Flannery v. Murray CA2/3

Filed 8/24/20 Flannery v. Murray CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
PATRICK FLANNERY, B287284
Plaintiff, Cross-defendant and (Los Angeles County
Appellant, Super. Ct. No. PC056142)
v.
ANDREA MURRAY,
Defendant, Cross-complainant
and Respondent;
AMERICAN CONTRACTORS
INDEMNITY COMPANY,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Stephen P. Pfahler, Judge. Affirmed.
Daneshrad Law Firm and Joseph Daneshrad for Plaintiff,
Cross-defendant and Appellant.
Andrea Murray, in pro. per., for Defendant, Cross-
complainant and Respondent.
No appearance for Defendant and Respondent American
Contractors Indemnity Company.
_________________________
Plaintiff, cross-defendant and appellant Patrick Flannery
(Flannery) appeals a judgment in favor of defendant, cross-
complainant and respondent Andrea Murray (Murray) and
defendant and respondent American Contractors Indemnity
Company (the Surety).
The essential issues presented are (1) whether the trial
court committed instructional error in its response to two jury
inquiries during deliberations; (2) whether Flannery’s causes of
action for conversion and unjust enrichment were well pled;
(3) whether this dispute between Murray and Flannery was the
proper subject of an accounting; and (4) whether the award of
attorney fees to Murray was excessive.
For the reasons discussed below, we perceive no error and
affirm the judgment in its entirety.
FACTUAL AND PROCEDURAL BACKGROUND
I.
SUMMARY OF RELATED LITIGATION BETWEEN
THE PARTIES
1. The parties acquired a ranch property together.
Flannery and Murray had a nonmarital relationship over a
period of 20 years. In 1999, they decided to buy an agricultural
property together. In January 2003, they closed escrow on a 13-
acre horse boarding ranch (the ranch) in Chatsworth that had a
small dilapidated house on it. Murray contributed $123,000 from
the sale of her family home toward the down payment and
improvements, and Flannery contributed $100,000, which he
2
obtained by refinancing his home. They agreed that they would
be 50/50 owners. Due to Murray’s low credit score, she was not
on the loan and was not on title. Flannery reassured her,
however, that “we’re building all this for the family anyway. . . .
[Y]ou know, we’re partners.” After acquiring the ranch, they ran
a horse boarding business on the premises.
2. The ranch was damaged in a fire, leading to a lawsuit by
Flannery and Murray against the Southern California Gas
Company (SCGC).
In October 2008, the ranch was severely damaged by a fire.
In October 2009, Flannery and Murray filed a lawsuit against
SCGC for allegedly failing to maintain the power lines that had
sparked the fire. They anticipated recovering about $3 million in
damages.
Flannery and Murray’s relationship ended in February
2010, when Murray obtained a restraining order against
Flannery.
3. Murray brought a Marvin1 action against Flannery to
determine her half-ownership in the ranch and her right to share
in the anticipated fire settlement proceeds; Flannery’s cross-
complaint.
In May 2010, Murray filed a Marvin action against
Flannery. The operative complaint included causes of action for
breach of a Marvin agreement, fraud, and declaratory relief.
Murray pled the parties had agreed that they “were in fact equal
partners together in their mutual endeavors,” and that “all
property [they] acquired belonged to her equally, even if it was
titled in [Flannery’s] name only.” Further, Flannery had
1 Marvin v. Marvin (1976) 18 Cal.3d 660.
3
promised that her name “would be added to the title of the
Chatsworth Ranch at some point after escrow closed,” and he
made the promise “with the intent to defraud and induce [her] to
rely upon [it] so that she sold her home in Garden Grove and
contributed the proceeds of the sale of her home towards the
down payment for the purchase price of the Chatsworth Ranch
and paid for the mortgage payments for the Chatsworth Ranch.”
Murray’s complaint sought damages, as well as a judicial
determination that she was a half-owner of the ranch property,
and a declaration that she was an owner of the horse boarding
business and also entitled to share in any proceeds that might be
obtained in the SCGC lawsuit.
Flannery filed a cross-complaint, alleging causes of action
for conversion of a dog, a horse, and the funds and assets of the
horse boarding business. He also pled a cause of action for unjust
enrichment, and sought an accounting relating to the horse
boarding business and the ranch.
4. During the pendency of the Marvin action, the SCGC
lawsuit settled and SCGC filed an interpleader action.
In negotiating a settlement of the SCGC lawsuit, Flannery
and Murray were unable to agree how the settlement proceeds
should be divided between them. The trial court ruled that the
“respective ownership interest[s] of [the parties] in the subject
property is not directly relevant to their claims of negligence
against [SCGC]. Litigating the issue of ownership interests of
the [parties] in this case is unnecessary, as BC438538 [the
Marvin action] will resolve that dispute.”
On February 26, 2013, Flannery, Murray and SCGC settled
the SCGC lawsuit, and on March 25, 2013, SCGC deposited
4
settlement funds of $2,450,000 with the court and filed a
complaint in interpleader.
5. In the Marvin action, the jury determined that Murray
was a half-owner of the ranch, and the trial court determined that
Murray was entitled to one-half of the fire settlement proceeds.
Some of the Marvin claims were tried to a jury. Cross-
claims by Flannery for conversion were eliminated on nonsuit. In
November 2013, the jury returned a special verdict and found,
inter alia, that Murray and Flannery had orally agreed to
purchase the ranch jointly, and that each was a 50 percent
owner. The jury awarded Murray $150,000 in noneconomic
damages as well as $68,000 in punitive damages.
Thereafter, in ruling on Murray’s request for declaratory
relief with respect to her share of the SCGC settlement proceeds,
the trial court found Murray was entitled to 50 percent of the
SCGC settlement proceeds of $2,450,000. The trial court
indicated it “considered the evidence heard during the course of
the trial and adopts the findings of the jury.” Flannery then
appealed the judgment in the Marvin action.
6. During the pendency of Flannery’s appeal in the Marvin
action, Murray successfully moved in the interpleader action for
disbursement of $1,225,000 from the SCGC settlement proceeds.
On August 6, 2015, while Flannery’s appeal in the Marvin
action was pending, Murray filed a motion in the interpleader
action for disbursement of $1,225,000, or 50 percent of the SCGC
settlement proceeds. On September 11, 2015, the trial court
granted Murray’s motion and awarded her $1,225,000 of the
SCGC settlement proceeds.
Flannery appealed the judgment in the interpleader action.
5
7. This court partially reversed the Marvin judgment and
remanded for a statement of decision on the declaratory relief
claim; proceedings on remand.
Four months after the interpleader court awarded Murray
one-half of the settlement proceeds, this court issued an opinion
partially affirming the Marvin judgment. (Murray v. Flannery
(Jan. 27, 2016, B255917) [nonpub. opn.].) We affirmed the
Marvin judgment insofar as it declared Murray a 50 percent
owner of the ranch, but we eliminated the $218,000 in tort
damages awarded to Murray because those damages amounted to
a double recovery. On the declaratory relief issues, we concluded
the trial court in the Marvin action had jurisdiction to declare the
rights of the parties in the proceeds of the SCGC settlement, but
that the court erred in denying Flannery’s request for a
statement of decision with respect to the SCGC settlement
proceeds. We therefore reversed the Marvin judgment insofar as
it awarded Murray 50 percent of the $2,450,000 SCGC settlement
proceeds, and remanded for the preparation of a statement of
decision in that regard. In all other respects, we affirmed the
judgment.
On remand, the trial court issued a statement of decision
that provided in relevant part that “[a]s a 50% owner of the
Ranch, Murray is entitled to $1,225,000, which represents one-
half of the $2,450,000 settlement which has been deposited in the
Interpleader Action, less her share, if any, for attorney’s fees and
costs. These findings are consistent with the jury verdict which
the court adopts.” Flannery again appealed, challenging the
amended judgment in the Marvin action.
6
8. Affirmance of the judgment in the interpleader action.
After the trial court issued an amended judgment in the
Marvin action, Division Five of this court, in a published decision,
affirmed the judgment in the interpleader action. (Southern
California Gas Co. v. Flannery (2016) 5 Cal.App.5th 476.)
9. Affirmance of the amended judgment in the Marvin
action.
Subsequent to the affirmance of the judgment in the
interpleader action, this court issued an opinion affirming the
amended judgment in the Marvin action. (Murray v. Flannery
(Apr. 30, 2018, B276287) [nonpub. opn.].)
II.
THE INSTANT LITIGATION
1. Pleadings.
On December 31, 2014, during the pendency of the Marvin
action and the interpleader action, Flannery filed the instant
action. His operative second amended complaint, filed June 9,
2016, pled the following six causes of action against Murray:
(1) partition of the horse boarding business; (2) conversion of
Flannery’s share of the rents and fees generated by the horse
boarding business, estimated at $300,000, as well as his share of
the goodwill and equipment of the business, estimated at
$550,000; (3) the imposition of a constructive trust on the horse
boarding business; (4) money had and received of least $300,000,
representing the rents and fees generated by the business;
(5) unjust enrichment; and (6) breach of fiduciary duty.2
2 Flannery’s first six causes of action were directed solely at
Murray, and the Surety was named as a defendant only in the
seventh cause of action to enforce a bond it had issued in
7
Murray filed a cross-complaint against Flannery alleging
causes of action for partition of the ranch real property, breach of
fiduciary duty, and an accounting. Murray alleged that she had
been operating the horse boarding business sought to be
partitioned at a loss, she had been paying for all of the business’s
operating expenses, and Flannery was responsible for bearing
one-half of the losses.
The matter was then tried in three phases.
2. Trial proceedings.
a. First phase: Murray’s cause of action for partition
of the real property.3
In the initial phase, which was a bench trial on Murray’s
cause of action for partition, the court determined that Murray
was a 50 percent owner of the ranch, consistent with the
judgment in the Marvin action. The parties stipulated that the
real property would be partitioned by sale.
b. Second phase: jury trial and verdict.
Murray filed a pretrial motion in limine to exclude evidence
and argument relating to Flannery’s causes of action for
conversion, imposition of a constructive trust, money had and
received, and unjust enrichment. The trial court granted
connection with a preliminary injunction that Murray obtained in
a prior action. Although Flannery appealed the judgment as to
both Murray and the Surety, the appellant’s opening brief did not
raise any issues with respect to the seventh cause of action, and
the Surety has not filed a respondent’s brief.
3 Flannery voluntarily dismissed his cause of action for
partition of the horse boarding business.
8
Murray’s motion in limine with respect to Flannery’s causes of
action for conversion and unjust enrichment.
After hearing the evidence and arguments of counsel, the
jury returned a special verdict which included the following
findings: (1) on Flannery’s claim for money had and received, the
jury found there were no profits from the horse boarding business
from October 13, 2008 to the present; (2) on Murray’s claim for an
accounting, the jury found the horse boarding business had
incurred losses during that period in the amount of $326,957.61,
and that Flannery, as a 50 percent owner of the business, owed
$163,478.80 to Murray; (3) on Flannery’s claim for breach of
fiduciary duty, the jury found Murray did not fail to act as a
reasonably careful partner would have acted under the
circumstances in causing the loss of goodwill of the horse
boarding business; and (4) on Murray’s claim for breach of
fiduciary duty, the jury found that Flannery did not make
improvements to the property without permits. Thus, the verdict
provided for a net award of damages to Murray in the sum of
$163,478.80.
c. Third phase: the remaining equitable claims and
the statement of decision.
In the third phase of the trial, the court considered the
evidence presented to the jury and reviewed post-trial briefs on
the following causes of action: (1) Flannery’s cause of action for
imposition of a constructive trust; (2) Flannery’s cause of action
against the Surety; and (3) Murray’s cause of action for an
accounting.
After taking the matter under submission, the trial court
issued a statement of decision that provided in relevant part:
(1) with respect to Flannery’s cause of action for imposition of a
9
constructive trust, there was no money or property wrongfully
retained by Murray; and (2) with respect to Flannery’s cause of
action against the Surety, there was an insufficient basis for
liability because “[t]he prior court found the preliminary
injunction was properly issued and there was no evidence of any
damages allegedly suffered by Flannery as a result of the bond.”
As for the remaining issue presented by Murray’s cross-
complaint, namely, her cause of action for an accounting, the trial
court adopted the jury’s finding that Flannery owed Murray
$163,478.80, representing Flannery’s 50 percent share of the
business losses. The statement of decision provided, “Murray
testified that her QuickBooks profit and loss statements were
generated by downloading her bank statement directly into the
program. The bank statements show the deposits and
disbursements relative to the horse boarding business. Flannery
did not present any witnesses or documents to challenge any of
the entries. [¶] In support of the accounting claim, Murray
introduced into evidence her accounting records covering the time
period of October 13, 2008 (from the fire) through April 2015
(when the business was closed down). (Trial Exhibits 137–143
and 188.) These profit and loss statements demonstrate a loss of
$326,957.61. Murray is entitled to 50% of those losses which
totals $163,478.80.”
4. Post-trial motions.
Murray filed a motion for attorney fees pursuant to Code of
Civil Procedure section 874.010,4 contending she incurred
$371,076.66 in attorney fees in connection with the partition
4 All undesignated statutory references are to the Code of
Civil Procedure.
10
claim for the common benefit of the parties, and therefore was
entitled to an award of 50 percent of the fees, or $185,538.33,
from Flannery. Flannery opposed the motion, arguing that
Murray was entitled to recover solely the reasonable fees she
incurred in prosecuting her cause of action for partition, and that
the fees requested were excessive. After hearing the matter, the
trial court awarded fees to Murray in the reduced sum of
$105,147.50. The trial court also denied a motion by Murray for
prejudgment interest.
Flannery filed motions for a new trial and for judgment
notwithstanding the verdict. Following the denial of those
motions, Flannery filed a timely notice of appeal from the
judgment.
CONTENTIONS
Flannery contends: (1) the trial court’s instructions to the
jury in response to the jury’s questions during deliberations
amounted to reversible error; (2) the trial court erred in
dismissing his causes of action for conversion and unjust
enrichment; (3) the judgment entered against him on Murray’s
cause of action for an accounting is contrary to law; and (4) the
trial court erred in the amount of attorney fees awarded to
Murray on her cause of action for partition.
DISCUSSION
1. No merit to claim of instructional error; the trial court
acted within its discretion in responding to the two inquiries from
the deliberating jury.
a. Standard of review.
An appellate court “applies the abuse of discretion standard
of review to any decision by a trial court to instruct, or not to
11
instruct, in its exercise of its supervision over a deliberating
jury.” (People v. Waidla (2000) 22 Cal.4th 690, 745–746.)
b. Proceedings; the court’s response to Questions #1
and #2 from the jury.
By way of background, on Flannery’s claim for money had
and received, the special verdict form asked the jury to determine
whether there were any profits from the “horse boarding
business” from October 13, 2008, to the present, and on Murray’s
claim for an accounting, the special verdict form asked the jury to
determine whether there were losses from the “horse boarding
business” during that time period.
During deliberations, the court received Question #1 from
the jury, which asked whether “horse boarding business” includes
all businesses on the property, including the dumping of concrete
and dirt, dog boarding and rescue, and goat and rooster breeding,
“or just the boarding of horses[?]”
The court responded as follows: “To answer your question,
the term horse boarding business in all sections of the verdict
form (not just section 1) may include (but you are not required to
include) both income and expenses for business on the property,
including, the hauling of dirt and/or concrete, dog boarding, other
horse boarders, and Ride with Pride. [¶] The Court reminds the
jurors that when determining both expenses and income for the
above horse business, you must rely solely on the evidence, and
not on speculation.”
Less than 20 minutes after resuming deliberations, the jury
sent Question #2, which stated: “Should the jury consider the
2013 Southern California Gas Company boarding business loss
settlement of $550,000 as income to the horse boarding
business?”
12
The court responded as follows: “[T]he jury may (but is not
required to) consider whether or not to include the Southern
California Gas Company boarding business loss of $550,000 as
income to the horse boarding business. [¶] In determining
whether and in what amount to consider the above settlement as
income, the jury should consider all of the evidence presented in
this case, including whether or not the plaintiff, Patrick
Flannery, assigned and had given his rights to defendant Andrea
Murray, for the business loss as a result of the fire. [¶] If you
determine that the above settlement is to be considered as
income, you should also consider whether there was any evidence
of expenses, including legal fees and costs, to recover those
settlement funds, which may reduce the net recovery of the
settlement funds.”
Flannery contends he duly objected to the instructions
below, and that both of these instructions were erroneous because
they implied to the jury that the court had a preferred outcome.
We reject the contention and conclude the instructions were a
proper exercise of the trial court’s discretion.
c. No abuse of discretion in the trial court’s response
to Question #1 concerning the term “horse boarding business.”
With respect to the trial court’s response to Question #1,
Flannery contends the court improperly inserted its own analysis
of what constituted the “horse boarding business” and the items
of potential damages, which were questions of fact that should
have been left entirely to the jury. Flannery argues the court’s
statement that the term horse boarding business “may include
(but you are not required to include) both income and expenses
for business on the property” improperly attached “undue
importance or credibility to the unfavorability of including the
13
income and expense of subject businesses in the ‘horse boarding
business.’ Furthermore, the court’s response and instruction
reminding and emphasizing that the jurors ‘must rely solely on
the evidence, and not on speculation’ suggested to the jury that
including the income and expenses of said businesses are
speculative and should not be considered.” Flannery asserts that
by providing this response to the jury, the trial court
overemphasized selected portions of evidence and improperly
“ma[d]e prominent selected portions of evidence.”
We reject Flannery’s characterization of the trial court’s
response to Question #1. As Murray argues, the trial court’s
response was neutral and left the jury free to decide, based on the
evidence adduced at trial, which activities constituted the “horse
boarding business” and what damages were incurred in
connection with the business. We do not perceive any abuse of
discretion in the manner in which the trial court responded to
this inquiry from the jury.
d. No abuse of discretion in the trial court’s response
to Question #2 regarding whether a $550,000 settlement payment
from SCGC for loss of the horse boarding business should be
included as income to the business.
By way of background, apart from the $2,450,000
settlement from SCGC for property damage to the ranch (the
subject of the interpleader), Murray received a $550,000
settlement from SCGC to compensate her for the loss of the horse
boarding business. Murray testified that the net amount of her
settlement, inclusive of the $550,000 for the business loss and the
$1,225,000 for property damage to the ranch, was actually a
negative $102,957, after payment of legal fees, expert witness
fees, and the cost of compliance and cleaning up the debris after
14
the fire. Flannery’s position below was that the $550,000
settlement amount should be included as income to the horse
boarding business, to show that the horse boarding business was
in fact profitable. In response to the jury’s inquiry, the trial court
advised the jury that it may, but was not required to consider,
the $550,000 settlement amount as income to the horse boarding
business, but that if the jury were to determine that the $550,000
is to be considered as income, the jury should also consider
whether there was any evidence of expenses, such as legal fees,
that might reduce the net recovery of the settlement funds.
Here again, Flannery contends the trial court “improperly
suggested” a favored outcome to the jury, by implying that the
jury should not consider the $550,000 payment from SCGC as
income to the business. He further asserts the court’s response
was improperly argumentative, and that it attached “undue
importance or credibility to the issue of not including the [SCGC]
payment of $550,000” in the income of the business. We do not
draw any such inferences from the trial court’s response to the
jury’s inquiry, which simply advised the jury that “it may (but is
not required to) consider whether or not to include the Southern
California Gas Company boarding business loss of $550,000 as
income to the horse boarding business.”
Flannery also argues the trial court’s response was
erroneous because it directed the jury to “consider all of the
evidence presented in this case, including whether or not the
plaintiff, Patrick Flannery, assigned and had given his rights to
defendant Andrea Murray, for the business loss as a result of the
fire” (italics added), but the jury “never received any instruction
regarding the issue of assignment. As such, the jury could not
15
possibly consider whether Flannery assigned and had given his
rights to defendant.”
The argument fails because the record reflects that in
objecting to the trial court’s proposed response to Question #2,
Flannery did not ask the court to define the term “assignment”
for the jury. Because the trial court did not have a sua sponte
duty to instruct the jury in that regard (Metcalf v. County of San
Joaquin (2008) 42 Cal.4th 1121, 1130–1131 [trial court in a civil
case has no duty to instruct on its own motion]), Flannery’s
contention the trial court erred in failing to give an instruction on
assignment is meritless.
In sum, the trial court acted within the bounds of its
discretion in responding to the two questions from the jury.
2. Trial court properly dismissed Flannery’s causes of
action for conversion and unjust enrichment for failure to state a
claim.
a. Proceedings.
As indicated, Murray filed a motion in limine to exclude
any evidence or argument with respect to several of Flannery’s
causes of action.
The trial court granted Murray’s motion in limine with
respect to Flannery’s causes of action for (1) conversion and
(2) unjust enrichment, and thereby dismissed those claims.
The trial court ruled that Flannery’s cause of action for
conversion was “substantially identical” to the claim for
conversion of money that had been nonsuited by Judge Rico in
the Marvin action, in a decision that had been affirmed on
appeal. Additionally, the trial court concluded the conversion
claim was not well pled because it failed to identify a discrete
sum that allegedly was converted.
16
Similarly, with respect to the cause of action for unjust
enrichment, the trial court ruled “such cause of action was
previously pursued in the case before Judge Rico, and as a matter
of law, there is no cause of action for unjust enrichment.”
b. The trial court properly treated the motion in
limine as a motion for judgment on the pleadings.
Although motions in limine are ordinarily directed at
particular items of evidence, rather than at a plaintiff’s entire
case (Clemens v. American Warranty Corp. (1987) 193
Cal.App.34d 444, 451), a court “may enter judgment in favor of a
defendant when motions in limine show that, ‘ “even if the
plaintiff’s allegations were proved, they would not establish a
cause of action.” ’ ” (Coshow v. City of Escondido (2005) 132
Cal.App.4th 687, 701 (Coshow); accord, Baskin v. Hughes Realty,
Inc. (2018) 25 Cal.App.5th 184, 206.) Case law recognizes that
“motions in limine also can function as ‘an objection to any and
all evidence on the grounds [the] pleadings [are] fatally defective’
for failure ‘to state a cause of action.’ [Citation.] In such cases,
the in limine motion ‘operate[s] as a general demurrer to [the]
complaints or a motion for judgment on the pleadings.’
[Citations.]” (K.C. Multimedia, Inc. v. Bank of America
Technology & Operations, Inc. (2009) 171 Cal.App.4th 939, 951–
952 (K.C. Multimedia).)5
5 Contrary to Flannery’s argument, the fact the trial court
earlier had overruled Murray’s demurrer to his causes of action
for conversion and unjust enrichment has no bearing on the trial
court’s subsequent order dismissing those claims for failure to
state a cause of action. The failure of a complaint to state a cause
of action is never waived, and may even be raised for the first
time on appeal. (Falahati v. Kondo (2005) 127 Cal.App.4th 823,
17
On appeal from the trial court’s determination that the
allegations of the pleading do not support relief, our review is de
novo. (K.C. Multimedia, supra, 171 Cal.App.4th at p. 952.)
c. Flannery failed to state a cause of action for
conversion as a matter of law.
The tort of conversion is comprised of three elements:
plaintiff’s ownership or right to possession of personal property;
defendant’s disposition of property in a manner inconsistent with
plaintiff’s property rights; and resulting damages. (Voris v.
Lampert (2019) 7 Cal.5th 1141, 1150 (Voris).)
Flannery’s cause of action for conversion pled that
beginning on February 26, 2010, Murray had converted his
“share of rents and fees generated by the horse boarding business
in a sum according to proof, but at least $300,000.00,” and that in
addition, Murray had “converted [his] share of the good will and
equipment of the horse boarding business in the estimated value
of $550,000.00.”
The trial court properly dismissed Flannery’s claim for
conversion because it asserted a generalized claim for money that
allegedly was misappropriated over a period of years, rather than
a definite sum capable of identification. The Supreme Court’s
recent decision in Voris, which held that nonpayment of wages
does not give rise to a claim for conversion (7 Cal.5th at pp. 1144–
1145), is instructive.
831, fn. 18.) Further, notwithstanding its prior ruling overruling
the demurrer, the trial court had the inherent power to dismiss
the challenged causes of action when the motion in limine showed
that, “ ‘ “even if the plaintiff's allegations were proved, they
would not establish a cause of action.” ’ ” (Coshow, supra, 132
Cal.App.4th at p. 701.)
18
In discussing the applicability of the conversion tort to a
claim for money, Voris explained: “Although the question was
once the matter of some controversy, California law now holds
that property subject to a conversion claim need not be tangible
in form; intangible property interests, too, can be converted.
(Payne v. Elliot (1880) 54 Cal. 339, 342 (Payne) [recognizing
conversion claim related to ownership interests and monetary
value represented by stock shares, irrespective of the conversion
of tangible stock certificates].) But the law has been careful to
distinguish proper claims for the conversion of money from other
types of monetary claims more appropriately dealt with under
other theories of recovery. Thus, although our law has dispensed
with the old requirement that ‘each coin or bill be earmarked,’ it
remains the case that ‘money cannot be the subject of an action
for conversion unless a specific sum capable of identification is
involved.’ (Haigler [v. Donnelly (1941)] 18 Cal.2d [674,] 681; see
PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil &
Shapiro, LLP (2007) 150 Cal.App.4th 384, 395 (PCO).) ‘[W]here
the money or fund is not identified as a specific thing the action is
to be considered as one upon contract or for debt’—or perhaps
upon some other appropriate theory—but ‘not for conversion.’
(Baxter v. King (1927) 81 Cal.App. 192, 194 (Baxter); see Vu v.
California Commerce Club, Inc. (1997) 58 Cal.App.4th 229, 231,
235 [rejecting conversion claim where the plaintiff could not
identify specific sum but only approximate monetary losses];
PCO, at p. 397 [same].)” (Voris, supra, 7 Cal.App.5th at p. 1151.)
Here, Flannery’s cause of action for conversion merely pled
approximate monetary losses resulting from Murray’s alleged
conversion of his share of the rents, fees, goodwill and equipment
of the horse boarding business—not that Murray converted a
19
specific sum capable of identification. Because Flannery failed to
state a cause of action for conversion, the trial court properly
granted Murray’s motion in limine.
d. No cause of action stated for unjust enrichment.
In his fifth cause of action, unjust enrichment, Flannery
pled that from February 26, 2010 to the present, Murray took all
the income of the horse boarding business for her sole benefit,
and thereby was unjustly enriched. Thus, the unjust enrichment
claim was based on the same set of facts as Flannery’s various
other claims that alleged Murray misappropriated the profits
from the horse boarding business.
In California, “[t]here is no cause of action for unjust
enrichment. Rather, unjust enrichment is a basis for obtaining
restitution based on quasi-contract or imposition of a constructive
trust.” (McKell v. Washington Mutual, Inc. (2006) 142
Cal.App.4th 1457, 1490; Jogani v. Superior Court (2008) 165
Cal.App.4th 901, 911 [“unjust enrichment is not a cause of action.
[Citation.] Rather, it is a general principle underlying various
doctrines and remedies, including quasi-contract”].)
Because Flannery did not, and could not, state a cause of
action for unjust enrichment, the trial court properly dismissed
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this purported cause of action pursuant to the grant of Murray’s
motion in limine.6 7
3. No merit to Flannery’s contention that the judgment
entered against him on Murray’s cause of action for an accounting
is contrary to law.
Flannery contends the judgment entered in favor of Murray
on her cause of her action for an accounting, whereby she was
awarded $163,478.80 for Flannery’s 50 percent share of the
business losses, is against law. He relies on the principle that an
action for an accounting is not available where the claimant
alleges the right to recover a sum certain or a sum that can be
made certain by calculation. (Teselle v. McLoughlin (2009) 173
Cal.App.4th 156, 179 (Teselle).) As explained below, Flannery’s
challenge to Murray’s cause of action for an accounting is
meritless.
a. General principles.
“A cause of action for accounting requires a showing of a
relationship between the plaintiff and the defendant, such [as] a
fiduciary relationship, that requires an accounting or a showing
6 We also note the jury’s findings that there were no profits
from the horse boarding business from October 13, 2008 to the
present, and that the business had in fact suffered a net loss of
$326,957.61, dispose of Flannery’s claim that Murray was
“unjustly enriched” by her retention of the income of the horse
boarding business.
7 Because the trial court properly determined that Flannery
failed to state a cause of action either for conversion or for unjust
enrichment, it is unnecessary to discuss the trial court’s ruling
that the judgment in the Marvin action barred relitigation of
these two claims.
21
that the accounts are so complicated they cannot be determined
through an ordinary action at law. (Brea v. McGlashan (1934) 3
Cal.App.2d 454, 460; 5 Witkin, Cal. Procedure (5th ed. 2008)
Pleading, § 819, p. 236.) ‘An action for accounting is not available
where the plaintiff alleges the right to recover a sum certain or a
sum that can be made certain by calculation. [Citation.]’
(Teselle[, supra,] 173 Cal.App.4th [at p.] 179[.])” (Fleet v. Bank of
America N.A. (2014) 229 Cal.App.4th 1403, 1413.)
Flannery’s contention that the judgment entered against
him on Murrray’s cause of action for an accounting is against law
presents a question of law, which we review de novo. (Nguyen v.
Calhoun (2003) 105 Cal.App.4th 428, 437 [questions of law are
subject to independent review].)
b. Murray alleged the amount of money that she was
due from Flannery was unknown and therefore required an
accounting; she did not allege she was owed a sum certain or a
sum that was ascertainable without an accounting.
Murray’s cross-complaint pled a cause of action for an
accounting, as follows: “13. Since in or about the end of
February 26, 2010, [Murray] has been operating the horse
boarding business sought to be partitioned by [Flannery].
[Murray] has been paying for all of the operating expenses for the
horse boarding business without any contribution from
[Flannery] which has been operating at a loss, and [Murray] has
been advancing funds to cover the losses. [¶] 14. From in or
about the end of February 26, 2010 to April 10, 2015, the horse
boarding business sought to be partitioned by [Flannery] has
incurred significant losses. [Murray] alleges that [Flannery] is
responsible for one-half of the losses. [¶] 15. The amount of
money due from [Flannery] to [Murray] is unknown to [Murray]
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and cannot be ascertained without an accounting of all expenses
paid by [Murray] towards the operation of the horse boarding
business.” (Italics added.)
Because Murray pled the amount of money that was due
from Flannery was unknown and could not be ascertained
without an accounting, this is not a case in which “the plaintiff
alleges the right to recover a sum certain or a sum that can be
made certain by calculation.” (Teselle, supra, 173 Cal.App.4th at
p. 179.)
Moreover, the amount of the loss that Murray incurred in
running the horse boarding business, and even whether a loss
existed, could not be ascertained until the matter was fully
litigated. As indicated, Flannery brought various causes of action
against Murray, including imposition of a constructive trust,
money had and received, and breach of fiduciary duty, all of
which alleged that dating back to February 2010, Murray had
deprived him of the earnings to which he was entitled as a 50
percent partner in the horse boarding business. Thus, while
Flannery now contends that the amount of Murray’s business
losses was readily ascertainable without an accounting, in the
court below Flannery denied that Murray had incurred a loss,
and to the contrary, he contended she had improperly deprived
him of his 50 percent share of the income from the business.
Therefore, the dispute between the parties regarding the profits
and losses at issue made this an appropriate case for an
accounting.
Nonetheless, Flannery contends Murray’s accounting claim
was against law and must be set aside because Murray made a
judicial admission, in a post-trial motion for prejudgment
interest, “that the damages awarded by this court were capable of
23
being made certain by calculation.”8 In seeking prejudgment
interest, Murray asserted the ascertainability of the damages
“was easily demonstrated at trial by reference to the accounting
records maintained by Murray.” Flannery’s reliance on the legal
argument that Murray made in her post-trial motion seeking
prejudgment interest is misplaced because the trial court rejected
Murray’s argument and denied her request for prejudgment
interest. (See Victrola 89, LLC v. Jaman Properties 8 LLC (2020)
46 Cal. App. 5th 337, 357 [party estopped from asserting a
position in a legal proceeding that is contrary to a position he or
she successfully asserted in the same or some earlier proceeding];
Textron Inc. v. Travelers Casualty & Surety Co. (2020) 45
Cal.App.5th 733, 754 [same].)
For these reasons, we reject Flannery’s contention that the
judgment on the accounting cause of action is against law.
4. No abuse of discretion in award of attorney fees to
Murray.
Lastly, Flannery contends the award of attorney fees was
excessive because the trial court erred in failing to apportion and
disallow attorney fees that were unrelated to Murray’s cause of
action for partition. As discussed below, we find no abuse of
discretion.
a. Governing principles.
Section 874.010, pertaining to partition actions, authorizes
an award of “[r]easonable attorney’s fees incurred or paid by a
8 Civil Code section 3287, subdivision (a) allows a litigant to
recover prejudgment interest on “damages certain, or capable of
being made certain by calculation” from the day such damages
are certain or capable of being made certain. (Warren v. Kia
Motors America, Inc. (2018) 30 Cal.App.5th 24, 43.)
24
party for the common benefit.” (Id., at subd. (a).) The court is
required to “apportion the costs of partition among the parties in
proportion to their interests or make such other apportionment
as may be equitable.” (§ 874.040.)
With respect to the trial court’s decision to award Murray
the sum of $105,147.50 in attorney fees, “we review the trial
court’s ruling for abuse of discretion and will ‘interfere with the
trial court’s determination of the amount of reasonable attorney
fees only where there has been a manifest abuse of discretion.’
[Citation.]” (Roe v. Halbig (2018) 29 Cal.App.5th 286, 310.)
b. Trial court’s ruling.
After hearing the matter, the trial court awarded Murray
attorney fees in the reduced amount of $105,147.50. The court’s
order stated: “CCP 874.010 provides in relevant part, ‘[t]he costs
of partition include: (a) Reasonable attorney’s fees incurred or
paid by a party for the common benefit.’ [¶] [Flannery] does not
dispute that reasonable fees incurred for the prosecution of the
partition cause of action are recoverable. . . . The Court finds that
all of the claims and defenses in this case [are] related to the
partition claim. However, the Court finds that the amount of time
claimed to have been spent by [Murray’s] counsel is excessive and
the time records submitted by [Murray’s] counsel include entries
for unrelated litigation. Additionally, the Court finds that the
hourly rates of $650 and $350 charged by [Murray’s] counsel are
excessive. [¶] Based on the foregoing, the Court finds that the
reasonable number of hours spent by attorney Kaufler in relation
to the partition and related claims is 386.4 hours at a reasonable
hourly rate of $500/hour for a total of $193,200.00. The Court
finds that the reasonable number of hours spent by attorney
Vesagas in relation to the partition and related claims is 68.38
25
hours at a reasonable hourly rate of $250/hour for a total of
$17,095.00. As such, the Court finds $210,295.00 to be the
reasonable amount of attorneys’ fees [Murray] has incurred in
relation to the partition and related claims. [¶] Pursuant to CCP
874.040, the court must apportion the costs of partition among
the parties in proportion to their interests or make such other
apportionment as may be equitable. In the motion, [Murray]
requested that half of the attorneys’ fees she incurred be paid by
[Flannery]. Therefore, the Court awards [Murray] $105,147.50 in
attorney’s fees.” (Italics added.)
c. No showing of an abuse of discretion in the amount
of the attorney fee award.
(1) Flannery has not shown the trial court erred in
finding all of the claims and defenses in this case related to the
partition claim.
As indicated, the trial court disallowed fees that were
sought for other litigation, but also found that “all of the claims
and defenses in this case [are] related to the partition claim.”
(Italics added.) Flannery contends that ruling was erroneous
because Murray was only entitled to recover statutory attorney
fees that she incurred in connection with her partition claim, not
her other claims, or his claims against her, and her counsel spent
no more than 26.5 hours of attorney time in this case working on
her partition claim. The argument is unavailing.
“When a cause of action for which attorney fees are
provided by statute is joined with other causes of action for which
attorney fees are not permitted, the prevailing party may recover
only on the statutory cause of action. However, the joinder of
causes of action should not dilute the right to attorney fees. Such
fees need not be apportioned when incurred for representation of
26
an issue common to both a cause of action for which fees are
permitted and one for which they are not. All expenses incurred
on the common issues qualify for an award. (See Reynolds Metals
Co. v. Alperson (1979) 25 Cal.3d 124, 129–130 [contractual right
to fee case].) When the liability issues are so interrelated that it
would have been impossible to separate them into claims for
which attorney fees are properly awarded and claims for which
they are not, then allocation is not required. [Citation.]” (Akins
v. Enterprise Rent-A-Car Co. of San Francisco (2000) 79
Cal.App.4th 1127, 1133 [attorney fees incurred on a successful
cause of action under the Rosenthal Fair Debt Collection
Practices Act, Civ. Code, § 1788 et seq.] (Akins); accord, Bell v.
Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 686–687
(Bell) [attorney fees pursuant to the Ralph M. Brown Act, Gov.
Code, § 54950 et seq.] (Bell).) Upon determining that a statutory
award of attorney fees is appropriate, “apportionment of fees . . .
rests within the sound discretion of the trial court,” and a trial
court’s exercise of discretion is abused only when its ruling
exceeds the bounds of reason, all of the circumstances before it
being considered. (Bell, supra, at p. 687.)
Section 872.140, within the statutory scheme pertaining to
partition, provides that “[t]he court may, in all cases, order
allowance, accounting, contribution, or other compensatory
adjustment among the parties according to the principles of
equity.” (Italics added.) Further, “[e]very partition action
includes a final accounting according to the principles of equity
for both charges and credits upon each cotenant’s interest.”
(Wallace v. Daley (1990) 220 Cal.App.3d 1028, 1035.)
Thus, Murray’s cause of action for an accounting was
interrelated with her cause of action for partition. Further, even
27
though Flannery dismissed his claim for partion of the horse
boarding business before trial, Murray incurred attorney fees in
responding to Flannery’s partition claim, and in defending
against Flannery’s related claims that she misappropriated the
profits of the horse boarding business that was the subject of his
claim for partition. Therefore, the trial court properly found all
the attorney fees incurred in the instant action were inextricably
intertwined.
Flannery cites Akins and Bell for the general proposition
that the trial court must apportion attorney fees so that the
award of attorney fees is limited to those incurred in connection
with the statutory claim, but he fails to show the trial court
abused its discretion in determining that here, “the liability
issues are so interrelated that it would have been impossible to
separate them into claims for which attorney fees are properly
awarded and claims for which they are not.” (Akins, supra, 79
Cal.App.4th at p. 1133.)
In this regard, Flannery’s opening brief merely cites three
invoice entries, which total 26.5 hours and which happen to
contain the word “partition,” and contends that only those three
entries were related to Murray’s partition claim. Flannery does
not discuss the hundreds of other invoice entries submitted by
Murray. Flannery simply would have this court make the
assumption that those other entries neither involved, nor were
interrelated with, the issue of partition. As a principle of
appellate practice and an ingredient of the constitutional doctrine
of reversible error, a judgment or order of the lower court is
presumed correct, and error must be affirmatively shown.
(Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Here,
given Flannery’s failure to properly brief the issue, we conclude
28
Flannery has not met his appellate burden to show the trial court
erred in finding that “all of the claims and defenses in this case
[are] related to the partition claim.”
(2) Flannery has not shown the trial court failed to
adequately disallow charges that were unrelated to this lawsuit.
Flannery contends the trial court failed to adequately
disallow charges for unrelated litigation. In support, Flannery’s
appellate brief specifies 18 entries among the itemized invoices of
Murray’s counsel, amounting to $6,695.
While Flannery contends Murray was not entitled to
recover for these 18 invoice entries, his argument does not take
into account the ruling that the trial court actually made. As
indicated, the trial court disallowed invoice “entries for unrelated
litigation” and it denied more than $80,000 of the attorney fees
that Murray requested, on the ground that “the amount of time
claimed to have been spent by [Murray’s] counsel is excessive and
the time records submitted by [Murray’s] counsel include entries
for unrelated litigation.” Given the substantial reduction made
by the trial court, far beyond the 18 entries that Flannery is
challenging on appeal, we perceive no abuse of discretion in the
amount of attorney fees that Flannery was ordered to pay.
29
DISPOSITION
The judgment is affirmed. Murray shall recover her
appellate costs.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
DHANIDINA, J.
30