Hacker v. Macoy Capital Partners CA2/1 ( 2021 )

Filed 9/28/21 Hacker v. Macoy Capital Partners CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
RON HACKER, B306067
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV12728)
v.
MACOY CAPITAL PARTNERS,
INC., et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County, Randolph M. Hammock, Judge. Affirmed.
Law Offices of Vincent J. Quigg, Vincent J. Quigg; and Levi
Reuben Uku for Plaintiff and Appellant.
Sklar Kirsh, Ian S. Landsberg and William H. Dance for
Defendants and Respondents.
______________________
This case arises out of a soured business arrangement
between appellant Ron Hacker and Henri Levy, who allegedly
purchased an apartment building together for $800,000 at a
foreclosure sale. Shortly after their purchase, a serious conflict
arose between the two men, their relationship fractured, and
Hacker lost his interest in the apartment building under the
terms of a written agreement between him and Levy. Three
months later, the building was sold by Levy to a third party.
Hacker subsequently sued numerous defendants, including
Levy, his companies, Levy’s lawyer, and Levy’s alleged co-
conspirators. The latter group includes the respondents in this
appeal, Macoy Capital Partners, Inc. (Macoy) and its owner and
president, Mitchell Ohlbaum (Ohlbaum), who brokered loans for
the third-party purchaser.
Hacker’s operative complaint alleges that respondents
conspired with Levy to defraud him of his interest in the
apartment building. Despite finding pleading deficiencies, the
trial court provided Hacker multiple opportunities to cure the
defects. Hacker responded by submitting three complaints and
15 evidentiary exhibits, along with oral argument at several
separate hearings. Although the trial court overruled the
demurrers of Levy, his companies, Levy’s lawyer, and others, it
eventually sustained respondents’ demurrer without leave to
amend in a detailed, 19-page order.
On appeal, Hacker contends that his allegations were
sufficient and that, in any event, the trial court should have
allowed a further amendment. We disagree.
Hacker’s pleadings against respondents are insufficient at
the most basic levels. His allegations that Macoy and Ohlbaum
unlawfully interfered with his prospective economic advantage,
2
and participated in a civil conspiracy against him with Levy and
other defendants, are fundamentally inconsistent with Hacker’s
other allegations against Levy. In particular, Levy’s alleged
wrongful conduct occurred months before respondents brokered a
third-party loan on the apartment building, and the operative
complaint alleges that Levy concealed Hacker’s interest in the
property—and Levy’s own fraudulent behavior—from subsequent
purchasers and lenders, including Macoy and Ohlbaum.
Hacker’s claims for unlawful business practices and
declaratory relief are derivative of his defective tort claims. For
the first time on appeal, Hacker attempts to raise the possibility
of an action for quiet title to revive his derivative claims, but he
fails to provide adequate factual and legal support for this
contention. Hacker’s final claim, alleging that Ohlbaum
intentionally inflicted emotional distress on him, has been waived
on appeal.
Hacker has not produced any sufficient justification for
having yet another opportunity to amend his pleading, and the
trial court did not abuse its discretion in refusing to let him do so.
Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Hacker’s Business Deal with Levy
On January 4, 2019, Hacker and Levy executed a written
agreement to buy an apartment building at a foreclosure sale.1
1 When reviewing a judgment on a demurrer, we accept the
facts as pled in the complaint. (Berg & Berg Enterprises, LLC v.
Boyle (2009) 178 Cal.App.4th 1020, 1034 [“in considering the
merits of a demurrer, ‘the facts alleged in the pleading are
3
They each agreed to provide funds for the venture, with the
property being held by Gaelle II, LLC (Gaelle), a corporate entity
that both parties controlled.
Hacker contributed $75,000 to the initial purchase. Levy
also purportedly agreed to pay Hacker the difference between the
actual cost of the property and $970,000. Per the agreement,
“[t]o secure the payment to Hacker, Levy shall provide Hacker a
[n]ote secured by a [d]eed of [t]rust against the [p]roperty.” The
note and deed of trust would be held by Levy’s attorney until
Hacker fulfilled his obligations under the agreement, which
included evicting the apartment building’s tenants.
On January 8, 2019, enroute to the foreclosure sale, Levy
demanded that Hacker sign off on an amendment to the original
agreement, threatening that he would not attend the sale if
Hacker did not immediately agree. Among other things, the
amendment gave Levy the option to require Hacker to purchase
the property outright within 30 days. Hacker signed the
amendment, and the pair thereafter purchased the apartment
building for $800,000.2
Conflict soon arose between Hacker and Levy. On
January 29, 2019, Levy allegedly transferred the property from
deemed to be true, however improbably they may be’ ”].)
Accordingly, this factual background draws heavily from the
allegations in Hacker’s second amended complaint (SAC).
2 Given the $800,000 foreclosure price, Hacker would
therefore have been entitled to a secured note in the amount of
$170,000 ($970,000 minus the $800,000 acquisition cost) to be
paid by Levy upon the fulfillment of Hacker’s contractual
obligations.
4
Gaelle to another company, 4865 Bakman, LLC, over which
Hacker had no control.
On January 31, 2019, Levy gave notice that he was
exercising his option to make Hacker buy the property within 30
days. When Hacker could not complete the purchase in time, he
subsequently lost his interest in the property.
B. Respondents’ Alleged Involvement
On April 5, 2019, Levy sold the property to GNP Enterprise
LLC (GNP) which partially financed the purchase with a loan
from Finance of America Commercial, secured by a deed of trust
for the property. Macoy allegedly brokered this loan.
On April 12, 2019, Hacker sued Levy and several others
(but not Macoy or Ohlbaum) for their allegedly wrongful actions
in alienating him from the property. Hacker also recorded a lis
pendens against the property.3
In early-to-mid April 2019, Macoy lent GNP an additional
sum of $100,000, secured by a deed of trust. The deed was
recorded on April 16, 2019. Ohlbaum was personally involved in
this transaction.
C. The Lawsuit Against Respondents
On May 3, 2019, Hacker filed his first amended complaint
(FAC), which added several defendants, including GNP and its
principals. Among other things, Hacker alleged that Levy had
reneged on his obligation to deliver the deed of trust securing the
$170,000 note which Levy owed Hacker under the original
agreement.
3 On April 3, 2019, Hacker had attempted to file his lawsuit
and lis pendens, but that filing was rejected by the court’s
electronic filing system.
5
On June 7, 2019, Hacker added Macoy to the lawsuit by
means of a Doe amendment.
On August 5, 2019, Hacker added Ohlbaum to the lawsuit
by means of a Doe amendment.
On September 6, 2019, Macoy and Ohlbaum successfully
demurred to that complaint, but the trial court gave Hacker leave
to amend.
On October 7, 2019, Hacker filed the operative SAC in
which he sued Macoy and Ohlbaum for negligent and intentional
interference with prospective economic advantage, civil
conspiracy, unfair business practices in violation of Business and
Professions Code section 17200. He sued Macoy separately for
declaratory relief4 and Ohlbaum separately for intentional
infliction of emotional distress.
On December 9, 2019, Macoy and Ohlbaum demurred to
the SAC. The court issued a tentative ruling sustaining the
demurrer without leave to amend, but advised Hacker to be
prepared to demonstrate the possibility of a successful
amendment as to each cause of action.
On February 19, 2020, following argument, the court
indicated it would adopt its tentative ruling sustaining the
demurrer without leave to amend. However, when Hacker
claimed to have obtained newly discovered evidence that would
allow him to successfully amend his claims against Macoy and
Ohlbaum, the court agreed to hold a second hearing to consider
this additional evidence, instructing Hacker to submit his offer of
proof by March 4, 2020.
4 Macoy was also named as a defendant in Hacker’s judicial
foreclosure cause of action, but was later dropped from it.
6
On April 14, 2020, when the court reconvened, Hacker
argued against the tentative ruling on the basis of his tardy
declaration, to which he attached 15 evidentiary exhibits. The
trial court concluded that at least 11 of those exhibits were not
“newly discovered” evidence, as they consisted of information
known or available to Hacker before he filed the SAC. The trial
court also determined that Hacker’s late-filed evidence contained
no new facts which, if pled, could save Hacker’s claims against
Macoy and Ohlbaum.
The court thereafter issued its final order sustaining
respondents’ general demurrer without leave to amend. Hacker
timely appealed.
DISCUSSION
Hacker contends that the trial court erred in sustaining the
demurrer to all of the causes of action pled against Macoy and
Ohlbaum. Our review is de novo. (Fontenot v. Wells Fargo Bank,
N.A. (2011) 198 Cal.App.4th 256, 264, disapproved on another
ground in Yvanova v. New Century Mortgage Corp. (2016) 62
Cal.4th 919, 939, fn. 13.)
Alternatively, Hacker contends that the court should have
granted him leave to further amend, an issue we review for an
abuse of discretion. (Vaca v. Wachovia Mortgage Corp. (2011) 198
Cal.App.4th 737, 743.)
“ ‘[O]n appeal the plaintiff . . . bear[s] the burden of proving
there is a reasonable possibility the defect in the pleading can be
cured by amendment.’ ” (Everett v. State Farm General Ins. Co.
(2008) 162 Cal.App.4th 649, 655.) “To show abuse of discretion,
[the] plaintiff must show in what manner the complaint could be
amended and how the amendment would change the legal effect
of the complaint, i.e., state a cause of action.” (Buller v. Sutter
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Health (2008) 160 Cal.App.4th 981, 992; accord, Cooper v. Leslie
Salt Co. (1969) 70 Cal.2d 627, 636 [to establish an abuse of
discretion, the plaintiff “must show in what manner he can
amend his complaint and how that amendment will change the
legal effect of his pleading”].)5
A. Intentional and Negligent Interference with
Prospective Economic Advantage
The torts of intentional and/or negligent interference with
prospective economic advantage, alleged against both McCoy and
Ohlbaum, have many overlapping elements, and we will discuss
them together. These torts require, inter alia, the existence of an
economic relationship between the plaintiff and a third party,
actual disruption of that relationship by the defendant, and
economic harm proximately caused by the defendant. (Port
Medical Wellness, Inc. v. Connecticut General Life Ins. Co. (2018)
24 Cal.App.5th 153, 182-183 [as to intentional interference];
5 Hacker contends in general terms that the trial court
erred by requiring him to present newly discovered evidence in
order to substantiate his allegations against Macoy and
Ohlbaum, and in not considering his preexisting arguments at
the final demurrer hearing. However, the trial court’s
requirement of newly discovered evidence was only to
demonstrate that further amendment of the SAC would not be
futile, and the trial court’s final ruling on the demurrer explicitly
analyzes not just Hacker’s offer of proof, but his arguments and
allegations connected to the original SAC. We are skeptical of
Hacker’s insinuation that he has not been given sufficient
opportunity to amend his complaint in light of the several
opportunities he was afforded by the trial court to collect
evidence and present arguments.
8
Crown Imports, LLC v. Superior Court (2014) 223 Cal.App.4th
1395, 1404 [as to negligent interference].)
Although Hacker’s SAC alleges the existence of his
economic relationship with Levy, it repeatedly alleges that the
Levy/Hacker relationship had been disrupted well before
respondents’ involvement in this transaction. By Hacker’s own
account, Levy had started alienating Hacker from the profits of
the apartment building as early as January 19, 2019—a full
three months before respondents first brokered a loan on the
property. And, Hacker admits he lost his interest in the property
in February 2019 when he could not comply with Levy’s demand
to purchase the building within 30 days pursuant to the option in
the amended agreement.
On appeal, Hacker does not explain how respondents could
have disrupted an economic relationship that was already
fractured, or how they could have caused Hacker to lose profits or
property interests that had already been taken from him by Levy.
He simply has not shown that respondents disrupted the
economic relationship between himself and Levy. Additionally,
Hacker fails to provide any relevant legal authority that could
support his theory of economic interference. (In re Marriage of
Falcone & Fyke (2008) 164 Cal.App.4th 814, 822 [failure to
substantiate argument with legal authority can make it
impossible for an appellant to “affirmatively demonstrate error
on the record before the court”].)
Both torts also require that the harmful interference to
economic relationship be caused by an independently wrongful
act. (Ixchel Pharma, LLC v. Biogen, Inc. (2020) 9 Cal.5th 1130,
1142 [“interfering with prospective economic advantage requires
pleading that the defendant committed an independently
9
wrongful act”].) In the case of negligent interference with
economic interest, this is shown by the defendant’s breach of a
duty of due care owed to the plaintiff. (North American Chemical
Co. v. Superior Court (1997) 59 Cal.App.4th 764, 787).
Hacker does not articulate how the act of later brokering
loans on disputed property for a third party is an independently
wrongful act. While he suggests that respondents somehow owed
him a duty to thoroughly investigate his claims against the
property—including by contacting Hacker personally—before
engaging in any financial activity involving the property, Hacker
cites no supporting legal authority for this proposition. (In re
S.C. (2006) 138 Cal.App.4th 396, 408 [“To demonstrate error,
[the] appellant must present meaningful legal analysis supported
by citations to authority”].) We see no reasonable possibility that
Hacker can successfully amend his claims for intentional and/or
negligent interference with prospective economic advantage.
B. Civil Conspiracy
A civil conspiracy requires “the formation and operation of
a conspiracy, the wrongful act of any of the conspirators thereto
and damage resulting therefrom.” (117 Sales Corp. v. Olsen
(1978) 80 Cal.App.3d 645, 649.) Each conspirator must have
come to “ ‘a mutual understanding to accomplish a common and
unlawful plan.’ ” (IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th
630, 652.) They must “ ‘have actual knowledge that a tort is
planned and concur in the tortious scheme with knowledge of its
unlawful purpose.’ ” (Favila v. Katten Muchin Rosenman LLP
(2010) 188 Cal.App.4th 189, 206.)
Hacker does not explain on appeal what sort of illegal
arrangement Macoy and Ohlbaum entered into with Levy, or the
existence of some mutual understanding to accomplish an
10
unlawful objective. Moreover, as we have said, Hacker’s claims
against Levy contradict his claims against respondents. Both the
FAC and SAC allege that Levy failed to disclose Hacker’s interest
in the property—and Levy’s own alleged fraud—from subsequent
purchasers and lenders, including Macoy and Ohlbaum. Hacker’s
briefing does not clarify how respondents could have conspired
with Levy to defraud Hacker while Levy simultaneously
concealed Hackers’ interests from them. (See Holland v. Morse
Diesel Internat., Inc. (2001) 86 Cal.App.4th 1443, 1447 [“If the
[SAC] contradicts . . . facts pleaded in [an appellant’s] first two
complaints, we will take judicial notice of the earlier complaints
and disregard inconsistent allegations, absent an explanation for
the inconsistency”].)
Hacker has not carried his burden of demonstrating a
reasonable possibility that amendment can cure his defective civil
conspiracy claim. (Doe v. Roman Catholic Archbishop of Los
Angeles (2016) 247 Cal.App.4th 953, 960 [in reviewing a proposed
amendment on appeal, “[w]e . . . need not accept allegations
containing . . . ‘unsupported speculation’ ”].)6
6 On appeal, Hacker specifically relies on two emails in
order to demonstrate that respondents had actual knowledge of
Levy’s fraud before they recorded the deed of trust securing the
second loan against the property on April 16, 2019, and that the
trial court should therefore have allowed another amendment.
Exhibit 15 consists of two emails sent by Ohlbaum. The first, on
April 10, 2019, was sent to Judith Sender, an escrow officer, and
Gabriel Perez, the owner of GNP (which, at the time, was in the
process of purchasing the apartment building from Levy).
Ohlbaum asked Sender to prepare a deed of trust for the April 16
loan, briefly references a separate escrow proceeding, and
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C. Remaining Causes of Action
Hacker concedes on appeal that his claims for unfair
business practices and declaratory relief are derivative of his
claims for economic interference and civil conspiracy. Yet he
argues for the first time on appeal that, even if leave to amend
was properly denied as to the economic interference and civil
conspiracy claims, he can nevertheless support his derivative
claims with a quiet title action.
At the outset, we note that Hacker cannot seek leave to
amend his complaint to add a new cause of action. A plaintiff
cannot add new causes of action to a complaint under the guise of
an amendment; he must obtain the trial court’s permission to
supplement his original complaint. (Community Water Coalition
v. Santa Cruz County Local Agency Formation Com. (2011) 200
Cal.App.4th 1317, 1329.)
Hacker argues that his new quiet title claim is not a new
and separate cause of action, but instead constitutes a new legal
theory which demonstrates that he can successfully amend his
unfair business practice and declaratory relief claims. (Connerly
v. State of California (2014) 229 Cal.App.4th 457, 460 [“Contrary
to long-standing rules generally precluding a party from
requests the payment of fees when that escrow closes. Hacker’s
conclusions about this email are entirely speculative. The second
email, a three-sentence confirmation from Ohlbaum to Levy’s
attorney that the deed of title for the April 16 loan was recorded
does not show that respondents were aware of Hacker’s lis
pendens, recorded on April 12, or that they had actual knowledge
of Levy’s fraud. This argument is similarly conjectural, as are
the conclusions Hacker draws with respect to unrelated financial
deals involving respondents, Levy, Perez, and/or GNP.
12
changing the theory of the case on appeal [citations], a plaintiff
may propose new facts or theories to show the complaint can be
amended to state a cause of action, thereby showing the trial
court ‘abused its discretion’ [citation] in not granting leave to
amend” (fn. omitted)].)
Assuming, arguendo, that Hacker’s assertion of a quiet title
claim constitutes a new theory rather than a new cause of action,
we find that the allegations supporting Hacker’s quiet title theory
are fatally compromised by the same defects involving his
economic interference and conspiracy claims. A claim for quiet
title requires a plaintiff to submit “[t]he title . . . as to which a
determination . . . is sought.” (Code Civ. Proc., § 761.020,
subd. (b).) Yet Hacker repeatedly claims that Levy never gave (or
intended to give) Hacker the $170,000 note that he was allegedly
owed, or the deed of trust securing the note. Hacker does not
allege any other basis for claiming title to the property. His
purported claim for quiet title irreparably conflicts with his other
allegations against Levy.
Hacker also fails to support his quiet title allegations with
adequate legal argument. Hacker claims, without citations to
relevant authority, that he is entitled to ownership of the
apartment building free and clear of Macoy’s $100,000 lien, in
part due to Macoy’s actual knowledge of Hacker’s claims against
Levy at the time the loan was recorded. As we have said, Hacker
has not sufficiently alleged facts showing any actual knowledge
on the part of Macoy. More troublingly, Hacker neglects to make
any legal arguments in support of these theories. We therefore
treat these arguments as waived. (Lee v. Kim (2019) 41
Cal.App.5th 705, 721 [an appellant bears the burden of
13
“ ‘present[ing] argument and legal authority on each point
raised’ ”].)
Lastly, we note that Hacker forfeited his claim for
intentional infliction of emotional distress against Ohlbaum by
failing to raise the issue in his opening brief. (Nolte v. Cedars-
Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1409 [an
appellant’s “failure to raise [an] issue[ ] in his brief forfeits the
issue on appeal”].)
D. Conclusion
Because the complaint does not state facts sufficient to
constitute any of the causes of action raised against Macoy or
Ohlbaum, and because Hacker has not shown that there is a
reasonable possibility that any of the defects can be cured by
additional amendment, the trial court did not abuse its discretion
in refusing to allow a further amendment to the pleadings.
DISPOSITION
The order is affirmed. Respondents are entitled to their
costs on appeal.
NOT TO BE PUBLISHED
CRANDALL, J.*
We concur:
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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ROTHSCHILD, P. J.
BENDIX, J.
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