Opinion
B331303
09-13-2024
ALBERT DUERR, Plaintiff and Appellant, v. ANN REGAN et al., Defendants and Respondents
Kirby & Kirby, Michael L. Kirby and Heather W. Schallhorn for Plaintiff and Appellant. The Law Offices of Damian D. Capozzola, Damian D. Capozzola and Timothy R. Laquer for Defendant and Respondent Jennifer Haney.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 22STPB12002, Jessica A. Uzcategui, Judge. Affirmed.
Kirby & Kirby, Michael L. Kirby and Heather W. Schallhorn for Plaintiff and Appellant.
The Law Offices of Damian D. Capozzola, Damian D. Capozzola and Timothy R. Laquer for Defendant and Respondent Jennifer Haney.
EGERTON, J.
Albert Duerr has sued Brian M. Regan, Ann Regan, Catherine Duerr, Eugene Duerr, Alison Haney, Deanna Mandichak, Elizabeth Eisenhauer, and Jennifer Haney for conversion, alleging they are withholding money that Albert claims he is owed from the settlement of a lawsuit involving Duerr Properties, LLC (Duerr LLC). Albert moved for a preliminary injunction ordering Jennifer, as managing member of Duerr LLC and trustee of the Duerr Trust (see fn. 1, ante), to remit the allegedly converted money to Albert. The trial court found monetary damages afforded Albert an adequate remedy and denied his motion. This was a reasonable exercise of discretion. We affirm.
For clarity, we refer to the parties by their first names. Albert, Ann, Catherine, and Eugene, and collectively Alison, Deanna, Elizabeth, and Jennifer, are each a beneficiary of one of five separate trusts that were established by Herbert and Lydia Duerr for the benefit of their living children (Albert, Ann, Eugene, and Catherine) and their deceased daughter Agnes's heirs (Alison, Deanna, Elizabeth, and Jennifer). These trusts are each a member of Duerr LLC with a one-fifth (20 percent) interest in the company. Due to the interrelationship between these trusts, the living trust that Herbert and Lydia settled to manage their family business's assets (the Duerr Trust), and Duerr LLC, the parties have regularly referred to Duerr LLC and the Duerr Trust interchangeably. Because this imprecision pervades the record, we also are sometimes forced to refer to the trust and company interchangeably.
FACTS AND PROCEDURAL BACKGROUND
Consistent with our standard of review, we state the facts established by the evidence in the light most favorable to respondents, drawing all reasonable inferences in favor of the trial court's order. (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409 (Huong); Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1420 (Dodge); see also Conservatorship of O.B. (2020) 9 Cal.5th 989, 995-996.)
1. The Parties
This action arises from financial dealings and disputes involving members of the Duerr family. Herbert and Lydia Duerr (both deceased) were the parents of Albert, Agnes, Ann, Catherine, and Eugene. Herbert and Lydia had several real estate assets and investments that they held in the Duerr Trust during their lifetimes. The five Duerr children were the trust's beneficiaries. Agnes died and her one-fifth interest passed to her heirs-Alison, Deanna, Elizabeth, and Jennifer.
Herbert and Lydia appointed Albert to serve as co-trustee of the Duerr Trust. After Herbert's death in 2005, Albert and Lydia continued to serve as co-trustees. In 2006, they organized the family business into Duerr LLC. As with the Duerr Trust, the Duerr children and Agnes's heirs each held a one-fifth interest in the company. (See fn. 1, ante.) After Lydia passed away in 2009, Albert served as the sole trustee of the Duerr Trust and the managing member of Duerr LLC.
We refer to the Duerr children and Agnes's heirs collectively as "beneficiaries" of the Duerr Trust and "members" of Duerr LLC.
2. The ANI Program, Atherton Action, and CTC Settlement
In 2016, Albert learned of an opportunity to invest in ANI Development LLC, which supposedly made high interest loans to liquor license applicants that generated substantial returns for investors (the ANI Program). Investors were told their funds would be safe and held in escrow by Chicago Title Company (CTC) for the investors' benefit.
At first, Albert invested only his own money, ultimately investing $700,000 of his personal funds in the ANI Program. In 2018, he made a significantly larger investment as managing member of Duerr LLC, investing approximately $8.5 million of the company's money in the program.
In October 2019, Albert learned the ANI Program was "nothing more than a fraudulent Ponzi scheme." To recover some of the losses, Albert and Duerr LLC joined several other plaintiffs in a lawsuit brought against CTC for its role in facilitating the program (the Atherton Action). Mark Cramer of the Buchalter law firm represented Albert individually and Duerr LLC in the action. Brian Regan (Ann's son and Albert's nephew) is an experienced attorney and served as the Duerr family's main point of contact with Buchalter.
In February 2021, Albert and Brian exchanged emails about what Brian had described as Albert's "personal liability" to the Duerr Trust beneficiaries for the ANI Program and other losses Duerr LLC sustained under Albert's management. In response to Albert's suggestion that he should "receive some type of share of whatever the family receives from our lawsuit," Brian told Albert that a "good result" would be for Albert "not [to] accept a share of whatever comes out of the [Atherton Action], and then everyone else forgets about all of the rest of the money that you lost and would owe them and you keep your house." Brian added that, "FROM A STRICTLY LEGAL PERSPECTIVE," Albert owed the beneficiaries "much more money" than Albert stood to receive from a settlement of the Atherton Action.
In a subsequent email exchange later that month, Albert noted they were "close to settling" the Atherton Action and asked Brian if he was available "to discuss how to come to an agreement with the family members on distribution of the proceeds." Albert added that he intended "to make every effort to be as fair to all our members as possible," while "protecting" himself and his family. He asked if he should consult a lawyer and thanked Brian for all the "advice." Brian agreed to meet and advised Albert that he "should voluntarily resign as trustee as soon as possible and appoint a replacement trustee." At their meeting, Albert told Brian he had received names of trust attorneys to contact to protect himself and his family against a potential lawsuit from the other beneficiaries. Brian offered to pass on the names of additional attorneys if Albert needed them.
On March 1, 2021, Albert and Duerr LLC entered into an Acknowledgement and Agreement regarding the anticipated settlement of the Atherton Action. The document acknowledged that, as part of the settlement, Albert (both individually and as managing member of Duerr LLC) would be required to assign to CTC any and all claims he and the company had related to the ANI Program. The agreement further specified that it was Albert's intent and understanding that the settlement would "not prevent any of the owners/beneficiaries of Duerr Properties, LLC from pursuing, through litigation, arbitration, negotiation or by any other means, recovery from Albert Duerr or Duerr Properties, LLC on any claims relating to the [ANI] Program."
On March 2, 2021, the plaintiffs in the Atherton Action entered into a settlement and release agreement with CTC (the CTC Settlement). In exchange for their releases and assignments of claims, the plaintiffs collectively would receive a gross settlement payment of $22,625,000. Albert individually and Duerr LLC each would receive a portion of the settlement payment in proportion to their separate investments in the ANI Program.
In a separate assignment agreement, Albert, as managing member for Duerr LLC, assigned all claims related to the ANI Program (except those subject to the CTC Settlement) to CTC. Albert, again as managing member for Duerr LLC, also executed a series of release agreements between the company and each of its other members, purporting to release "any and all claims and causes of action" the member had against Duerr LLC "and all other persons and/or business entities" arising out of or relating to the ANI Program. Albert authenticated copies of these releases as exhibits to his declaration. None was countersigned by any of the members.
3. Albert's Resignation Email and Disbursement of the CTC Settlement Payment
On March 10, 2021, Albert sent an email to the other beneficiaries and members. The email reads:
"Dear Family, "Although none of us were happy with the outcome of the mediation with Chicago Title, at least we are closer to getting through this ordeal and getting back to normal.
"To help the process along, I will resign as Trustee of Duerr Properties as soon as the family agrees on a replacement trustee.
"It would be great if I could somehow make all of us whole again, (for the liquor license investment losses and for the prior investment losses), but I am not able to do so. Therefore, I will do what I can do. I will not receive any of the proceeds that will be coming from our lawsuit against Chicago Title, neither from the Duerr Properties investment nor my personal investment. In other words, . . . [the settlement proceeds] will be split four ways .... I hope this will help all of us to be able to put this behind us and move on as a family.
"Again, from the bottom of my heart, I am very sorry for all the bad investments and for having put all of you through this awful process.
Albert's email reflects suggested revisions that Brian offered to add "a little bit of clarification." Notwithstanding the revisions, Albert's original draft included the following critical lines: "It would be great if I could somehow make all of us whole again, but I am not able to do so. Therefore, I will do what I can do. I will not receive any of the proceeds that will be coming from our lawsuit against Chicago Title. In other words, there will be a four-way split of the proceeds rather than a five-way split. I hope this will help."
On May 13, 2021, Duerr LLC held a meeting to discuss Albert's resignation and to vote on replacing him as trustee and managing member of the company. Albert drafted the meeting minutes, which read in relevant part:
"Albert Duerr's resignation as Duerr Properties Trustee was discussed. In his resignation letter, he stated that he would elect not to receive any proceeds that will be received from the lawsuit against Chicago Title, neither from the Duerr Properties investment, nor his personal investment, nor any remaining assets from Herb and Lydia Duerr's estate. Contingent upon this agreement, all members must agree to sign waivers of liability for Albert Duerr, agreeing not to proceed with any future legal action."
On June 15, 2021, Albert resigned and Jennifer became successor trustee and managing member of Duerr LLC.
On June 28, 2021, Mark Cramer (Albert and Duerr LLC's lead attorney in the Atherton Action) emailed Brian a disbursement memo confirming Duerr LLC would receive $4,564,255.26 from the CTC Settlement.
The same day, Cramer sent a separate email to Albert notifying Albert that he would receive $376,004.65 from the settlement for his individual claim. Albert requested and authorized Cramer to wire the funds to the Duerr LLC account.
In a July 2, 2021 email to Albert and the other Duerr LLC members, Jennifer confirmed the company had received two wires in the amounts of $4,564,255.26 (Duerr LLC's claim) and $376,004.65 (Albert's individual claim) from Buchalter for the CTC Settlement.
On July 6, 2021, Brian sent an email to Alison requesting her input regarding distribution of the settlement payments received from Buchalter. Brian suggested two options: (1) "Everyone waives [Albert's] breaches (unless there is fraud)" and his share of the settlement payments is evenly distributed to the other beneficiaries; or (2) "No waiver of [Albert's] breaches" and Albert's "share held in the trust until further resolution."
Alison rejected the proposals, suggesting the beneficiaries could not "make this decision without all the facts" about Albert's suspected misfeasance in managing the company and trust assets. Alison copied her response to Jennifer, who, as managing member and trustee, was in the process of deciding how to distribute the settlement payments.
On August 19, 2021, Jennifer emailed Albert and the other beneficiaries regarding the status of the settlement payments. She explained there was not "100 [percent] agreement on signing the waiver" and that, "rather than wait any longer with the money just sitting in the [company's] account," she intended to distribute it "to whom it rightfully belongs." To that end, Jennifer said she would leave $100,000 in the account for "future tax situations" and divide the rest of the money five ways, leaving Albert's one-fifth "in the account until we do have some sort of agreement," while sending each other beneficiary their proportionate share of the remainder. In dividing the money, Jennifer apparently included the amounts received for the settlement of Albert's individual claims in the company's total assets.
On January 23, 2022, Albert sent an email to Jennifer and Brian regarding his "personal share of the disbursements" from the CTC Settlement and his "one-fifth share of the Trust's disbursements." He requested that Jennifer transfer the funds to his personal bank account, explaining he needed the money to pay taxes due for the settlement payments and, possibly, to finance his legal defense in the event the other beneficiaries sued him for mismanaging the company and trust.
Brian responded to Albert the next day. His response copied the beneficiaries and included a draft settlement and release agreement for their consideration. Brian (apparently on the beneficiaries' behalf) rejected Albert's request, asserting the funds would be "used to reimburse the family" for a "fraction" of the money they would have received had Albert performed his responsibilities as trustee and managing member. The draft agreement provided that Albert would waive and release "any right and interest that he may have" in the CTC Settlement payments and "any remaining trust assets" in exchange for the beneficiaries' release of "any and all claims and causes of action (not including claims or causes of action for fraud)" the beneficiaries may have against him. The parties never executed the agreement.
4. The Complaint and Cross-Complaint
In February 2022, the Duerr Trust beneficiaries (Ann, Eugene, Catherine, Deanna, Jennifer, Elizabeth, and Alison) filed a civil action against Albert, asserting causes of action for breach of fiduciary duty, intentional misrepresentation, concealment, negligent misrepresentation, negligence, and elder financial abuse. The operative first amended complaint alleged Albert breached his fiduciary duty as trustee by, among other things, failing to distribute trust assets, secretly investing the assets in the ANI Program, and concealing his misfeasance from the beneficiaries. With respect to the CTC Settlement payments, the pleading alleged Albert "knowingly and voluntarily renounced, relinquished, and/or waived any and all right or entitlement to receive proceeds" from the litigation, including those attributable to Duerr LLC's investment and Albert's individual investment.
Albert filed a cross-complaint against the beneficiaries and Brian (collectively, cross-defendants), asserting causes of action for conversion against all cross-defendants; breach of fiduciary duty against Jennifer and Brian in their respective capacities as trustee and alleged legal counsel; and professional negligence against Brian, among other claims. The crosscomplaint alleged Brian, acting as Albert's actual or ostensible attorney, negligently failed to advise Albert that, as part of the CTC Settlement, the beneficiaries had released all claims they may have had against Albert for the losses Duerr LLC sustained in connection with the ANI Program. (See fn. 3, ante.) Despite this release, Brian allegedly advised Albert to forgo receiving any funds from the CTC Settlement in exchange for a further release of claims from the beneficiaries. Albert followed Brian's advice, but the beneficiaries refused to execute the release and allegedly converted Albert's share of the CTC Settlement payments, totaling $1,288,856.
Albert's other claims included a common count for money had and received against all cross-defendants; financial elder abuse against all cross-defendants; negligent misrepresentation against Brian; and declaratory and injunctive relief against all cross-defendants. Albert voluntarily dismissed a claim for indemnification.
5. Albert's Motion for Preliminary Injunction
Albert moved for a preliminary injunction ordering Jennifer (in her capacity as trustee and managing member) to remit the $1,288,856 that cross-defendants had allegedly wrongfully withheld and converted from his portion of the CTC Settlement payments. He argued the funds had been deposited with Duerr LLC in anticipation of obtaining releases from the beneficiaries, and when the beneficiaries sued him, the company lost all legal grounds to retain the money. Albert characterized the withholding as "unlawful self-help," arguing Duerr LLC had improperly "assume[d] a superior claim" to the money based on the beneficiaries' unadjudicated lawsuit against him.
On the merits, Albert argued his 20 percent interest in Duerr LLC and individual claim in the Atherton Action gave him an undisputed right to the allegedly converted funds. As for irreparable harm and the balance of equities, Albert maintained allowing Duerr LLC to engage in self-help would cause him irreparable harm, especially because he needed the money to pay for his defense in the pending litigation.
Much of Albert's supporting evidence sought to establish that he had allowed the company to retain his portion of the settlement payments because he had followed Brian's advice to relinquish the funds in exchange for releases from the beneficiaries. His declaration stated, "I had always understood that all of those funds held by the Duerr Trust or Duerr LLC were mine unless and until we all entered into a binding settlement agreement in which I was willing to give up some of my funds if I was given full releases of liability from all beneficiaries. I never agreed to give up any of my CTC settlement funds for nothing, nor did I agree the Cross-Defendants could put my own money in an account and with[o]ld it from me."
Cross-defendants' opposition focused primarily on Albert's March 10, 2021 email to the beneficiaries, in particular the statement that he would "not receive any of the proceeds that will be coming from our lawsuit against Chicago Title, neither from the Duerr Properties investment nor my personal investment." They argued Albert had "knowingly and voluntarily . . . waived any and all right or entitlement" to receive proceeds from the CTC Settlement. Due to the waiver, cross-defendants maintained a genuine dispute existed over Albert's entitlement to the CTC Settlement proceeds. Thus, they argued injunctive relief was inappropriate, as money damages, after a trial on the merits, would afford Albert adequate relief. Moreover, cross-defendants asserted the balance of equities militated against injunctive relief, as Jennifer had set aside the disputed funds in a designated bank account, while Albert said he would spend the money on the pending litigation. In a supporting declaration, Brian said he made clear to Albert "from day one" that he was not Albert's attorney.
Before the trial court in the civil action heard Albert's motion, it issued an order to show cause why the claims related to the Duerr Trust's assets and internal affairs should not be transferred to the probate court. Later, the court issued an order to refile the claims and cross-claims relating to the trust as probate petitions and to dismiss the corresponding civil claims and cross-claims without prejudice. The cross-claim against Brian for professional negligence remained in the civil action.
The parties refiled their claims and cross-claims as probate petitions, and a hearing on Albert's motion for a preliminary injunction was set in the probate department.
6. The Trial Court Order
The trial court denied Albert's motion for a preliminary injunction. The court determined monetary damages, after a full adjudication of Albert's conversion claim, afforded Albert adequate relief, and it rejected Albert's contention that he had an undisputed right to immediate possession of the settlement funds. To that end, the court credited cross-defendants' waiver argument, finding Albert's March 10, 2021 email "appears to express a clear intent to waive any right" to the disputed funds. Because the email was evidence of a "facially unambiguous waiver," the court reasoned the burden rested with Albert to rebut this proof of his intent. The court concluded Albert failed to meet this burden, finding his "self-serving statements about his intent after the fact [were] insufficient to rebut the clear language of the March 10, 2021 email." The court also concluded the email undermined Albert's probability of prevailing on the merits. And the court agreed with cross-defendants that the balance of harm weighed against injunctive relief because Albert intended to spend the disputed funds before the parties' opposing claims could be fully adjudicated.
Albert filed a timely appeal from the order.
DISCUSSION
1. Governing Law and Standard of Review
An injunction may be granted when "it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do . . . some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual." (Code Civ. Proc., § 526, subd. (a)(3); Middleton v. Franklin (1853) 3 Cal. 238, 241 (Middleton) [to authorize an injunction "the injury to be sustained must be such as cannot be adequately compensated by damages, or it must be irremediable, or lead to irremediable mischief"].) "The purpose of a preliminary injunction is to preserve the status quo pending a determination on the merits of the claim." (Dodge, supra, 105 Cal.App.4th at p. 1418, citing Continental Baking Company v. Katz (1968) 68 Cal.2d 512, 528 (Continental Baking).)
Statutory references are to the Code of Civil Procedure. Consistent with section 526, subdivision (a)(3)'s focus on irreparable harm that renders "the judgment ineffectual," section 526 also authorizes injunctive relief when "it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of the act complained of"; when "it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action"; when "pecuniary compensation would not afford adequate relief"; where "it would be extremely difficult to ascertain the amount of compensation which would afford adequate relief"; where "the restraint is necessary to prevent a multiplicity of judicial proceedings"; or where "the obligation arises from a trust." (§ 526, subds. (a)(1), (a)(2), (a)(4)-(a)(7).) For each subdivision," '[i]rreparable harm' is a cornerstone of the availability of . . . injunctive relief." (California Retail Portfolio Fund GMBH & Co. KG v. Hopkins Real Estate Group (2011) 193 Cal.App.4th 849, 857.)
"In deciding whether to issue a preliminary injunction, a court must weigh two 'interrelated' factors: (1) the likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance or nonissuance of the injunction." (Butt v. State of California (1992) 4 Cal.4th 668, 677-678 (Butt).) "[T]he court may deny a preliminary injunction either (1) on its finding irreparable injury will not result to the party seeking the injunction, or (2) that the party has failed to demonstrate a reasonable probability of success on the merits." (Jessen v. Keystone Savings &Loan Assn. (1983) 142 Cal.App.3d 454, 459 .) This determination" 'does not amount to an adjudication of the ultimate rights in controversy. It merely [means] that the court, balancing the respective equities of the parties, concludes that, pending a trial on the merits, the defendant should or that he should not be restrained from exercising the right claimed by him.'" (Continental Baking, supra, 68 Cal.2d at p. 528; Robbins v. Superior Court (1985) 38 Cal.3d 199, 206.)
" 'The party challenging an order granting or denying a preliminary injunction has the burden of making a clear showing of an abuse of discretion. [Citation.] An abuse of discretion will be found only where the trial court's decision exceeds the bounds of reason or contravenes the uncontradicted evidence.'" (Jay Bharat Developers, Inc. v. Minidis (2008) 167 Cal.App.4th 437, 443.) "In determining whether there has been such an abuse, we cannot reweigh evidence or pass upon witness credibility. The trial court is the sole arbiter of such conflicts. Our role is to interpret the facts and to make all reasonable inferences in support of the order issued." (Dodge, supra, 105 Cal.App.4th at p. 1420; see also Huong, supra, 150 Cal.App.4th at pp. 408-409 [appeal from order granting or denying injunction may trigger any or all three appellate standards of review depending on whether issues implicate the trial court's exercise of discretion after balancing respective equities (abuse of discretion); the evidentiary support for factual findings (substantial evidence); or legal questions (de novo)].)
2. The Trial Court Did Not Abuse Its Discretion in Balancing the Equities and Determining Monetary Damages Afforded Albert an Adequate Remedy
The trial court determined the balance of interim harm weighed against granting Albert's request for injunctive relief. In reaching this conclusion, the court found Albert would suffer no irreparable injury if the injunction were denied, because monetary damages would afford him an adequate remedy if he ultimately prevailed on his conversion claim. In contrast, the court found cross-defendants could be harmed if Jennifer were ordered to turn over the disputed funds to Albert before an adjudication of the merits, as Albert had said he intended to spend the money on the pending litigation without promising to maintain adequate reserves to satisfy a potentially adverse judgment. Albert contends the court erred both in its application of the law and in its assessment of the evidence. We disagree.
As discussed, in addition to demonstrating a probability of prevailing on the merits, the party seeking an injunction must show that the interim injury threatened "cannot be adequately compensated by damages," or that the conduct to be restrained would "lead to irremediable" harm. (Middleton, supra, 3 Cal. at p. 241; § 526; Butt, supra, 4 Cal.4th at p. 678.) This rule is rooted in the "firmly established" principle that "equitable jurisdiction will not give equitable relief in any case where the legal remedy is full and adequate and does complete justice." (Morrison v. Land (1915) 169 Cal. 580, 586 (Morrison); see Thayer Plymouth Center, Inc. v. Chrysler Motors Corp. (1967) 255 Cal.App.2d 300, 306 (Thayer).) Thus, "if monetary damages afford adequate relief and are not extremely difficult to ascertain, an injunction cannot be granted." (Thayer, at p. 306, citing § 526; accord Friedman v. Friedman (1993) 20 Cal.App.4th 876, 889 ["An award of damages (spousal support) constitutes an adequate legal remedy, precluding issuance of an injunction."]; see also Morrison, at p. 586 ["the exclusive jurisdiction of equity to grant relief by way of specific performance of a contract will be exercised only in those cases where the legal remedy of compensatory damages is insufficient"].)
Albert argues the trial court misapplied this well-established law in concluding monetary damages, after an adjudication of his conversion claim, afforded him adequate relief. He contends the court overlooked the interim harm that he necessarily suffers from Jennifer "withholding" the "settlement funds from him without his express permission." Albert premises his argument on Fretz v. Burke (1967) 247 Cal.App.2d 741 (Fretz). The case is inapposite.
In Fretz, a group of limited partners sued to have the partnership dissolved and for an accounting, alleging the sole general partner, Burke, was engaged in self-dealing in breach of his fiduciary duty. (Fretz, supra, 247 Cal.App.2d at pp. 743, 747.) After receiving service of the complaint, Burke sent a letter to each plaintiff stating that the sums otherwise distributable to them out of partnership profits would be held in a" 'suspense account'" pending the outcome of their lawsuit. (Id. at p. 743.) As justification, he claimed "the fund should be maintained as an offset to possible costs and expenses of litigation with which plaintiffs may be charged." (Ibid.) On the plaintiffs' motion, the trial court ordered Burke to pay the plaintiffs their respective share of the partnership profits that had been withheld and all future profits of the partnership. (Id. at pp. 743-744.) Burke appealed the order. The reviewing court affirmed.
As relevant here, Burke argued the plaintiffs had failed to show irreparable injury because there was no evidence that the funds were "about to be dissipated or that [Burke would] be unable to disburse whatever amount an accounting may show to be due to plaintiffs." (Fretz, supra, 247 Cal.App.2d at pp. 745746.) The Fretz court rejected the argument, explaining that in all the cases Burke relied upon "in which the appellate court reversed the order granting the injunction, the plaintiff had obtained by the order the complete relief which he had sought in the action itself." (Id. at p. 746, italics added.) In those cases, the "injunction did not tend to maintain the status quo but to coerce the defendant into performing an act in advance of trial which upon trial might not have been decreed." (Ibid.) In contrast, the trial court's order in Fretz did "not decide in whole or in part the merits of the controversy"; rather, it "merely prevent[ed] defendant from putting funds which belong to plaintiffs into a suspense account, purportedly as security for possible costs, a security which the law does not allow him." (Ibid.) Thus, the relief the injunction granted was "collateral" to the relief the plaintiffs sought "by the action itself," and the injunction simply preserved "the status quo, namely, the procedure of disbursing profits as it had existed before commencement of the action." (Ibid.)
See, e.g., Hagen v. Beth (1897) 118 Cal. 330, 331 [reversing injunction ordering removal of "objectionable signs" in action alleging defendant misappropriated plaintiff's trade name, including on objectionable signs]; Allen v. Hotel & Restaurant Employees' Int. Alliance (1950) 97 Cal.App.2d 343, 345-349 [reversing injunction enjoining defendant from expelling plaintiffs from union in action alleging plaintiffs had been expelled without due process].
Unlike in Fretz, the injunction Albert requested was not "collateral" to the relief he pursues in this action-on the contrary, it is the exact relief his conversion claim seeks to obtain. In his cause of action for conversion, Albert alleges he "owned and had a right to possess the net funds that Duerr LLC received from CTC in settlement of Albert's personal claims ($376,005) and his one-fifth share of Duerr LLC's CTC settlement funds (the sum of $912,851), for a total of $1,288,856." He further alleges cross-defendants intentionally interfered with his "right to possess his specific funds by preventing [him] from having access to his funds and refusing [his] demands to return his funds." Likewise, in his motion for preliminary injunction, Albert requested an order directing Jennifer to "cease wrongfully withholding [his] funds in the amount of $1,288,856 and to remit those funds to [him] forthwith." In his supporting memorandum and declaration, Albert confirmed those funds consisted of his "one-fifth share of the Duerr LLC settlement amount (roughly $912,851)" and his "personal settlement funds ($376,005)."
The distinction makes a difference. In Fretz, Burke did not dispute that the plaintiffs had a right to receive the partnership distributions at issue. He claimed only that the plaintiffs would not be harmed by impounding the funds, as there was no evidence he planned to dissipate the money while the litigation was pending. (Fretz, supra, 247 Cal.App.2d at pp. 745-746.) But all that differentiated the plaintiffs from the non-suing partners who received timely distributions was the lawsuit-a "collateral" matter that gave Burke no legal right to hold the plaintiffs' distributions in a suspense account for any amount of time. (Id. at pp. 743, 745-746 ["We know of no law or principle which allows a managing partner to withhold the periodic share of profits from partners who seek accounting while making disbursements to himself and to nonsuing partners."].) Under those circumstances, the plaintiffs' loss of their right to receive immediate and timely distributions itself constituted irreparable injury. (Id. at pp. 745-746.)
By contrast, here, cross-defendants dispute that Albert has any right to receive the portions of the CTC settlement payments that are currently held as an asset of the Duerr Trust/Duerr LLC. They contend Albert waived any right he had to receive the funds when he stated in his March 10, 2021 email that he would "not receive any of the proceeds that will be coming from our lawsuit against Chicago Title" and authorized his counsel in the Atherton Action to wire the settlement payment for his individual claim to the Duerr LLC account. Albert's conversion cause of action directly contests cross-defendants' allegation. This is a central dispute in this lawsuit-it is not a collateral matter. Unlike the injunction in Fretz, an injunction awarding Albert immediate possession of the funds would allow him to obtain by the order the complete relief that he seeks in the action itself. (Cf. Fretz, supra, 247 Cal.App.2d at p. 746; see fn. 7, ante.)
Albert argues cross-defendants' waiver claim is insufficient to distinguish this case from Fretz or otherwise to justify the trial court's order. As he emphasizes, "case law on the subject of waiver is unequivocal:' "Waiver always rests upon intent. Waiver is the intentional relinquishment of a known right after knowledge of the facts. [Citations.] The burden, moreover, is on the party claiming a waiver of a right to prove it by clear and convincing evidence that does not leave the matter to speculation, and 'doubtful cases will be decided against a waiver.'" '" (DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 60, quoting City of Ukiah v. Fones (1966) 64 Cal.2d 104, 107-108 (City of Ukiah).) Albert contends the court failed to apply this controlling law when it found his email defeated his request for injunctive relief. We disagree.
While Albert attempts to frame his argument as a legal challenge, it is in effect an objection to the sufficiency of the evidence supporting the court's factual finding about his alleged waiver-a matter subject to our substantial evidence standard of review. (See Huong, supra, 150 Cal.App.4th at pp. 408-409 [discussing application of different standards of review to issues arising from appeal of an injunctive order].) "[W]hen reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable fact finder could have found it highly probable that the fact was true." (Conservatorship of O.B., supra, 9 Cal.5th at pp. 995-996.) "Consistent with well-established principles governing review for sufficiency of the evidence, in making this assessment the appellate court must view the record in the light most favorable to the prevailing party below and give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence." (Id. at p. 996.)
The trial court found the "facially unambiguous waiver in [Albert's] March 10, 2021 email" proved his intent to relinquish his right to receive any portion of the CTC Settlement payments and "Albert's self-serving statements about his intent after the fact [were] insufficient to rebut the clear language" of the email. Albert contends this finding is inconsistent with "overwhelming undisputed evidence regarding the circumstances in which [he] sent" the email. Specifically, he says the evidence proved he was unaware of "all material facts" at the time, "because he believed Brian's representation that [he] was still liable" to the beneficiaries for Duerr LLC's losses, even though the beneficiaries released and assigned those claims to CTC as part of the settlement. Albert also argues the "undisputed evidence" proved he sent the email, "as advised by Brian, in the context of negotiations for complete releases" of liability. The contentions ignore conflicting evidence that the trial court plainly credited when it denied Albert's motion.
Albert also cites evidence of statements the cross defendants made after his March 10, 2021 email suggesting they understood his relinquishment of the settlement funds was contingent upon all parties agreeing to release their claims against Albert. As the trial court recognized, "statements made after the purported waiver" are "not determinative of Albert's intent at the time of the March 10, 2021 email." Additionally, because the prescribed waiver analysis focuses on determining the intent of the waiving party, the trial court had reasonable grounds to discount the cross-defendants' statements in making its factual assessment of Albert's intention when he sent the email. (See City of Ukiah, supra, 64 Cal.2d at pp. 107-108.)
In a declaration offered in support of cross-defendants' opposition, Brian challenged Albert's account of the circumstances surrounding the email and disputed that he held himself out as Albert's attorney in any capacity. Brian said he told Albert from "day one" that he was not Albert's attorney and emphasized that Mark Cramer of the Buchalter firm had represented Albert in the Atherton Action. An email from Cramer to Albert about the settlement of Albert's individual claims against CTC corroborated Brian's account of the legal representation. Brian's declaration also recounted Albert's statements about having retained a "trust attorney" as his "independent lawyer"-a matter Albert had raised at a March 2, 2021 meeting with Brian (before sending the email) as a way to "protect himself and his family against a potential lawsuit from the beneficiaries." To be sure, there were communications between Albert and Brian about obtaining a release from the beneficiaries both before and after the March 10, 2021 email. But this evidentiary conflict notwithstanding, we are compelled to conclude Brian's declaration was sufficient to support a reasonable inference that Albert had consulted his own legal counsel and believed (as he now contends) the beneficiaries may have already released any claims they had against him when he sent the email expressing his intention not to "receive any of the proceeds that will be coming from our lawsuit against Chicago Title." (See Conservatorship of O.B., supra, 9 Cal.5th at pp. 995-996 [when "reviewing a finding that a fact has been proved by clear and convincing evidence," appellate court must "give due deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence"].)
We acknowledge Albert has repeatedly claimed he "believed Brian's representation that [he] was still liable" to the beneficiaries for losses stemming from the ANI Program when he sent the email. However, in discounting Albert's declaration as "self-serving," the trial court plainly found his assertions were not credible. We must defer to the court's credibility finding, especially where other evidence casts doubt on Albert's claims. (See Hicks v. Reis (1943) 21 Cal.2d 654, 659-660 ["Provided the trier of the facts does not act arbitrarily, he may reject in toto the testimony of a witness, even though the witness is uncontradicted."]; cf. Mann v. Columbia Pictures, Inc. (1982) 128 Cal.App.3d 628, 648 ["Testimonial evidence which is neither impeached nor contradicted by other evidence, and is not inherently improbable, should be accepted as true by the trier of fact."].)
Finally, we are not persuaded by Albert's attempt to characterize the email as something other than a "facially unambiguous waiver," as the trial court found. Albert says his statement," 'I hope this will help all of us to be able to put this behind us and move on as a family,'" proves he sent the email "in furtherance of a complete settlement." The argument strains credulity. Nothing in the email reads as an offer to bargain; on the contrary, the overwhelming sentiment is one of repentance. Albert acknowledges the other beneficiaries were not "happy with the outcome of the mediation" that produced the CTC settlement, before expressing his desire to "somehow make all of us whole again," while conceding he regrettably is "not able to do so." All of this is prelude to the critical statement that the court identified as an unambiguous waiver: "Therefore, I will do what I can do. I will not receive any of the proceeds that will be coming from our lawsuit against Chicago Title, neither from the Duerr Properties investment nor my personal investment." Albert concludes his email, not with an offer to bargain, but with an expression of contrition: "Again, from the bottom of my heart, I am very sorry for all the bad investments and for having put all of you through this awful process." In this context, Albert's statement about "mov[ing] on as a family" is reasonably understood as a plea for forgiveness and unity-not a preliminary offer to "induce further negotiations," as Albert contends.
As we have acknowledged, there was evidence extrinsic to the email suggesting Albert was concerned about his personal liability and wanted to secure a release from the beneficiaries. There also was contrary evidence suggesting Albert meant exactly what he said in the email, including his request to have the portion of the settlement attributable to his individual claim wired directly to Duerr LLC. The trial court resolved this conflicting evidence against Albert in finding a genuine controversy existed over his right to receive the disputed funds, and the court reasonably applied well-established law directing that an injunction should not issue where monetary relief will afford the moving party adequate relief. (See Middleton, supra, 3 Cal. at p. 241; Morrison, supra, 169 Cal. at p. 586; Thayer, supra, 255 Cal.App.2d at p. 306.) This determination does not amount to an adjudication of the ultimate rights in controversy. It merely means the trial court, balancing the parties' respective equities, found that, pending a trial on the merits, the beneficiaries should not be ordered to deliver to Albert the very relief that he seeks by his conversion claim. (See Continental Baking, supra, 68 Cal.2d at p. 528; cf. Fretz, supra, 247 Cal.App.2d at p. 746.) On this record, we conclude the trial court reasonably exercised its discretion.
DISPOSITION
The order denying Albert Duerr's motion for a preliminary injunction is affirmed. Respondent Jennifer Haney is entitled to costs.
We concur: EDMON, P. J., ADAMS, J.