Opinion
B221462
10-27-2011
STANLEY HILTON, as Trustee, Plaintiff and Respondent, v. WILLIAM S. TOMASI, Defendant and Appellant.
Gray Duffy, LLP, John J. Duffy and Kevin H. Park for Defendant and Appellant. Oldman, Cooley, Sallus, Gold, Birnberg & Coleman, LLP, Marshal A. Oldman and Julia S. Berkus for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC392034)
APPEAL from a judgment of the Superior Court of Los Angeles County, James R. Dunn, Judge. Affirmed.
Gray Duffy, LLP, John J. Duffy and Kevin H. Park for Defendant and Appellant.
Oldman, Cooley, Sallus, Gold, Birnberg & Coleman, LLP, Marshal A. Oldman and Julia S. Berkus for Plaintiff and Respondent.
I. INTRODUCTION
This is an appeal from a summary judgment entered against defendant, William S. Tomasi, an attorney and former trustee of the Savannah N. DeNoce Trust ("the trust") on various theories in connection with his administration of the trust. Plaintiff, Stanley Hilton, is the current trustee. We affirm.
II. THE PLEADINGS
On December 4, 2008, the trustee and individual plaintiff, Douglas DeNoce, filed a verified first amended complaint. The first amended complaint alleged that the trust was irrevocable and established for the benefit of Mr. DeNoce's minor daughter, Savannah N. DeNoce. The sole beneficiary of the trust is Ms. DeNoce. In 2004, Mr. DeNoce asked defendant to act as the trustee for the trust. At the time defendant agreed to act as trustee, the trust consisted of two pieces of real property, one in Simi Valley and the other in Westlake Village. Both properties were free and clear of encumbrances or mortgages.
The first amended complaint also contains a number of allegations concerning Mr. DeNoce's business and professional relationship with defendant beginning in 2003. At that time, defendant was retained to represent Mr. DeNoce in some criminal matters including driving under the influence. The first amended complaint alleges that Mr. DeNoce and defendant engaged in a series of business transactions. One such transaction was a barter system by which Mr. DeNoce, a disbarred attorney, would engage in the unlicensed practice of law. In exchange, Mr. DeNoce would be compensated for work on civil cases with defendant. Defendant would then provide representation for Mr. DeNoce, who continued to sustain driving under the influence convictions. During this time, defendant agreed to sell a Porsche to Mr. DeNoce. Mr. DeNoce in turn would perform work on civil matters in exchange for the purchase price of $50,000 less a down payment of $24,000. Defendant allegedly sold the Porsche to Mr. DeNoce. The sale occurred even though Mr. DeNoce's license had been revoked as a result of his driving under the influence convictions. Defendant recorded a lien on the Porsche with the Department of Motor Vehicles.
It is further alleged that defendant quitclaimed the Simi Valley property to himself. He then took out a $60,000 loan for his own benefit. This included paying off his credit card debts. The first amended complaint alleges defendant claimed the $60,000 loan against the Simi Valley property (which was owned by plaintiff) was obtained to pay defendant for the $50,000 Porsche. As previously noted, Mr. DeNoce allegedly made a $24,000 down payment on the Porsche.
The first amended complaint seeks relief under the following 19 theories: violation of Business and Professions Code sections 6068, 6106, and 6148, subdivision (a) (first); violations of professional responsibility rules (second); violation of the Insurance Code and the California Code of Regulations (third); slander of title (fourth); quiet title (fifth); declaratory relief (sixth); conversion (seventh); legal malpractice (eighth); fiduciary duties breach, with six subcounts for various specific violations (ninth); four counts of intentional and negligent misrepresentation (tenth); contract breach (eleventh); quantum meruit (twelfth); unjust enrichment (thirteenth); tortious contract breach (fourteenth); intentional emotional distress infliction (fifteenth); extinguishment of a wrongful lien (sixteenth); rescission (seventeenth); negligent entrustment (eighteenth); and a demand for an accounting (nineteenth).
On January 5, 2009, defendant demurred to the first amended complaint. On February 5, 2009, the trial court issued a minute order tentatively sustaining without leave to amend demurrers as to the first, second, third, seventh, eighth, ninth, fourteenth, fifteenth and eighteenth causes of action. Demurrers were overruled as to the balance of the causes of action except the eleventh cause of action which was sustained with leave to amend. With respect to the ninth cause of action, the trial court clarified that demurrers to the fiduciary duties breach claim (counts two through six) involving probate matters were overruled. The trial court stated: "All the probate breaches of fiduciary duty . . . are well-pleaded and . . . should go on your accounting. I think you're entitled to that." However, the minute order does not specify that the demurrers were not sustained as to plaintiff's claims. The trial court then continued the matter to March 5, 2009, to finalize its ruling on the demurrers.
On February 28, 2009, while the trial court's final ruling on the demurrer to the first amended complaint was pending, plaintiff filed a summary judgment or, in the alternative, adjudication motion on its claims in the first amended complaint. The matter was set for hearing on May 15, 2009. Consistent with the trial court's statements at the February 5, 2009 hearing, the motion sought summary resolution of each of plaintiff's claims including the ninth cause of action for fiduciary duty breach, counts two through six. However, plaintiff failed to file and serve the evidence supporting the summary judgment or adjudication motion. Notably, defendant opposed the summary judgment or adjudication motion contending that triable issues of material facts existed as to all of plaintiff's claims including the fiduciary duty breach counts in the ninth cause of action.
On March 5, 2009, the trial court, with slight modifications, adopted the February 5, 2009 tentative ruling as the final ruling on the demurrers. Contrary to defendant's assertions, on April 4, 2009, Mr. DeNoce (but not plaintiff) moved for reconsideration of the trial court's ruling on demurrers against him. On April 20, 2009, defendant answered the first amended complaint.
On May 6, 2009, plaintiff filed the evidence supporting the summary judgment or adjudication motion. On May 15, 2009, the trial court initially orally denied plaintiff's first summary judgment or adjudication motion on procedural grounds. The minute order states, "Plaintiff's Motion for Summary Judgment is [denied] for procedural grounds and as stated in full detail on the record." But in the same minute order, the trial court clarified its prior oral pronouncement: "Under the circumstances of this case, the more appropriate course of action would have been to grant a short continuance to permit plaintiff to correct any procedural deficiencies and provide defendant an opportunity to file new responsive papers and plaintiff to file a new reply; or, simply to take the matter off calendar. Since the court never reached the merits on the motion, it hereby enters this order nunc pro tunc that the motion for summary judgment is taken off calendar, subject to being refiled upon correction of then procedural defects." Thus, on May 15, 2009, plaintiff's summary judgment motion was taken off calendar, not denied.
On May 18, 2009, the trial court granted plaintiff's application to hear plaintiff's summary judgment or adjudication motion on its merits on August 5, 2009. On May 22, 2009, plaintiff filed the summary judgment or adjudication motion at issue in this appeal. On June 3, 2009, the trial court granted Mr. DeNoce's reconsideration motion of the March 5, 2009 demurrer rulings on certain issues. With respect to his fiduciary breach claims, the trial court declined to change its rulings as to Mr. DeNoce. It should be noted no issue was raised on reconsideration concerning any claims belonging to plaintiff.
On June 9, 2009, the second amended complaint was filed. The second amended complaint deleted the tortious contract breach claim (fourteenth) and renumbered the balance of the causes of action. The allegations concerning the trust were not changed in the second amended complaint. On July 15, 2009, defendant moved to strike the second amended complaint on the ground it included claims the trial court had previously dismissed. On July 16, 2009, defendant filed an ex parte application to continue the summary judgment or adjudication or adjudication motion hearing based on plaintiff's failure to produce evidence of documents showing the existence of an express trust. After the trial court denied the continuance application, defendant filed opposition to the summary judgment motion.
III. THE MOVING PAPERS
In the summary judgment or adjudication motion, plaintiff sought rulings that: defendant was liable for slander of title; quieting title; and it was entitled to the return of real property. Plaintiff asserted the following facts were undisputed. The trust was created in 1999 as an irrevocable trust for Ms. DeNoce's benefit. A former trustee acquired title to the subject property as a trust investment at a sheriff's sale in December 2000. Defendant later became the trustee.
In support of the summary judgment or adjudication motion, plaintiff attached defendant's admissions request responses. Plaintiff also relied on defendant's deposition testimony. At his deposition, defendant admitted that he transferred title of trust property to himself. Title to plaintiff's property remains in defendant's name. Defendant had failed to comply with plaintiff's demands he return the trust property. Defendant encumbered the property with a loan. The only purpose of the loan was to pay money to defendant for the sale of a Porsche to Mr. DeNoce.
Defendant admitted at his deposition he took out the loan to pay himself for the Porsche because things were "tight" for him. Defendant had a lot of "revolving" debt at the time he secured the loan. In interrogatory responses, defendant admitted the loan money was used to pay $13,500 of his personal debts. Defendant admitted he has not accounted for the profit he made on the sale of the Porsche which was purchased with trust property.
Defendant obtained the Porsche from Rick Ehlert, a used car dealer. Mr. Ehlert is also defendant's friend and client. Defendant did not produce any documents showing the price he paid for the vehicle. And, Mr. Ehlert testified at his deposition there were no purchase documents. Defendant admitted making a profit on the sale of the Porsche to Mr. DeNoce. And, when questioned at his deposition about where the loan proceeds went, defendant responded, "Who cares?"
Plaintiff asserted defendant's conduct in transferring title to the real property and encumbering it to finance the Porsche sale was a breach of fiduciary duties owed to a beneficiary. Defendant did not obtain an independent review of the transfers pursuant to Probate Code section 21351, subdivision (b). The property was encumbered with a $60,000 loan to purchase a $50,000 Porsche from defendant. However, Mr. DeNoce made a $25,774 down payment on the purchase.
IV. OPPOSITION PAPERS
In opposing the summary judgment or adjudication motion discussion concerning the breach of fiduciary duty claims, defendant chose not to respond to plaintiff's evidence. Rather, defendant argued the ninth cause of action was no longer at issue due to the trial court's demurrer ruling. This was because the trial court had purportedly sustained a demurrer without leave to amend to plaintiff's claims.
Defendant did not dispute that he transferred title of trust property to himself individually. He claimed, however, that title was transferred at Mr. DeNoce's direction to create a first mortgage. In support of his opposition, defendant declared that he had never seen an express trust and did not know the extent of his powers. Defendant executed the quitclaim deed to himself based on Mr. DeNoce's instructions. This allowed Mr. DeNoce to purchase the Porsche. When the loan funds were obtained, the mortgage company paid off $8,000 in back taxes. Mr. DeNoce received money from the loan proceeds to remodel the kitchen in his home. Defendant also did not deny that plaintiff had demanded an accounting. However, defendant declared that he provided an accounting which showed Mr. DeNoce owed more than $15,000 plus the mortgage balance to the trust.
V. THE RULINGS
On August 11, 2009, the trial court indicated its tentative ruling was to grant plaintiff's summary judgment motion subject to admitting further evidence on damages. The trial court set a filing schedule for the parties on the damages issue. We will discuss this unusual order at later point in this opinion. The minute order also indicated that the trial court made available a copy of the written trust agreement from a sealed record to defendant's counsel, Kevin H. Park. Mr. Park was allowed to review the document on condition he sign a confidentiality agreement and not discuss the terms with anyone including defendant. Plaintiff's documents had been sealed apparently due to defendant's threats.
On August 17, 2009, defendant filed a motion for relief from default pursuant to Code of Civil Procedure section 473. Defendant argued he did not oppose the ninth cause of action on the merits due to the trial court's ruling on the demurrers. Defendant also asserted Mr. Park's inability to review the documents until the August 11, 2009 hearing warranted relief. This was because plaintiff had not properly served documents giving notice of ruling that the trial court allowed the documents to be sealed. In addition, defendant claimed plaintiff had refused to produce documents and "failed to attend any deposition" and this would raise a triable issue of material fact. Defendant attached a proposed supplemental opposition statement of undisputed facts.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
On September 18, 2009, the trial court denied the motion for relief and refused to accept the supplemental opposition statement of undisputed facts. In an order explaining its ruling, the trial court noted that it had corrected the March 5, 2009 order nunc pro tunc. The order was corrected to substitute cause of action "nine" in place of cause of action "eight" in the final ruling. This correction was to indicate the demurrer to the fiduciary duty breach causes of action belonging to the trust were overruled The trial court further noted that as between the two claims, only the ninth cause of action had counts. The trial court reiterated that it had "no doubts whatsoever that at it made it clear" the demurrer to the ninth cause of action had been overruled. But, defendant waited until the opposition to the summary judgment to raise this issue. With respect to the claim the lack of the trust document hampered preparation of the opposition, the trial denied relief under section 473. However, the trial court noted: "The court provided that opportunity weeks before the motion and defendant did not avail himself of that opportunity. And when [he] did so, he did not find what he claimed was the only thing he was looking for, e.g. whether there was permission by the trustor for the trustee to do certain things with trust property."
On September 18, 2009, the trial court filed its ruling on the summary judgment or adjudication motion. The trial court found plaintiff met his burden of proof on all five counts of the ninth cause of action for fiduciary duty breach as well as the claims for: slander of title (fourth); quiet title (fifth) and declaratory relief (sixth). The trial court concluded that defendant conceded the evidentiary facts needed to support the causes of action. Citing D'Amico v. Board of Med. Examiners (1974) 11 Cal.3d 1, 21-22, the trial court rejected defendant's effort to defeat the summary judgment motion by providing a declaration which contradicted his admission requests responses and deposition testimony.
The trial court noted the opposition to the ninth cause of action was based on the faulty argument demurrers had been sustained without leave to amend. The trial court ruled defendant's failure to provide any evidence in response to the summary judgment motion was sufficient to adjudicate the claim under section 437c, subdivision (b)(3). The trial court ruled defendant breached his fiduciaries duties as trustee by: failing to act in the best interests of the beneficiary (Prob. Code, § 16002, subd. (a)); using the trust for his own benefit (Prob. Code, § 16004, subd. (a)); failing to administer the trust with care (Prob. Code, § 16040, subd. (a)); improperly transferring trust property and failing to obtain an independent review (Prob. Code, §§ 21350, subd. (a)(4), 21351, subd. (b)); wrongfully taking trust property (Prob. Code, § 859); and failing to provide an accounting. (Prob. Code, § 16062, subd. (a).) The trial court ruled: defendant was liable for slandering title to the trust property because he intentionally quitclaimed the property to himself, individually for his own gain and to finance the sale of the Porsche for his own profit; defendant's claims the trust benefited from the sale were without merit; the transaction was not in the trust best interests; defendant was to disgorge the profits he made from the sale; defendant still controlled plaintiff's property because he refused to reconvey it; and defendant was liable for twice the value of the property ($260,000) which he transferred to himself in fee simple. (Prob. Code, § 859.) The trial court's valuation finding was based on "the current value as determined by" James R. Beck, an appraiser retained by plaintiff.
The trial court rejected defendant's theory production of certain documents was necessary. The trial court reasoned plaintiff had not alleged a cause of action for breach of its express terms. In addition, plaintiff had not alleged any of its terms were breached. Moreover, the trial court ruled defense counsel was given ample opportunities to view the trust instrument. But, according to the trial court, there could not be exculpatory clauses in any trust instrument allowing self-dealing by a trustee for his or her own profit and transfers of the type involved in this case. And, Mr. DeNoce's instructions were irrelevant because defendant owed fiduciary duties to plaintiff and its beneficiary.
The trial court awarded plaintiff $318,000 in damages plus $160,000 in attorney fees and costs. Defendant was ordered to deed the property to plaintiff and to pay off the actual encumbrance of the property in the approximate amount of $22,000. The trial court subsequently denied defendant's motion to reconsider its summary judgment ruling. On October 29, 2009, the trial court entered judgment in plaintiff's favor. On October 30, 2009, defendant filed a new trial motion. On December 17, 2009, the trial court denied the new trial motion. Defendant filed a timely notice of appeal from the judgment.
VI. DISCUSSION
A. The Odd Procedural Posture Of This Case
This case involves a scenario where the second summary judgment or adjudication motion which ordinarily would have been denied. After the second summary judgment motion was heard, the trial court ordered the filing of evidence on the damage issue. In essence, a court trial proceed on the damage issue. Normally, when a summary judgment motion by a plaintiff fails to prove as a matter of law the amount of damages, it is denied. (§ 437c, subd. (p)(1) ["A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment. . . ."]; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853 ["All that the plaintiff need do is to 'prove [] each element of the cause of action."].) As noted, the second summary judgment motion typically would have been denied on August 11, 2009. But the trial court ruled the motion was granted subject to the presentation of "short, focused but adequately supported evidence" on the damages issue.
Had defendant objected to this material deviation from established summary judgment procedure, we would have no problem in reversing the orders under review. Oral testimony is not admissible in summary judgment litigation. (§ 437c, subd. (b)(1) ["The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken."]; see Weil & Brown, Cal. Procedure Before Trial (The Rutter Group 2011) ¶ 10:106, p. 10-44 (rev. #1 2011).) But defendant interposed no objection to the procedure followed by the court or the admissibility of oral testimony. Thus, all of defendant's objections which could result in a reversal have been forfeited. (§ 437c, subd. (c); Jimenez v. County of Los Angeles (2005) 130 Cal.App.4th 133, 140.) Finally, the failure to raise this issue on appeal further forfeits any issue concerning the material deviations from established summary judgment procedures. (RLH Industries, Inc. v. SBC Communications, Inc. (2005) 133 Cal.App.4th 1277, 1293; AICCO, Inc. v. Insurance Co. of North America (2001) 90 Cal.App.4th 579, 595.)
B. Standard of Review For a Summary Judgment
In Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850-851, our Supreme Court described a party's burdens on summary judgment or adjudication motions as follows: "[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon. [Citation.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. . . . [¶] [T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. . . . A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.]" (Fns. omitted, see Kids' Universe v. In2Labs (2002) 95 Cal.App.4th 870, 871, 878.) We review the trial court's decision to grant the summary judgment motion de novo. (Coral Const., Inc. v. City and County of San Francisco (2010) 50 Cal.4th 315, 336; Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65, 67-68.) The trial court's stated reasons for granting summary judgment are not binding on us because we review its ruling not its rationale. (Coral Const., Inc. v. City and County of San Francisco, supra, 50 Cal.4th at p. 336; Continental Ins. Co. v. Columbus Line, Inc. (2003) 107 Cal.App.4th 1190, 1196.) In addition, a summary judgment motion is directed to the issues framed by the pleadings. (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1252; Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673, disapproved on a different point in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527, fn. 5.) Those are the only issues a motion for summary judgment must address. (Conroy v. Regents of University of Cal. (2009) 45 Cal.4th 1244, 1249-1250; Goehring v. Chapman University (2004) 121 Cal.App.4th 353, 364.)
C. Filing of the Second Amended Complaint
Defendant argues the filing of the second amended complaint mooted plaintiff's summary judgment or adjudication motion, which had been brought on the first amended complaint. Defendant relies primarily on State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1129-1131, to support its contention where a summary judgment was entered following amendments to a complaint. In State Compensation Ins. Fund v. Superior Court, supra, 184 Cal.App.4th at page 1129, the party opposing summary adjudication argued the amended complaint "changed the scope of the issues" in the litigation. After examining the pleadings in that case, the Court of Appeal concluded it was error to rule on the summary adjudication motion after the amendment to the complaint changed the cause of action. (Id. at pp. 1129-1131.) The Court of Appeal in State Compensation Ins. Fund v. Superior Court, supra, 184 Cal.App.4th at page 1131, explained, "'[A] court granting plaintiff leave to amend a cause of action should not at the same time attempt to summarily adjudicate material issues which underlie that same cause of action. After a cause of action is amended, the court may rule in favor of the defendant if, upon subsequent motion, or perhaps renewal of the earlier motion if appropriately framed, it is shown . . . there are no triable issues of fact which would permit recovery on that theory.'"
In this case, although there was an amended pleading filed in this case, the circumstances are materially different from those in State Compensation Ins. Fund v. Superior Court, supra, 184 Cal.App.4th at pages 1129 through 1131. Here, plaintiff filed the first summary judgment motion in February 2009. The first summary judgment motion filed May 20, 2009, was taken off calendar. In the interim, the trial court made an adverse ruling against Mr. DeNoce, who had asserted claims wholly unrelated to plaintiff's issues. Plaintiff also successfully withstood challenges against the sufficiency of the first amended complaint as to its claims. Plaintiff subsequently re-filed the summary judgment motion requesting adjudication of its claims. And, as the trial court noted, plaintiff's claims made in the first amended and seconded amended complaints were identical. That is, the second amended complaint in no way changed or expanded the scope of issues which plaintiff raised in the first amended complaint. The causes of action between plaintiff and defendant were not amended. For that reason, State Compensation Ins. Fund v. Superior Court, supra, 184 Cal.App.4th at pages 1129 through 1131 does not control this case. We agree with the trial court that requiring plaintiff to re-file the summary judgment motion in the absence of any amendments or changes to the trust claims would have served no purpose.
D. Ruling On The Re-Filed Motion
Defendant contends the trial court erred when it permitted the filing of the second summary judgment motion without newly discovered facts or a change of law. In the opposition to the second summary judgment motion, defendant argued that section 437c, subdivision (f)(2) barred its consideration. Section 437c, subdivision (f)(2) states in part, "[A] party may not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court, unless that party establishes to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion." (See Le Francois v. Goel (2005) 35 Cal.4th 1094, 1098, 1104 [sections 437c, subdivision (f)(2) (specifically) and 1008 (generally) prohibit repetitive motions by the parties].) However, on May 15, 2009, the trial court, after initially denying the summary judgment motion, took it off calendar. The first summary judgment motion was not denied, it was taken off calendar. Section 437c, subdivision (f)(2), with its "newly discovered facts or circumstances or a change of law" requirement, only applies when the first summary judgment or adjudication motion is denied.
As to section 1008, subdivision (a), the result is the same. Section 1008, subdivision (a) states in part: "When an application for an order has been made . . . and refused in whole or in part, . . . any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order." The first motion was not "refused"; rather it was taken off calendar.
E. The Defense Against The Ninth Cause of Action
Defendant argues the trial court abused its discretion in not allowing him to defend against the ninth cause of action on its merits by denying him section 473 relief. According to defendant, the trial court's statements at the February 5, 2009 hearing led him to believe the demurrers to the ninth cause of action were sustained without leave to amend. Those statements were: "This has to do with the probate. They're adequately proved. They don't belong in the lawsuit." Apparently, defendant claims this language somehow misled him.
But, the record does not support defendant's assertion that, at the February 5, 2009 hearing, he was misled into believing the ninth cause of action was no longer viable. To the contrary, the trial court stated: the demurrers to plaintiff's claims were overruled; plaintiff's claims were separate from Mr. DeNoce's; and plaintiff could proceed against defendant. No doubt, the minute order from March 5, 2009 contains a clerical error with the eighth and ninth causes of action. But it is clear demurrers were orally overruled to the ninth cause of action in connection with counts two through six. Only the ninth cause of action had counts. Indeed, defendant defended against the ninth cause of action and all its counts in his opposition filed to the first summary judgment motion. When a discrepancy exists between the ruling as reflected in the reporter's transcript and the minute order contained in a clerk's transcript, the oral pronouncement controls. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mitchell (2001) 26 Cal.4th 181, 185-186.) The oral pronouncement controls because the presumption is that any inconsistency is due to clerical error. (People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Price (2004) 120 Cal.App.4th 224, 242.)
To the extent there was any confusion created by the minute order, defendant offered no explanation as to why he failed to clarify the order prior to filing his opposition. The Court of Appeal held in Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313, 319: "While a mistake in law is a ground for relief under section 473, the 'issue of which mistake in law constitutes excusable neglect presents a question of fact. The determining factors are the reasonableness of the misconception and the justifiability of lack of determination of the correct law. [Citation.]'" Here, defendant claimed he lacked clarity as to the legal sufficiency of the ninth cause of action. Thus, he chose not to defend against the summary adjudication on the merits. But, the trial court acting within its discretion could properly determine defendant's argument was insufficient to constitute excusable neglect to justify a failure oppose the adjudication on its merits. (See Brochtrup v. INTEP (1987) 190 Cal.App.3d 323, 329.)
Defendant asserts he was denied due process of law when his motion for relief for mandatory relief pursuant to section 473, subdivision (b) was denied. This is because defendant's counsel relied on the minute order stating the demurrers were sustained without leave to amend. Under the mandatory provision of section 473, subdivision (b), the client need only have an attorney declaration of default due to the lawyer's own neglect. (Solv-All v. Superior Court (2005) 131 Cal.App.4th 1003, 1009; In re Marriage of Hock & Gordon-Hock (2000) 80 Cal.App.4th 1438, 1446.) Appellate courts do not agree as to whether intentional actions or strategic tactics taken by counsel provides grounds for relief under section 473, subdivision (b). (Compare Solv-All v. Superior Court, supra, 131 Cal.App.4th at p. 1010 [the term "neglect" under the mandatory provision means deliberate acts including those "due to gross carelessness or bad strategy']; with Jerry's Shell v. Equilon Enterprises, LLC (2005) 134 Cal.App.4th 1058, 1074 [mandatory provision does not apply to deliberate failures to respond or oppose discovery matters].) In some cases, an attorney's mere confirmation of inaction was inexcusable and done without the client's participation is sufficient to warrant relief, unless a contrary finding is made on the record. (Solv-All v. Superior Court, supra, 131 Cal.App.4th at p. 1012;Matera v. McLeod (2006) 145 Cal.App.4th 44, 63.) However, it has been held that the mandatory provisions do not apply to deliberate failures to respond or oppose discovery matters. (Jerry's Shell v. Equilon Enterprises, LLC, supra, 134 Cal.App.4th 1at p. 1074; see Pagarigan v. Aetna U.S. Healthcare of California, Inc. (2007) 158 Cal.App.4th 38, 45.)
More to the point, courts have concluded the mandatory provisions of section 473, subdivision (b) do not apply to summary judgment motions. (Prieto v. Loyola Marymount University (2005) 132 Cal.App.4th 290, 294-297 [mandatory provision is limited to narrow classes of cases where a default judgment had been entered and does not apply to a summary judgment motion]; English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 137-138 [failure to oppose a summary judgment on the merits based solely on claim of necessity of additional discovery is not a dismissal within the meaning of section 473]; compare Avila v. Chua (1997) 57 Cal.App.4th 860, 868 [mandatory provision applied to judgment entered after untimely opposition to a summary judgment had been stricken].) The trial court properly ruled section 473, subdivision (a) did not warrant relief for the failure to oppose the breach of fiduciary claims on the merits.
F. The Express Trust
Defendant argues plaintiff failed to plead and prove the terms of a valid trust. However, as noted, the summary judgment or adjudication motion is addressed to issues as framed by the pleadings. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843; United Parcel Service Wage and Hour Cases (2010) 190 Cal.App.4th 1001, 1009.) And, plaintiff did not plead or contend defendant violated any of its terms. Rather, the summary judgment or adjudication motion was based on defendant's admitted self-dealing with plaintiff's property, while acting as trustee. The claims were based on Probate Code violations. Thus, there were no issues requiring pleading and proof of an express trust.
G. Evidentiary Hearing To Quiet Title
Defendant contends the trial court erred by failing to examine plaintiff's claim of title and to conduct an evidentiary hearing pursuant to sections 761.020 and 764.010. Section 764.010, by its express terms, requires a higher standard of proof in a quiet title action by an evidentiary hearing after a default has been entered. (Yeung v. Soos (2004) 119 Cal.App.4th 576, 580-581.) However, this case does not involve a default but a summary judgment motion on a verified complaint alleging title to plaintiff's property. (See § 761.020; Yeung v. Soos, supra, 119 Cal.App.4th at p. 580; Hernandez v. Hernandez (1952) 109 Cal.App.2d 903, 909; Compas v. Escondido Mut. Water Co. (1948) 86 Cal.App.2d 407, 411-412.) Plaintiff submitted copies of a Ventura County Sheriff's Department, deed of sale to, "Douglas J. DeNoce, Individually and on behalf of the Savannah N. Denoce Trust." Plaintiff provided evidence defendant admitted that he transferred title belonging to the trust to himself by quitclaim deed. Plaintiff submitted a copy of the quitclaim deed conveying the property to defendant.
Section 761.020 provides: "The complaint shall be verified and shall include all of the following: [¶] (a) A description of the property that is the subject of the action. In the case of tangible personal property, the description shall include its usual location. In the case of real property, the description shall include both its legal description and its street address or common designation, if any. [¶] (b) The title of the plaintiff as to which a determination under this chapter is sought and the basis of the title. If the title is based upon adverse possession, the complaint shall allege the specific facts constituting the adverse possession. [¶] (c) The adverse claims to the title of the plaintiff against which a determination is sought. [¶] (d) The date as of which the determination is sought. If the determination is sought as of a date other than the date the complaint is filed, the complaint shall include a statement of the reasons why a determination as of that date is sought. [¶] (e) A prayer for the determination of the title of the plaintiff against the adverse claims."
Section 764.010 states: "The court shall not enter judgment by default but shall in all cases require evidence of plaintiff's title and hear such evidence as may be offered respecting the claims of any of the defendants, other than claims the validity of which is admitted by the plaintiff in the complaint. The court shall render judgment in accordance with the evidence and the law."
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Furthermore, there was no dispute plaintiff owned the property at the time of the transfer. And, defendant did not dispute he took title to plaintiff's property. Despite a demand, defendant had not returned the property to plaintiff. As a result, there was no chain of title issue for the trial court to resolve. Rather, the trial court appropriately adjudicated the quiet title issue based on undisputed evidence: plaintiff owned the property; defendant, as trustee, quitclaimed the property to himself; and defendant refused to return the property to plaintiff. (§ 760.020, subd. (a); Hernandez v. Hernandez, supra, 109 Cal.App.2d at pp. 909-910.) No error occurred in adjudicating the quiet title claim.
H. Malice To Support The Slander Of Title Claim
Defendant asserts no actual malice was shown by the evidence to support the slander of title claim. Defendant contends: no malice can be found where he believed he had authority to act in the manner he did; payments by check to Mr. DeNoce for the Porsche created a triable issue as to whether it was a "new" asset; and Mr. DeNoce received partial payment from the mortgage to remodel the kitchen in the trust's property in Westlake Village. The elements of slander of title are disparagement, publication, falsity, and absence of privilege resulting in pecuniary loss. (Fearon v. Fodera (1915) 169 Cal. 370, 379-380; Smith v. Commonwealth Land Title Ins. Co. (1986) 177 Cal.App.3d 625, 630-631.) Malice may be actual or implied. (Gudger v. Manton (1943) 21 Cal.2d 537, 544 disapproved on a different point in Albertson v. Raboff (1956) 46 Cal.2d 375, 381; Smith v. Commonwealth Land Title Ins. Co., supra, 177 Cal.App.3d at pp. 630-631.) Malice will be implied when the circumstances are deemed in law to show a lack of privilege or a lack of good faith. (Gudger v. Manton, supra, 21 Cal.2d at p. 544; Alhambra Consol. Mines, Inc. v. Alhambra Shumway Mines, Inc. (1966) 239 Cal.App.2d 590, 597-598.)
Plaintiff presented evidence: it owned the property; defendant was the trustee; and defendant intentionally quitclaimed the property to himself, individually and admittedly for his own profit and to finance the sale of his own car. Defendant's action in slandering title to trust property in his capacity was sufficient to show a lack of good faith, justification or privilege. In summary judgment litigation, the plaintiff must make an initial prima facie showing it will be to prevail. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 851; Kids' Universe v. In2Labs, supra, 95 Cal.App.4th at p. 879.) Once that occurs, the defendant has the duty to present facts demonstrating the existence of a triable controversy. (§ 437c, subd. (p)(1); Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 11.) Where the opposition only presents speculation in lieu of specific facts, summary judgment should be entered if the production burden has shifted. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 490; Wiz Technology, Inc. v. Coopers & Lybrand, supra, 106 Cal.App.4th at p. 11.) Here, the production burden having shifted, defendant presented no evidence on the malice issue. Thus, summary judgment was properly entered.
I. Undisputed Evidence
Defendant asserts triable issues of material fact as to whether he slandered title and thus quiet title or an accounting relief was warranted. The undisputed evidence showed: plaintiff owned the property; defendant, as trustee, quitclaimed the property to himself; defendant refused to return the property to plaintiff; defendant encumbered trust property for his own personal gain; defendant profited from the sale of the Porsche; defendant paid his personal credit card debts from with proceeds from a loan on the property; plaintiff has demanded an accounting; and defendant has refused to provide an accounting. And, the only evidence offered in opposition to the summary judgment motion was whether defendant managed the trust based on Mr. DeNoce's instructions. However, the opposition evidence was merely (and improperly) offered to defeat defendant's prior contradictory discovery admissions. (D'Amico v. Board of Medical Examiners, supra, 11 Cal.3d at p. 21; Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087.) As we previously concluded, the evidence indisputably established defendant slandered title to property belonging to the trust. (Smith v. Commonwealth Land Title Ins. Co., supra, 177 Cal.App.3d at pp. 630-631; see 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 642, p. 947.) There was also sufficient undisputed evidence showing the right to have title quieted (§§ 760.010, 1060; Hernandez v. Hernandez, supra, 109 Cal.App.2d at pp. 909-910) and for an accounting. (St. James Church of Christ Holiness v. Superior Court (1955) 135 Cal.App.2d 352, 359; see 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 819, p. 236.)
J. Attorney Fees
Defendant argues the attorney fee award was not based on a valid written retainer agreement pursuant to Business and Professions Code section 6147, subdivision (a) and Probate Code section 10811, subdivision (c)(3). The attorney fee award was for damages caused by defendant's fiduciary breaches and failure to account for plaintiff's property. Neither of these statutes applies to an attorney fee award against a trustee for damages.
Defendant also challenges the propriety of the award. Attorney fees awards are reviewed for an abuse of discretion. (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175; Salawy v. Ocean Towers Housing Corp. (2004) 121 Cal.App.4th 664, 669.) Defendant claims the trial court should not have awarded attorney fees because the bulk of the work was done by Mr. DeNoce, a pro se litigant. Defendant cites as evidence a document examiner's conclusion that Mr. DeNoce's work had a distinct signature and had done 99 percent of the work performed in the case. Defendant also claims the evidence showed the majority of the documents came from the same printer. The trial court considered and rejected an evidentiary basis for entirely denying the attorney fee request based on Mr. DeNoce's participation in the litigation. Plaintiff's attorney fee request was accompanied by billing records and declarations. This was sufficient evidence from which the trial court could conclude that the plaintiff was represented by counsel.
Once the trial court determined they could be awarded, the amount of fees was discretionary. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095; Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1134.) Plaintiff's attorney fee request was accompanied by billing records and declarations. The trial court was in the best position to base the award on its own assessment of the reasonableness of the billing rates and time expended. The trial court made a number of reductions including for time Mr. DeNoce may have caused litigation over plaintiff's claims to be protracted. The trial court also made a reduction based on the "overtly litigious nature" of this case.
Defendant asserts the trial court should have allocated the fees between Mr. DeNoce's and plaintiff's claims. But, the trial court stated the award was based on defendant's breach of fiduciary duties and his failure to provide an accounting. In addition, defendant claims no damages were recoverable after his offers on February 6 and 22, 2008 to return title to plaintiff were rejected by Mr. DeNoce. However, the trial court adjusted the award by $20,000 for the time covering this period. Defendant has failed to show reversible error in connection with the attorney fee award.
K. Probate Code Section 859 Damage Award
In his opening brief, defendant asserts the Probate Code section 859 double damages award must be set aside because it was based on inadmissible evidence. This is due to the fact the declaration of Stan Carlson does not state he has personal knowledge of the matters in this case. But, his declaration says nothing about the value of the trust property only that it could not be sold. Hence, the absence of a personal knowledge attestation does not make the Probate Code section 859 award erroneous. Furthermore, the trial court denied plaintiff any damages for an inability to sell the property. Rather, the trial court based its double the value of the property award on Probate Code section 859 on Mr. Beck's opinion.
Defendant also argues the award could not be entered in a civil action and should have been made by a verified petition in the Probate Court. However, the award was made based on a verified complaint. The superior court had jurisdiction to make the award. (Prob. Code §§ 17000, subd. (b)(2)-(3), 17001; Harnedy v. Whitty (2003) 110 Cal.App.4th 1333, 1342-1345.)
According to defendant, the award of double damages was unprecedented in California. The trial court noted that defendant offered no defense to the claim the damages under Probate Code section 859 were warranted. The trial court also concluded the evidence offered by plaintiff in the summary judgment or adjudication motion was sufficient to establish a claim for double damages for fiduciary duty breach owed to plaintiff. Given our analysis, we need not discuss defendant's remaining Probate Code section 859 contentions. And, as noted, at his deposition when questioned about what happened to some of the funds he too, defendant cavalierly commented, "Who cares?" The totality of the evidence established plaintiff was entitled to Probate Code section 859 damages. (See Estate of Kraus (2010) 184 Cal.App.4th 103, 111; In re Estate of Young (2008) 160 Cal.App.4th 62, 89-90.)
L. Plaintiff's Dismissal Request
We deny plaintiff's request to dismiss the appeal because defendant purportedly failed to comply with a trial court order regarding conveyance of title to the Porsche to Mr. DeNoce. Defendant's obedience or disobedience to an order for property that the trust has not claimed any ownership interest in has no relevance to the issues in this appeal.
VII. DISPOSITION
The judgment is affirmed. Plaintiff, Stanley Hilton, as trustee of the Savannah N. Denoce Trust, shall recover his costs on appeal from defendant, William S. Tomasi.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J. We concur:
ARMSTRONG, J.
KRIEGLER, J.