2014-00166580-CU-BC

Dale M. Wallis vs. PHL Associates, Inc.

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication (Jeffrey Wichmann)

Filed By: Kolb, Klaus J.

The individual motion of Defendant Wichmann (“Wichmann”) for summary judgment, or in the alternative summary adjudication as to Dr. Wallis’ Eleventh and Twelfth causes of action, is granted as set forth below.

Wichmann’s request for judicial notice in support of his Reply is denied.

Wallis’ objection to Wichmann’s joinder is overruled.

Wallis’ objections to evidence are overruled as to the evidence considered by the court on this motion.

Wichmann’s motion challenges Dr. Wallis’ two remaining causes of action against him, the eleventh cause of action for unjust enrichment and the twelfth cause of action for constructive trust.

Wichmann summarizes his argument as follows: “Wallis must prove that Mr. Wichmann gained some benefit as a result of some wrongful act, and that Wallis or the Hanzo Estate otherwise would have gained that benefit but for Mr. Wichmann’s wrongful act. Hirsch v. Bank of America (2003) 107 Cal.App.4th 708, 721-722; Civil Code § 2224. Since Wallis alleged that Mr. Wichmann was individually liable on her causes of action, and did not allege alter ego or piercing the corporate veil theories, Wallis is required to identify facts that show liability by Mr. Wichmann, in his individual capacity, rather than just repeat her general and unsupported allegations against PHL.” (Wichmann Reply, p. 2:7-17.)

The court agrees with Wichmann’s position.

Dr. Wallis’ opposition to Wichmann’s motion does not present evidence of Wichmann’s individual wrongful or fraudulent conduct as to PHL’s execution of the SRA with Mr. Hanzo, or that he individually obtained any benefit to the detriment of the Hanzo Estate. Dr. Wallis’ theory of wrongful conduct is based upon the position that PHL and Hanzo entered into the SRA for a wrongful or fraudulent purpose, i.e. to obstruct Dr. Wallis as a potential judgment creditor. However, Dr. Wallis’ position in this action is as an alleged successor in interest to Mr. Hanzo and his Estate under the SRA. Dr. Wallis has presented no evidence of individual wrongful or fraudulent conduct by Wichmann against Mr. Hanzo in relation to the execution of the SRA.

The constructive trust remedy asserted in the twelfth cause of action is parasitic to any unjust enrichment claim Dr. Wallis could establish by triable issues of material fact against Wichmann in his individual capacity. Thus, the twelfth cause of action fails with her eleventh cause of action.