recover their
attorney’s fees and costs in the UD Action from Rosalind K. and Matthew K. as
damages for their wrongful conduct under the “tort of another†doctrine.
The general
rule in tort actions is that the party who employs the attorney pays the
attorney’s fees, in the absence of some special
agreement, statutory provision, or exceptional circumstances. (Code Civ. Proc., § 1021;
(1963) 59 Cal.2d 618, 620.) The “tort of
another†doctrine arises in the exceptional circumstances when a “person
who through the tort of another has been required to act in the protection of
his interests by bringing or defending an action against a third person.†(Prentice,
supra, at p. 620.) In such circumstances, the person “is
entitled to recover compensation for the reasonably necessary loss of time,
attorney’s fees, and other expenditures . . . suffered or incurredâ€
in the action against the third person.
(Ibid.)
Under the
“tort of another†doctrine, attorney’s fees are awarded as one element of
damages suffered by the plaintiff who was required to sue a third person to
protect his rights as “the natural and proximate consequence†of the torts
committed against the plaintiff by the defendant; the attorney’s fees are not
“‘the measure and mode of compensation of attorneys’†governed by Code of Civil
Procedure section 1021. (
supra, 59 Cal.2d at p. 621; see
also Gray v. Don Miller & Associates,
Inc. (1984) 35 Cal.3d 498, 505, 507 [a plaintiff may recover attorney’s
fees “if he is required to employ counsel to prosecute or defend an action
against a third party because of the tort of defendantâ€]; Behniwal v. Mix (2005) 133 Cal.App.4th 1027, 1043.) “‘Unless the
parties stipulate otherwise, a claim for attorney fees under the “tort of
another†doctrine . . . must be pleaded and proved to the trier of
fact. [Citations.]’†(Gorman
v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 79.)
Because the
attorney’s fees awarded under the “tort of another†doctrine are “in
fact an element of tort damages, nearly all of the cases which have applied the
doctrine involve a clear violation of a traditional tort duty between the
tortfeasor who is required to pay the attorney fees and the person seeking
compensation for those fees.
[Citations.]†(
1305, 1310.) The “tort of anotherâ€
doctrine does not apply, however, “to the situation where a plaintiff has been
damaged by the joint negligence of codefendants.†(Gorman
v. Tassajara Development Corp., supra,
178 Cal.App.4th at p. 80.) The
doctrine, as set forth in Prentice v. North Amer. Title Guar. Corp., supra, 59 Cal.2d at pages 620 and 621, “‘was not intended to apply to one of
several joint tortfeasors in order to justify additional attorney fee
damages. If that were the rule there is
no reason why it could not be applied in every multiple tortfeasor case with
the plaintiff simply choosing the one with the deepest pocket as the “Prentice
target.†Such a result would be a total
emasculation of Code of Civil Procedure section 1021 in tort cases.’†(Gorman,
supra, at p. 80.)
The
trial court properly ruled that the Lannings were not entitled to attorney’s
fees as “tort of another†damages against Rosalinda K. and/or Matthew K. The TAC alleges that “[b]ecause of the
forcible entry and detainer of the Premises by Matthew Kramer, Rosalinda Kramer
and their security personnel, the Lannings were forced to retain counsel and
cause the Trust to commence a lawsuit [as] an unlawful detainer action against
Andrew Kramer to reclaim possession of the Premises.†The Lannings did not plead any “tort of
another†damages against Rosalinda K. and Matthew K. (Gorman
v. Tassajara Development Corp., supra,
178 Cal.App.4th at p. 79.) The TAC
alleges that all three—Rosalinda K., Matthew K. and Andrew K.—were joint
tortfeasors. (Id. at p. 80.) The
Lannings did not institute the unlawful detainer action against only Andrew K.
solely as “the natural and proximate consequence†of
the torts of Rosalinda K. and Matthew K.
(Prentice v. North Amer.
Title Guar. Corp., supra, 59
Cal.2d at p. 621.)
Thus, the “tort of another†doctrine could not, and did not, apply.
The Lannings’ Motion for Retrial on Damages Only
The
Lannings contend the trial court erred in denying their motion for a new trial
on damages only. The Lannings do not
challenge any of the jury’s findings on liability. When the court denies a new trial, we “conduct an independent
examination of the proceedings to determine whether a miscarriage of justice
occurred.†(People v. Ault (2004) 33 Cal.4th 1250, 1261-1262, fn. omitted; Cal.
Const., art. 6, § 13.)
First the
Lannings contend that, as their foregoing claims show, the manner in which the
jury answered the special verdict questions on damages is unclear and may be
the result of error. As we previously
concluded, there was no error.
The
Lannings also claim that retrial on the amount of punitive damages is
warranted, in that Andrew K. failed to provide sufficient information to allow
the Lannings’ financial expert to offer evidence of Kramer’s current net worth
for the jury’s consideration in determining the amount of punitive damages to award. The expert was Scott Mowrey, a certified
public accountant. He testified that he
had received the 2006 and 2007 tax returns for Andrew K., together with some
supporting documents and partial statements from brokerage accounts. Mowrey stated the dollar amount, in his
opinion, of Andrew K.’s net worth.
During the
hearing on punitive damages, counsel for the Lannings never raised an
objection, or even mentioned, that the financial information made available to
Mowrey was insufficient for the purpose of assessing Andrew K.’s net
worth. Counsel was not caught by
surprise, however; he had the opportunity to become aware of the alleged
insufficiency prior to the hearing.
According to his declaration, the court permitted counsel for the
Lannings to meet with Mowrey and review the financial information provided by
Andrew K. during a break prior to the start of the hearing. By failing to make a timely objection, the
Lannings forfeited any error with respect to the punitive damages procedure,
including any failure by Andrew K. to provide sufficient financial information
for the determination of his net worth.
(See, e.g., City of El Monte v.
Superior Court (1994) 29 Cal.App.4th 272, 280 [plaintiff forfeited
objection to punitive damages procedure by failing to object before jury was
discharged].)
In any
event, substantial evidence would support a finding that the information was
sufficient. When a plaintiff attacks the
sufficiency of the evidence to support the trier of fact’s finding, our power
on appeal “‘begins and ends with the
determination as to whether there is any substantial evidence contradicted or
uncontradicted which will support the finding of fact.’ [Citations.]â€
(Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881, italics omitted.) The Lannings’ financial expert identified the
evidence provided to him and stated the specific dollar amount that, in his
opinion, constituted Andrew K.’s
net worth. He never mentioned that the
information provided to him was, or even appeared to be, insufficient to allow
him to render an opinion on Andrew K.’s net worth and counsel for Lanning never questioned him on the
issue. That is sufficient for us to
determine that there was substantial evidence to support the expert’s net worth
opinion used by the jury in making its finding.
(Ibid.)
B. Andrew
K.’s Contentions
Res Judicata Effect of the Judgment of Possession in the UD Action
Andrew K.
contends that the jury verdict for $236,613.68 against him in the Main Action
must be reversed, in that the judgment in the UD Action was res judicata on the
issues of forcible entry and forcible detainer and barred trial on the issues
in the Main Action. We disagree.
In both the
Main Action and the UD Action, the Lannings stated causes of action against
Andrew K. for forcible entry and forcible detainer. The sole remedy obtained in the UD Action was
a judgment of possession. The judgment
of possession in the UD Action did not bar the trial and award on monetary
damages in the Main Action.
The primary
purpose of an unlawful detainer action (Code Civ. Proc., § 1174) is “‘“the
recovery of the possession of the property.
The recovery of rent is a mere incident to the main object.â€â€™â€ (Balassy
v. Superior Court (1986) 181 Cal.App.3d 1148, 1152.) The landlord may leave recovery of monetary
damages to subsequent litigation. (See
(1985) 168 Cal.App.3d 725, 729.) The
cause of action may be the same in two lawsuits, but remedies sought may be
different, “‘one not being determinative of the other.’†(Crowley
v. Katleman (1994) 8 Cal.4th 666, 682.)
In the UD action, judgment was rendered in the forcible entry and
forcible detainer cause of action only as to the remedy of the right of
possession; the issue of damages was not litigated.
A judgment
operates as res judicata or collateral estoppel in a subsequent action only as
to those issues actually litigated. (
880; 7 Witkin, Cal. Proc. (4th ed. 1997) Judgment, § 313, p. 864, § 354, p. 915.)
Hence, the judgment in the UD Action did not bar the trial on the issue
of damages for forcible detainer in the Main Action. (Northrop
Corp. v. Chaparral Energy, Inc., supra,
168 Cal.App.3d at p. 729.)
Emotional Distress Verdict as to Justin L.
The jury
awarded damages of $10,000 against Andrew K., $1,000 against Rosalinda K. and
$1,000 against Matthew K. for intentional infliction of emotional distress as
to Justin L. Andrew K. appeals from the
trial court’s denial of his motion for judgment notwithstanding verdict on the
cause of action. He contends the verdict
must be reversed, in that the law does not authorize a cause of action for
second-hand emotional distress, i.e., Justin L.’s distress due to watching the
toll that the litigation took on his parents.
At the
close of direct examination, counsel for the Lannings asked Justin L. to
briefly tell why he was asking the jury to award him damages for emotional
distress. Justin stated: “Primarily, because to see the rapid aging of
my parents throughout this entire litigation process—it’s beyond drained my
family emotionally, financially, and physically. I’ve had the burden of helping to support my
family through this. And it’s been
extremely difficult. Also, our quality
of life has diminished considerably as a result of the horrific acts and
. . . the malicious intent by the defendants.â€
Prior to
that brief statement, Justin had testified that, on July 18, 2008, when he
discovered that none of his keys fit the lock to the gate to the Premises, two
men who had been hired by Andrew K. as security personnel were standing near
him. He asked them what was going
on. One of them, who was about six feet
four inches in height, said to Justin in an unfriendly manner that “we’re not
going to play this guessing game.â€
Justin testified that, at that time, he “felt fearful,†“felt a big
presence over me†and “felt physically scared.â€
He called his father, George L., “frantic, stating that our building had
been taken over.†When George arrived,
Rosalinda K. and Matthew K. approached, and George and Rosalinda got into a
heated argument. Four security personnel
were present and two were videotaping the scene. Justin said that Rosalinda directed one of
the security personnel to “‘remove George L. from this Premises
immediately.’†Justin felt a physical
confrontation was about to break out. He
was concerned for George because he had bladder cancer and had recently had
heart surgery. Justin observed that his
small 61-year-old mother, Nansee L., was very nervous and was physically
shaking. Justin testified that he “felt
scared†and “uncomfortable.†Justin said
that he “felt that we were being bullied,†“there was a menacing presence†and
he was “overwhelmed by the number of people that were against us.†Justin stated that he “was not sure whether or
not there was weapons or whatever,†due to the “large security presence and all
the people wearing baggy clothing.†When
the Lannings first entered the Premises after the judgment of possession had
been entered in the UD Action, Justin testified that he was “personally
disgusted†and “felt horrified†at the condition of the Premises.
The trial
court’s “power to grant
a judgment notwithstanding the verdict is identical to [its] power to grant a
directed verdict.†(Hauter v. Zogarts (1975) 14 Cal.3d 104, 110.) The trial court “cannot weigh the evidence
[citation], or judge the credibility of witnesses. [Citation.]
If the evidence is conflicting or if several reasonable inferences may
be drawn, the motion for judgment notwithstanding the verdict should be
denied. [Citations.]†(Ibid.) The trial court may properly grant a motion
for judgment notwithstanding the verdict “‘only if it appears from the
evidence, viewed in the light most favorable to the party securing the verdict,
that there is no substantial evidence to support the verdict. If there is any substantial evidence, or
reasonable inferences to be drawn therefrom, in support of the verdict, the
motion should be denied.’
[Citation.]†(
A plaintiff may recover damages for
intentional infliction of emotional distress if the distress is severe, whether
or not the plaintiff suffered any physical injury. (Hailey
v. California Physicians’ Service (2007) 158 Cal.App.4th 452, 476.) Emotional distress is severe if it is “‘of
such substantial quantity or enduring quality that no reasonable man in a
civilized society should be expected to endure it,’†including “‘any highly
unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment,
anger, chagrin, disappointment or worry.’â€
(Ibid.) However, “[l]iability for intentional infliction of emotional
distress ‘“does not extend to mere insults, indignities, threats, annoyances,
petty oppressions, or other trivialities.â€
[Citation.]’ [Citations.]†(Hughes
v. Pair (2009) 46 Cal.4th 1035, 1051.)
“A cause
of action for intentional infliction of emotional distress must allege facts
showing outrageous conduct which is intentional or
reckless[,] . . . ‘exceeding all bounds usually tolerated by
decent society, of a nature which is especially calculated to cause, and does
cause, mental distress of a very serious kind.’
[Citations.] . . . Further, although the law appears to be
moving toward allowing recovery where mental distress is caused when plaintiff
witnesses conduct directed toward a third person, ‘thus far recovery is clearly
limited to the most extreme cases of violent attack, where there is some
especial likelihood of fright or shock.’
[Citation.]†(
159, 165, fn. 5, italics omitted; accord, Christensen v. Superior Court (1991) 54 Cal.3d 868, 904-905.) Liability for intentional infliction of emotional distress
requires “that the defendant’s conduct be directed primarily at the plaintiff [which] is a
factor which distinguishes intentional infliction of emotional distress from
the negligent infliction of such injury,†when the defendant’s conduct is
directed primarily at a third person, such as the plaintiff’s child. (Christensen,
supra, at p. 904.)
We agree
with Andrew K. that the emotional distress described by Justin L. is
insufficient to constitute the severe emotional distress required as a matter
of law for liability for intentional infliction of emotional distress. Andrew K. cites Hughes v. Pair, supra, 46 Cal.4th 1035, in which the court affirmed a lower court’s
ruling that the defendant was not liable for intentional infliction of
emotional distress to the plaintiff based on her claim that she “suffered
discomfort, worry, anxiety, upset stomach, concern, and agitation as the result
of [the] defendant’s [sexually explicit] comments to her†in a telephone call
and a brief encounter with him at a museum.
(Id. at pp. 1040,
1051.) In the other case Andrew
K. cites,
1354, the plaintiff alleged a cause of action for intentional infliction of
emotional distress arising from the defendants’ disparaging posting about her
on the Internet. (Id. at p. 1361.) The
plaintiff submitted a declaration stating that the Internet posting “‘was very
emotionally upsetting to me, and has caused me to lose sleep, have stomach
upset and generalized anxiety.’†(
conditions were insufficient to constitute intentional infliction of emotional
distress. (Ibid.)
Viewing the evidence in the light
most favorable to Justin L., he and his parents were in the immediate presence
of persons whom he feared were about to physically harm himself and/or his
parents and appeared to have the ability to inflict harm. They were telling Justin and his parents in a
threatening manner to stay off the Premises and forcibly keeping them off
property that the Lannings owned by blocking access. The conduct Justin L. described may have gone
beyond “‘“mere insults, . . . threats, . . .
petty oppressions, or other trivialities.â€â€™â€
(Hughes v. Pair,
upsetting’†to Justin L. and caused him to have “‘generalized anxiety.’†(Wong
v. Jing, supra, 189 Cal.App.4th
at p. 1377.)
Defendants’ conduct falls short,
however, of being “‘of such substantial quantity or enduring quality that no reasonable man
in a civilized society should be expected to endure it.’†(Hailey
v. California Physicians’ Service, supra,
158 Cal.App.4th at p. 476.)
Defendants’ conduct was intentional, but it was not so outrageous as to
“‘exceed[] all
bounds usually tolerated by decent society.’â€
(Christensen v. Superior Court,
supra, 54 Cal.3d at
pp. 904-905.) Justin L. may have
been justifiably concerned for the well-being of his parents. The evidence does not show that defendants
engaged in an “‘“extreme case[] of violent attack [on Justin’s parents], where
there [was] some especial likelihood of fright or shock.â€â€™â€ (Id.
at p. 905.) In the absence of such
extreme egregious conduct toward his parents, Justin L. cannot recover for
intentional infliction of emotional distress based upon any distress, worry or
concern arising from defendants’ conduct toward his parents. (Ibid.) We conclude that the verdict is not supported by substantial
evidence and reasonable inferences drawn from it. The trial court erred in denying Andrew
K.’s motion for
judgment notwithstanding verdict on Justin L.’s intentional infliction of
emotional distress claim. (Hauter v. Zogarts, supra,
14 Cal.3d at p. 110.) The judgment
in Justin L.’s favor based upon liability for intentional infliction of
emotional distress on him must be reversed and the associated damages awards
against Andrew K., Rosalinda K. and Matthew K. must be vacated.
Andrew K.
filed the Note Action, alleging the Lannings defaulted on the promissory note
securing the $1 million deposit he paid them toward the purchase of the Sunset
Building while the Main Action was still in progress. The complaint alleged causes of action for
breach of the promissory note and money had and received.
After the
jury verdict in the Main Action, the Lannings filed a demurrer in the Note
Action. The grounds for the demurrer
were that Andrew K.’s claims were required to be pleaded as a compulsory
cross-complaint in the Main Action, and because they were not so pleaded, then
pursuant to Code of Civil Procedure section 426.30, subdivision (a),
Andrew K. was barred from raising them in a subsequent action. On that basis, the trial court sustained the
demurrer without leave to amend and subsequently entered a judgment of
dismissal.
“On review
from an order sustaining a demurrer, ‘we examine the complaint de novo to
determine whether it alleges facts sufficient to state a cause of action under
any legal theory, such facts being assumed true for this purpose. [Citations.]’
[Citation.]†(
County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.) When a demurrer is sustained without leave to
amend, “we decide whether there is a reasonable possibility that the defect can
be cured by amendment: if it can be, the trial court has abused its discretion
and we reverse; if not, there has been no abuse of discretion and we
affirm. [Citations.] The burden of proving such reasonable
possibility is squarely on the plaintiff.
[Citation.]†(
318.) “On appeal from dismissal
following a sustained demurrer, we take as true all well-pleaded factual
allegations of the complaint.
[Citation.]†(
Cal.4th 490, 495-496.)
In his
complaint in the Note Action, Andrew K. alleged that in September 2006, he
entered into a lease with the Lannings for his use of a portion of the Sunset
Building for the Dispensary. In January
2007, he proposed to purchase the Sunset Building from the Lannings and entered
into an escrow agreement with them. As
the agreement required, he deposited $600,000 with the Lannings, to be returned
to him if he could not close escrow by August 7, 2007. In return, the Lannings executed a promissory
note to him as security for the return of his deposit (First Note). Thereafter, the parties entered into a
written agreement to increase the deposit to $1 million, amend the First Note
accordingly, and extend
| Description | We consider together two appeals from judgments in two trial court cases which share a common factual background and involve some of the same parties. The first, No. B227686, is from a 2010 judgment in Lanning v. Kramer, Los Angeles County Superior Court, No. SC099461. The plaintiffs are George Lanning (George L.), his wife Nansee Lanning (Nansee L.), their son Justin Lanning (Justin L.), collectively the Lannings, and The George and Nansee Lanning Revocable Trust, for which the trustees were George L. and Nansee L. The defendants are Andrew Kramer (Andrew K.), his mother Rosalinda Kramer (Rosalinda K.), his son Matthew Kramer (Matthew K.), collectively the Kramers, and his business, West Hollywood Center for Compassionate Healing, Inc. (WHCCH), doing business as The Sunset Shop, Inc. The second appeal, No. B231249, is from a 2010 judgment in Kramer v. Lanning, Los Angeles County Superior Court, No. SC107434. The plaintiff is Andrew K. The defendants are George L., Nansee L., The Lanning Family Trust, George L. and Nansee L. as trustees, and The George and Nansee Lanning Revocable Trust, George L. and Nansee L. as trustees. |
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