Case Name:   Shiverdaker, LLC v. Newton, et al.

Case No.:       1-12-CV-236787

 

After full consideration of the arguments, authorities, separate statements, and evidence submitted by each party, the court makes the following rulings:

Plaintiff/cross-defendant Shiverdaker, LLC (“the Company”) and defendant/cross-complainant Gloria A. Newton a.k.a. Gloria A. Gordon (“Newton”) allegedly owned real property (“the Property”) as tenants in common.  The Company filed an action for partition, and Newton filed the first amended cross-complaint (“FAXC”) against it and cross-defendant Jay Dee Shiverdaker (“Jay”) (collectively, “Cross-Defendants”).  The Property has since been sold.  Newton alleges that she and Jay’s late wife, Janice Scott (“Jan”), each owned a 50% interest in the Property, and she and Jan agreed that they would rent the Property, Jan would manage the Property (which consists of four units), and they would equally divide the rental income and expenses.  (FAXC, ¶¶ 9-11 & 16.)  In 2002, Jan allegedly transferred her interest to Jay, and Cross-Defendants began managing the Property.  (Id., ¶¶ 9-11 & 13-15.)  Based on information and belief, Newton alleges that Cross-Defendants improperly used rental income and refused to provide a proper accounting to conceal their misappropriation.  (Id., ¶¶ 11-12.)  Newton asserts claims for: (1) breach of contract, (2) fraud—intentional misrepresentation; (3) fraud—concealment; (4) breach of covenant of good faith and fair dealing; (5) elder abuse; (6) conversion; (7) negligence; (8) professional negligence; (9) breach of fiduciary duty; (10) violation of Business & Professions Code section 17200 et seq. (“the UCL”); (11) constructive trust; (12) accounting; (13) declaratory relief; (14) partition; and (15) dissolution.  Cross-Defendants move for summary judgment, or in the alternative, summary adjudication of these claims.  (See Code Civ. Proc. [“CCP”], § 437c, subds. (a) & (f).)

Cross-Defendants’ request for judicial notice is GRANTED.  (See Evid. Code, § 452, subd. (c); see also Aquila, Inc. v. Super. Ct. (2007) 148 Cal.App.4th 556, 569 [a court may take judicial notice of official acts that are relevant to pending issues].)

Summary judgment/adjudication involves “a three step process”: (1) identify the issues framed by the pleadings; (2) determine whether the moving party has established facts negating the opposing party’s claims (i.e. that one or more elements of the claim cannot be established, or that there is a complete defense thereto); and (3) determine whether the opposition shows the existence of a triable issue of material fact.  (See Lease & Rental Management Corp. v. Arrowhead Central Credit Union (2005) 126 Cal.App.4th 1052, 1057-1058; see also CCP, § 437c, subds. (c), (f), & (p)(2).)

Newton asserts several objections to Cross-Defendants’ evidence in her supporting separate statement; however, she does not comply with the procedural and formatting requirements set forth in California Rules of Court (“CRC”), rule 3.1354.  By asserting the objections in this manner, it is unclear to which items of evidence Newton objects.  Therefore, Newton’s objections are OVERRULED.

Cross-Defendants object to Newton’s evidence, but their objections either lack merit or do not affect the outcome of this motion.  Cross-Defendants’ evidentiary objections are accordingly OVERRULED.

1.           Summary Adjudication of the First & Fourth Causes of Action

Cross-Defendants contend there was no contract between either of them and Newton, and they proffer sufficient supporting evidence to meet their initial burden.  (Cross-Defendants’ Separate Statement of Undisputed Material Facts [“UMF”] No. 17, citing Newton’s deposition at pp. 64:21-23 & 116:15-118:6 [testifying that there is no agreement between her and Cross-Defendants, and the only agreement at issue in this case is the oral agreement between her and Jan]; see also Leasman v. Beech Aircraft Corp. (1975) 48 Cal.App.3d 376, 380 [admissions in depositions are admissible to establish any material fact].)

In opposition, Newton asserts that Jan was part of the Company when she managed the Property.  (Newton’s UMF No. 17, citing Jay’s deposition at pp. 431:11-432:8 & Ex. R.)  Presumably Newton’s theory as to Cross-Defendants’ liability for breach of the contract is that Jan—by virtue of her role in the Company—somehow entered into the oral agreement on the Company’s behalf.  However, by Newton’s own evidence, she entered into an oral agreement with Jan whereby Jan would manage the Property, and Jan—not the Company—owned a 50% interest in the Property at the time.  (Newton’s UMF Nos. 5 & 13.)  Newton does not proffer evidence suggesting that she believed Jan was acting on behalf of the Company when she entered into the oral agreement to manage the Property.  (See Civ. Code, § 2317 [“[o]stensible authority is such as a principal, intentionally or by want of ordinary care, causes or allows a third person to believe the agent to possess”].)  Accordingly, the fact that Jan was part of the Company while she managed the Property is immaterial to the issue of whether a contract exists between Newton and Cross-Defendants.  Newton has therefore failed to show that a triable issue of material fact exists with respect to the existence of a contract.

Thus, Cross-Defendants’ motion for summary adjudication of the first and fourth causes of action is GRANTED.

II.        Summary Adjudication of the Second & Third Causes of Action

To maintain the fraudulent misrepresentation claim, Newton must prove that Cross-Defendants made a false statement of material fact.  (See Philipson & Simon v. Gulsvig (2007) 154 Cal App 4th 347, 363.)  Cross-Defendants maintain that they never made any false statements to Newton, and proffer sufficient evidence to meet their initial burden.  (Cross-Defendants’ UMF Nos. 26-28, 53, & 68, citing Jay’s decl. at ¶¶ 16 & 16-17, Cross-Defendants’ counsel’s decl. at ¶¶ 2-4 & 8-9, Newton’s responses to RFA Nos. 23-28 [admitting that she received accounting ledgers and possesses no documents that contradict their accuracy], & Newton’s deposition at p. 96:4-15.)  In opposition, Newton asserts facts that do not raise any triable issue as to whether Cross-Defendants made a false statement.  (Newton’s UMF Nos. 26-28 & 53,^[1] citing Shelley Armstrong [“Armstrong”] decl. at ¶ 5, Newton’s decl. ¶¶ 14-17 [stating that she has “no knowledge of signing” two checks and she therefore “believe[s] that these signatures are forgeries by [Jay] or someone under his direction or control”; and Jay presumably issued other payments to himself because he did not provide adequate documentation for expenses] & 21-22 [stating Jay has not provided “backup” documentation], & Newton’s counsel’s decl. ¶¶ 2-3.)  Accordingly, Cross-Defendants have shown that Newton cannot establish that they made any false statement.

To prevail on her concealment claim, Newton must prove that Cross-Defendants had a duty to disclose, and failed to disclose material facts.  (See Levine v. Blue Shield of California (2010) 189 Cal.App.4th 1117, 1126-1127.)  Although Cross-Defendants proffer evidence demonstrating that they are not in a fiduciary relationship with Newton, a duty to disclose also arises when “the defendant, who has no duty to speak, nevertheless does so,” and sometimes also arises when a party handles money belonging to the other.  (Zinn v. Ex-Cell-O Corp. 148 Cal.App.2d 46, 68; Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 666).  Cross-Defendants proffer evidence indicating that they disclosed information to Newton to “keep her informed of the major events regarding the Property.”  (E.g., Cross-Defendants’ UMF No. 26.)  Thus, Cross-Defendants’ evidence suggests that they owed Newton a duty to disclose all material facts.  That being said, Cross-Defendants persuasively demonstrate that Newton cannot establish that they failed to disclose any material fact.  (See Hill v. Wrather (1958) 158 Cal.App.2d 818, 824 [a fact “which cannot possibly affect the intrinsic merits of a business transaction must necessarily be immaterial because reliance upon it could not produce injury in a legal sense”].)  Cross-Defendants meet their initial burden by proffering evidence that they provided Newton with all material facts regarding the Property.  (Cross-Defendants’ UMF Nos. 26-28 & 53.)

In opposition, Newton disputes Cross-Defendants’ asserted facts, instead insisting that Jay “made unauthorized and unconsented to disbursements to himself”; failed to contact her with “details of the finances of the property” and “backup information” proving his expenditures were proper, and has not explained how his Quickbook reports were set up.  (Newton’s UMF Nos. UMF Nos. 26-28 & 53.)  In Newton’s supporting evidence, she accuses Jay of (1) forging her name on two checks because she does not remember signing them, and (2) depriving her “of partnership funds” by not adequately explaining his reason for failing to deposit the full amount paid to him by the Housing Authority into the joint bank account used for the Property’s income and expenses.  (Newton’s decl. at ¶¶ 14-15.)  She also declares that she has “never received any documentation from [Jay] of any of his encounters or interactions with tenants, so I have no idea what he has done with them or their units that would allow him to get any reimbursements or make any expenditures,” and assumes that since Jay “controll[ed] all funds, [Jay] paid himself disbursements, management fees reimbursements [sic] while I received zero monies from the property after May, 2012.”  (Id., ¶¶ 16-17.)

Documentation of Jay’s encounters with tenants is not material because such information could not affect the intrinsic merits of the business transaction between Cross-Defendants and Newton.  Moreover, the assumption that Jay was paying himself simply because he controlled the rental income does not indicate that Jay concealed material facts.  Accordingly, Newton’s evidence does not demonstrate that there is a triable issue of material fact with respect to whether the information supposedly withheld by Jay was material.  Therefore, Cross-Defendants’ assertion that Newton cannot establish that they supposedly concealed material facts is well-taken.

Moreover, Cross-Defendants persuasively demonstrate that Newton cannot establish that she justifiably relied on any allegedly false statement or concealment. In support of their position, Cross-Defendants present sufficient evidence to meet their initial burden.  (Cross-Defendants’ UMF Nos. 57-59 & 61, citing Newton’s deposition at pp. 98:6-15, 99:15-19,100:22-101:9 [testifying that if she had the information she seeks (“what the units rent for and . . . a list of the expenses”), the only thing she would have done differently would be to keep that information for her own records], & 101:3-9, & Cross-Defendants’ counsel’s decl. at ¶¶ 4-5 & 7-9.)  In opposition, Newton asserts that Jay failed to proffer sufficient “backup information” for expenses, she felt Jay was only to manage “his one-half of the property” and “wanted her son or nephew to manage her one-half of the property,” and she felt that Jay was trying to take advantage of her and was an incompetent property manager.  (Newton’s UMF Nos. 57-59 & 61.)  These facts are immaterial to the issue of whether Newton acted in reliance on Cross-Defendants’ alleged misrepresentations or concealments.  Thus, she has not shown that there is a triable issue of material fact.

In addition, Cross-Defendants persuasively argue that Newton cannot establish that she was harmed by any fraudulent statement they supposedly made, and proffer sufficient evidence from Newton’s deposition testimony that they have not physically or financially harmed her.  (Cross-Defendants’ UMF Nos. 63-66, citing Newton’s deposition at pp. 81:19-82:19.)  In opposition, Newton disputes these facts, but proffers no evidence suggesting she was harmed.  (Newton’s UMF No. 63, citing Armstrong’s decl. at ¶ 5, Newton’s Exhibit F, Newton’s decl. at ¶¶ 14-17 & 21-22, & Newton’s counsel’s decl. at ¶¶ 2-3.)  Thus, Newton has not demonstrated that there is a triable issue of material fact as to whether Cross-Defendants caused her harm.

Accordingly, the motion for summary adjudication as to the second and third causes of action is GRANTED.

III.       Summary Adjudication of the Fifth Cause of Action

Cross-Defendants assert that the elder abuse claim has no merit and there is no triable issue of material fact because their possession of the rental income is not wrongful and Newton was not harmed.  “Financial abuse” of an elder occurs when a person or entity takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.  (Welf. & Inst. Code § 15610.30, subd. (a).)  “A wrongful use is taking, secreting, appropriating, obtaining, or retaining property in bad faith”; and “[b]ad faith occurs where the person or entity knew or should have known that the elder had the right to have the property transferred or made readily available to the elder or to his or her representative.”  (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 174 [“Teselle”].)

Cross-Defendants’ evidence essentially fits into two categories: (1) rental income before they filed their complaint for partition of the Property and set up a liquidation account (“Liquidation Account”) to hold the rental income and proceeds from the sale of the Property until the conclusion of this lawsuit, and (2) rental income and other funds that are in the Liquidation Account.

With respect to the first category, Cross-Defendants’ meet their initial burden by presenting evidence that: (1) when Jan died, Jan and Newton’s joint account had to be closed and Jay organized the closing of the old account and opened the new account (“Joint Property Account”); (2) Newton—as the surviving signatory—wrote checks to Cross-Defendants in the amount of $13,048.39 and $30,528.00 that were deposited into Joint Property Account; (3) one of the Property’s tenants received Section 8 subsidies issued by the Housing Authority to Jan, but after her death, the Housing Authority stopped payments until it could verify Jay was the landlord, which resulted in a significantly larger check representing several months of subsidized rent in 2010, and Jay deposited all of the money from the Housing Authority into the Joint Property Account; (4) Jay maintained good relationships with the tenants and thereby allowed any problems to be quickly addressed; (5) Jay made equal annual distributions to himself and Newton based on the Property’s income and expenses in 2009-2011; (6) rental income from the Property fluctuated, e.g., in 2011, a long-time tenant died in her unit, thereby creating a vacancy that was difficult to fill; (7) the deceased tenant had lived in her unit for 28 years, and due to her death, an expensive and time-consuming clean-up of her unit was necessary; (8) Jay began visiting the Property for inspections and to correct problems in 2009, and he withdrew money to cover his costs; (9) since Jan’s death, Jay has been solely responsible for managing the Property; (10) in response to Newton’s statement that she wanted to sell the Property, Jay sent a letter stating that he agreed and “[i]t’s time to sell”; and (11) Newton admitted that she has not been harmed and that Cross-Defendants have not taken or hidden her personal property (aside from the allegedly “hidden rental income for 2013 and part of 2012 which she claims should have been distributed”).  (Cross-Defendants’ UMF Nos. 21-29, 32, 36, & 63-66, citing Jay’s decl. at ¶¶ 9-18, 20, & 24, Exs. C, E, H, & J, Cross-Defendants’ counsel’s decl. at ¶ 3, Newton’s responses to RFA Nos. 18 & 21-22, & Newton’s deposition at pp. 81:19-82:19 & 134:23-136:11.)

In opposition, Newton does not proffer evidence to dispute Cross-Defendants’ assertion that Cross-Defendants never financially harmed or took property/money from her.  Newton disputes Cross-Defendants’ asserted fact that they never physically harmed her, but the evidence she cites in support of her position does not support her contention.  (Newton’s UMF No. 63, citing Armstrong decl. at ¶ 5, Newton’s Ex. F, Newton’s decl. at ¶¶ 14-17 & 21-22, and Newton’s counsel’s decl. at ¶¶ 2-3.)  Furthermore, Newton asserts that: (1) Jay “took advantage of the advanced age of [Newton] to not seek her approval or include her in any decisions regarding management of the finances of the property,” he did not advise her that Jan had died and secretly “made arrangements at Bank of America” to open the Joint Property Account and transfer money from the old account, asserted control over the Joint Property Account, and issued two checks from the old account to the Joint Property Account; (2) Newton “has no knowledge of signing those two checks and believes that these are forgeries by Jay”; (3) all of the Section 8 subsidy payments were made and deposited into the old account until Jay made arrangements to have them made to him, and Jay retained $4,341 of the Section 8 subsidy payments for his personal use because he cannot account for what happened with that money; (4) Newton did not receive any documentation of Jay’s interactions with the tenants; (5) after closing the Joint Property Account, Jay made unauthorized distributions to himself; and (6) Jay did not provide Newton with detailed financial information about the Property or “backup information” for expenditures, “making them suspect.”  (Newton’s UMF Nos. 21-29, citing Armstrong decl. at ¶ 5, Ex. F, Newton’s decl. at ¶¶ 14-17 & 21-22, Newton’s counsel’s decl. at ¶¶ 2-3; Newton’s deposition at pp. 72:1-74:11 & 202:21-203:8, & “Ex. 22,” ^[2] Jay’s deposition at pp. 305:1-21, 344:8-356:22 [testifying that he inadvertently deposited two of the Section 8 subsidy payments into his personal account, and he offset an expense from that payment, but he could not recall what the expense was], & Exs. B-P.^[3])

The evidence Newton cites in support of her asserted facts does not indicate that Jay attempted to “take advantage” of her, “secretly” opened the Joint Property Account, converted rental income for his own personal use, or forged Newton’s signature on any check; rather, it shows only that Newton does not recall certain events.  Moreover, Newton’s evidence regarding the documentation of Jay’s interactions with tenants and “backup information” for certain expenses is immaterial to the issue of whether Cross-Defendants took her money for a wrongful use or with the intent to defraud her because it does not show that he took any money that she was entitled to have.  Newton does not proffer evidence indicating that Cross-Defendants used the Property’s rental income for a wrongful purpose or with the intent to defraud her.  Rather, she assumes that Cross-Defendants somehow misused her share of the rental income because she is dissatisfied with the documentation Jay provided showing the Property’s income and expenses.  Newton’s unsupported speculative belief that Cross-Defendants wrongfully used those funds or intended to defraud her is of no consequence.  Such evidence is based on speculation or conjecture and therefore does not raise a triable issue of material fact.  (See Yuzon v. Collins (2004) 116 Cal.App.4th 149, 166 [“Yuzon”] [a triable issue of fact can only be created by a conflict of evidence, and it cannot be created by “speculation, conjecture, imagination or guess work”]; see also Doe v. Salesian Society (2008) 159 Cal.App.4th 474, 481 [opposing evidence based on “[s]peculation is impermissible” and “is grounds for summary judgment”].)  In addition, Newton disputes Cross-Defendants’ assertion that she wanted to sell the Property, and maintains that she did not want to sell the Property.  (Newton’s UMF No. 36, citing Newton’s deposition at pp. 130:14-132:11.)  However, in the portion of her deposition transcript that she cites as evidence, she testified that she does not remember wanting to sell the Property, and when shown a copy of a letter that her attorney sent to Cross-Defendants stating that she wanted to sell the Property, she stated that her attorney’s letter was not accurate.  Whether Newton’s attorney’s statement to Cross-Defendants that she wanted to sell the Property is accurate is immaterial to the issue of whether they used Newton’s money for a wrongful purpose or with the intent to defraud her.  Thus, Newton’s evidence does not show that there is a triable issue of material fact.

Turning to the second category, Cross-Defendants proffer evidence that: (1) after Newton mistakenly withdrew $23,975.79 from the Joint Account on October 15, 2012, Jay concluded that a second unexpected withdrawal of funds from the Joint Account could “jeopardize the continued governance of the Property,” and therefore, Jay transferred $23,500 to the Liquidation Account that he opened for the sole purpose of operating the Property until it could be sold; (2) Jay kept accurate ledgers for rental income and expenses in the Liquidation Account and he has provided those ledgers to Newton, and Newton admits that she does not possess any documents that contradict the accuracy of these ledgers; and (3) Newton continued to express interest in buying-out the Company’s interest in the Property.  (Cross-Defendants’ UMF Nos. 50 & 53-54, citing Jay’s decl. at ¶¶ 31 & 33, Cross-Defendants’ counsel’s declaration at ¶¶ 2, 4, & 8-9, & Newton’s responses to RFA Nos. 23-28.)  This evidence is sufficient for Cross-Defendants to meet their initial burden to show that after closing the Joint Property Account, they did not take Newton’s money for a wrongful purpose or to defraud her; they moved the money to another account to protect the parties’ mutual interest in maintaining sufficient funds to cover the Property’s expenses.

The facts Newton asserts in opposition either do not raise a triable issue of material fact (e.g., Jay has not shown backup documentation and Newton does not know how much money is in the Liquidation Account), or are not actually supported by the evidence she submits (e.g., that Jay made disbursements to himself to pay his own bills).  (Newton’s UMF Nos. 26, 50, & 53-54.)  Thus, Newton has not raised a triable issue of material fact as to Cross-Defendants’ alleged misuse of rental income from the Liquidation Account.

Accordingly, Cross-Defendants’ motion for summary adjudication of the fifth cause of action is GRANTED.

IV.       Summary Adjudication of the Sixth Cause of Action

Cross-Defendants first argue that Newton cannot establish that their taking of rental income was wrongful because she consented to their “holding” of that money in order to manage the Property.  They meet their initial burden by proffering evidence that: (1) Newton expected that Jay would manage the Property (2) since Jan’s death, Jay has managed the Property; (3) besides allegedly failing to provide rental income and adequate information about income and expenses, Jay was doing everything that Newton expected of him; and (4) Newton never suggested to Jay that they should hire a separate property manager.  (Cross-Defendants’ UMF Nos. 18, 32, & 60-61, citing Newton’s deposition at pp. 97:3-10, 98:6-15, & 182:24-190:4, & Jay’s decl. at ¶ 20.)

In opposition, Newton disputes Cross-Defendants’ asserted facts, but does not proffer sufficient evidence to raise a triable issue of material fact.  (Newton’s UMF Nos. 18, 32, & 60-61, citing Newton deposition at pp. 67:22-69:11 [testifying that she believed that Jay would manage “his” half of the Property], 84:22-94:7 [testifying that she did not trust Jay and therefore believed that he would take advantage of her], 95:8-100:23 [testifying that she never asked Jay to hire a professional property manager because she assumes he would not want to pay for that service], 101:1-104:7 [testifying that she believes Jay is an incompetent property manager, but she is not aware of any mistakes he has made], & 188:5-189:11 [testifying that she would rather have her niece or nephew manage the Property, but she had not discussed that matter with anyone because she “didn’t think of it until” her deposition], Armstrong decl. at ¶ 5, Newton’s Ex. F, Newton’s decl. at ¶¶ 14-17 & 21-22, & Newton’s counsel’s decl. at ¶¶ 2-3.)  Whether Newton did not know that Jay was managing the Property for the first three years after Jan’s death is immaterial because the alleged conversion of rental income allegedly occurred after Newton learned that he was managing the Property.  Furthermore, Newton proffers no evidence that she told Jay that he should not manage the Property.  To the extent Newton contends that Jay’s failure to provide sufficient documentation for some expenses necessarily shows that he misappropriated rental income, her belief is based entirely on her own speculation, and she does not present evidence to support her speculative belief.  (See Yuzon, supra, at p. 166 [speculative evidence cannot raise a triable issue].)  Thus, Newton has not proffered sufficient evidence to show that there is a triable issue of material fact.

Next, Cross-Defendants contend and proffer evidence demonstrating that Newton admitted that she was not physically or financially harmed by them, and that they did not take her property.  (Cross-Defendants’ UMF Nos. 63-66, citing Newton’s deposition at pp. 81:19-82:19.)  In opposition, Newton does not dispute that she admitted that Cross-Defendants have not financially harmed her or taken any money or property from her.  She does, however, dispute Cross-Defendants’ assertion that she admitted that they have not physically harmed her, and instead asserts that Jay took money from the Joint Property Account before October 2012, and thereby caused her financial hardship because she had to pay for her attorney’s fees in this case out-of-pocket, and as a result, she has suffered physical symptoms of emotional distress.  (Newton’s UMF No. 63, citing Armstrong decl. at ¶ 5, Newton’s Ex. F, Newton’s decl. at ¶¶ 14-17 & 21-22, & Newton’s counsel’s decl. at ¶¶ 2-3.)

Whether Newton suffered emotional distress and physical symptoms of such distress is immaterial to the issue of whether she suffered damages necessary to maintain her conversion claim.  To the extent she claims to have been financially harmed by Cross-Defendants, her assertion is based on her speculative belief that Jay necessarily misappropriated rental income because he did not provide “backup” documentation for certain expenses, and her speculation does not raise a triable issue of material fact.  (See Yuzon, supra, at p. 166.)

Lastly, Cross-Defendants maintain that Newton has not identified a sum certain, and therefore, her conversion claim fails as a matter of law.  (See PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (2007) 150 Cal.App.4th 384, 395 [“PCO”] [a conversion claim for money must be supported by evidence of a specific sum].)  Cross-Defendants meet their initial burden by presenting Newton’s deposition testimony as evidence that she has not calculated a sum certain of such funds.  (Cross-Defendants’ UMF No. 57, citing Newton’s deposition at p. 99:15-19 [testifying that she does not know how much money Cross-Defendants owe her].)

Newton disputes Cross-Defendants’ assertion that she admitted that she has not calculated a sum certain, but does not set forth any supporting fact.  (Newton’s UMF No. 57, citing Armstrong decl. at ¶ 5, Ex. F, Newton’s decl. at ¶¶ 14-17 & 21-22, & Newton’s counsel’s decl. at ¶¶ 2-3.)  Regardless, the Court still looks to Newton’s evidence to determine whether there is a triable issue of material fact.  (See Teselle, supra, at pp. 168-169.)  The only figure in Newton’s evidence that could be a sum certain in support of the conversion claim is in Armstrong’s declaration.  Armstrong declares that she analyzed the documents in this case, and concludes that $366,580.81 is “the raw number that [Jay] has not provided justification for,” and states that Jay therefore “owes [Newton] one-half of that amount as a base figure, plus any other relief the Court will grant.”  (Armstrong decl. at ¶ 3-5.)

While this figure indicates the sum of Jay’s expenditures which Newton claims is not adequately supported by documentation, it is unclear whether this figure is a sum certain that supports the conversion claim.  The spreadsheets set forth in Newton’s Exhibit F—which supposedly form the basis of Armstrong’s “base figure”—are even more unclear.  At the outset, the first page of Exhibit F contradicts the “base figure” presented in Armstrong’s declaration because it states that the “total monies owed by [Jay] to [Newton]” is $366,580.81, whereas Armstrong states that Jay only owes Newton half of that amount.  (Compare Newton’s Ex. F at p. 1, with Armstrong decl. at ¶ 5.)  Moreover, the supporting spreadsheets do not indicate where the individual entries of income and expenditures were found, or whether Newton contends that each entry is an act of conversion by Cross-Defendants.  (Newton’s Ex. F.)  Thus, the Court cannot infer that Newton’s evidence contains a sum certain.^[4]  Newton has accordingly failed to show that there is a triable issue of material fact as to the sum that she claims Cross-Defendants’ converted.

Cross-Defendants’ motion for summary adjudication of the sixth cause of action is therefore GRANTED.

V.        Summary Adjudication of the Seventh, Eighth, & Ninth Causes of Action

Cross-Defendants assert that Jay is not a “professional” and therefore Newton cannot establish that they owed her any duty of care applicable to professionals.  The term “professional” does not limit a claim for professional negligence to traditional professions (e.g., medicine, law, and engineering); but rather, “[t]he rule which imposes this duty is of universal application as to all persons who by contract undertake professional or other business engagement requiring the exercise of care, skill and knowledge; the obligation is implied by law and need not be stated in the agreement.” (Allred v. Bekins Wide World Van Services (1975) 45 Cal.App.3d 984, 989, italics added.)  Cross-Defendants proffer evidence that they are not real estate professionals and have never held themselves out to be such, and they only have the knowledge and experience regarding real estate management that an ordinary lay person would have.  (Cross-Defendants UMF Nos. 19-20.)  They also proffer evidence that there is no contract between them and Newton for the management of the Property.  (Id. Nos. 13-14 & 17.)  Accordingly, Cross-Defendants’ evidence is sufficient to meet their initial burden.

In opposition, Newton disputes Cross-Defendants’ facts, but does not present evidence to show a triable issue of material fact with respect to whether Cross-Defendants were “professionals” who owe her a duty of care applicable to professionals.  In her supporting memorandum, Newton insists (without providing any supporting evidence) that Cross-Defendants are professionals because they own and/or manage other properties; however, whether they own or manage other properties is immaterial to the issue of whether they entered into an agreement with Newton whereby they undertook professional or business engagements on her behalf.

Next, Cross-Defendants argue that they were not in a fiduciary relationship with Newton, and thus, she cannot establish that they owed her a fiduciary duty.  As discussed above, Cross-Defendants have shown that, as a matter of law, there is no contract between them and Newton.  Moreover, they persuasively argue that a fiduciary relationship cannot be based on the Company’s status as a co-tenant of the Property, since where persons own property as tenants in common, but they acquired “their interests in the property at different times through different instruments, and no [other] relationship of trust and confidence exists between them, then no fiduciary relationship can be found to exist.”  (Wilson v. S.L. Rey, Inc. (1993) 17 Cal.App.4th 234, 243.)  Cross-Defendants meet their initial burden by presenting evidence showing that the Company acquired its interest in the Property from Jan by a separate instrument, Jay has no ownership interest in the Property, and there is no instrument or agreement that creates a fiduciary relationship between them and Newton.[5]  (Cross-Defendants’ UMF Nos. 1, 3-4, & 17.)

Newton asserts that there is a partnership between herself, Jay, and the Company; however, she proffers no evidence indicating that such a partnership exists, and her assertion is apparently based on the fact that she and the Company are co-tenants, and her confusion over the difference between co-tenants and partners.[6]  Given that Newton does not proffer evidence indicating that there is a contract or partnership between the parties, she has not shown that there is a triable issue of material fact as to whether Cross-Defendants owe her a fiduciary duty.

Finally, Cross-Defendants contend that they acted reasonably under the circumstances, and therefore, Newton cannot establish that they breached the ordinary standard of care necessary to support a negligence cause of action.  They proffer evidence that Jay collected rent and deducted reasonable expenses for the Property, communicated with the tenants, maintained the Property and kept the units occupied by tenants, and that Newton admits Jay did everything else that was required from him (aside from allegedly not providing documentation for some expenses and thus necessarily taking rental income).  (Cross-Defendants’ UMF Nos. 21-29, 32, & 60.)  Cross-Defendants also proffer evidence that the information Newton claims they withheld was provided to her through her daughter and through her counsel.  (Id. Nos. 26, 42, 53, & 58.)  Furthermore, Cross-Defendants present evidence indicating that their closure of the Joint Property Account was reasonable and therefore not negligent because Newton had “mistakenly” made two large unauthorized withdrawals from the Joint Property Account (the first for $5,000 in February 2012, and the second for almost $24,000 in October 2012) and thereby jeopardized the ability to maintain the Property, and thus, they moved the remaining rental income into the Liquidation Account for safekeeping pending the sale of the Property.  (Id. Nos. 33, 44-47 & 50.)  Cross-Defendants’ evidence demonstrates that they acted reasonably, and thus, they have met their initial burden to show that Newton cannot establish that they acted negligently.

In opposition, Newton disputes the facts asserted by Cross-Defendants.  (Newton’s UMF Nos. 21-29, 32-33, 42, 44-47, 53, 58, & 60.)  She proffers evidence indicating that Cross-Defendants were unable to account for some money from the Section 8 subsidy.  (Newton’s decl. at ¶ 15.)  A reasonably prudent person under the circumstances would likely be able to account for the funds received for a specific purpose from a government agency, and thus, Newton has shown that there is a triable issue as to whether Cross-Defendants breached a duty of ordinary care.

Cross-Defendants argue that Newton suffered no damages.  They meet their initial burden by proffering evidence that the rental income is in the Liquidation Account, and Newton admitted at her deposition that she suffered no physical or financial harm as a result of Cross-Defendants’ conduct.  (Cross-Defendants’ UMF Nos. 53 & 63-66.)

Newton does not dispute the fact that she admitted that she was not financially harmed by Cross-Defendants and that they did not take any property or money from her.  She does, however, dispute that she admitted she was not physically harmed, but as discussed in detail above, the evidence she cites in support of her assertion does not demonstrate that there is any triable issue of material fact as to whether she was harmed.  Newton also disputes that the remaining rental income is in the Liquidation Account, and presents evidence showing, in essence, that she does not believe the ledgers and other documentation provided by Cross-Defendants that indicates the current balance in that account, and therefore, she “has no way of knowing” whether the remaining rental income is in the Liquidation Account “at the present time.”  (Newton’s UMF No. 53.)  However, Newton’s knowledge of the balance of the Liquidation Account is immaterial to the issue of whether Cross-Defendants harmed her.  Moreover, Cross-Defendants have presented evidence indicating that she admits that she was not harmed by their conduct.  (See D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20-22 [generally, admissions made during discovery control over contrary declarations lodged at a hearing on a motion for summary judgment].)  Newton has therefore not demonstrated that there is a triable issue of material fact as to the general negligence, professional negligence, and breach of fiduciary duty claims.

In light of the foregoing, Cross-Defendants’ motion for summary adjudication as to the seventh, eighth, and ninth causes of action is GRANTED.

VI.       Summary Adjudication of the Tenth Cause of Action

Cross-Defendants assert that Newton cannot establish standing because she is not their customer or competitor.  However, whether Newton was a customer or competitor of Cross-Defendants is of no consequence, since the California Supreme Court has noted that Proposition 64 “plainly preserved standing for those who had had business dealings with a defendant and had lost money or property as a result of the defendant’s unfair business practices.”  (Clayworth v. Pfizer, Inc. (2010) 49 Cal. 4th 758, 788.)  To have standing to assert a UCL claim, the plaintiff must have suffered an injury-in-fact and lost money or property as a result of the allegedly unlawful, unfair, or fraudulent business practice.  (Id.; Bus. & Prof. Code, § 17204.)  Given that Cross-Defendants have shown that Newton cannot establish that she lost money or property as a result of their conduct as a matter of law (Cross-Defendants’ UMF Nos. 61-66), it follows that she cannot establish that she has standing to assert a UCL claim against them.  Since Newton cannot establish standing, Cross-Defendants’ motion for summary adjudication of the tenth cause of action is GRANTED.

VII.     Summary Adjudication of the Eleventh, Twelfth, & Thirteenth Causes of Action

Cross-Defendants assert that there is no triable issue of material fact pertaining to the constructive trust and accounting causes of action because they are remedies, not legally cognizable claims.  Even though a constructive trust and an accounting are considered remedies, courts nevertheless allow parties to assert them as separate causes of action.  (E.g., Teselle, supra, at pp. 177-181.)

With respect to the constructive trust claim, Cross-Defendants argue that they were not unjustly enriched by possession of the funds.  “Before a constructive trust can be imposed, the plaintiff must prove that the defendant’s acquisition of the property was wrongful.”  (PCO, supra, at p. 398, italics in original.)  However, the term “wrongful,” as used in connection with a constructive trust claim, also encompasses a mistake.  (See Civ. Code, § 2224; see also Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 177.)

As discussed above, Cross-Defendants’ proffer evidence demonstrating that they have acted reasonably; however, Newton proffers evidence indicating that approximately $4,000 of the Section 8 Subsidy was inadvertently deposited into Jay’s personal bank account and not transferred to the Joint Property Account.  Cross-Defendants have not been able to account for what happened to that money.  In addition, it is undisputed that Newton has the right to some of the money in the Liquidation Account and that Cross-Defendants used some rental income from the Liquidation Account to pay for attorney’s fees in connection with the partition action, but there is a dispute as to whether those fees were used exclusively for their benefit or for the mutual benefit of the parties.  (Cross-Defendants’ UMF No. 62 & Newton’s UMF No. 62.)

Thus, there is a triable issue of material fact as to whether a constructive trust should be imposed over unaccounted for Section 8 subsidy and the funds from the Liquidation Account used to pay attorney’s fees in the partition action.  Therefore, Cross-Defendants have not established that they are entitled to summary adjudication of the constructive trust claim as a matter of law.

Turning to the issue of accounting, since Cross-Defendants admit that Newton is entitled to some of the funds in the Liquidation Account, there is a relationship that requires an accounting. (See Teselle, supra,at p. 179 [“[a] cause of action for an accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting, and that some balance is due the plaintiff that can only be ascertained by an accounting.”  Also, “[b]efore an accounting is in order, the right to an accounting must be established.”  (Baxter v. Krieger (1958) 157 Cal.App.2d 730, 732.)  Cross-Defendants assert that there is no triable issue of material fact as to whether Newton has been provided all of the material information regarding the Property.  They essentially argue that Newton’s accounting claim fails because they provided her with ledgers, she has no documents that dispute the accuracy of those ledgers, and the sum owed to Newton—which the Company “concedes is one half of the liquidating account, adjusted for advances paid to either party”—can be ascertained “by calculation.”

Although Cross-Defendants provided ledgers, Newton disputes the accuracy of some of the entries set forth therein, and has proffered evidence demonstrating that Cross-Defendants have been unable to account for some of the money, and that the attorney’s fees in the partition action may not have been for her benefit.  The fact that Newton herself does not possess documentary evidence to dispute the accuracy of the ledgers is of no consequence because the purpose of seeking the accounting is to obtain such evidence.  (See Teselle, supra, at p. 180.)  Accordingly, triable issues of material fact exist as to whether Cross-Defendants should be required to provide Newton with an accounting.

Declaratory relief only requires that an actual controversy exist with respect to the legal rights and duties between the parties.  (CCP, § 1060.)  As discussed above in connection with the constructive trust and account claims, the parties disagree as to whether Cross-Defendants’ share of the remaining funds in the Liquidation Account should be reduced to reimburse Newton for certain expenses.

Cross-Defendants’ motion for summary adjudication of the eleventh, twelfth, and thirteenth causes of action is accordingly DENIED.

IX.       Summary Adjudication of the Fourteenth & Fifteenth Causes of Action

To maintain an action for partition, the party must be a co-owner of the subject property.  (CCP, § 872.210, subd. (a).)  It is undisputed that the Property has been sold.  Thus, Newton cannot establish that she is currently a co-owner of the Property.  As for the dissolution claim, such a claim is only applicable to partnerships.  (See Corp. Code, § 16801 [providing the procedures applicable to the dissolution of partnerships].)  As discussed above, Cross-Defendants proffer evidence indicating that the only relationship between them and Newton is that they were co-tenants, and Newton has not shown any triable issue of material fact exists with respect to whether there was a partnership.  Cross-Defendants have therefore demonstrated that Newton cannot establish that there is a partnership to be dissolved.  In light of the foregoing, Cross-Defendants’ motion for summary adjudication of the fourteenth and fifteenth causes of action is GRANTED.

X.        Summary Judgment

Since the motion for summary adjudication as to the eleventh, twelfth, and thirteenth causes of action has been denied, the motion for summary judgment is DENIED.

The Court will prepare the order.

 

[1] Newton’s UMF only addresses Cross-Defendants’ UMF Nos. 1-63, and not Cross-Defendants’ UMF Nos. 64-69.

[2] These portions of Newton’s deposition are not submitted as copies of the court reporter’s transcript, and therefore, they do not comply with CRC, rule 3.1116(b) (authorizing the use of deposition testimony as an exhibit where the exhibit consists of  “only the relevant pages of the transcript” with “[t]he original page number of any deposition page . . . clearly visible”).  Rather, they are submitted as attachments to Newton’s counsel’s declaration in a table that counsel prepared.  Counsel declares to have accurately transcribed these excerpts from the actual transcript, but it is unclear why counsel did not simply submit copies of the transcript itself, especially since Newton submits other pages from her deposition transcript in support of her opposition.  Also, Exhibit 22 to Newton’s deposition transcript was not submitted to the Court.

 

[3] Similarly, these portions of Jay’s deposition are not submitted as copies of the court reporter’s transcript, and therefore, do not comply with CRC, rule 3.1116(b).  Rather, they are submitted as attachments to Newton’s counsel’s declaration in a table that counsel prepared.  Counsel declares to have accurately transcribed these excerpts from the actual transcript. In addition, Newton submits a table of exhibits from Jay’s deposition transcript, but not copies of the exhibits themselves.

[4] Also, Cross-Defendants note that Armstrong’s “base figure” ($366,580.81) is over $36,000 greater than Newton’s asserted amount of annual rental income ($60,000) for the five and one-half years that Cross-Defendants managed the Property ($60,000 per year x 5½ years = $330,000).  Essentially, Armstrong’s “base figure” is greater than the parties’ collective shares of the rental income generated by the Property before accounting for any expenses or the distributions that Newton admits she received.

[5] That being said, since it is undisputed that Cross-Defendants possessed and controlled money belonging to  and for the benefit of Newton, a relationship may have been established that imposes a fiduciary or other heightened duty.  (See Wilson, supra, at p. 243 [where “cotenants acquire their interests at different times through different instruments, and no relationship of trust and confidence exists between them, then no fiduciary relationship can be found]; PCO, supra, at pp. 397-398 [finding no fiduciary relationship existed because there was “no evidence that [either defendant] received or held the money for the benefit of plaintiffs, or that [they] otherwise stood in a fiduciary relationship with plaintiffs”]; see also Roddenberry, supra, at p. 666 [finding “was a duty to disclose because [the defendant] was handling money belonging to” the plaintiff].)  Regardless, however, as discussed in detail below, Newton proffers no evidence indicating that she justifiably relied on Cross-Defendants and was harmed as a result.

[6] A co-tenancy is distinct from a partnership; a partnership only exists where it is expressly declared as such as determined by the intent of the parties.  (Wilson, supra, at p. 242, citing Estate of Horn (1951) 102 Cal.App.2d 635; see also Civ. Code, §§ 682 & 684 [“[a] partnership interest is one owned by several persons, in partnership, for partnership purposes”]; see also Corp. Code, § 16202, subd. (c)(1) [“tenancy in common, . . . joint property, common property, or part ownership does not by itself establish a partnership, even if the co-owners share profits made by the use of the property”].)  In support of her position that there was a “partnership” between them, Newton cites the following portion of her deposition transcript:

Q            Is [Jay] or is [the Company], are either of them your partner?

A            No.  Partner in the [Property], yes.

Q            Partner in the [Property]?

A            Un-huh.  He owns [Jan]’s half.

Q            Do you think that – – did you think that creates a partnership between you and [the Company]?

[Newton’s Counsel]:  Objection.  Calls for legal conclusion.

Witness:  We are partners.  We own – – we own one piece of property, both of us, so that would make me – – wouldn’t it make me his partner in an ownership?

(Newton deposition, at pp. 105:15-106:2.)   This evidence indicates that Newton believes a partnership exists by virtue of the fact that she and the Company own the Property as tenants in common.  To the contrary, co-ownership of property does not by itself establish a partnership, even if the co-owners share profits made by the use of the property.  (See Corp. Code, § 16202, subd. (c)(1); see also Johnson v. Kitchin (1928) 203 Cal. 439 [where tenants in common of real property erect an apartment hotel on it, that one of them as the agent of the other manages the property, collecting the rents and attending to such matters as are incidental to ownership of the property, and pays half of the net profits to the other after expenses are deducted, does not make them copartners in the conduct of any sort of business].)  Accordingly, this evidence does not suggest that a partnership agreement between Newton and the Company, Jay, or both exists.