Filed 8/28/26 United Brands Worldwide v. D&K Worldwide CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
UNITED BRANDS B340640
WORLDWIDE, LLC,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. 22SMCV00951)
v.
D&K WORLDWIDE, LLC, et
al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Elaine W. Mandel, Judge. Affirmed.
McMurray Henriks and Yana Henriks for Plaintiff and
Appellant.
Beitchman & Zekian, David P. Beitchman, and Andre
Boniadi for Defendants and Respondents.
__________________________________
After respondents D&K Worldwide, LLC and Danny
Suleminian successfully demurred to causes of action for breach
of the implied covenant of good faith and fair dealing and for
conversion in the operative complaint filed by appellant United
Brands Worldwide, LLC, the trial court granted respondents’
motion for summary judgment on the remaining causes of action.
The court subsequently denied United Brands’s motion for new
trial.
On appeal, United Brands contends: (a) the court erred in
granting summary judgment; (b) we should grant United Brands
leave to amend to reallege causes of action for breach of the
implied covenant and conversion; and (c) the court erred in
denying its new trial motion. We conclude that: (a) the causes of
action as framed by United Brands’s operative complaint are
barred by the statute of limitations; (b) United Brands has not
shown it could successfully amend; and (c) United Brands has
forfeited any arguments regarding its new trial motion but, in
any case, the court did not err in denying the motion. We
therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. United Brands Files a Complaint
In June 2022, United Brands filed a complaint. After
respondents filed a demurrer and motion to strike, United
Brands filed a first amended complaint (FAC) in February 2023,
the operative complaint.1 As relevant to this appeal, the FAC
alleged:
1 Although United Brands failed to include the FAC in the
appellate record, in May 2026, respondents request we take
(Fn. is continued on the next page.)
2
1. The Written Letter Agreement
In October 2013, D&K and United Brands entered into a
letter agreement. The agreement recited that D&K was “looking
to purchase real estate or investments” and provided that: (1)
United Brands would present D&K “with opportunities to
purchase Real Estate or Investments”; (2) D&K agreed to pay
United Brands “a consulting fee equal to 20% of the net profit
from the purchase and sale of the property located at 1012-14 S.
Orange, Los Angeles, CA”; and (3) United Brands would “assist”
D&K “with negotiating and pursuing voluntary vacancy
agreements with the tenants, leasing and selling the property,
tenant issues and other tasks that the client [D&K] needs.”
2. The Oral Modification
In January 2015, the parties orally modified the
agreement. Respondents informed United Brands “they were no
longer interested in selling the property and instead wanted
Plaintiff to manage the property. In lieu of paying a commission
or fees to Plaintiff, Defendant offered to Plaintiff to become
partners in managing the property,” and that United Brands
would be considered a “joint venturer or partner.” Respondents
agreed to pay United Brands 20 percent of the “net rental profits”
generated from the Property. Specifically, United Brands alleged
the parties agreed that “Defendants would first pay Plaintiff
$300.00 each month, and at the end of the year, the true balance
of twenty percent (20%) of net profits would be calculated.
Defendants would then pay to Plaintiff the difference between
judicial notice of the pleading. United Brands does not oppose,
and we grant the request.
3
what Plaintiff had already received and what Plaintiff was due
under the terms of the oral modification.”
3. Alleged Wrongdoing
Between February 2015 and August 2020, United Brands
received monthly checks of $300. “In August 2020, Defendant
discontinued the monthly $300.00 payments.” When the
payments stopped, United Brands “requested all financial
information on The Property since its purchase in order to
ascertain the amount due to Plaintiff. Despite repeated requests
over several months, Defendants refused to provide financial
information despite Plaintiff’s right to that information as a
partner or joint venturer.”
Because United Brands and D&K were partners, D&K “by
and through its owner and managing agent” Suleminian,
“knowingly undertook, on Plaintiff’s behalf, to collect property
income, and then to accurately calculate, segregate, safeguard,
and remit to Plaintiff at the agreed time Plaintiff’s share of the
income and to account for the same to Plaintiff.”2 United Brands
also alleged respondents misrepresented “that Defendants would
accurately calculate and pay to Plaintiff twenty percent (20%) of
the net rental profits generated from The Property.”
4. Causes of Action and Relief Sought
Based on these allegations, United Brands pleaded six
causes of action: (1) Breach of Contract; (2) Breach of Covenant of
Good Faith and Fair Dealing; (3) Breach of Fiduciary Duty; (4)
2 Although the FAC does not expressly allege this,
presumably United Brands accuses D&K of failing to do these
things.
4
Fraud and Deceit; (5) Conversion; and (6) Accounting. United
Brands alleged it was “due approximately $150,000, an amount
representing the true twenty percent (20%) of net profits from the
rental income in The Property over the course of years,
subtracted by the $300.00 monthly payments that were actually
made by Defendant” and “twenty percent (20%) of the increase in
the fair market value of the property from the time it was
purchased through today,” which United Brands estimated to be
approximately $400,000. United Brands also alleged an
“accounting is necessary because the amounts alleged to be due
and owed to Plaintiff is uncertain and can only be ascertained by
an accounting including a determination of the total rental
income generated over the period in question and the net profits.”
5. Demurrer
According to respondents’ appellate brief, “D&K demurred
to the second cause of action for breach of covenant of good faith
and fair dealing and fifth cause of action for conversion alleged in
the First Amended Complaint, which the trial court sustained.”
United Brands agrees that “[o]n April 28, 2023 the trial court
sustained, without leave to amend, Appellants[’] claims for
Breach of The Implied Covenant Of Good Faith And Fair Dealing,
and Conversion.”3
3 Neither the pleadings relating to the demurrer nor the
court’s order sustaining the demurrer is in the appellate record.
5
B. Respondents Move for Summary Judgment
1. The Motion
In December 2023, respondents moved for summary
judgment. They agreed the parties entered into the letter
agreement and, based on that agreement, D&K purchased the
property. However, they claimed United Brands proceeded to
materially breach the agreement by requiring D&K to undertake
“extensive and costly remodeling” before finding new tenants and
refusing to “handle the remodel,” requiring D&K to do it. When
the remodel was completed, D&K listed the building for sale but
received no bids. As a result, in early 2015, D&K decided to keep
the property as a rental, and “the parties renegotiated their
agreement.” “D&K offered to pay United Brands a monthly fee in
exchange for United Brands agreeing to manage the property as
an independent contractor. By way of an email dated January
27, 2015 . . . D&K initially offered to pay $300 per month and to
revisit at the end of each year to figure out the 20% net profits for
the year. In [a] reply email, United Brands said that it ‘will
review’ D&K’s offer.” United Brands subsequently declined the
offer, stating it did not want to perform property management
duties. Instead, the parties agreed D&K would pay United
Brands $300 a month “to handle existing/new lease papers.”
On January 21, 2017, Jack Abramov, the sole member of
United Brands, sent Suleminian an e-mail stating that, if D&K
intended to keep the property, Abramov was “requesting that you
pay the consulting fee that is owed to United Brands according to
today’s value.” Four days later, Abramov also requested “a copy
of the books and records for [the property] for 2014-2016 to view
the true profits and to determine what is the actual 20% due to
United Brands.”
6
Suleminian replied within an hour, stating: “As was
agreed in the beginning [¶] $300 a month between me and
you[. ¶] If you like to change anything I am welling to discussed
[sic] moving forward.” Abramov responded by claiming that
“United Brands is still entitled to 20% of the profit from the
purchase and sale of the building as we agreed in writing” and
stating that, if D&K did not wish to sell the property, “you can
pay my consulting fee or we can determine the % equity that will
reflect on title.”
Suleminian disputed Abramov’s description, stating “it was
not consulting fee it was the deal that you brought me as agent/
broker and as a friend I told you that I give you 20% of the profit
when we sell it without you bringing any money because I knew
you’re struggling in your life and I love you as a friend.” He
added that “[e]ven though you were supposed to help me with
managing[,] I am doing everything [and] I’m not telling you
nothing about it.” United Brands made three more requests for
the “books and records” in October 2020, December 2020, and
February 2021, and respondents denied each request.
In July 2020, “due to unrelated disputes arising between
the parties in connection with a separate business deal gone
wrong, United Brands expressed refusal to further assist D&K in
connection with the Property. As such, D&K’s last payment of
$300 to United Brands was made in July 2020.”
Based on these purportedly undisputed facts, respondents
alleged the first cause of action for breach of contract was barred
by the statute of limitations. Specifically, respondents asserted a
two-year statute of limitations applied to the breach of oral
modification claim United Brands was asserting, and thus it
could only seek damages sustained after June 23, 2020 (two years
7
before the complaint was filed). But “because Plaintiff has not
provided any services in connection with the multi-unit property
since July of 2020, as required by the parties’ agreement, there
can be no viable claim for damages.” (Underline removed.)
Respondents also argued the breach of fiduciary duty and
accounting causes of action were barred by a two-year statute of
limitations because they were based on the oral modification, and
that the statute of limitations began to run in January 2017.
Finally, they contended the fraud cause of action was barred by a
three-year statute of limitations that also began to run in
January 2017.
2. The Opposition
In February 2024, United Brands opposed respondents’
motion. United Brands argued its claims were not barred by the
statute of limitations both because “[t]he harm flowing from
[respondents’] breach was not reasonably discoverable by
Plaintiff until he was sued by Danny Suleminian in the failed
TRO case in December 2020 and discovery was performed in this
litigation,”4 and because the 2015 agreement the parties entered
was an oral modification of a written contract and thus was
governed by a four-year statute of limitations.
In Abramov’s declaration supporting the opposition, he
disputed respondents’ characterization of the 2015 oral
agreement, stating instead that the parties “agreed that it was
4 Specifically, “Suleminian’s December 16, 2020 testimony,
before another court, initially admitted Defendants agreed to pay
Plaintiff 20% of the sales profit. But then under oath he
immediately denied he would pay Plaintiff the 20% sales profit or
rental income.”
8
only fair as partners in running the Property, that Plaintiff
United Brands should receive 20% of the rental income.”
Abramov acknowledged receipt of the January 2017 e-mails
discussed above, but claimed both that the e-mails “confirm[ed]
[D&K] would pay me the 20% of the proceeds from the Property”
and that since the e-mails were sent, “Suleminian gave me
repeated verbal and written assurances/representations on an
ongoing basis through roughly the end of 2020 that he would
honor our agreement and partnership by paying me the 20% from
the sale of the Property.” United Brands additionally argued its
2015 modification did not create a “ ‘divisible’ contract” and thus
“the Contract remains whole and Plaintiff can wait until the
entire Contract is breached before filing its claim, as it did here
in a timely manner within four years.”
As to breach of fiduciary duty, United Brands argued it did
not arise from the breach of the oral agreement, but “out of a
partnership” (underline removed), and thus was subject to a four-
year statute of limitations.
For fraud, United Brands asserted it did not discover
respondents’ fraud until Suleminian’s December 2020 testimony,
and thus the statute of limitations did not begin to run until
then, making its June 2022 complaint timely.
Finally, United Brands argued its accounting cause of
action was based on the oral modification of a written contract,
and therefore was not barred by the two-year statute of
limitations.
3. The Reply
In March 2024, respondents replied to United Brands’s
opposition. Respondents asserted that inasmuch as United
Brands’s complaint was based on entitlement to 20 percent of the
9
net profits from a sale of the property, “there can be no finding of
breach or damages because Defendants have not sold the subject
property.” (Underline removed.) Respondents continued to
maintain any cause of action for 20 percent of the rental income
was time-barred.
C. The Court Grants Summary Judgment
1. The Court Takes the Motion Under
Submission After the Initial Hearing
At a March 2024 hearing, the court issued a tentative
ruling partially granting and partially denying respondents’
motion. The court found the undisputed evidence demonstrated
that, as of January 2017, United Brands was on notice that
respondents rejected its interpretation of the parties’ agreement
or that it was entitled to 20 percent of the property’s yearly rental
profits. The court thus found the statute of limitations barred
United Brands’s causes of action for breach of contract and fraud.
The court also stated any cause of action for breach of contract or
fraud relating to respondents’ failure to pay United Brands 20
percent of the profits from the sale of the building was “unripe”
because the building had yet to be sold. However, the court
tentatively denied the motion as to the causes of action for breach
of fiduciary duty and accounting because United Brands
“provided evidence indicating it did not discover those alleged
breaches until 2020” and “[t]hat creates a triable issue of fact,
allowing the breach of fiduciary duty and accounting causes of
action to proceed.” The minute order from this hearing indicates
the court took the motion under submission.
Eight days before the hearing on the motion for summary
judgment, United Brands noticed the deposition of Suleminian
10
and the Person Most Knowledgeable of D&K. In the court’s
March 2024 minute order taking respondents’ motion for
summary judgment under submission, the court also noted:
“Counsel agree to take defendant Danny Suleminian’s deposition
in person on 04/01/24.”
2. The Court Grants Respondents’ Motion
After the Second Hearing
On May 22, 2024, United Brands filed a “Supplemental
Declaration of Yana G. Henriks” (United Brands’s counsel) in
opposition to respondents’ motion for summary judgment. The
declaration stated that she had taken the deposition of
Suleminian as D&K’s Person Most Knowledgeable on April 8,
2024, and “Suleminian was presented with several agreements
between different tenants of the Property and D&K Worldwide in
which Jack Abramov signed on behalf of D&K Worldwide. These
agreements ranged from ‘Lease Terminations and Voluntary
Vacancy Agreements’ to ‘Residential Lease Agreements’ (attached
hereto as Exhibit 1 are the various agreements). Mr. Suleminian
could not provide an explanation as to why Mr. Abramov had
signed on behalf of D&K Worldwide.” The declaration made no
mention of any testimony about repudiation.
At the beginning of a hearing held the same day United
Brands submitted the supplemental declaration, the court
informed the parties: “We are here continued from the other day,
that is 5/17[,] because [appellant’s counsel] Ms. Henriks
requested to have a court reporter present.· We were discussing
the motion for summary judgment, which is under submission[,]
as well as the trial date. The court’s position, upon further
reflection o[n] the motion for summary judgment, is that this
matter is not ri[pe] as the property has not been sold so there are
11
as of yet no damages.” The court then permitted the parties to
argue the summary judgment motion extensively.
After the hearing, the court issued an order reiterating that
“the breach of contract claim for the sale of the property . . . is not
yet ripe,” noting the “Abramov declaration confirms that
Suleminian never repudiated UB’s rights to 20% profits at the
time of the eventual sale.” The order repeated that United
Brands could not claim delayed discovery for breach of the
agreement to pay 20 percent of the rental profits because the
January 2017 e-mails “put plaintiff on notice of the breaches.”
The court also granted the motion as to the accounting cause of
action, reasoning: “The accounting claims are derivative of the
claims for lost rental income. If the rental income claims were
not time-barred, an accounting as to those profits would be
appropriate. However, since the rental income claims are time
barred, there is no basis for an accounting as to rental profits.”5
In June 2024, the court entered judgment in favor of
respondents.
5 While the order did not explain how the court was
disposing of the cause of actions for fraud and breach of fiduciary
duty, in remarks during the second hearing, the court stated that
paragraph 46 of the FAC (which was contained within the breach
of fiduciary duty cause of action) “only deals with the rental
income” and “the statute of limitations has run.” The court later
reiterated that it found “the rental claims are barred by the
statute of limitations.”
12
D. United Brands Moves for a New Trial
1. The Motion
On June 21, 2024, United Brands filed a “Notice of Intent
to Move for New Trial on Grant of Summary Judgment” on the
grounds that there was newly discovered evidence that could not,
with reasonable diligence, have been presented at the summary
judgment hearing; that there was an error in law; and that there
was an irregularity in the proceedings of the court.
In July 2024, United Brands filed its motion for new trial,
arguing it was entitled to relief under Code of Civil Procedure
section 657, subdivisions (1), (4), and (7).6
First, United Brands argued that it was entitled to relief
because “new evidence obtained after this Court had taken the
matter under submission, proves Defendant repudiated under
oath both any intent to pay Plaintiff the 20% and the 2013
Contract itself.” Specifically, United Brands claimed that during
Suleminian’s April 8, 2024 deposition, he swore “under oath he
6 (Code Civ. Proc., § 657 [“The verdict may be vacated and
any other decision may be modified or vacated, in whole or in
part, and a new or further trial granted on all or part of the
issues, on the application of the party aggrieved, for any of the
following causes, materially affecting the substantial rights of
such party: [¶] 1. Irregularity in the proceedings of the court, jury
or adverse party, or any order of the court or abuse of discretion
by which either party was prevented from having a fair trial.
[¶] . . . [¶] 4. Newly discovered evidence, material for the party
making the application, which he could not, with reasonable
diligence, have discovered and produced at the trial. [¶] . . . [¶]
7. Error in law, occurring at the trial and excepted to by the party
making the application”].)
13
will never pay Plaintiff the 20%,” and “repudiated the 2013
contract itself.” United Brands also accused respondents’ counsel
of “conceal[ing] evidence of Suleminian’s April 8, 2024 sworn
rejection of the 2013 contract, and repudiations to pay Plaintiff
20% from the sale of the property” instead “brazenly feign[ing]
ignorance of any repudiation issue or Suleminian’s disregarding
the 2013 Contract.”
United Brands also contended it was entitled to relief
because respondents’ counsel stated at the May 2024 hearing,
“There’s no claim allegation [sic] that my client denies the
existence of the original contract, the written contract. There’s
no claim by my client in the Complaint or in the evidence
submitted in opposition to our motion for summary judgment
that my client is refusing to acknowledge the existence of these
original written agreements. He denies the existence of the
alleged oral modified agreement, but there’s been no evidence
suggesting that my client denies the existence of the original
written agreement.” It also condemned counsel’s statement that
“[t]here’s never been any allegation up until this hearing or any
evidence that would suggest that Plaintiff is claiming now all of a
sudden to be a partner of or member, I should say of a separate
legal entity, D&K Worldwide. That’s the first time I’m hearing
about this.”
Finally, United Brands argued that the court “fail[ed] to
apply” Civil Code section 1698, subdivision (b), which provides
that “[a] contract in writing may be modified by an oral
agreement to the extent that the oral agreement is executed by
the parties.”
14
2. The Opposition
Respondents pointed out that the “ ‘newly discovered
evidence’ was readily available more than one month before the
May 22, 2024 continued hearing on Defendants’ motion for
summary judgment.” They further argued that United Brands’s
counsel “failed to exercise any diligence so as to introduce such
evidence in the record, either by way of supplemental briefing or
at the hearing at the motion,” and that the evidence “fail[ed] to
materially change this Court’s analysis.”
Respondents also asserted it was not their counsel’s job “to
advance the claims of Plaintiff” but, in any case, “defense counsel
never asserted on the record that Defendants ‘intend to pay’ 20%
of any net profits from the future sale of the subject property. In
fact, although Defendants do not deny the ‘existence’ of the 2013
written contract, they dispute its enforceability.”
Finally, respondents contended the court committed no
errors of law, and argued United Brands was “seemingly
confus[ing] the issues pertaining to the applicable statute of
limitations relating to written versus oral contracts.”
3. The Reply
In its reply, United Brands disputed its ability to present
Suleminian’s deposition testimony because “[a] deposition
transcript is inadmissible until it has been authenticated.” Thus,
United Brands contended, “[a]s a matter of law, Suleminian’s
April 8, 2024 deposition transcript was not admissible evidence
until after Suleminian had [a] statutory thirty (30) days to review
and sign his deposition, and until the court reporter has
authenticated the transcript which happened on April 22, 2024.”
15
E. The Court Denies the Motion for New Trial
On July 31, 2024, the court denied United Brands’s motion.
It rejected United Brands’s argument about Suleminian’s
deposition testimony “because [United Brands] does not assert
any facts demonstrating why it was unable to provide the
testimony before the May 22, 2024 hearing.” The court noted
that United Brands “served notice for its deposition only eight
days before the hearing on the summary judgment” and,
although the deposition was taken on April 8, 2024, “the
information obtained was not presented to the court at the
hearing, nor did UB request a continuance to brief the
transcript.” The court also found no conduct “indicating willful
suppression of material evidence [by respondents’ counsel] during
discovery or at both summary judgment hearings.”
The court additionally rejected United Brands’s argument
under Code of Civil Procedure section 657, subdivision (7)
(entitling a party to relief for an “[e]rror in law”), because that
section “concerns an error of law occurring at trial” and “there
was no trial, as judgment was entered in the defendant’s [sic]
favor pursuant to a motion for summary judgment.”
United Brands timely appealed.
DISCUSSION
A. The Court Did Not Err in Granting Summary
Judgment
“We review a grant of summary judgment de novo.” (Nieto
v. Blue Shield of California Life & Health Ins. Co. (2010) 181
Cal.App.4th 60, 71 (Nieto).) “The general rule is that summary
judgment is appropriate where ‘all the papers submitted show
that there is no triable issue as to any material fact and that the
16
moving party is entitled to a judgment as a matter of law. . . .’ ”
(Ibid.) “A defendant moving for summary judgment meets this
burden by presenting evidence demonstrating that one or more
elements of the cause of action cannot be established or that
there is a complete defense to the action.” (Ibid.) “Once the
defendant makes this showing, the burden shifts to the plaintiff
to show the existence of a triable issue of material fact as to that
cause of action or defense.” (Ibid.) “To determine whether the
parties have met their respective burdens, we consider ‘ “all of
the evidence set forth in the [supporting and opposition] papers,
except that to which objections have been made and sustained by
the court, and all [uncontradicted] inferences reasonably
deducible from the evidence.” ’ ” (Ibid.) “ ‘A trial court’s stated
reasons for granting summary judgment do not bind us; we
review the court’s ruling, not its rationale.’ ” (Severin Mobile
Towing, Inc. v. JPMorgan Chase Bank, N.A. (2021) 65
Cal.App.5th 292, 302.)
1. Breach of Contract
(a) Allegations in the FAC
United Brands alleged that in October 2013, it and D&K
entered a letter agreement whereby, United Brands would
present D&K with opportunities to purchase real estate or
investments and assist it with dealing with the tenants in
exchange for a “consulting fee equal to 20% of the net profit from
the purchase and sale of the property.” When D&K decided not
to sell the property, the parties orally modified this contract in
January 2015: D&K “offered to Plaintiff to become partners in
managing the property,” and “agreed to pay Plaintiff twenty
percent (20%) of the net rental profits generated from The
17
Property.” The parties agreed D&K would initially pay United
Brands $300 a month, then calculate at the end of the year what
20 percent of the net profits amounted to and pay United Brands
the difference.
United Brands alleged respondents breached this contract
when they ceased making payments in August 2020 and refused
to provide financial information despite United Brands’s right to
that information as a partner.
(b) Contentions on Summary Judgment
In their motion for summary judgment, respondents
submitted a January 2017 e-mail chain between Abramov and
Suleminian, whereby Abramov asks Suleminian to “pay the
consulting fee that is owed to United Brands according to today’s
value” and “request[s] a copy of the books and records for 1012-14
Orange for 2014-2016 to view the true profits and to determine
what is the actual 20% due to United Brands.” Suleminian
responded that “[a]s was agreed in the beginning [¶] $300 a
month between me and you.” Abramov replied that “United
Brands is still entitled to 20% of the profit from the purchase and
sale of the building as we agreed in writing.” Suleminian then
stated, among other things, that “[e]ven though you were
supposed to help me with managing [the property,] I am doing
everything [and] I’m not telling you nothing about it.” In its
opposition to summary judgment, United Brands acknowledged
receiving these e-mails.
(c) Court’s Reasoning for Granting
Summary Judgment
The court found that, to the extent United Brands was
complaining that D&K breached its contract relating to the sale
18
of the property, the matter was not yet ripe because “[t]he
property has not been sold, so there are no damages.”
Additionally, there was no agreement to sell the property by a
certain date. The court added that “[t]he Abramov declaration
confirms that Suleminian never repudiated UB’s rights to 20%
profits at the time of the eventual sale.”
As for United Brands’s claims for rental income, the court
found “the 2 year statute of limitations has run for payments
allegedly due 2015-19.” The court rejected United Brands’s
delayed discovery claim because “the 1/17 emails put plaintiff on
notice of the breaches.”
(d) United Brands’s Arguments on
Appeal
United Brands argues the court erred in granting summary
judgment as to its breach of contract cause of action because
there are triable issues of fact as to whether: (i) United Brands
could sue over respondents’ anticipatory repudiation of D&K’s
obligation to pay United Brands 20 percent of the net profits from
the sale of the property; and (ii) the parties orally modified the
2013 letter agreement, such that D&K was supposed to pay
United Brands 20 percent of the rental profits.
(i) Anticipatory Breach of
Contract to Share Sale
Proceeds
The parties agree D&K has yet to sell the building. As
such, the trial court found the issue of whether D&K breached
the letter agreement was not yet ripe. United Brands argues
that Suleminian provided evidence of anticipatory repudiation,
permitting it to sue immediately, before the sale occurs.
19
But as respondents point out: “The First Amended
Complaint does not allege any cause of action for damages for
breach of the written contract, or anticipatory breach of that
contract regarding D&K paying UB 20% from the net profits from
the purchase and sale of the property.” Respondents argue that
because the FAC “framed the issues for the motion, . . . D&K was
not required to address any unalleged allegations or theories.”
United Brands does not dispute the FAC did not allege
respondents repudiated the letter agreement but counters that it
“does not raise the repudiation [claim] as a new cause of action,”
it instead “offers it to defeat the ripeness rationale on the court’s
own terms.” We agree with respondents.
“It is well established that the pleadings determine the
scope of relevant issues on a summary judgment motion.” (Nieto,
supra, 181 Cal.App.4th at p. 74.) “The complaint limits the
issues to be addressed at the motion for summary judgment. The
rationale is clear: It is the allegations in the complaint to which
the summary judgment motion must respond.” (Laabs v. City of
Victorville (2008) 163 Cal.App.4th 1242, 1258.) “If a plaintiff
wishes to expand the issues presented, it is incumbent on the
plaintiff to seek leave to amend the complaint either prior to the
hearing on the motion for summary judgment, or at the hearing
itself.” (Ibid.) “A moving party seeking summary judgment . . . is
not required to go beyond the allegations of the pleading, with
respect to new theories that could have been pled, but for which
no motion to amend or supplement the pleading was brought,
prior to the hearing on the dispositive motion.” (Howard v. Omni
Hotels Management Corp. (2012) 203 Cal.App.4th 403, 421.)
Here, United Brands does not contend it sought leave to
amend its complaint to allege a claim for breach of the 2013 letter
20
agreement, and nothing in the record shows that it did. Thus,
whether there was evidence properly before the trial court
regarding Suleminian’s purported assertion that he would never
pay United Brands the 20 percent of net sale profits
contemplated under the letter agreement is irrelevant, because
that issue was not before the trial court. Similarly, whether the
trial court erred in its statements about the ripeness of such a
hypothetical claim does not affect our review, which is de novo,
and which looks at whether the court correctly granted summary
judgment on the complaint before it, not whether the court did so
for the right reasons. (Severin Mobile Towing, Inc. v. JPMorgan
Chase Bank, supra, 65 Cal.App.5th at p. 302.) Because the FAC
contained no allegation that respondents breached the 2013 letter
agreement, it does not matter whether there is a triable issue of
fact regarding whether respondents anticipatorily breached that
agreement.7
(ii) Oral Modification
United Brands argues that the court erred in finding its
breach of contract cause of action time-barred because “there are
triable issues of fact that Appellant and Respondent intended to
and did in fact enter into an oral modification, incorporating the
2013 written contract.” Although United Brands does not
expressly argue this on appeal, presumably it contends this issue
is material because, as it claims it argued in its motion for new
trial, “a written contract can be modified orally, retaining the
7 Thus, although we affirm the trial court’s decision to
grant summary judgment, we express no opinion on whether a
claim for breach of the 2013 letter agreement would have been
ripe had it been pled.
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four-year limitations period.” Respondents counter that the 2015
oral modification constituted a separate oral agreement, governed
by a two-year statute of limitations. We need not resolve this
dispute because we conclude the statute of limitations began
running in January 2017, and the June 2022 complaint was thus
outside even the four-year statute of limitations urged by United
Brands.
The FAC alleges respondents breached three provisions of
the parties’ agreement: (1) D&K and United Brands were “to
become partners in managing The Property”; (2) D&K agreed to
pay United Brands 20 percent of the net rental profits from the
property every year; and (3) because D&K and United Brands
were partners, D&K impliedly agreed to provide financial
information about the property to United Brands.
It is undisputed that from 2015 to July 2020, D&K never
wavered in paying United Brands a set $300 a month and never
accounted to United Brands for any rental income supposedly due
to it. In January 2017, United Brands expressly asked to be paid
its “consulting fee” if D&K did not intend to sell a property and
requested a “copy of the books and records for [the property] for
2014-2016 to view the true profits and to determine what is the
actual 20% due to United Brands.” D&K stated the agreement
was only “$300 a month between me and you.” When United
Brands insisted it needed to be paid its “consulting fee,” D&K
refused, stating there was no “consulting fee” and that “I told you
that I give you 20% of the profit when we sell it without you
bringing any money because I knew you’re struggling in your life
and I love you as a friend.” Suleminian further insisted he was
“doing everything” in regard to managing the property and was
“not telling you nothing about it.” In other words, as of January
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2017, United Brands was on notice that: (1) D&K did not consider
United Brands a partner in managing the property; (2) D&K was
not going to pay United Brands 20 percent of the net rental
profits from the property every year; and (3) D&K would not
provide financial information about the property to United
Brands. Thus, assuming these actions breached the parties’
agreement as alleged in the FAC, the statute of limitations began
running in January 2017, more than five years before United
Brands filed suit. Whether the statute of limitations was two or
four years does not matter.
Therefore, even adopting United Brands’s version of the
oral agreement and assuming arguendo that a four-year statute
of limitations applies, United Brands’s breach of contract cause of
action is still time-barred.
2. Breach of Fiduciary Duty and Fraud
(a) Allegations in the FAC
United Brands alleged the oral modification of the letter
agreement transformed its relationship with D&K into a
partnership, such that D&K owed United Brands a fiduciary
duty. United Brands complained that respondents failed in their
obligations “to collect property income, and then to accurately
calculate, segregate, safeguard, and remit to Plaintiff at the
agreed time Plaintiff’s share of the income and to account for the
same to Plaintiff.” As for fraud, United Brands alleged
respondents misrepresented that they “would accurately
calculate and pay to Plaintiff twenty percent (20%) of the net
rental profits generated from The Property.”
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(b) Respondents’ Contentions on
Summary Judgment
Respondents argued the breaches in fiduciary duty alleged
by United Brands related to respondents’ failure to pay United
Brands 20 percent of the rental income and to provide United
Brands with the requested books and records, both obligations
arising from the 2015 oral modification. They contended the
cause of action was therefore barred by a two-year statute of
limitations, because after Suleminian’s January 2017 e-mails,
“United Brands knew for a certainty that D&K would not provide
any information or documentation, nor would it pay more than
the fixed monthly amount.” Respondents added that “any action
for Fraud should [also] have been brought the latest on or before
January 21, 2020.”
(c) Court’s Reasoning for Granting
Summary Judgment
The court’s minute order did not mention breach of
fiduciary duty or fraud, but at the May 22, 2024 hearing, the
court stated that paragraph 46 of the FAC, which was contained
within the breach of fiduciary duty cause of action, “only deals
with the rental income” and “the statute of limitations has run.”
The court later reiterated that it found “the rental claims are
barred by the statute of limitations.”
(d) United Brands’s Arguments on
Appeal
United Brands argues: (i) the statute of limitations for
breach of fiduciary duty is four years; (ii) Suleminian’s use of the
phrase “when we sell it” in his January 2017 e-mail “infers that
Appellant and Respondents were partners involving the
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Property”; and (iii) there are triable issues of fact that would
permit a jury to find respondents “never intended on paying
Appellant 20% of the income” or that they intentionally withheld
financial records from United Brands.
(i) The Breach of Fiduciary Duty
Claim Is Time-Barred
United Brands argues “[t]he statute of limitation for breach
of fiduciary duty is four years.” Respondents argue “[t]he statute
of limitations for breach of fiduciary duty depends on the
gravamen of the claim” and thus is two years in this case,
because it is based on an oral agreement. Again, we need not
resolve this dispute because the cause of action is time-barred
regardless of who is correct.
United Brands accuses respondents of breaching their
fiduciary duty by failing “to collect property income, and then to
accurately calculate, segregate, safeguard, and remit to Plaintiff
at the agreed time Plaintiff’s share of the income and to account
for the same to Plaintiff.” By January 2017, United Brands knew
respondents were not going to remit to United Brands a share of
the property income and recognized no obligation to do so. Thus,
the statute of limitations began to run in January 2017, and a
June 2022 complaint was time-barred, regardless of whether the
statute of limitations was two or four years.
(ii) Respondents’ Use of “We” Is
Irrelevant
United Brands contends Suleminian’s use of the phrase
“when we sell it”—as opposed to “when I sell it”—in his January
2017 e-mail implies “that Appellant and Respondents were
partners involving the Property,” and therefore “[t]here are
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triable issues of fact to support the existence of a partnership,
and thus, the creation of a fiduciary duty.”
Suleminian stated: “Jack respectfully it was not consulting
fee it was the deal that you brought me as agent/ broker and as a
friend I told you that I give you 20% of the profit when we sell it.”
Suleminian is self-evidently referring to what he told Abramov
when Abramov “brought [him the deal] as agent/ broker.”
United Brands expressly alleges that “the relationship that
imposes a fiduciary obligation to act on behalf of and for the
benefit of Plaintiff are a joint venture or partnership created
when the parties entered into an oral modification to the original
agreement.” (Italics added.) In other words, the partnership that
occasioned the breach of fiduciary duty upon which United
Brands brought suit arose in 2015.8 If the partnership at issue in
this appeal was not created until 2015, then when Suleminian
“told” Abramov through the 2013 letter agreement that D&K
would pay United Brands 20 percent of the net profit when “we”
sell it, “we” could not have referred to purported partners D&K
and United Brands because they had not yet formed the
partnership that is the subject of the FAC. Thus, even viewed in
the light most favorable to United Brands, Suleminian’s e-mail
cannot reasonably be construed as evidence that respondents
viewed D&K and United Brands as partners in that 2015
partnership, especially when, for the next three years, D&K
continued not paying United Brands 20 percent of the rental
8 United Brands also expressly alleged that “[t]he oral
modification transformed the relationship between the parties
from a consultant/advisor and investor/client relationship into a
partnership.”
26
profits and refusing to share financial information about the
property.9
(iii) The Fraud Claim Is Time-
Barred
Finally, United Brands argues there are triable issues of
material fact regarding whether respondents ever “intended on
paying Appellant 20% of the income” or whether they
intentionally withheld financial records from United Brands.
Again, as discussed above, United Brands was on notice by
January 2017 that respondents had no intention of paying
appellants 20 percent of the rental income or providing it with
financial records. Therefore, any claim for fraud is also time-
barred.
3. Accounting
(a) Allegations in the FAC
United Brands alleged an accounting was necessary to
determine “the total rental income generated over the period in
question and the net profits.”
(b) Respondents’ Contentions on
Summary Judgment
Respondents contended the two-year statute of limitations
also barred United Brands’s cause of action for accounting
9 In any case, regardless of whether Suleminian viewed
United Brands and D&K as partners in January 2017, as
discussed above, respondents still breached whatever fiduciary
duty they owed United Brands more than five years before
United Brands filed suit, rendering its claim time-barred.
27
because its “sole basis for seeking an accounting is to ascertain
what amounts, if any, Plaintiff may be owed pursuant to the oral
agreement regarding net rental profits.” Thus, the cause of
action failed because United Brands could not “assert damages
during the applicable limitations period.”
(c) Court’s Reasoning for Granting
Summary Judgment
The court agreed with respondents, finding “[t]he
accounting claims are derivative of the claims for lost rental
income. If the rental income claims were not time-barred, an
accounting as to those profits would be appropriate. However,
since the rental income claims are time barred, there is no basis
for an accounting as to rental profits.”
(d) United Brands’s Arguments on
Appeal
United Brands’s only argument on appeal regarding
accounting is that it did not discover until Suleminian’s
deposition that respondents “had repudiated the agreement to
pay Appellant 20% from the sale of the business” and this
“creates a triable issue of fact for a jury to determine repudiation,
delayed discovery and, therefore, timely claims for breach of
contract for approximately $400,000.00 owed to Appellant, breach
of fiduciary duty arising from a partnership, breach of contract
for the 20% of income payments from the Property, fraud, and
accounting.” In its reply brief, it claims its accounting claim
should be governed by a four-year statute of limitations.
As with its other causes of action, the statute of limitations
for United Brands’s accounting claim began to run in January
2017, when United Brands was put on notice that respondents
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were not going to pay it 20 percent of the rental income and
refused to provide any financial information regarding that
income. United Brands did not file suit until June 2022.
Therefore, any cause of action for accounting for the rental profits
is time-barred.
B. United Brands Fails to Demonstrate How It
Could Successfully Amend Its Complaint
Although none of the pleadings or the court’s order is in the
appellate record, the parties agree the court sustained a
demurrer to causes of action for breach of the implied covenant of
good faith and fair dealing and conversion. United Brands
asserts it can “show alternate theories on appeal” for both causes
of action.
“[A]n ‘ “order sustaining a demurrer . . . is generally
reviewable on appeal from the final judgment in the action.” ’ ”
(Lopez v. Brown (2013) 217 Cal.App.4th 1114, 1132.) “Appellate
review of an order sustaining a demurrer is de novo. [Citation.]
‘In reviewing the sufficiency of a complaint against a general
demurrer, we are guided by long-settled rules. “We treat the
demurrer as admitting all material facts properly pleaded, but
not contentions, deductions or conclusions of fact or law.
[Citation.] . . .” Further, we give the complaint a reasonable
interpretation, reading it as a whole and its parts in their
context. [Citation.] When a demurrer is sustained, we determine
whether the complaint states facts sufficient to constitute a cause
of action.’ ” (Ferrick v. Santa Clara University (2014) 231
Cal.App.4th 1337, 1341.) “We review the ruling sustaining . . .
demurrers de novo, exercising independent judgment as to
whether the complaint states a cause of action as a matter of
law.” (Sipple v. City of Hayward (2014) 225 Cal.App.4th 349,
29
355.) We are “unconcerned with the trial court’s reasons for
sustaining . . . demurrers, as it is the ruling, not the rationale,
that is reviewable.” (Ibid.) 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.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
United Brands contends it “can amend its Complaint to
allege facts to support its second cause of action for breach of the
implied covenant of good faith and fair dealing” by alleging that
“Suleminian admitted in late 2023 that he had been actively, and
ongoing, concealing financial records from Appellant during the
operative timeframes.” But, as discussed above, United Brands
was aware as early as January 2017 that respondents were
refusing to share financial records with it. An allegation that
Suleminian admitted in late 2023 what United Brands had
known since 2017 would not permit United Brands to
successfully state a cause of action for the breach of the implied
covenant that would not be time-barred.
Similarly, United Brands argues it can amend its
conversion claim to add that in 2023, “Suleminian admitted he
did not pay Appellant the 20% of income owed to Appellant.”
Again, as discussed above, United Brands was aware as early as
January 2017 that D&K was not going to pay it 20 percent of the
rental income, and it certainly knew both before and after that
time that D&K was not paying it 20 percent of the rental income.
The statute of limitations for conversion is three years. (Coy v.
County of L.A. (1991) 235 Cal.App.3d 1077, 1087.) The complaint
30
was not filed until more than five years after January 2017.
United Brands’s proposed allegation would not cure this fatal
defect.
We conclude United Brands has failed to show it could
successfully amend its complaint to state a cause of action for
either breach of the implied covenant of good faith and fair
dealing or conversion.
C. United Brands Has Forfeited Its Argument
Regarding the New Trial Motion
In its reply brief, United Brands argues for the first time
that the trial court abused its discretion in denying its motion for
a new trial. “As this argument was first raised in the reply brief,
it is forfeited,” and we need not consider it. (L.A. Taxi
Cooperative, Inc. v. The Independent Taxi Owners Assn. of Los
Angeles (2015) 239 Cal.App.4th 918, 926, fn. 7.)
Even were we to consider United Brands’s argument, we
would reject it. United Brands argues the court erred because
Suleminian’s deposition testimony was material in that it
“established repudiation removing the ripeness defense” and
“confirmed Respondent’s refusal to recognize and perform the
partnership obligations.” But, as explained above, the “ripeness
defense” relates to an alleged breach of the written contract,
which was not alleged in the FAC. And United Brands was on
notice of respondents’ “refusal to recognize and perform the
partnership obligations” as early as January 2017. Therefore,
Suleminian’s deposition testimony had no bearing on whether the
court should have granted summary judgment.
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DISPOSITION
The judgment is affirmed. Respondents shall recover their
costs on appeal.
NOT TO BE PUBLISHED
M. KIM, J.
We concur:
BENDIX, Acting P. J.
WEINGART, J.
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