https://www.fearnotlaw.com/wsnkb en-us Beck also appeals, asserting error in the court’s refusal to grant a new trial on his other claims. He also challenges a prior order granting summary adjudication of his claim of breach of oral contract and the subsequent award of attorney fees in the judgment. We agree with Shalev that a new trial was unnecessary as to any of Beck’s claims, because his underlying demurrer to those causes of action was properly sustained. We therefore reverse the order only as to the grant of a new trial on the fraud and accounting claims. https://www.fearnotlaw.com/wsnkb/articles/beck-v-shalev-61970.html Fri, 12 May 2017 18:29:09 GMT https://www.fearnotlaw.com/wsnkb/articles/beck-v-shalev-61970.html











Filed 3/20/17 Beck v. Shalev CA6





NOT TO BE PUBLISHED IN OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

MORDECHAY BECK,

Plaintiff and Appellant,

v.

MOSHE SHALEV,

Defendant and Appellant.

H040227
(Santa Clara County
Super. Ct. No. 1-08-CV-123503)

In this appeal, defendant Moshe Shalev (Shalev) seeks review of an order granting a new trial to plaintiff Mordechay Beck on two causes of action, promissory fraud and accounting, in Beck’s third amended complaint. Shalev contends that a new trial was not justified, because in its prior order the court had correctly sustained Shalev’s demurrer to these claims.
Beck also appeals, asserting error in the court’s refusal to grant a new trial on his other claims. He also challenges a prior order granting summary adjudication of his claim of breach of oral contract and the subsequent award of attorney fees in the judgment. We agree with Shalev that a new trial was unnecessary as to any of Beck’s claims, because his underlying demurrer to those causes of action was properly sustained. We therefore reverse the order only as to the grant of a new trial on the fraud and accounting claims.
Background
Defendant Shalev founded a private consulting business in 1995, and in 1999 he incorporated it as NoBug Consulting, Inc. (hereafter, NoBug). Later that year plaintiff Luca Bovio Ferassa[1] worked for NoBug as an independent contractor and later as an employee. In November 1999, shortly before becoming involved with Beck, Shalev established NoBug Consulting SRL (NBR) in Romania, in order to use Romanian engineers in NoBug’s business.
Shalev and his wife, defendant Irit Shalev, initially were NoBug’s sole owners. Shalev was the sole owner of NBR. Shalev, however, was an engineer who lacked business experience. He asked Beck, a “casual acquaintance,” to help him obtain money to hire three Romanian engineers. Beck was unable to raise the money, but he offered to use his experience in corporate governance, management, and finance to advise Shalev and help him develop the business. In 2000 Shalev agreed to make Beck chairman of NoBug’s board of directors while Shalev served as president and chief executive officer. Shalev also agreed that Beck could purchase 500,000 shares of NoBug stock, amounting to 10 percent of the company’s 5 million outstanding shares.
In late 2000, Beck and Shalev retained an attorney, Einat Meisel, to formalize the arrangement, including documents related to the sale of corporate stock. Among those documents was a resolution by Shalev in his capacity as NoBug’s sole director, entitled “Action by Unanimous Written Consent of the Sole Director of NoBug Consulting Incorporated” (Action). Pertinent to this appeal is the provision in the Action for NoBug to “enter into a Common Stock Purchase Agreement,” by authorizing the board of directors to issue five million shares to “the Purchasers listed in Exhibit A.” The “purchasers” listed in Exhibit A were Shalev (1 million shares, to be purchased for $3,000), Irit Shalev (2.75 million shares, to be purchased for $8,250), Beck (500,000 shares, to be purchased for $1,500), and Ferassa (750,000 shares, to be purchased for $2,250). Shalev signed the Action in mid-December 2000.
Meisel also prepared the accompanying Stock Purchase Agreement (SPA). By April 2001, Shalev, Irit Shalev, and Ferassa had all signed the SPA and paid for their shares. Beck knew he needed to pay for his shares and sign the agreement. In his deposition he expressed the belief that he had sent a check for his purchase “toward the end of 2000, beginning of 2001,” but he could not find a record of that check in his files. Beck also could not recall signing the SPA until 2007. It was only in late 2007, he said, when Shalev advised him that he had not purchased any stock, that Beck obtained a copy of the SPA from Ferassa, signed it, and sent it to Shalev along with a check for the purchase of his 500,000 shares. NoBug, however, had no record of ever having received either the check or the signed SPA from Beck.
Beck continued to hold the position of board chairman until 2008. According to Shalev, however, he “was not really involved in the company after 2005.” In September 2008, Ferassa and Beck brought this action against NoBug, Shalev, and Irit Shalev, asserting claims for declaratory relief, fraud against Shalev for failing to issue the company stock as he believed Shalev had promised, fraud against Shalev for failing to structure NBR as an entity within the NoBug “corporate umbrella,” breach of oral contract against both Shalev and NoBug based on the same promises as in the fraud claims, and breach of fiduciary duty against all three defendants. Plaintiffs also sought an accounting.
Shalev and NoBug cross-complained against both plaintiffs. Against Beck defendants alleged breach of oral contract and fraud for failing to provide the services he had promised—that is, to help NoBug develop new business and assist NoBug in its financial and business decisions. The cross-complaint was amended in May 2010 and July 2011.
Defendants moved for judgment on the pleadings, noting that portions of the complaint constituted shareholder derivative claims, without plaintiffs having followed the procedures necessary for a shareholder derivative suit. In May 2010, with the court’s permission, plaintiffs filed their first amended complaint, alleging, among other things, that the Shalevs had “used their control of the company to deny Mr. Beck’s ownership interest.” The motion for judgment on the pleadings was then deemed moot.
To surmount the derivative obstacle in the amended complaint, plaintiffs alleged by way of background the following: “Plaintiffs contend that they have each completed all of the steps prerequisite under NoBug’s governing corporate documents to become shareholders[.] They have paid the requisite fee and signed the Stock Purchase Agreements, and therefore are entitled to have been duly recorded shareholders of Defendant NoBug since at least 2000. In the alternative, Mr. Beck contends that all parties believed he had been issued shares, and he worked for 7 years as a director and chairman of the board, that Mr. Shalev and Irit Shalev are estopped from claiming he is not a shareholder. Plaintiffs further contend that Mr. Beck is the owner of 500,000 shares of NoBug stock, and that Mr. Bovio Ferassa is the owner of 750,000 shares.”
Defendants demurred to the amended complaint. The superior court overruled it, with the exception of the third cause of action for fraud based on Shalev’s alleged promise to set up a Romanian entity as part of NoBug. The court deferred trial to enable NoBug to investigate the derivative claims through a special litigation committee (SLC).
On June 21, 2010, plaintiffs filed their second amended complaint. In November, the court overruled defendants’ demurrer to this pleading, and it denied defendants’ motion to strike portions of the complaint, with the exception of plaintiffs’ requests for an order directing defendants to make NBR a wholly owned subsidiary of NoBug.
In early January 2011, the SLC reported that it had concluded that the derivative claims of the second amended complaint lacked merit and were contrary to NoBug’s interests. Later that month both NoBug and the Shalevs moved for summary judgment or, alternatively, summary adjudication. NoBug first sought summary adjudication of the derivative claims; it submitted a second motion addressed to plaintiffs’ direct claims. In NoBug’s second motion and in the Shalevs’ motion, defendants contended that the second, third and fourth causes of action were time-barred, based on the statutes of limitations for fraud (three years under Code of Civ. Proc. § 338, subd. (d))[2] and breach of oral contract (two years under § 339) The Shalevs further contended that the fraud claims (third and fourth causes of action) could not withstand summary adjudication. The third cause of action, they alleged, depended on recovery of damages for NoBug’s lost profits resulting from Shalev’s retention of the NBR ownership for himself. The fourth cause of action, they argued, could not survive because the undisputed facts established that Beck did not accept the alleged offer of shares within a reasonable amount of time, even if he eventually signed the SPA and sent a check in 2007.
On April 13, 2011, the court issued the first of the orders challenged in this appeal, addressing NoBug’s as well as the Shalevs’ summary judgment motions. The court granted summary adjudication of the fifth (breach of oral contract) and sixth (breach of fiduciary duty) causes of action pertaining to NBR, because those were “entirely derivative” as found by the SLC. The court denied summary adjudication of the first and fourth causes of action related to the issuance of stock to Beck because those claims contained both derivative and direct aspects that were insufficiently “separate and distinct.” As for the Shalevs’ motion, the trial court agreed that Beck could not show Shalev’s breach of an oral contract in the fourth cause of action because Shalev’s offer[3] was in effect “revoked by a lapse of reasonable time without acceptance, as Beck submitted a signed stock purchase agreement several years after the offer was made.” The third, fifth, and sixth causes of action pertaining to the promise to make NBR a NoBug subsidiary were deemed “entirely derivative”; hence, the Shalevs’ motion for summary adjudication was granted to those claims as well.
Thus, the first and fourth causes of action (declaratory relief and breach of oral contract pertaining to ownership of NoBug shares) remained alive as to NoBug, and the first and second causes of action (declaratory relief and promissory fraud pertaining to ownership of NoBug shares) remained against Shalev, with the ruling on the first cause of action applicable to Irit Shalev as well. Finally, the court found that the seventh cause of action had survived because—the burden on summary adjudication having shifted to plaintiffs—they had shown a triable issue regarding whether they had made a pre‑litigation demand for an accounting.[4] The Shalevs’ motion to “clarify” the summary adjudication ruling was denied.
On May 4, 2011, after extensive written and oral argument, the court granted plaintiffs leave to file a third amended complaint. That pleading was filed on July 7, 2011, followed two months later by separate demurrers and motions to strike by NoBug and by the Shalevs. On October 27, 2011, the court sustained NoBug’s demurrer to the first and sixth causes of action (declaratory relief and accounting) without leave to amend for failure to state a claim. As to the Shalevs, the court overruled their demurrer to all but Beck’s fourth cause of action for breach of oral contract relating to the issuance of NoBug shares. The court struck this claim on the ground that it had already been summarily adjudicated against Beck.[5] The court denied the Shalevs’ motion to strike the background allegations of the third amended complaint, but it did strike plaintiffs’ prayer for punitive damages on the fourth cause of action, noting the unavailability of punitive damages in contract actions.
Upon receiving a letter from Shalev requesting “clarification or modification” of the October 27 order, the court invited a response from plaintiffs and then modified its ruling. In its November 28, 2011 “Further Order,” the demurrer as to Irit Shalev was sustained without leave to amend, as plaintiffs had not opposed the demurrer and motion to strike as it applied to her. The court also sustained without leave to amend Beck’s first, second, third, fifth and sixth causes of action because “any recovery by Beck is precluded by the Court’s finding in the April 13, 2011 order . . . that Beck failed to timely submit a signed stock purchase agreement.” An order granting summary adjudication and (as to the accounting cause of action) judgment on the pleadings was later granted to Shalev on Ferassa’s claims.
Upon defendants’ uncontested motion, Irit Shalev was dismissed as a defendant in June 2012. NoBug subsequently obtained dismissal of its cross-complaint without prejudice. The parties then began litigating costs and attorney fees. Beck sought indemnification of the attorney fees he had spent in his capacity as board chairperson in defending against NoBug’s cross-complaints. The court found Beck’s request for costs and fees of $224,444.54 to be excessive, but it did find a reasonable amount attributable to the cross-complaint litigation to be $41,143.25.
On July 12, 2013, the court entered judgment for defendants, directing that plaintiffs take nothing on their complaint and pay defendants’ costs and fees of $1,831,223.65. After a setoff for Beck’s recovery of $41,143.25 from NoBug, the net judgment in favor of the three defendants amounted to $1,790,080.40.
Beck moved for a new trial, asserting error in the prior rulings on all six claims of the third amended complaint. On September 9, 2013, the court granted Beck’s motion as to the second (fraud) and sixth (accounting) causes of action and denied it as to the other challenged rulings. At Beck’s request, the court thereafter issued a statement of reasons, explaining that the November 28, 2011 order “was error as to the second and sixth causes of action. The Third Amended Complaint adequately [pleaded] those causes of action which were not precluded by the April 13, 2011 order.” Finally, on October 9, 2013, the court denied Beck’s motion to vacate the judgment.
On October 3, 2013, Shalev filed his notice of appeal from the order partially granting a new trial. Beck filed a notice of appeal from the judgment on October 9, 2013 and on October 24, 2013, a notice of cross-appeal from the new-trial order. The issues raised in the appeal from the judgment are reviewed in the companion appeal, Beck v. NoBug Consulting, Inc., et al., H040136. The issues arising from the new-trial order are addressed in this opinion.[6]
Discussion
1. Scope of Review
Section 657 authorizes the trial court to grant a new trial on seven statutorily specified grounds, including “[i]rregularity” in the proceedings or an order of the court that prevented the moving party from having a fair trial, a decision that is against the law, or “[e]rror in law, occurring at the trial and excepted to by the party making the application.” (§ 657, subds. (1), (6), (7).) An order granting a new trial is normally reviewed for abuse of discretion, but where the basis of the order is a question of law, we examine it independently. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).) In this case, the order granting a partial new trial encompasses the underlying demurrers, which we review de novo.
2. Issues raised by Shalev
a. Grant of New Trial on Promissory Fraud
Shalev first challenges the court’s determination that a new trial was warranted on the second cause of action for fraud and the sixth cause of action for an accounting.[7] In the second cause of action Beck alleged that Shalev had “agreed and promised that he would structure NoBug in the agreed manner, and that he would arrange for issuance of 500,000 shares of stock to Plaintiff Beck (representing a 22% ownership interest), 750,000 shares of stock to plaintiff Bovio Ferassa (representing a 33% ownership interest), 1,000,000 shares of stock to Defendant Shalev (representing a 45% ownership interest), and that the remainder would be held in reserve to be issued in a manner agreeable to the shareholders. Plaintiffs are informed and believe that at the time that he made these promises, Mr. Shalev had no intent to structure the corporation in the agreed upon manner, or to issue shares of NoBug stock in the manner agreed upon by the parties.” Beck alleged that he relied on “these promises and agreements” by providing services to the corporation— i.e., by serving on the board and “participating in the governance of the corporation.” Instead, Beck alleged, a different disposition of the shares was created: in addition to Shalev’s and Ferassa’s shares, Shalev arranged for 2,750,000 shares to be issued to Irit Shalev and none to Beck.
In the court’s October 27, 2011 order it overruled Shalev’s demurrer to the second cause of action, stating that Beck had sufficiently alleged a promise made by Shalev without the intent to perform. In its November 28 “Further Order,” however, the court determined that Beck’s recovery on this cause of action (as well as the first, third, fifth, and sixth) was precluded by the prior grant of summary adjudication, in which the court had concluded (as to the fourth cause of action) in that Beck had “failed to timely submit a signed stock purchase agreement.” The court again reversed itself in the order granting a new trial, overruling without explanation the second and sixth causes of action.[8]
It is unnecessary to weigh in on the trial court’s reasoning in first invoking the prior summary adjudication ruling and then retracting it as the ground for its demurrer order. In reviewing the underlying order sustaining the demurrer, “[w]e do not review the validity of the trial court’s reasoning, and [we] therefore will affirm its ruling if it was correct on any theory.” (Nasrawi v. Buck Consultants LLC (2014) 231 Cal.App.4th 328, 337, citing Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034 (Berg & Berg); Orange Unified School Dist. v. Rancho Santiago Community College Dist. (1997) 54 Cal.App.4th 750, 757.) Significantly, we may take judicial notice of attached documents and admissions in prior sworn statements and pleadings that may conflict with the allegations of the complaint at issue. (Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal.App.4th 390, 400.) Thus, “a complaint’s allegations may be disregarded when they conflict with judicially noticed discovery responses.” (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 83.)
“ ‘Promissory fraud’ is a subspecies of the action for fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638 (Lazar).) Fraud generally requires “ ‘(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’ ” (Ibid.)
“In California, fraud must be [pleaded] specifically; general and conclusory allegations do not suffice. [Citations.] ‘Thus “ ‘the policy of liberal construction of the pleadings. . . will not ordinarily be invoked to sustain a pleading defective in any material respect.’ ” [Citation.] [¶] This particularity requirement necessitates pleading facts which “show how, when, where, to whom, and by what means the representations were tendered.” ’ [Citation.]” (Lazar, supra, 12 Cal.4th at p. 645.) In addition, in order to establish liability for fraud, the plaintiff must plead and prove “ ‘detriment proximately caused” by the defendant’s tortious conduct. (Civ. Code, § 3333.) Deception without resulting loss is not actionable fraud. [Citation.] ‘Whatever form it takes, the injury or damage must not only be distinctly alleged but its causal connection with the reliance on the representations must be shown.’ [Citation.]” (Service by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1818.) And the specificity required in pleading applies to each element, including causation and damage. (See Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 776.)
Beck’s allegation of fraud in the second cause of action does not comport with these principles. Nothing in the complaint suggested that Shalev’s promise was made with “the intent not to perform at the time the promise was made.” (Behnke v. State Farm General Ins. Co. (2011) 196 Cal. App. 4th 1443, 1453, italics added.) To the contrary, the discovery materials attached to the moving and opposing papers demonstrate that Shalev did, as he allegedly promised, “arrange for” the issuance of stock to the prospective purchasers—Beck, Ferassa, and Irit Shalev—by adopting the resolution (the Action) and—through Einat Meisel—composing the SPA that every purchaser was obligated to sign. We will not disregard Beck’s concession—in both the third amended complaint and his discovery responses—that the alleged promise by Shalev was not simply to issue shares to Beck, but to arrange for the sale of them to Beck. The documents provided to the court included the Action, which expressly authorized the “sale and issuance” of five million shares to Shalev, Irit Shalev, Ferassa, and Beck in the amounts designated for each purchaser. Also authorized in the Action was the execution of the SPA with each of the purchasers.
Beck readily admitted that he was aware of these conditions. He stated in his deposition that in order to acquire the shares “the most important that [sic] I need [sic] to pay and to get the agreement to sign it,” the same steps he had taken in a previous professional role. Although he testified that he paid for his stock twice—once at the end of 2000 and again in 2007—he was unable to document his purchase with any evidence. The court had before it a sufficient basis to sustain Shalev’s demurrer on the ground that (a) Shalev intended to fulfill his promise to “arrange for” issuance of NoBug stock and indeed did so, through the Action and the offering of the SPA or (b) any damage Beck suffered cannot be said to have resulted from Shalev’s failure to issue stock to Beck, because Beck failed to complete the prerequisite—the purchase of the stock and execution of the SPA.
We therefore conclude that the court should have left intact its order sustaining Shalev’s demurrer to the second and sixth causes of action. Neither intent not to perform nor proximate causation could be established based on the pleadings when examined together with the judicially noticeable documents.
b. Grant of New Trial on Accounting Claim
In the sixth cause of action for an accounting Beck asserted that Shalev and Irit Shalev, “as the majority and controlling shareholders” of NoBug, owed a fiduciary duty to Beck and Ferassa, “as minority shareholders,” which obligated the Shalevs “to provide information that would allow . . . shareholders to evaluate the actions of Defendants and the value of Plaintiff’s [sic] interests.” An accounting was necessary, he stated, because he and Ferassa were otherwise unable to determine the amounts owed them “as a result of the wrongful acts committed by the Defendants.”
This claim calls upon the fiduciary duty owed to minority shareholders; but only Ferassa met that qualification. Because he was not a shareholder, Beck cannot allege breach by those who owed him no fiduciary duty.[9] An accounting for the purpose of determining how much was owed minority shareholders can have no application to Beck. Accordingly, the trial court properly sustained the demurrers to this cause of action without leave to amend, and retrial was not warranted.
3. Issues Raised by Beck
Beck asserts error in the court’s denial of a new trial on the first, third, fourth, and fifth causes of action. He contends that (1) the court erred in granting summary adjudication on the fourth cause of action for breach of oral contract relating to the issuance of NoBug shares and (2) the court erred in sustaining without leave to amend Shalev’s demurrer to the first, third, and fifth causes of action relating to the ownership of NoBug and NBR. Beck also seeks to overturn the court’s award of attorney fees awarded to defendants.
These arguments have been raised and addressed in Beck v. NoBug Consulting, Inc., et al., H040136, Beck’s appeal from the July 2013 judgment. There we upheld the orders granting summary adjudication of the fourth cause of action for breach of oral contract and the orders sustaining the demurrers to the first, third, and fifth causes of action, and we found error in the grant of attorney fees. No purpose would be advanced by repeating the conclusions we reached in that appeal.
Disposition
The September 9, 2013 order is reversed. On remand, the superior court shall reinstate the judgment to the extent that it is consistent with this court’s opinion in Beck v. NoBug Consulting, Inc., et al.,H040136. Shalev is entitled to his costs in this appeal.





_________________________________
ELIA, J.

WE CONCUR:



_______________________________
PREMO, Acting P. J.



_______________________________
MIHARA, J.



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[1] Ferassa, a plaintiff in the underlying litigation, is not a party on appeal.

[2] All further statutory references are to the Code of Civil Procedure unless otherwise stated.

[3] The court actually used the word “agreement” rather than offer; but a different judge later explained that the intended word, viewed in context, had to have been “offer.”

[4] The court further determined that the Shalevs had not established the lack of a triable issue of fact on the second and fourth causes of action as to Ferassa. As noted earlier, however, Ferassa is not a party in this appeal.

[5] The court also overruled the demurrer to and denied the motion to strike Ferassa’s allegations in the fourth cause of action.

[6] This court ordered these two appeals to be considered together for the purposes of briefing, oral argument, and disposition.

[7] In prior pleadings Beck alleged breach of fiduciary duty as the sixth cause of action, with a seventh seeking an accounting.

[8] When asked to specify its reasons, the court issued this statement: “The November 28, 2011 order was error as to the second and sixth causes of action. The Third Amended Complaint adequately [pleaded] those causes of action which were not precluded by the April 13, 2011 order.”

[9] Although Beck named NoBug in this cause of action, it was obviously directed at only the Shalevs, the majority shareholders.]]> https://www.fearnotlaw.com/wsnkb/thread/61970/ Plaintiff Mordechay Beck appeals from a judgment entered in favor of defendants NoBug Consulting, Inc., Moshe Shalev, and Irit Shalev on Beck’s lawsuit seeking damages, declaratory relief, and an accounting on his claims of breach of oral contract and fraud, which he brought together with plaintiff Luca Bovio Ferassa.[1] On appeal, Beck asserts error in the superior court’s grant of summary adjudication on his contract claims and the sustaining of defendants’ demurrers on one of his claims of fraud and one of breach of oral contract, along with his request for declaratory relief. Finally, Beck challenges the award of attorney fees to the three defendants. We find merit in the last contention and therefore will modify the judgment. https://www.fearnotlaw.com/wsnkb/articles/beck-v-nobug-consulting-61969.html Fri, 12 May 2017 18:25:53 GMT https://www.fearnotlaw.com/wsnkb/articles/beck-v-nobug-consulting-61969.html










Filed 3/20/17 Beck v. NoBug Consulting CA6





NOT TO BE PUBLISHED IN OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

MORDECHAY BECK,

Plaintiff, Cross-defendant and Appellant,

v.

NOBUG CONSULTING, INC. et al.,

Defendants, Cross-complainants and Respondents.

H040136
(Santa Clara County
Super. Ct. No. 1-08-CV-123503)

Plaintiff Mordechay Beck appeals from a judgment entered in favor of defendants NoBug Consulting, Inc., Moshe Shalev, and Irit Shalev on Beck’s lawsuit seeking damages, declaratory relief, and an accounting on his claims of breach of oral contract and fraud, which he brought together with plaintiff Luca Bovio Ferassa.[1] On appeal, Beck asserts error in the superior court’s grant of summary adjudication on his contract claims and the sustaining of defendants’ demurrers on one of his claims of fraud and one of breach of oral contract, along with his request for declaratory relief. Finally, Beck challenges the award of attorney fees to the three defendants. We find merit in the last contention and therefore will modify the judgment.
Background
Defendant Moshe Shalev (Shalev) founded a private consulting business in 1995, and in 1999 he incorporated it as NoBug Consulting, Inc. (hereafter, NoBug). Later that year plaintiff Luca Bovio Ferassa worked for NoBug as an independent contractor and later as an employee. In November 1999, shortly before becoming involved with Beck, Shalev established NoBug Consulting SRL (NBR) in Romania, in order to use Romanian engineers in NoBug’s business.
Shalev and his wife, defendant Irit Shalev, initially were NoBug’s sole owners. Shalev was the sole owner of NBR. Shalev, however, was an engineer who lacked business experience. He asked Beck, a “casual acquaintance,” to help him obtain money to hire three Romanian engineers. Beck was unable to raise the money, but he offered to use his experience in corporate governance, management, and finance to advise Shalev and help him develop the business. In 2000 Shalev agreed to make Beck chairman of NoBug’s board of directors while Shalev served as president and chief executive officer. Shalev also agreed that Beck could purchase 500,000 shares of NoBug stock, amounting to 10 percent of the company’s 5 million outstanding shares.
In late 2000, Beck and Shalev retained an attorney, Einat Meisel, to formalize the arrangement, including the drafting of documents related to the sale of corporate stock. Among those documents was a resolution by Shalev in his capacity as NoBug’s sole director, entitled “Action by Unanimous Written Consent of the Sole Director of NoBug Consulting Incorporated” (Action). Pertinent to this appeal is the provision in the Action for NoBug to “enter into a Common Stock Purchase Agreement,” by authorizing the board of directors to issue five million shares to “the Purchasers listed in Exhibit A.” The “purchasers” listed in Exhibit A were Shalev (1 million shares, to be purchased for $3,000), Irit Shalev (2.75 million shares, to be purchased for $8,250), Beck (500,000 shares, to be purchased for $1,500), and Ferassa (750,000 shares, to be purchased for $2,250). Shalev signed the Action in mid-December of 2000.
Meisel also prepared the accompanying Stock Purchase Agreement (SPA). By April 2001, Shalev, Irit Shalev, and Ferassa had all signed the SPA and paid for their shares. Beck knew he needed to pay for his shares and sign the agreement. In his deposition he expressed the belief that he sent a check for his purchase “toward the end of 2000, beginning of 2001,” but he could not find a record of that check in his files. Beck also could not recall signing the SPA until 2007. It was only in late 2007, he said, when Shalev advised him that he had not purchased any stock, that Beck obtained a copy of the SPA from Ferassa, signed it, and sent it to Shalev along with a check for the purchase of his 500,000 shares. NoBug, however, had no record of ever having received either the check or the signed SPA from Beck.
Beck continued to hold the position of board chairman until 2008. According to Shalev, however, he “was not really involved in the company after 2005.” In September 2008, Ferassa and Beck brought this action against NoBug, Shalev, and Irit Shalev, asserting claims for declaratory relief, fraud against Shalev for failing to issue the company stock as he believed Shalev had promised, fraud against Shalev for failing to structure NBR as an entity within the NoBug “corporate umbrella,” breach of oral contract against both Shalev and NoBug based on the same promises as in the fraud claims, and breach of fiduciary duty against all three defendants. Plaintiffs also sought an accounting.
Shalev and NoBug cross-complained against both plaintiffs. Against Beck defendants alleged breach of oral contract and fraud for failing to provide the services he had promised—that is, to help NoBug develop new business and assist NoBug in its financial and business decisions. The cross-complaint was amended in May 2010 and July 2011.
Defendants moved for judgment on the pleadings, noting that portions of the complaint constituted shareholder derivative claims, without plaintiffs having followed the procedures necessary for a shareholder derivative suit. In May 2010, with the court’s permission, plaintiffs filed their first amended complaint, alleging, among other things, that the Shalevs had “used their control of the company to deny Mr. Beck’s ownership interest.” The motion for judgment on the pleadings was then deemed moot.
To surmount the derivative obstacle in the amended complaint, plaintiffs alleged by way of background the following: “Plaintiffs contend that they have each completed all of the steps prerequisite under NoBug’s governing corporate documents to become shareholders[.] They have paid the requisite fee and signed the Stock Purchase Agreements, and therefore are entitled to have been duly recorded shareholders of Defendant NoBug since at least 2000. In the alternative, Mr. Beck contends that all parties believed he had been issued shares, and he worked for 7 years as a director and chairman of the board, that Mr. Shalev and Irit Shalev are estopped from claiming he is not a shareholder. Plaintiffs further contend that Mr. Beck is the owner of 500,000 shares of NoBug stock, and that Mr. Bovio Ferassa is the owner of 750,000 shares.”
Defendants demurred to the amended complaint. The superior court overruled it, with the exception of the third cause of action for fraud based on Shalev’s alleged promise to set up a Romanian entity as part of NoBug. The court deferred trial to enable NoBug to investigate the derivative claims through a special litigation committee (SLC).
On June 21, 2010, plaintiffs filed their second amended complaint. In November, the court overruled defendants’ demurrer to this pleading, and it denied defendants’ motion to strike portions of the complaint, with the exception of plaintiffs’ requests for an order directing defendants to make NBR a wholly owned subsidiary of NoBug.
In early January 2011, the SLC reported that it had concluded that the derivative claims of the second amended complaint lacked merit and were contrary to NoBug’s interests. Later that month both NoBug and the Shalevs moved for summary judgment or, alternatively, summary adjudication. NoBug first sought summary adjudication of the derivative claims; it submitted a second motion addressed to plaintiffs’ direct claims. In NoBug’s second motion and in the Shalevs’ motion, defendants contended that the second, third, and fourth causes of action were time-barred, based on the statutes of limitations for fraud (three years under Code of Civ. Proc. § 338, subd. (d)) and breach of oral contract (two years under Code of Civ. Proc. § 339) The Shalevs further contended that the fraud claims (third and fourth causes of action) could not withstand summary adjudication. The third cause of action, they alleged, depended on recovery of damages for NoBug’s lost profits resulting from Shalev’s retention of the NBR ownership for himself. The fourth cause of action, they argued, could not survive because the undisputed facts established that Beck did not accept the alleged offer of NoBug shares within a reasonable amount of time, even if he eventually signed the SPA and sent a check in 2007.
On April 13, 2011, the court issued the first of the orders challenged in this appeal, addressing NoBug’s and the Shalevs’ summary judgment motions. The court granted summary adjudication of the fifth (breach of oral contract) and sixth (breach of fiduciary duty) causes of action pertaining to NBR, because those were “entirely derivative” as found by the SLC. The court denied summary adjudication of the first and fourth causes of action related to the issuance of stock to Beck because those claims contained both derivative and direct aspects that were insufficiently “separate and distinct.” As for the Shalevs’ motion, the trial court agreed that Beck could not show Shalev’s breach of an oral contract in the fourth cause of action because Shalev’s offer[2] was in effect “revoked by a lapse of reasonable time without acceptance, as Beck submitted a signed stock purchase agreement several years after the offer was made.” The third, fifth, and sixth causes of action pertaining to the promise to make NBR a NoBug subsidiary were deemed “entirely derivative”; hence, the Shalevs’ motion for summary adjudication was granted to those claims as well.
Thus, the first and fourth causes of action (declaratory relief and breach of oral contract pertaining to ownership of NoBug shares) remained alive as to NoBug, and the first and second causes of action (declaratory relief and promissory fraud pertaining to ownership of NoBug shares) remained against Shalev, with the ruling on the first cause of action applicable to Irit Shalev as well. Finally, the court found that the seventh cause of action had survived because—the burden on summary adjudication having shifted to plaintiffs—they had shown a triable issue regarding whether they had made a pre‑litigation demand for an accounting.[3] The Shalevs’ motion to “clarify” the summary adjudication ruling was denied.
On May 4, 2011, after extensive written and oral argument, the court granted plaintiffs leave to file a third amended complaint. That pleading was filed on July 7, 2011, followed two months later by separate demurrers and motions to strike by NoBug and by the Shalevs. On October 27, 2011, the court sustained NoBug’s demurrer to the first and sixth causes of action (declaratory relief and accounting) without leave to amend for failure to state a claim. As to the Shalevs, the court overruled their demurrer to all but Beck’s fourth cause of action for breach of oral contract relating to the issuance of NoBug shares. The court struck this claim on the ground that it had already been summarily adjudicated against Beck.[4] The court denied the Shalevs’ motion to strike the background allegations of the third amended complaint, but it did strike plaintiffs’ prayer for punitive damages on the fourth cause of action, noting the unavailability of punitive damages in contract actions.
Upon receiving a letter from Shalev requesting “clarification or modification” of the October 27 order, the court invited a response from plaintiffs and then modified its ruling. In its November 28, 2011 “Further Order,” the demurrer as to Irit Shalev was sustained without leave to amend, as plaintiffs had not opposed the demurrer and motion to strike as it applied to her. The court also sustained without leave to amend Beck’s first, second, third, fifth, and sixth causes of action because “any recovery by Beck is precluded by the Court’s finding in the April 13, 2011 order . . . that Beck failed to timely submit a signed stock purchase agreement.” An order granting summary adjudication and (as to the accounting cause of action) judgment on the pleadings was later granted to Shalev on Ferassa’s claims.
Upon defendants’ uncontested motion, Irit was dismissed as a defendant in June 2012. NoBug subsequently obtained dismissal of its cross-complaint without prejudice. The parties then began litigating costs and attorney fees. Beck sought indemnification of the attorney fees he had spent in his capacity as board chairperson in defending against NoBug’s cross-complaints. The court found Beck’s request for costs and fees of $224,444.54 to be excessive, but it did find a reasonable amount attributable to the cross-complaint litigation to be $41,143.25.
On July 12, 2013, the court entered judgment for defendants, directing that plaintiffs take nothing on their complaint and pay defendants’ costs and fees of $1,831,223.65. After a setoff for Beck’s recovery of $41,143.25 from NoBug, the net judgment in favor of the three defendants amounted to $1,790,080.40.
Beck moved for a new trial, asserting error in the prior rulings on all six claims of the third amended complaint. On September 9, 2013, the court granted Beck’s motion as to the second (fraud) and sixth (accounting) causes of action and denied it as to the other challenged rulings. At Beck’s request, the court thereafter issued a statement of reasons, explaining that the November 28, 2011 order “was error as to the second and sixth causes of action. The Third Amended Complaint adequately [pleaded] those causes of action which were not precluded by the April 13, 2011 order.” Finally, on October 9, 2013, the court denied Beck’s motion to vacate the judgment.
On October 3, 2013, Shalev filed his notice of appeal from the order partially granting a new trial. Beck filed a notice of appeal from the judgment on October 9, 2013, and on October 24, 2013, a notice of cross-appeal from the new-trial order. We consider here Beck’s contentions bearing on the judgment; the issues raised by Shalev are addressed in our companion opinion in Beck v. Shalev et al., H040227)[5]
Discussion
On appeal from the July 2013 judgment, Beck challenges (1) the summary adjudication of the fourth cause of action (breach of oral contract) in the second amended complaint; (2) the order sustaining defendants’ demurrers and granting their motions to strike portions of the third amended complaint; and (3) the award of attorney fees to defendants. The first question is resolved in accordance with the principles applicable to review of summary judgments. “ ‘ “[W]e take the facts from the record that was before the trial court when it ruled on that motion. [Citation.] ‘ “We review the trial court’s decision de novo, considering all the evidence set forth in the moving and opposing papers except that to which objections were made and sustained.” ’ [Citation.] We liberally construe the evidence in support of the party opposing summary [adjudication] and resolve doubts concerning the evidence in favor of that party. [Citation.]” [Citation.]’ ” (Schofield v. Superior Court (2010) 190 Cal.App.4th 154, 156-157, quoting Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 716-717; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).)
We likewise review the demurrers de novo to decide whether the pleading at issue states facts sufficient to constitute a viable cause of action. “Accordingly, we assume that the complaint’s properly pleaded material allegations are true and give the complaint a reasonable interpretation by reading it as a whole and all its parts in their context. [Citations.]” (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) We do not, however, assume the truth “of contentions, deductions, or conclusions of fact or law.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; see also Randi W. v. Muroc Joint Unified School Dist. (1997) 14 Cal.4th 1066, 1075.) We also may take judicial notice of attached documents and admissions in prior sworn statements and pleadings that may conflict with the allegations of the complaint at issue. (Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal.App.4th 390, 400.) Thus, “a complaint’s allegations may be disregarded when they conflict with judicially noticed discovery responses.” (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 83.) On appeal, “[w]e do not review the validity of the trial court’s reasoning, and therefore will affirm its ruling if it was correct on any theory.” (Nasrawi v. Buck Consultants LLC (2014) 231 Cal.App.4th 328, 337, citing Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034 (Berg & Berg); Kennedy v. Baxter Healthcare Corp. (1996) 43 Cal.App.4th 799, 808.)
1. Summary Adjudication of Contract Claim
Beck first contends that Shalev failed to establish entitlement to adjudication as a matter of law on the fourth cause of action for breach of oral contract in the second amended complaint. In performing our independent review, we apply the same three-step process as the trial court. “Because summary judgment is defined by the material allegations in the pleadings, we first look to the pleadings to identify the elements of the causes of action for which relief is sought.” (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 159.) “We then examine the moving party’s motion, including the evidence offered in support of the motion.” (Ibid.)
A defendant moving for summary judgment has the initial burden of showing that a cause of action lacks merit because one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action. (Code of Civ. Proc., § 437c, subd. (o); Aguilar, supra, 25 Cal.4th at p. 850.) If the defendant fails to make this initial showing, it is unnecessary to examine the plaintiff’s opposing evidence and the motion must be denied. However, if the moving papers make a prima facie showing that justifies a judgment in the defendant’s favor, the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (Code of Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, at p. 849.) In determining whether the parties have met their respective burdens, “the court must ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn therefrom [citation], and must view such evidence [citations] and such inferences [citations], in the light most favorable to the opposing party.” (Aguilar, supra, at p. 843.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Id. at p. 850, fn. omitted.) However, “a party ‘cannot avoid summary judgment by asserting facts based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact. [Citation.]’ [Citation.]” (Dollinger DeAnza Associates v. Chicago Title Ins. Co. (2011) 199 Cal.App.4th 1132, 1144-1145.)
The fourth cause of action in the second amended complaint alleged that Shalev “agreed and promised that he would structure NoBug in the manner agreed upon by the parties, and would arrange for issuance of 500,000 shares of stock to Plaintiff Beck, 750,000 shares of stock to Plaintiff Bovio Ferassa, [and] 1,000,000 shares of stock to Defendant Shalev, and that the remainder would be held in reserve to be issued in a manner agreeable to the shareholders. [¶] In reliance upon these promises and agreement, Plaintiffs provided services to the corporation, including serving on the Board of Directors and participating in the governance of the corporation, believing that the shares had been, or would be issued in the agreed upon manner.” By issuing no shares to him (and yet issuing 2,750,000 shares to Irit Shalev), Beck was “damaged by having no ownership interest in the corporation.”[6]
Shalev asserted in support of summary adjudication that no contract was ever formed. Instead, Shalev had only offered to sell Beck 500,000 shares of NoBug stock. Beck did not accept the offer within a reasonable time by signing the SPA and tendering a check for the purchase; consequently, the offer lapsed and Beck’s attempted purchase seven years later was ineffectual. Shalev surmised that Beck was attempting to cash in on an anticipated $3 million offer for NoBug, which would have given him “a quick $298,500 profit on a $1,500 investment.”
In support of his motion, Shalev proffered a statement of undisputed facts that primarily noted the allegations of the second amended complaint and the assertions of the Shalevs’ answer.[7] The Shalevs did offer the December 15, 2000 Action, however, which clearly listed Irit Shalev as an intended recipient of 2,750,000 shares. Pertinent to the current issue was Shalev’s own declaration, in which he stated that in 2000 he “agreed” to make Beck chairman of the NoBug board, and that after negotiations with Ferassa and Beck he “agreed that Mr. Ferassa could purchase 750,000 shares of NoBug stock and Mr. Beck could purchase 500,000 shares of NoBug stock.” The Action was the result of joint efforts by Shalev and Beck to “properly arrange” for the assumption of Beck’s role and the sale of NoBug stock. Shalev, Ferassa, and Irit Shalev completed their purchases by April 2001, but Beck did not. Richard B. Glickman, the Shalevs’ attorney, declared that although Beck was asked to produce copies of the SPA and check he claimed to have sent Shalev at the end of 2007, neither he nor his attorneys had been able to produce such copies.
Also offered as evidence was Beck’s deposition. On that occasion he was asked, “Now, in order to buy stock in NoBug California, what, if any, steps had to be taken, to your understanding?” He answered, “My understanding was that the most important that [sic] I need to pay and to get the agreement to sign it.” He said that he gave Shalev a $1,500 check “toward the end of 2000, beginning of 2001,” but he was unable to find a record of that check, and he could not recall whether it was ever cashed. He did recall mailing Shalev a copy of the SPA at the end of 2007 along with a second check; he did not remember sending the SPA before then, however.
Shalev established that Beck did not act upon the opportunity to acquire the promised NoBug stock. Beck alleged that Shalev had “agreed and promised” to “arrange for” issuance of the designated shares of stock to himself, Ferassa, and Beck. The gravamen of the alleged breach was Shalev’s allocation of the stock to himself, Ferassa, and Irit Shalev, “[i]nstead of issuing the agreed upon shares.” But Shalev did not promise to issue the shares without payment; he promised to arrange for them to be issued when the recipients signed the SPA and tendered payment. The undisputed evidence established that Shalev did in fact “arrange for” issuance of 500,000 shares of stock to Beck, through the Action and the drafting of the SPA. Beck could not remember performing either of the required acts before 2007, and during discovery neither he nor his attorneys were able to produce evidence of payment. Whether Beck’s inaction is viewed as a failure to accept an offer within a reasonable time (as Shalev and the court saw it), a failure to perform a covenant of the alleged contract, or a failure to perform a condition precedent to the issuance of the promised shares, he did not perform within a reasonable time. (See Civ. Code, § 1657 [“If no time is specified for the performance of an act required to be performed, a reasonable time is allowed”]; see City of Stockton v. Stockton Plaza Corp. (1968) 261 Cal.App.2d 639, 644]) Shalev thus met his initial burden to produce evidence showing that Beck did not possess, and could not reasonably obtain, the evidence he needed to support a necessary element of breach of contract. The burden thus properly shifted to Beck to show that a triable issue of fact existed on the question of whether he did meet the prerequisite to his stock ownership—execution of the SPA and payment for his shares.
In his opposition Beck pointed to a declaration he had submitted in support of a petition for an order to produce documents. In that document he admitted that when he learned that Shalev was contesting his ownership of 500,000 NoBug shares, he tried unsuccessfully to locate a signed SPA or “documentary evidence of having paid the nominal per share fee required for issuance of the stock.” He had never been told that there were any time constraints on payment, so he sent the 2007 copy of the SPA and a check to Shalev, made payable to NoBug. He believed that, “based upon [his] membership in the Board of NoBug from 2007 until early 2008,” he maintained ownership of the 500,000 shares of NoBug stock.
Beck’s attempt to create an issue regarding revocation or abandonment of the alleged agreement is unsustainable; the ruling was not, as he represents, that the parties had an agreement that was revoked. The court (by a different judge) later made it clear, as if it hadn’t been already, that the ruling made sense only if the “inadvertent word choice” of “agreement” was read as “offer.”
Beck’s better argument is that a triable issue of fact existed “as to the existence of an oral agreement that Beck could purchase 500,000 shares of NoBug stock,” in exchange for his service as chairperson of the board. But even if we agreed with him that an oral contract of this nature was formed, Beck offered no evidence to support his claim that the agreement called for his services in exchange for the issuance of shares. Only an arrangement to make the shares available for purchase was contemplated, and it is undisputed that Shalev complied with that obligation: He executed the Action and had the SPA prepared for all purchasers to sign. Beck himself notes that the Action “authorized the sale of shares to Beck.” (Italics added.) Beck was unable to supply evidence demonstrating a triable issue of fact on this point. To defeat a summary judgment or summary adjudication motion in 2013, a plaintiff was (as is the case now) not permitted to “rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . .” (Code Civ. Proc., former§ 437c, subd. (p)(2).)
Beck further argues that reversal is required because Shalev failed to seek summary adjudication of Beck’s claim of promissory estoppel, which he maintains was embedded in the fourth cause of action. Shalev responds that it was Beck who forfeited his position by failing to raise it below. Shalev is correct that Beck never attempted to defend the fourth cause of action by arguing the theory of promissory estoppel in his opposition to Shalev’s motion. He did not even raise it in his motion for a new trial or motion to vacate the judgment. The forfeiture rule “is rooted in the fundamental nature of our adversarial system: The parties must call the court’s attention to issues they deem relevant.” (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 28 (North Coast Business Park).) Accordingly, “A party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant.” (Ernst v. Searle (1933) 218 Cal. 233, 240-241.) “ ‘The law casts upon the party the duty of looking after his legal rights and of calling the judge’s attention to any infringement of them. If any other rule were to obtain, the party would, in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.’ ” (Sommer v. Martin (1921) 55 Cal.App. 603, 610; accord, North Coast Business Park, supra, at p. 29.)
This principle applies to summary judgment proceedings. (North Coast Business Park, supra, 17 Cal.App.4th at p. 29.) “Though this court is bound to determine whether defendants met their threshold summary judgment burden independently from the moving and opposing papers, we are not obliged to consider arguments or theories, including assertions as to deficiencies in defendants’ evidence, that were not advanced by plaintiffs in the trial court. . . . ‘Thus, possible theories that were not fully developed or factually presented to the trial court cannot create a “triable issue” on appeal.’ ” (DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 676, quoting American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1281; Johanson Transportation Service v. Rich Pik’d Rite Inc. (1985) 164 Cal.App.3d 583, 588; cf. North Coast Business Park, supra, at p. 29 [where summary judgment ruling resolved defect issue raised in motion, permitting change of theory on appeal would be “manifestly unjust to the opposing parties, unfair to the trial court, and contrary to judicial economy”].)
In any event, even if Shalev should have recognized that Beck was alleging promissory estoppel as well as breach of contract, Shalev’s failure to seek adjudication of this alternative claim does not help Beck. Promissory estoppel consists of the following elements: “(1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) his reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.” (Laks v. Coast Fed. Sav. & Loan Assn. (1976) 60 Cal.App.3d 885, 890; Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1178.) “The party claiming [promissory] estoppel must specifically plead all facts relied on to establish its elements.” (Smith v. City and County of San Francisco (1990) 225 Cal.App.3d 38, 48; see also Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 802 [conc. & diss. opn of Bamattre-Manoukian, J.) “To be binding, the promise must be clear and unambiguous.” (Lange v. TIG Ins. Co. (1998) 68 Cal.App.4th 1179, 1185.) Beck alleged a promise that lacked the required unambiguous specificity: Shalev promised to “arrange” for issuance of the stock to Beck. The pleading did not suggest any basis for finding reasonable reliance, as Beck alleged that he served on the board “believing that the shares had been, or would be issued in the agreed upon manner.” Given his admitted knowledge that issuance of the shares could not take place until he purchased them and signed the SPA, he could not have reasonably expected to acquire them without satisfying the conditions, as did each other recipient. We therefore agree with Shalev that Beck’s reliance allegation was insufficient to satisfy his pleading obligation. It was not incumbent on Shalev to address an inadequately proffered theory.
2. Demurrers to the Third Amended Complaint
Beck next takes issue with the rulings on defendants’ demurrers to (a) the first cause of action for declaratory relief against NoBug, Shalev, and Irit Shalev and (b) the second, third, and fifth causes of action for fraud and breach of oral contract against Shalev, relating to the ownership of NBR.
a. Declaratory Relief Claims
In the first cause of action of the third amended complaint Beck (along with Ferassa) sought a judicial declaration that (1) he “is the owner of shares of NoBug stock, and the number of shares that he owns”; (2) “NoBug must cancel shares issued to Irit Shalev or Moshe Shalev, and/or issue additional shares to Plaintiffs to restore the original agreed[-]upon ownership interest of 33% for Mr. Ferassa and 22% for Mr. Beck”; and (3) NBR “is to be owned either by shares, or through a constructive trust in a manner consistent with the parties [sic] agreement: (1) 45% by Mr. Shalev; (2) 33% by Mr. Bovio Ferassa and (3) 22% by Mr. Beck.”
The court sustained NoBug’s demurrer to this cause of action on October 27, 2011, finding that plaintiffs had pleaded “[n]o actual controversy . . . to support declaratory relief.” It subsequently denied Beck’s motion for a new trial, explaining that Beck could not obtain the relief he sought from NoBug, which was to compel NoBug to issue shares to him.
On appeal, Beck contends that the sustaining of NoBug’s demurrer was unjustified because the complaint actually “combines two causes of action: one seeking a declaration of rights and a second seeking equitable relief for defendants’ breach of an oral agreement, promissory estoppel and fraud.” He maintains that he was seeking not coercive relief, but “an adjudication of his right to purchase stock in NoBug and his right to an ownership interest in [NBR].” In his reply brief, he adds that he “also seeks a declaration that NoBug has an obligation to cancel the shares issued to Irit [Shalev] or to issue additional shares to him to confer a 22 percent ownership interest in NoBug.” It is the equitable portion of his claim, he explains, that requests “an order compelling NoBug to perform its obligations under the agreement,”
This clarification does not advance Beck’s position. First, there is no indication that in the court below Beck relied on a claim for equitable relief; and even if he did, it was essentially a request for an affirmative injunction or specific performance— a remedy for Shalev’s, not NoBug’s, alleged breach of contract. Beck’s counsel acknowledged at the hearing on the new-trial motion that specific performance was unavailable to Beck. NoBug’s obligation to issue 500,000 shares to him once he paid for them is dependent on the alleged agreement by Shalev to arrange for that transaction. The obligation thus presupposes a failure by Shalev to comply with his contractual duty. NoBug’s demurrer was properly sustained.
The court also sustained the demurrer as to Irit Shalev without leave to amend, noting that there had been no opposition to the demurrer as it concerned her. The Shalevs’ uncontested request for dismissal of Irit Shalev was granted on June 11, 2012. On appeal, Beck protests that he did oppose the demurrer as it pertained to Irit Shalev, yet he points to no specific argument he raised below, other than a vague reference to nearly 100 pages of his Appellant’s Appendix. Beck’s contention regarding his alternative unpleaded theory that he was entitled to equitable relief merits no examination for the same reason it is disregarded when applied to NoBug.
As to Shalev, the court initially overruled Shalev’s demurrer to the first cause of action, but in its November 28, 2011 order it determined that “any recovery by Beck is precluded by the Court’s finding in the April 13, 2011 order . . . that Beck failed to timely submit a signed stock purchase agreement.” In subsequently denying Beck a new trial on this claim, the court withdrew that reasoning, but it nonetheless determined that any error was not prejudicial without further explanation.[8]
It is unnecessary to address the rationale of the trial court’s November 28, 2011 order. As noted earlier, we review the court’s ruling rather than its reasoning, and we uphold the decision if it is correct on any theory. (Berg & Berg, supra, 178 Cal.App.4th at p. 1034; Orange Unified School Dist. v. Rancho Santiago Community College Dist. (1997) 54 Cal.App.4th 750, 757.) Independent of the court’s prior summary adjudication order, Beck’s right to the claimed NoBug shares turns on the legal sufficiency of his substantive allegations of fraud (the second and third causes of action) and breach of contract (fourth and fifth causes of action). As we conclude below and in the companion appeal (Beck v. Shalev et al., H040227), those allegations were subject to demurrer. Accordingly, Beck was not entitled to declaratory relief against Shalev based on Shalev’s failure to issue Beck 500,000 NoBug shares and an interest in NBR.
b. Demurrer to the Third and Fifth Causes of Action
In Beck’s third cause of action against Shalev, he alleged that Shalev “promised to set-up [sic] the Romanian business, which was to be operated under the NoBug corporate umbrella, or if it was impractical or impossible to have NoBug Romania as a subsidy of NoBug, then Mr. Shalev would establish Romania [sic] with Mr. Shalev, Mr. Bovio Ferassa and Mr. Beck as owners or shareholders in the same percentage of ownership interest as their respective ownership interests in NoBug.” According to the complaint, Beck and Ferassa relied on these promises by providing services to the corporation. Shalev, however, had not intended to structure NBR as part of NoBug, and he “lied when he advised the Plaintiffs that he had set up the Romanian entity as they had agreed.” Instead, he set up NBR as a separate legal entity without disclosing this fact to plaintiffs. Plaintiffs were “damaged because they were entitled to obtain an ownership interest in [NBR],” either directly or through their ownership interest in NoBug. The fifth cause of action cast the same factual allegations as a breach of oral contract, with the resulting damage that plaintiffs lost “profits that should have been available to them as owners of [NBR].”
The October 27 and November 28, 2011 orders reflected the trial court’s view that the third and fifth causes of action stated non-derivative claims that related back to plaintiffs’ earlier pleadings and therefore were not barred by the statute of limitations. In denying Beck’s new-trial motion, however, the trial court stated that the third and fifth causes of action were barred by the statute of limitations; and because Beck had not addressed this issue, the court’s earlier reliance on the April 2011 order “did not materially affect Beck’s rights.”
Demurrer was proper on these causes of action. The alleged promise was that Beck and Ferassa would share in NBR ownership “in the same percentage of ownership interest as their respective ownership interests in NoBug.” But while Ferassa had such an interest in NoBug, Beck did not. The alternative alleged promise to structure NBR as part of NoBug likewise cannot survive demurrer, as Beck relinquished his earlier claim to NoBug shares and maintained that he was no longer asserting derivative claims to shares of NBR. Thus, whether viewed as promissory fraud or breach of contract, the alleged broken promise to set up NBR as a business owned by NoBug’s shareholders cannot have resulted in direct personal damage to Beck.
e. Leave to amend complaint
Beck contends that the court’s failure to grant him leave to amend the third amended complaint constituted an abuse of discretion. He did not request such opportunity, and he fails to demonstrate how the pleading can be amended to state a viable cause of action as to NoBug, Shalev, or Irit Shalev. Leave to amend was not required.
3. Order Striking the Fourth Cause of Action
Beck further challenges the order striking the fourth cause of action of the third amended complaint, which alleged (as in the second amended complaint) breach of contract against Shalev for misallocating the NoBug shares by issuing none to him.
In this case, Beck’s contention is predicated entirely on the assertion that the court “erred in granting summary adjudication for [Shalev] because [Shalev] failed to show there was no triable issue of fact as to the existence of an oral agreement relating to Beck’s ownership interest in NoBug.” Because we have found no error in the trial court’s prior summary adjudication ruling, the court properly struck this claim in the third amended complaint.
4. Attorney Fees
California follows the “American rule,” under which each party to a lawsuit must pay its own attorney fees unless a contract or statute or other law authorizes a fee award. (Code Civ. Proc., §§ 1021, 1033.5, subd. (a)(10); Musaelian v. Adams (2009) 45 Cal.4th 512, 516.) In this case defendants found such authorization in Civil Code section 1717 (hereafter section 1717), which states: “In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.” (§ 1717, subd. (a).) Accordingly, “[w]hen a defendant obtains a simple, unqualified victory by defeating the only contract claim in the action, section 1717 entitles the successful defendant to recover reasonable attorney fees incurred in defense of that claim if the contract contained a provision for attorney fees.” (Hsu v. Abbara (1995) 9 Cal.4th 863, 877.) The statute thus ensures mutuality of remedy, particularly “when a party litigant prevails in an action on a contract by establishing that the contract is invalid, inapplicable, unenforceable, or nonexistent.” Section 1717 then permits that party to recover attorney fees “whenever the opposing parties would have been entitled to attorney fees under the contract had they prevailed.” (Santisas v. Goodin (1998) 17 Cal.4th 599, 611; see Linear Technology Corp. v. Tokyo Electron, Ltd. (2011) 200 Cal.App.4th 1527, 1535.)
Defendants submitted their motion for attorney fees in December 2012, claiming an “unqualified” right to fees under the SPA and the fee provisions of the Civil Code. Defendants sought $1,669,724.30 as the parties “prevailing on the contract,” within the meaning of section 1717. (§ 1717, subd. (b).) They contended that this provision entitled them to the “mutuality of remedy” principle inherent in the statute, which broadly applied to this entire litigation as an “action on a contract.” (§ 1717, subd. (a).) Those issues that were outside the scope of the SPA—namely, the causes of action for accounting and fraud (and, in the second amended complaint, breach of fiduciary duty) were, in defendants’ view, inextricably intertwined with the contract claims and must therefore be included in the fee award, to which all three defendants were entitled.
Beck opposed defendants’ motion primarily on the ground that the amounts sought were unreasonable, as they reflected duplicative billing and failure to deduct for work that did not qualify for fees under section 1717. Beck maintained that time “not spent on issues associated with the [SPA] is not recoverable, including issues related to whether [NBR] was part of NoBug Consulting.” Accordingly, Beck argued, the court “would be fully justified in substantially reducing the fees claimed, or eliminating them in their entirety.”[9]
Beck did not oppose the motion on the ground that section 1717 was inapplicable to the entire claim. Indeed, at one point he obtained new counsel who, misunderstanding the nature of the allegations, conceded that a fee award would be proper as they related to the “written contract claim.” On appeal, however, he argues that none of the defendants was entitled to attorney fees because his complaint alleged breach of an oral agreement, not breach of the SPA, and the oral agreement contained no provision for fees. Defendants resist this theory not on the ground that it was forfeited, but on the substance of Beck’s position. They maintain that the entire action against all three defendants was “on the contract” and therefore warranted attorney fees. In their view of the litigation, Beck’s allegation that he proffered payment and a signed SPA establishes that “an enforceable SPA was the foundation of Beck’s case.”
We agree with Beck on this issue. “An action (or cause of action) is on a contract’ for purposes of section 1717 if (1) the action (or cause of action) ‘involves’ an agreement, in the sense that the action (or cause of action) arises out of, is based upon, or relates to an agreement by seeking to define or interpret its terms or to determine or enforce a party’s rights or duties under the agreement, and (2) the agreement contains an attorney fees clause.” (Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230, 237, 241-242.) “On appeal this court reviews a determination of the legal basis for an award of attorney fees de novo as a question of law.” (G. Voskanian Construction, Inc. v. Alhambra Unified School Dist. (2012) 204 Cal.App.4th 981, 995; Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175.)
Here, an oral agreement was allegedly reached, but no SPA signed by Beck was ever produced. The gravamen of the third amended complaint was not that any of the defendants breached the SPA or any other written agreement containing an attorney fees provision, but that Shalev broke his oral promise to “arrange for” Beck to purchase the shares, as well as Shalev’s oral promise to make NBR part of NoBug. Neither of these alleged oral agreements made any reference to attorney fees. The fee provision of the SPA itself called for fees “incurred by the prevailing party in connection with” legal action “to enforce the obligations of any other party pursuant to this Agreement.” Beck sued not to enforce the terms of the SPA but to enforce the obligation of Shalev to enter into an SPA with him as called for by their oral agreement in 2000. We thus reject defendants’ view of the lawsuit as one to “enforce a composite agreement . . . with a written fee clause.”
This was not a case calling for mutuality of remedy. Had Beck’s action been successful, he would not have been entitled to attorney fees because he was seeking only to engage in a contractual relationship with NoBug, not to enforce the terms of a contract into which they had already entered. The alleged oral agreement did not include any provision for recovery of fees should a legal dispute arise. Consequently, this case is governed not by section 1717, but by the basic rule that a party must bear its own attorney fees. (Cf. Sawyer v. Bank of America (1978) 83 Cal.App.3d 135, 140.)
We therefore disagree with the superior court’s determination that “the gist of plaintiffs’ claims and action was that it was an action on a contract.” The alleged contract that was the subject of the action was not one containing a provision for attorney fees. The award to defendants thus cannot be upheld. In light of this conclusion, we need not address Beck’s argument that neither of the Shalevs was entitled to fees because they were not parties to the SPA, or his assertion that he did not receive a fair trial on fees because his attorney had a conflict of interest by representing Ferassa as well as him. We also need not address the court’s refusal to apportion fees for litigation pertaining exclusively to Ferassa and fees between the claims in the pleadings. Section 1717 does not offer a basis for any of the requested fees here.
Disposition
The judgment is modified to strike the order awarding attorney fees to defendants. In all other respects, the judgment is affirmed. The parties shall bear their own costs on appeal.





_________________________________
ELIA, J.

WE CONCUR:



_______________________________
PREMO, Acting P. J.



_______________________________
MIHARA, J.



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[1] Ferassa is not a party on appeal.

[2] The court actually used the word “agreement” rather than offer; but a different judge later explained that the intended word, viewed in context, had to have been “offer.”

[3] The court further determined that the Shalevs had not established the lack of a triable issue of fact on the second and fourth causes of action as to Ferassa. As noted earlier, however, Ferassa is not a party in this appeal.

[4] The court also overruled the demurrer to and denied the motion to strike Ferassa’s allegations in the fourth cause of action.

[5] This court ordered these two appeals to be considered together for the purposes of briefing, oral argument, and disposition.

[6] The fourth cause of action did not directly accuse NoBug of breach of contract, nor does Beck assert NoBug’s liability on this cause of action in his appellate briefs.

[7] It is misleading and disingenuous for Shalev to point out that plaintiffs responded “Undisputed” to the factual statements in defendants’ statement of undisputed facts. As noted, that statement primarily set forth allegations, not the underlying facts themselves. We will disregard Shalev’s gratuitous point that Beck “admitted all material facts in his response to [Shalev’s] separate statement. . . .”

[8] In denying a motion for new trial on this cause of action the court did not directly retract its ruling of October 27 and November 28, 2011. The court ruled that any error in sustaining the demurrer did not warrant a new trial, because “the finding concerning the April [13, 2011] [o]rder did not materially affect Beck’s rights.”

[9] As noted, Beck also sought to recover his own attorney fees for defending against NoBug’s cross-claims against him. The parties’ motions for attorney fees were heard by a different judge of the superior court from those who had decided the summary judgment motions and demurrers.]]> https://www.fearnotlaw.com/wsnkb/thread/61969/ In May 2016, plaintiff April Mulvihill sued defendants Norway Maple Holdings, LLC and Plum Healthcare Group, LLC for elder abuse and negligence. Defendants filed a motion to compel arbitration shortly thereafter. Plaintiff then consented to arbitration and the petition to compel arbitration was granted. Plaintiff, however, was dissatisfied with the contemplated pace of proceedings in arbitration. Citing her advanced age and health issues, she moved for calendar preference (see Code Civ. Proc., § 36)[1] in the arbitration. She was unsuccessful. She then applied ex parte to the court to set aside its prior order compelling arbitration and to set a trial date with calendar preference. The court granted plaintiff’s application, setting a jury trial for December 5, 2016. Defendants appealed the court’s order. (§ 1294, subd. (a) [order denying petition to compel arbitration is appealable].) Their 31-page opening brief primarily argues that the court lacked jurisdiction to iss https://www.fearnotlaw.com/wsnkb/articles/mulvihill-v-norway-maple-holdings-61968.html Fri, 12 May 2017 18:24:49 GMT https://www.fearnotlaw.com/wsnkb/articles/mulvihill-v-norway-maple-holdings-61968.html










Filed 3/20/17 Mulvihill v. Norway Maple Holdings CA4/3







NOT TO BE PUBLISHED IN OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.






IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

APRIL MULVIHILL,

Plaintiff and Respondent,

v.

NORWAY MAPLE HOLDINGS, LLC et al.,

Defendants and Appellants.




G054010

(Super. Ct. No. 30-2016-00852768)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, James L. Crandall, Judge. Reversed and remanded.
Williams Iagmin and Jon R. Williams; Wilson Getty, William C. Wilson, and Mark A. Ginella for Defendants and Appellants.
Garcia, Artigliere & Medby & Faulkner, Stephen M. Garcia, and William M. Artigliere for Plaintiff and Respondent.

* * *


THE COURT:*
In May 2016, plaintiff April Mulvihill sued defendants Norway Maple Holdings, LLC and Plum Healthcare Group, LLC for elder abuse and negligence. Defendants filed a motion to compel arbitration shortly thereafter. Plaintiff then consented to arbitration and the petition to compel arbitration was granted.
Plaintiff, however, was dissatisfied with the contemplated pace of proceedings in arbitration. Citing her advanced age and health issues, she moved for calendar preference (see Code Civ. Proc., § 36)[1] in the arbitration. She was unsuccessful. She then applied ex parte to the court to set aside its prior order compelling arbitration and to set a trial date with calendar preference. The court granted plaintiff’s application, setting a jury trial for December 5, 2016.
Defendants appealed the court’s order. (§ 1294, subd. (a) [order denying petition to compel arbitration is appealable].) Their 31-page opening brief primarily argues that the court lacked jurisdiction to issue the challenged order. In other words, once arbitration was ordered, the court retained only limited powers (e.g., to confirm or deny the award, to decide whether the case should be dismissed). (See § 1281 et seq.; MKJA, Inc. v. 123 Fit Franchising, LLC (2001) 191 Cal.App.4th 643, 654; Titan/Value Equities Group, Inc. v. Superior Court (1994) 29 Cal.App.4th 482, 487.)
Plaintiff did not file a respondent’s brief. The time for doing so has passed. (See Cal. Rules of Court, rules 8.212(a)(2), 8.220(a).) The matter is fully briefed and ready for oral argument.
On March 9, 2017, the parties filed a joint application and stipulation for a summary reversal of the order and immediate issuance of the remittitur. This document includes three pages of substantive text, basically a summary of the facts and the stipulation. No authority for the procedural request was cited in the application.
It appears this court has “inherent authority” to summarily reverse. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2016) ¶ 5:82, p. 5-34.) This power may be exercised when the correct outcome of an appeal is clear, making further appellate proceedings a waste of time. (Melancon v. Walt Disney Productions (1954) 127 Cal.App.2d 213, 215 [motion granted because recent Supreme Court case on same issue compelled reversal].) Though the opening brief certainly argues that the court erred, neither the motion nor the opening brief contends that the error was so obvious that summary reversal is appropriate.
Instead, the parties’ application relies on the stipulation. Though the parties’ application does not mention it, stipulated reversals of judgments are specifically addressed by the Code of Civil Procedure. “An appellate court shall not reverse or vacate a duly entered judgment upon an agreement or stipulation of the parties unless the court finds both of the following: [¶] (A) There is no reasonable possibility that the interests of nonparties or the public will be adversely affected by the reversal. [¶] (B) The reasons of the parties for requesting reversal outweigh the erosion of public trust that may result from the nullification of a judgment and the risk that the availability of stipulated reversal will reduce the incentive for pretrial settlement.” (§ 128, subd. (a)(8).) The parties certainly stipulated to a reversal. But the application does not address any of the factors included in section 128, subdivision (a)(8). Nor do the parties comply with our local rule requirements for stipulated requests for reversal. (See also Ct. App., Fourth Dist., Div. Three, Internal Practices and Proc., V C, Stipulated Requests for Reversal.)
Of course, this statute purports to apply to a “duly entered judgment”; no mention is made of appealable orders. (§ 128, subd. (a)(8).) The question implicitly raised by this application is whether section 128, subdivision (a)(8), should apply to a prejudgment order denying a petition to compel arbitration, given the text of the statute and policy considerations underlying this statute. (See Muccianti v. Willow Creek Care Center (2003) 108 Cal.App.4th 13, 15 [final judgments belong to the public, not the parties].) There is no final judgment here. Nor is there a tentative settlement of the lawsuit, the typical impetus for a stipulated reversal of a judgment. The parties apparently intend to return to arbitration to settle their differences. There is no possible res judicata or precedential value of the court’s order for the public at large. (§ 128, subd. (a)(8)(A).) It is hard to imagine how “public trust” in the courts could be eroded by facilitating the prompt resolution of this fight over the forum for resolving the parties’ substantive dispute. (§ 128, subd. (a)(8)(B).)
In our view, the presumption against stipulated reversals should not apply to a prejudgment order denying a petition to compel arbitration. A stipulation to reverse the order is enough to justify a reversal of such an order; the pre-section 128, subdivision (a)(8), presumption in favor of stipulated reversals should apply. (See Neary v. University of California (1992) 3 Cal.4th 273, 277.) Indeed, it is unclear why reversal of the court’s order is even necessary to accomplish the parties’ goal. The parties could just as easily have agreed in writing to resubmit the matter to arbitration following the unilateral dismissal of this appeal by defendants. This court should not expend its resources addressing the merits of an issue that should be moot, in that the parties are apparently in agreement at this point that this matter should go back to arbitration.

DISPOSITION

The parties’ joint application is granted. The August 26, 2016 order denying arbitration and setting the matter for trial is reversed. On remand, the trial court is directed to enter an order consistent with this opinion. On stipulation of the parties, the court orders early finality of its decision by opinion as to this court. The clerk of this court is directed to issue the remittitur immediately. (Cal. Rules of Court, rule 8.272(c)(1).) The parties shall bear their own costs on appeal.


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* Before Moore, Acting P.J., Fybel, J., and Ikola, J.

[1] All statutory references are to the Code of Civil Procedure.]]> https://www.fearnotlaw.com/wsnkb/thread/61968/ A jury convicted defendant, Thuong Hoang Nguyen of first degree residential burglary (Pen. Code §§ 459, 460, subd. (a); all further statutory references are to this code) after it found defendant stole a laptop from his neighbor’s apartment. The jury also found true allegations a nonaccomplice of defendant was present in the residence during the commission of the residential burglary. The court sentenced defendant to nine years in prison. Defendant appeals, contending statements he made to police and the fruits of a search of his home were obtained in violation of his rights under the Fourth and Fourteenth Amendments to the United States Constitution. We disagree and affirm. https://www.fearnotlaw.com/wsnkb/articles/p-v-nguyen-61967.html Fri, 12 May 2017 18:23:09 GMT https://www.fearnotlaw.com/wsnkb/articles/p-v-nguyen-61967.html










Filed 3/20/17 P. v. Nguyen CA4/3










NOT TO BE PUBLISHED IN OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

THUONG HOANG NGUYEN,

Defendant and Appellant.



G052424

(Super. Ct. No. 13WF3828)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Affirmed.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant, Thuong Hoang Nguyen of first degree residential burglary (Pen. Code §§ 459, 460, subd. (a); all further statutory references are to this code) after it found defendant stole a laptop from his neighbor’s apartment. The jury also found true allegations a nonaccomplice of defendant was present in the residence during the commission of the residential burglary. The court sentenced defendant to nine years in prison. Defendant appeals, contending statements he made to police and the fruits of a search of his home were obtained in violation of his rights under the Fourth and Fourteenth Amendments to the United States Constitution. We disagree and affirm.
FACTS AND PROCEDURAL HISTORY
Defendant was charged in an amended information with one count of first degree residential burglary, a felony. It was alleged pursuant to section 667.5, subdivision (c)(21), a nonaccomplice was present during the residential burglary. It was also alleged defendant had previously been convicted of two prior strikes pursuant to sections 667, subdivisions (d) and (e)(2)(A) and 1170.12, subdivisions (b) and (c)(2)(A) and one prior pursuant to section 667, subdivision (a)(1), and that defendant had previously served two prior prison terms pursuant to section 667.5, subdivision (b).
Before trial began, defendant filed motions in limine. Among other requests, defendant moved to suppress statements made during an interview with an officer from the Garden Grove Police Department. The officer conducted the interview without first reading defendant his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). He argued statements given during an interview at his residence were obtained in violation of Miranda in that the interview was custodial in nature.
The court held a hearing on the motion to suppress. At the inception of the hearing, defendant’s counsel stated she wanted to expand the motion to also include a post-Miranda interview later given by defendant.
At the hearing Garden Grove Police Officer Thomas Capps testified he was on duty on December 12, 2013 at about 10:00 a.m. when he responded to an address on Gilbert Street. He met George Neumann and his nephew, Garrett Lynn while investigating a possible burglary. They told Capps the suspect goes by the name of Andrew and lives in the apartment north of their building.
Capps proceeded to the apartment Neumann identified. He knocked on the door, and a female answered. Capps was wearing his standard-issue uniform with two badges on each shoulder, a badge on his chest, his name, and a gun belt. Capps said he was looking for Andrew, and the female, Andrew’s mother, gave Capps permission to enter the apartment.[1] Defendant was lying on a mattress in the living room five to eight feet from the door. When Capps walked in the door, he pulled out his handgun and pointed it down towards the ground, because there was a blanket forming a partition that separated part of the living room, and defendant’s hands were not visible. The weapon was out of its holster about five to ten seconds, and as soon as Capps could see defendant did not have anything in his hands, he reholstered the weapon.
Capps asked defendant if he was Andrew, and defendant responded yes. Defendant then agreed to speak with the officer. Capps asked defendant to step outside to talk and to sit down on a stairwell outside the front door, and defendant complied. Capps was standing in front of defendant about five feet away.
Without first reading defendant his Miranda rights, Capps told defendant a neighbor had observed him walk inside an apartment and take a laptop computer. Capps did not identify the neighbor. Defendant responded he did not go inside of Garrett’s apartment. Defendant told Capps a friend had come by his apartment attempting to sell him a laptop computer. Defendant said the friend offered to sell it to him for $100, but he did not have the $100 to spend on the laptop. Capps then asked permission to search defendant’s apartment, and defendant consented. After conducting a five to ten minute interview, Capps waited for a backup officer to arrive, never leaving defendant alone. The interview was not recorded.
Capps searched the area where defendant had been and found a laptop underneath the couch. He took the laptop to Neumann who identified it as the missing property. Capps placed defendant under arrest and read defendant his Miranda rights. Defendant indicated he understood and began speaking with Capps. The questions Capps asked defendant in the second interview were “pretty similar” to the questions he asked at the apartment. When confronted with the fact Capps had recovered the laptop, this time defendant responded his friend brought the laptop to his house and he purchased it from his friend for $100. During the interview, defendant never stated he no longer wished to speak with Capps, nor did he ask to have an attorney present. Like the first, this interview was not recorded.
After hearing Capps’s testimony, defendant’s counsel again expanded the breadth of the motion and orally requested the court also suppress the laptop found during the search. Counsel argued the statements made during the second interview should be suppressed under Missouri v. Seibert (2004) 542 U.S. 600 on the theory the police cannot get the exact same information from a statement given after Miranda that was not allowable before Miranda warnings were given.[2]
The court denied the motion to suppress statements made during both interviews. As to the first interview, the court found it was a consensual encounter but even if it was considered some sort of detention or Terry[3] stop, the officer was still permitted to ask some brief questions to confirm or deny defendant’s involvement in any sort of a crime. As to the second interview, the court found it was conducted after defendant was read his Miranda rights.
A jury found defendant guilty as charged and found true the allegation a nonaccomplice was present. At sentencing the court struck one of the strikes because the crime had been reduced to a misdemeanor. Defendant admitted the remaining prior strike and prison term allegations. The court sentenced defendant to nine years in state prison consisting of the low term of two years doubled to four years because of the prior strike, plus five years for enhancements.
DISCUSSION
We begin by reviewing the sequence of events, which will then govern our analysis. Capps knocked on defendant’s door, obtained his mother’s consent to enter the apartment, entered with his handgun drawn until he could see defendant’s hands, encountered defendant, and asked him to step outside to talk. Defendant agreed, and Capps questioned him without first reading defendant his Miranda rights. This occurred while defendant was sitting on a staircase with Capps five feet away. Defendant made an incriminating statement. Capps then asked defendant’s permission to search his apartment, and defendant consented. During the search, Capps found the laptop. Neumann confirmed the laptop was his. Capps then arrested defendant, took him to jail, read him his Miranda rights, and reinterviewed him. In the second interview, defendant made further incriminating statements.
At trial defendant argued in writing his statements made during the first interview were obtained in violation of Miranda, a Fifth Amendment case.[4] (See Miranda, supra, 384 U.S. at p. 439 [“we deal with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself”].) During oral argument, defendant expanded the request and sought an order excluding unspecified statements made during the second interview and an order suppressing introduction of the laptop into evidence.[5] On appeal defendant appears to have abandoned the Fifth Amendment argument. Having failed to properly brief the issue, we deem it waived. (See Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [appellant’s failure to support contention with meaningful legal analysis waives issue on appeal].)
Instead defendant now contends his statements to police and the fruits of the search of his home violated his rights under the Fourth and Fourteenth Amendments. We review the denial of a motion to suppress in the light most favorable to the court’s ruling, deferring to the court’s express or implied factual findings if supported by substantial evidence, but exercising our independent judgment to determine whether, on those facts, the search or seizure was reasonable under the Fourth Amendment.[6] (People v. Lomax (2010) 49 Cal.4th 530, 563.)
Defendant does not attack Capps’s original entry into his apartment after his mother gave consent.[7] Nor could he. Although Capps did not have a warrant to enter the apartment, one established exception to the warrant and probable cause requirement is a search conducted pursuant to consent. (People v. Woods (1999) 21 Cal.4th 668, 674.) “It long has been settled that a consent-based search is valid when consent is given by one person with common or superior authority over the area to be searched; the consent of other interested parties is unnecessary.” (Id. at p. 675.) Defendant’s mother consented to Capps’s entry into the apartment to speak with defendant. Once Capps made contact with defendant, Capps asked him to step outside to talk.
Defendant freely accompanied Capps to the stairway but nevertheless contends it was at this point he was detained. He contends this detention was illegal, and his statements, including his consent to search his apartment, were tainted and should have been suppressed. Stated another way, defendant contends he was detained at the time he consented to the search of his apartment, which negated the consent. However, defendant fails to develop the consent/detention argument in any coherent fashion.
The Fourth Amendment provides “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated . . . .” (U.S. Const., 4th Amend.) This guarantee has been incorporated into the Fourteenth Amendment to the federal Constitution and is applicable to the states. (People v. Camacho (2000) 23 Cal.4th 824, 829.) Without a warrant to search defendant’s apartment, and in the absence of probable cause and exigent circumstances, the validity of the search depends on defendant’s purported consent. (See Florida v. Royer (1983) 460 U.S. 491, 497.) “[S]tatements given during a period of illegal detention are inadmissible even though voluntarily given if they are the product of the illegal detention and not the result of an independent act of free will.” (Id. at p. 501.) Therefore, we must determine whether defendant was detained when he consented to the search of his apartment.
Detentions are to be distinguished from consensual encounters and arrests. (People v. Gallant (1990) 225 Cal.App.3d 200, 207.) “‘For purposes of Fourth Amendment analysis, there are basically three different categories or levels of police “contacts” or “interactions” with individuals, ranging from the least to the most intrusive. First, there are . . . “consensual encounters” [citation], which are those police-individual interactions which result in no restraint of an individual’s liberty whatsoever—i.e., no “seizure,” however minimal—and which may properly be initiated by police officers even if they lack any “objective justification.” [Citation.] Second, there are what are commonly termed “detentions,” seizures of an individual which are strictly limited in duration, scope and purpose, and which may be undertaken by the police “if there is an articulable suspicion that a person has committed or is about to commit a crime.” [Citation.] Third, and finally, there are those seizures of an individual which exceed the permissible limits of a detention, seizures which include formal arrests and restraints on an individual’s liberty which are comparable to an arrest, and which are constitutionally permissible only if the police have probable cause to arrest the individual for a crime. [Citation.]’” (Id. at pp. 206-207.)
We disagree defendant was detained when Capps questioned him the first time. The police have detained an individual “‘“if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” [Citation.]’” (People v. Gallant, supra, 225 Cal.App.3d at p. 207.) “Those circumstances may include ‘physical restraint, threat of force, or assertion of authority . . . .’” (Ibid.) Here, a reasonable person in defendant’s position would have believed he was free to leave. Defendant willingly walked outside and responded to Capps’s questions when asked. He was not being held at gunpoint, he was not handcuffed or restrained, and he was not under arrest at the time. Rather, Capps was a comfortable five feet in distance from defendant during questioning. The interview was short, lasting only five to ten minutes. Capps was the only officer present. There is no evidence defendant was coerced by threats of force or that he was subjected to an overwhelming show of force.
As a result, defendant’s individual liberty was not restrained during the first interview, and his interaction with Capps was therefore a properly initiated consensual encounter, not a detention. Police may knock on the door of a residence, speak with the occupant, and request permission to enter and search, a procedure known as “‘knock and talk.’” (People v. Rivera (2007) 41 Cal.4th 304, 311.) “The sanctity of the home is not threatened when police approach a residence, converse with the homeowner, and properly obtain consent to search. The Fourth Amendment’s prohibition against warrantless searches of homes does not apply when voluntary consent to the search has been given by someone authorized to do so.” (Ibid.)
Here, there is no basis to conclude defendant’s consent to speak with Capps and authorize a search of his apartment was involuntary. Defendant had the right to refuse to talk to Capps and to deny him reentry into his apartment. Defendant suggests his consent was not freely given because Capps entered the apartment with his handgun drawn. However, defendant produced no evidence he saw the handgun or knew it had been drawn. Defendant gave consent later, after the handgun had been reholstered, as the two spoke on the stairway. On these facts, we cannot conclude Capps’s drawing of his handgun was a threat of force or assertion of authority sufficient to vitiate defendant’s consent to search his apartment. There was no Fourth or Fourteenth Amendment violation.

DISPOSITION
The judgment is affirmed.



THOMPSON, J.

WE CONCUR:



FYBEL, ACTING P. J.



IKOLA, J.



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[1] Capps identified defendant as the person known as Andrew.
[2] In Missouri v. Seibert the court held Miranda warnings given mid-interrogation, after defendant gave an unwarned confession, were ineffective, and therefore the confession repeated after warnings were given was inadmissible at trial. (Missouri v. Seibert, supra, 542 U.S. at p. 604.)

[3] Terry v. Ohio (1968) 392 U.S. 1 is a Fourth Amendment case.
[4] Defendant does not identify which statements to police should have been suppressed other than defendant’s consent to search his apartment.

[5] Ordinarily a motion to suppress is brought under section 1538.5, but defendant did not cite section 1538.5 below or here, nor did he proceed under its mandates. (See § 1538.5, subd. (a) [“A defendant may move for the return of property or to suppress as evidence any tangible or intangible thing obtained as a result of a search or seizure . . . .”].) Rather, defendant raised the issue by filing motions in limine on the day of trial, and the court heard oral argument without any written opposition from the People. In any case, the court treated the issue as a motion to suppress.

[6] Even though defendant argued a Fifth Amendment violation below, the court’s ruling suggests to some extent the court analyzed whether a Fourth Amendment violation occurred.

[7] Defendant’s opening brief is confusing on the consent issue. At times it appears he is arguing the original consent by his mother was invalid. As a result, the Attorney General devotes two and one half pages to counter the argument Capps did not have consent to originally enter the apartment by pointing out defendant’s mother gave consent. In his reply, defendant clarifies he is only challenging his consent to search the apartment given during his alleged detention. The briefing is far from clear.]]> https://www.fearnotlaw.com/wsnkb/thread/61967/ In January 2010, J.M., then just over three years old, was taken into protective custody at the behest of county social workers. Their reason was mainly (but not entirely) the continued false allegations of child abuse lodged by J.M.’s mother, Melissa, against his father, Gregory. In May 2010, the juvenile court declared J.M. a dependent of the juvenile court and also made a dispositional order removing J.M. from the custody of both his parents. Gregory appealed from the dispositional order as it applied to him and won. In an opinion handed down by this court in late February 2011, we held the juvenile court lacked the necessary clear and convincing evidence of danger to J.M.’s physical health required to affirm his removal from his father’s custody. As to J.M.’s emotional health, we noted that if Gregory was no longer required to interact with Melissa, the emotional distress created by his parents’ open custody battle would be ameliorated, if not entirely eliminated.[1] https://www.fearnotlaw.com/wsnkb/articles/moore-v-county-of-orange-61966.html Fri, 12 May 2017 18:21:47 GMT https://www.fearnotlaw.com/wsnkb/articles/moore-v-county-of-orange-61966.html











Filed 3/20/17 Moore v. County of Orange CA4/3








NOT TO BE PUBLISHED IN OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


GREGORY MOORE,

Plaintiff and Appellant,

v.

COUNTY OF ORANGE et al.,

Defendants and Respondents.



G049974

(Super. Ct. No. 30-2011-00476941)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Geoffrey T. Glass, Judge. Affirmed.
Gregory Moore, in pro. per, for Plaintiff and Appellant.
Woodruff, Spradlin & Smart, Daniel K. Spradlin and Roberta A. Krause for Defendants and Respondents.
I. BACKGROUND
In January 2010, J.M., then just over three years old, was taken into protective custody at the behest of county social workers. Their reason was mainly (but not entirely) the continued false allegations of child abuse lodged by J.M.’s mother, Melissa, against his father, Gregory. In May 2010, the juvenile court declared J.M. a dependent of the juvenile court and also made a dispositional order removing J.M. from the custody of both his parents. Gregory appealed from the dispositional order as it applied to him and won. In an opinion handed down by this court in late February 2011, we held the juvenile court lacked the necessary clear and convincing evidence of danger to J.M.’s physical health required to affirm his removal from his father’s custody. As to J.M.’s emotional health, we noted that if Gregory was no longer required to interact with Melissa, the emotional distress created by his parents’ open custody battle would be ameliorated, if not entirely eliminated.[1]
However, our opinion had a failsafe mechanism. We instructed the juvenile court to place J.M. with his father unless there were new facts arising after May 2010, demonstrating a need for “continued out-of-custody placement.” This failsafe mechanism delayed the return of J.M. to his father. He was actually returned to Gregory in August 2011.
In the meanwhile – in May 2011, three months prior to J.M.’s actual return – Gregory filed this civil action against the county and certain of its social workers for violation of his and his son’s federal and state civil rights, and also intentional infliction of emotional distress. He based his suit on the county social workers’ recommendation to the juvenile court that J.M. not be placed with his father at the dispositional hearing.
This civil action came to jury trial in mid-December 2013, and lasted into the third week of January 2014. The jury found that the social workers had not acted outrageously. The jury further found the county had no official custom of allowing its social workers to provide either perjured evidence to the juvenile court or of failing to provide exculpatory evidence. Finally, the jury found the county had an adequate training program to prevent such abuses on the part of social workers. From the ensuing defense judgment Gregory now appeals.
II. DISCUSSION
Not surprisingly, successfully suing social workers and their counties for actions in child dependency cases is not easy. It is, in fact, like threading a needle – there is only a tiny opening for liability. Arrogance and a bad attitude on the part of social workers are not enough. (E.g., Christina C. v. County of Orange (2013) 220 Cal.App.4th
1371 [upholding summary judgment in favor of county even where social workers were alleged to have removed a child out of arrogance or to punish mother].) Negligence is certainly not enough. (E.g., Jacqueline T. v. Alameda County Child Protective Services (2007) 155 Cal.App.4th 456, 465 [collecting cases].) Even egregiously bad decisions are not enough. In one extreme case, a child was stabbed after social workers returned her to a parent and the social workers were nonetheless held to be immune for their decision. (Ortega v. Sacramento County Dept. of Health & Human Services (2008) 161 Cal.App.4th 713.)
What tiny opening exists under state law to successfully sue social workers for their actions in dependency cases is found in section 820.21 of the Government Code.[2] Section 820.21 states a rule that might be described as “malice plus.” Malice alone is not enough. There must be malice plus perjury, or malice plus fabrication of evidence, or malice plus failure to disclose known exculpatory evidence, or malice plus testimony obtained by duress.
Likewise, suing the government entity which employs social workers for violation of a plaintiff’s civil rights presents a miniscule target. The basic rule was articulated in Monell v. Department of Social Services (1978) 436 U.S. 658 (Monell). The rule is: Local governments are not liable for federal civil rights violations perpetrated by their employees under the doctrine of respondeat superior unless those violations were the result of the local government’s policy, custom, or practice. (Id. at p. 694.) The policy, custom or practice, however, can be unwritten. (See Johnson v. California (2005) 543 U.S. 499.)[3]
With these difficulties in mind, we confront Gregory’s arguments on appeal, keeping in mind that, in the aftermath of a full jury trial, the losing appellant bears the burden of demonstrating either prejudicial abuse of discretion, or prejudicial error, on the part of the trial judge. (E.g., Hotels Nevada, LLC v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 348; see Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187 [“a judgment or order of the trial court is presumed correct and prejudicial error must be affirmatively shown”].) Concomitantly, appellate briefing rules require appellants to identify the reasons supporting such claims of error or abuse of discretion in separate headings in the opening brief, and in addition identify where in the record such error or abuse of discretion took place. (Cal. Rules of Court, rule 8.204(a)(1)(B).[4]) Gregory presents 10 separate arguments, which we will now take seriatim.
1. Denial of a Continuance:
Gregory retained his own attorney in the juvenile dependency proceeding and that same attorney filed this civil complaint on Gregory’s behalf. He represented Gregory continuously through the end of the trial.
However, in March 2013, Gregory’s juvenile court attorney sought a continuance of the trial, then set for April 2013. The attorney’s basic plea was, to use the trial judge’s characterization of the motion, that he had “screwed up” because he had forgotten to allege the individual social workers were liable for violation of Gregory and J.M.’s civil rights. The juvenile court attorney asked for a continuance to August 2013, to allow another attorney, experienced in federal civil rights claims, to take over the case. In addition, the juvenile court attorney worried that he might be necessary as a witness, given that the underlying events of the case arose out of a dependency action in which he was the father’s counsel. The judge granted the request for a continuance. He postponed trial to May 2013, in order to allow the new civil rights attorney a chance to “get up to speed.” But – the court did not reopen discovery. That deadline had already expired and the trial court declined Gregory’s request to reopen it.
Continuances – and their denials – are reviewed under an abuse of discretion standard. (See Advantec Group, Inc. v. Edwin’s Plumbing Co., Inc. (2007) 153 Cal.App.4th 621, 630 [articulating standard]; e.g., Womack v. Lovell (2015) 237 Cal.App.4th 772, 781 [because continuance could “could hardly be said to be unreasonable” under circumstances, no basis for reversal existed].) In the case before us, the denial of Gregory’s requested continuance was within the trial judge’s discretion. The request came late in the case’s history, after the case had been going on for years and after discovery had already been closed. The fact Gregory lost the potential services of an attorney in whom he now, in hindsight, vests more confidence than the attorney he actually had at trial does not show an abuse of discretion on the trial judge’s part. He had to decide the case on the facts before him, not on what might happen in the future.
It appears Gregory’s real complaint is that the trial judge did not reopen discovery so that the supposedly better, experienced civil rights attorney would feel comfortable taking over Gregory’s case. But, as the trial judge noted, there was no separate motion to reopen, and reopening required such a separate motion. (See Code Civ. Proc., § 2024.050 [authority to reopen discovery on properly noticed motion accompanied by declaring showing meet and confer].) We thus find there was no error in not reopening discovery.


2. Denial of Motion to Amend:
Apropos the juvenile court counsel’s allusion to the need to add the individual social workers to his federal civil rights claim, Gregory filed a motion to amend his complaint to do just that. The motion was filed in early July 2013, in anticipation of a trial then set for early September 2013. Ironically then, the motion to amend reflected fortuitous extra time Gregory’s attorney had to prepare for trial. The motion was denied.
Motions to amend, like motions to continue, are tested on an abuse of discretion standard. (E.g., City of Stanton v. Cox (1989) 207 Cal.App.3d 1557, 1563.) Gregory’s only argument that the trial judge abused his discretion in denying the motion amounts to little more than saying it was desirable to bring “corrupt social workers” to justice – that is, his argument is that he should have won. But the trial judge’s call was reasonable in light of the obvious prejudice to the defendants if it had been granted. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-487 [no abuse of discretion to deny motion to amend filed on eve of trial where significant delay and the defendant prejudiced].) Put another way, Gregory would not have been pleased if the shoe had been on the other foot and the county and social workers had been seeking to amend their defenses at the last minute.
3. Purported Misleading of the Jury
Just as prospective jurors were assembling (and before the jury had actually been picked), the trial judge told those prospective jurors a number of things – including telling them to put away their twitter accounts. He then gave them this short summary of the case some of them were about to decide: “The case involves Mr. Moore’s allegations that his son J.M. was wrongfully removed from his custody after the Irvine Police Department brought the child into protective custody.” On appeal, Gregory asserts the statement was misleading because, by mentioning the police, it conveyed the false first impression that J.M. was removed from the custody of his father “for neglect or in the interest of safety.”
The error in Gregory’s argument is that it was undisputed J.M. was in fact detained by Irvine police officers. Gregory’s own attorney told the jury the same thing in Gregory’s opening statement to the jury. After explaining that Melissa had a “long history of bringing” J.M. to the emergency room and making false and unfounded allegations of abuse against Mr. Moore,” Gregory’s attorney then said, “The Irvine Police took [J.M.] into custody for a brief period of time to allow [him] to be interviewed and examined by CAST [child abuse services team] personnel.” Moreover, the trial judge did not give a specific reason police were involved in the first detention, so we may not conclude, as Gregory would have it, that the jury necessarily assumed the worst. Gregory subsequently had plenty of chances to explain to the jurors in the actual trial that it was social workers who were the instigators of the actual detention and availed himself of those opportunities. And we must finally note that Gregory agreed to the establishment of juvenile dependency jurisdiction over J.M. based on possible harm to J.M.’s safety, which takes the wind out of any argument that police unfairly detained J.M. at the beginning of the dependency case. (See J.M., supra, G043723, p. 10.) The trial judge’s summary of the case was accurate and harmless.
4. Exclusion of Evidence
Gregory’s next argument involves sustained relevancy objections to two questions asked of Gregory on direct examination: (1) did Gregory do any “volunteer work”? and (2) had he held any “leadership positions in the community”?
Once again we deal with an abuse of discretion standard. (See Donlen v. Ford Motor Co. (2013) 217 Cal.App.4th 138, 147.) Here, there was no abuse of discretion in sustaining objections to these two questions, because both questions were irrelevant. They weren’t closely connected to any specific issue in the case. Gregory’s good works had only the most tenuous relationship to the reasons social workers’ proffered for recommending against him at the disposition hearing. Those reasons centered not on his good character, but on his – as perceived by social workers – overzealous concern for protecting his son from Melissa and his inability to get along with her. (See J.M., supra, G043723, pp. 8-9.) And finally, there was no prejudice because the nature of Gregory’s case necessarily required him to focus on alleged bad acts and motives of the social workers’ themselves. His “leadership positions in the community” simply had no bearing on the case.
5. Interruptions
Gregory next points to a series of statements by the trial judge, which he claims amounted to cumulatively prejudicial interruptions:
(1) A statement by the judge to Gregory while Gregory was testifying to the effect that it might not “be fair” to Gregory to keep him on the stand without taking a break, giving Gregory a chance to “recompose” himself. As an appellate court, we cannot conclude this statement was prejudicial to Gregory at all. The record does not reflect that the comment was a gratuitous interruption. Having examined the record, all we can see is the trial judge’s genuine solicitude and kindness for a witness who appeared to the judge to be in some distress while testifying. If there was more to it than that, it does not appear in the record.
(2) A statement by the judge to Gregory’s trial counsel to “finish up” his examination of Gregory at the beginning of an afternoon session of trial. We find no abuse in this statement because, again, having examined the record in context, the words “finish up” did not mean “hurry up” in the context the judge was using them. They only meant the trial judge was letting Gregory’s counsel know he could now complete his examination of Gregory.
(3) A similar “finish up” statement made by the judge to Gregory’s trial counsel, which Gregory’s brief says can be found on page 1593 of the reporter’s transcript. This appears to be some sort of mistake on Gregory’s part, since we cannot find any such admonition on that page.
(4) An interruption of the examination of Gregory on direct which Gregory now asserts amounted to a statement by the trial judge he was not being truthful. An examination of that part of the record shows the trial judge asked Gregory about how a certain social worker responded to his complaints about the location of his visits. Gregory said he would go for walks with his son and have some “outdoor time.” But Gregory then added the stinger that Melissa “wasn’t able to control” his son as part of his answer. The judge noted, as the judge should have, that Gregory had strayed off topic, and tried to steer Gregory back to the judge’s precise question about the social worker’s response to Gregory’s complaints about the location of visitation. The context of the interruption thus shows the trial judge was not accusing Gregory of untruthfulness, but simply trying to steer Gregory into answering the actual question put to him.
(5) An interruption during the examination of the social services director which appears to have centered on the five-month time-lag between this court’s decision in J.M. and J.M.’s actual return. Gregory’s counsel had just asked a question about whether “the trial delayed his son being returned by at least five months.” The court then asked, “Which juvenile trial? You told me there [have] been several.”
Again, an examination of the context of this portion of the record shows Gregory is mistaken in assigning prejudice to the interruption. What appears to us is that the trial judge was merely trying to pin down the witness as to which particular “trial” was being referred to. The problem was one of ambiguity. Dependency law involves numerous hearings, which are sometimes more informally referred to as trials (and certainly can seem like trials to the litigants). The judge was just trying to clear up the ambiguity in Gregory’s counsel’s use of the word “trial.”
(6) An interruption by the judge during Gregory’s counsel’s closing argument that centered on how the director of social services had “acknowledged” that one of the social workers involved in the Fogarty-Hardwick case had been found by the jury “to have committed perjury with malice.” Defense counsel objected, saying the statement was a “misstatement of fact,” and the trial judge agreed. So must we.
The judge had to be careful, in this context, not to violate the basic strictures limiting character evidence as set forth in section 1101 of the Evidence Code by imputing perjury to individuals not even before the court.[5] While the social services director had indeed acknowledged that the jury in the Fogarty-Hardwick case had found social workers to have acted “maliciously, oppressively, and fraudulently,” we have not found, and Gregory has not cited us to, any acknowledgement that they committed perjury, as distinct from one of the other “malice-plus” offenses under section 820.21. Moreover, in this same exchange the trial judge appears to have exercised a bit of judicial brinkmanship in Gregory’s favor when he remarked in front of the jury that the charge that the particular social workers in Fogarty-Hardwick had perjured themselves with malice “may be true.” In fine, none of the interruptions Gregory refers to constituted error, much less reversible error.
6. Jury Instructions
Gregory complains the trial judge was supposedly editing jury instructions, to use Gregory’s phrase, “on the fly.” His cited passage merely shows that the trial judge was looking down and editing jury instructions as he was reading them to the jury. We do not think that was any sort of error. Rather, to us it shows a conscientious judge paying attention to what he was doing at the time.
Gregory’s next complaint is more substantive. He asserts the jury was instructed incorrectly in light of section 820.21, because the trial judge’s use of “and” instead of “or” in a jury instruction. (As we saw in footnote 3 above, the statute itself allows liability based on malice plus one thing or malice plus another.) Again, checking the context shows there was no error or abuse of discretion. The context of the instruction was the civil rights claims against the county based on the Monell “policy, custom or practice” rule.[6] In regard to that rule, the United States Supreme Court has held that unless a policy to encourage unconstitutional activity is shown, a single incident of violation is insufficient to establish liability on the part of the government employer. (Oklahoma City v. Tuttle (1985) 471 U.S. 808, 823-824 (Tuttle).)[7] The instruction about which Gregory now complains appears to have tried to reflect that rule. Moreover, any deficiency in the instruction was harmless, since Gregory, on appeal, points us to nothing in the record that establishes the county actually had an “official custom” of allowing social workers to perjure themselves or fabricate evidence or withhold exculpatory evidence.
Gregory’s next jury instruction argument is based on the judge’s instructing the jury that a single past incident of alleged misconduct by a county employee is insufficient to hold the county responsible. This argument is directly contrary to a United States Supreme Court decision in Tuttle. Gregory’s argument that the unpublished Fogarty-Hardwick decision stands for a contrary rule is likewise unavailing. If the California rules governing unpublished appellate decisions are clear on one thing, it is that a litigant such as Gregory, or even this court, cannot use an unpublished decision for a proposition of law. That is precisely what he is trying to do here and it cannot be considered.
7. Allowing Attorney Misconduct
Gregory next argues the trial judge erred in allowing opposing counsel to mislead the jury by “presenting a fraud to the Jury.” He points to statements made by witnesses which he now claims were inaccurate, and a few similar statements from opposing counsel in closing argument. This assertion fails because Gregory’s counsel had the opportunity to cross-examine the same witnesses and bring out any falsity in their testimony, and further to argue to the jury why any of the county lawyer’s arguments were incorrect. How well or poorly he did so is not a matter of judicial error.
8. Specific Attorney Misconduct Involving One of Plaintiff’s Witnesses
One of Gregory’s witnesses was a marriage and family counselor named Helton. In cross-examination, counselor Helton was asked whether it was “correct” that Gregory had told Helton that Melissa had, two weeks after the birth of J.M., “thrust” J.M. to Gregory’s “chest and told him to breast feed the child himself,” and whether that was the “extent” of what Gregory told her about that “incident.” Gregory now claims this question was attorney misconduct. We disagree. It may have been an ungainly, poorly constructed and compound question, but it violated no rule of professional ethics.
A similar claim is based on what happened moments later. The county’s counsel began asking questions as to whether counselor Helton had sought out “other information” about Gregory’s veracity concerning events in 2007 and things he had said to the effect that Melissa was “the source of all the problems.” The county counsel followed that question with a question concerning something counselor Helton had previously testified to.[8] Counselor Helton responded to the confusing question this way: “I – I just feel like this line of questioning, sir, and the time line is very confusing and is – and the purpose is to make me look incompetent.”
Like the first question, this question was confusing (it isn’t even clear to us, with the benefit of a transcript, precisely what was being asked). But again, asking a poorly constructed, convoluted question is not, by itself, attorney misconduct. It’s just asking a bad question, and lawyers do that all the time. Moreover, we conclude there was no basis to reverse for prejudicial error because not only did Gregory’s counsel have the opportunity to object to the question, but the trial judge, on his own, went out of his way to reassure the counselor her competence was not being questioned.[9]
9. Time Limits on Closing Argument
Gregory asserts the trial judge prejudicially limited his counsel’s closing argument and “mocked” his counsel’s time estimate. An examination of the record does not bear out these charges.
On January 21, 2014, the penultimate day of trial, Gregory’s counsel gave an estimate of one hour to an hour and fifteen minutes for his closing argument. Gregory’s counsel then said he would “try to finish it today.” The judge pointed out that gave him 58 minutes, then had the jury brought in, saying “we’ll get it wrapped up.”
Gregory’s counsel began his closing argument, and, as the day drew to a close, the counsel stated, absent any interruption from the trial judge, “I have quite a bit to go, your honor.” The judge asked, “How much more?” and Gregory’s counsel answered, “probably another 45 minutes or so.” The judge noted “that’s a different estimate than you gave me an hour ago, an hour and ten minutes ago, which suggests you would be done by about now.” The judge asked, “Are we sure of that estimate?” Gregory’s counsel answered “yes,” and the judge said, “Okay. Is there a particular reason that your previous estimate was so off?” Gregory’s counsel answered, “I don’t have a reason.” The judge stated he was going to “trust” Gregory’s counsel that the closing would be over in 45 minutes and then set the rest of the argument for 9 a.m. the next day.
That next day began by the judge noting to the jury “we’re in the middle of closing arguments” and letting Gregory’s counsel resume. Gregory’s counsel then proceeded for about half an hour, when the judge said, “you’ve got 15 minutes.” Gregory’s counsel responded, “thank you, your honor” and resumed his argument, which he appears to have finished in the 15-minute time frame.
As this recounting shows, the judge was quite solicitous of Gregory’s position, giving his counsel almost twice the time his counsel had asked for. We find no pressure nor mockery in the actual record on appeal.
10. The Cost Award
Gregory challenges the cost award against him, arguing that county counsel used “ridiculously large and unnecessary blown up whiteboards to present the same information that could have been displayed on the overhead projectors” that Gregory himself had used. But Gregory gives us no law indicating defense counsel were required to use the cheapest possible displays in presenting their case.[10] Nor does he point to any objection based on that argument made to the trial court, or any attempt to contend in the trial court that respondents’ costs were unreasonable.
III. DISPOSITION
We find no prejudicial error or abuse of discretion. Indeed, we find a trial judge who presided over a difficult case doing his best to be fair to Gregory.
The judgment is affirmed.[11] Respondents will recover their costs on appeal.




BEDSWORTH, J.
WE CONCUR:



O’LEARY, P. J.




ARONSON, J.













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[1] California Rules of Court, rule 8.1115(a) provides that unpublished opinions may not be “cited or relied on by a court or a party in any other action,” except that rule 8.1115(b) articulates an exception for an unpublished opinion that is “relevant under the doctrines of law of the case, res judicata, or collateral estoppel[.]” Our earlier unpublished opinion, In re J.M. (Feb. 25, 2011, G043723) [nonpub. opn.] (J.M.) is relevant to the instant action under the doctrines of law of both law of the case [establishing that social workers had insufficient evidence to sustain a dispositional order effectively removing J.M. from his father] and collateral estoppel [precluding the county in this action from asserting that J.M. was properly removed from his father at the dispositional hearing].
We face a more significant complication in regard to another unpublished opinion that figures prominently in the briefing in this case and was itself a focus of the trial, Fogarty-Hardwick v. County of Orange (June 14, 2010, G039045 [nonpub. opn.] (Fogarty-Hardwick). Fogarty-Hardwick was a case where a parent, like Gregory here, also sued the County of Orange for violation of civil rights in regard to social workers’ conduct in a dependency proceeding. As we note below, civil rights violations require the plaintiff to show a policy, custom or practice on the part of a local government employer to violate civil rights. Gregory tried to use the fact of what happened in Fogarty-Hardwick to try to show Orange County had a policy of encouraging social workers to violate the rights of parents in dependency proceedings.
Our problem? How to handle the case in this proceeding given the court rule? Our solution: The court rule precludes reliance on or citation of unpublished opinions, and we will do neither. We will take judicial notice of it as a court record qua court record Gregory himself tried to invoke at trial, but not as an appellate decision qua appellate decision. In the case at bar, we will therefore be careful only to mention Fogarty-Hardwick in contexts where Gregory himself was trying to use it at the trial court level as a fact put before the jury, and not for any proposition of law. In the one instance in which Gregory tries to use it as authority for a proposition of law, we will of course reject any such use.
[2] All further statutory references are to the Government Code unless otherwise indicated.
[3] Gregory is correct to argue that the relevant state law on social worker liability as such does not require a plaintiff to show both perjury and failure to disclose exculpatory evidence. Section 820.21 provides: “(a) Notwithstanding any other provision of the law, the civil immunity of juvenile court social workers, child protection workers, and other public employees authorized to initiate or conduct investigations or proceedings pursuant to Chapter 2 (commencing with Section 200) of Part 1 of Division 2 of the Welfare and Institutions Code shall not extend to any of the following, if committed with malice:
“(1) Perjury.
“(2) Fabrication of evidence.
“(3) Failure to disclose known exculpatory evidence.
“(4) Obtaining testimony by duress, as defined in Section 1569 of the Civil Code, fraud, as defined in either Section 1572 or Section 1573 of the Civil Code, or undue influence, as defined in Section 1575 of the Civil Code.
“(b) As used in this section, ‘malice’ means conduct that is intended by the person described in subdivision (a) to cause injury to the plaintiff or despicable conduct that is carried on by the person described in subdivision (a) with a willful and conscious disregard of the rights or safety of others.” (§ 820.21)
However, as we explain in part II.6. of this opinion post, the context of the jury instruction about which Moore complains was not about social worker liability under state law, but about social worker liability under federal law and specifically the Monell case, and in that context there was no error.
[4] The rule currently provides:
“(a) Contents
“(1) Each brief must:
“(A) Begin with a table of contents and a table of authorities separately listing cases, constitutions, statutes, court rules, and other authorities cited;
“(B) State each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority; and
“(C) Support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears. If any part of the record is submitted in an electronic format, citations to that part must identify, with the same specificity required for the printed record, the place in the record where the matter appears.”
[5] Evidence Code section 1101, subdivision (a) provides: “Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.”
[6] The jury was told that to establish liability on their civil rights claims, the plaintiffs had to establish: “That the County of Orange had an official custom allowing for social workers and their supervisors to provide material information to the juvenile court that was perjured or fabricated and to fail to provide exculpatory evidence.”
[7] A “practice” or “custom,” as distinct from a “policy,” would involve, by definition, multiple incidents.
[8] Here is what led up to counselor Helton’s complaint:
“Q And yet did you seek out any other information to confirm whether he was actually being truthful about what had happened even back in 2007 with any of those other issues that he was complaining about saying that Ms. Garner was the source of all the problems?
“A The work that I was – first of all, the client/therapist relationship – there has to be a rapport. If I am going to keep – accuse him of not being truthful in every visit, he is not going to, a, come back, or he is not going to give information to me.
“So my approach with Mr. Moore was to receive him as he is, or was at that moment, and let him express to me what was going on in his own thought process, in his own inner world. And by doing that, I can – I am able to gain information and maybe educate and teach him certain things about his responsibility in relationship with Ms. Garner. And that was my approach.
“Q But as you testified earlier, when you started trying to help him sometime after August 19, at least up until you testified in January or February of 2011 – we talked about this before lunch – when you testified when answering the questions, he had not made any progress whatsoever in accepting responsibility. Do you recall that testimony that you gave in the hearing in 2011?”
[9] After the last question asked and Helton complained county counsel was trying to make her look incompetent, the judge said:
“The court: The purpose is not for you to worry about. And don’t think that your competency is being questioned. The question is, though, you have information that is relevant to the claim of Mr. Moore against the social services administration. And we need that testimony.
“So you don’t need to feel like you have to defend yourself. You’re not at issue here. Your competency is not at issue. Your – at least in terms of the lawsuit itself. We just need you to answer the questions.”
[10] Gregory’s authorities on the cost award issue all involved attorney misconduct, and we have already addressed and rejected Gregory’s arguments in that regard.
[11] We now must take care of some housekeeping details in this voluminous matter: As to Gregory’s January 7, 2015, request to take judicial notice of Fogarty-Hardwick, supra, G039045, and J.M., supra, G0437723, the request is granted, since they are relevant to the facts of the case as presented to the jury. For the same reason, his motion to take judicial notice of another manifestation of the dependency case, In re J.M. (May 17, 2011) G045262 is also granted. (See in general fn. 1, ante.) His request to take judicial notice of two other unpublished matters (items 4 and 5 in the request for judicial notice filed January 7, 2015) is denied for lack of relevance.
His second motion, filed October 28, 2015, to take judicial notice of various matters which Gregory admits were not considered at trial, is denied in its entirety.]]> https://www.fearnotlaw.com/wsnkb/thread/61966/