United Brands Worldwide v. D&K Worldwide CA2/1
Opinion
Filed 8/28/26 United Brands Worldwide v. D&K Worldwide CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
UNITED BRANDS B340640 WORLDWIDE, LLC, (Los Angeles County
Plaintiff and Appellant, Super. Ct. No. 22SMCV00951)
v.
D&K WORLDWIDE, LLC, et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County, Elaine W. Mandel, Judge. Affirmed.
McMurray Henriks and Yana Henriks for Plaintiff and Appellant.
Beitchman & Zekian, David P. Beitchman, and Andre Boniadi for Defendants and Respondents.
__________________________________
After respondents D&K Worldwide, LLC and Danny Suleminian successfully demurred to causes of action for breach of the implied covenant of good faith and fair dealing and for conversion in the operative complaint filed by appellant United Brands Worldwide, LLC, the trial court granted respondents’ motion for summary judgment on the remaining causes of action. The court subsequently denied United Brands’s motion for new trial.
On appeal, United Brands contends: (a) the court erred in granting summary judgment; (b) we should grant United Brands leave to amend to reallege causes of action for breach of the implied covenant and conversion; and (c) the court erred in denying its new trial motion. We conclude that: (a) the causes of action as framed by United Brands’s operative complaint are barred by the statute of limitations; (b) United Brands has not shown it could successfully amend; and (c) United Brands has forfeited any arguments regarding its new trial motion but, in any case, the court did not err in denying the motion. We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. United Brands Files a Complaint In June 2022, United Brands filed a complaint. After respondents filed a demurrer and motion to strike, United Brands filed a first amended complaint (FAC) in February 2023, the operative complaint.1 As relevant to this appeal, the FAC alleged:
1 Although United Brands failed to include the FAC in the
appellate record, in May 2026, respondents request we take (Fn. is continued on the next page.)
1. The Written Letter Agreement In October 2013, D&K and United Brands entered into a letter agreement. The agreement recited that D&K was “looking to purchase real estate or investments” and provided that: (1) United Brands would present D&K “with opportunities to purchase Real Estate or Investments”; (2) D&K agreed to pay United Brands “a consulting fee equal to 20% of the net profit from the purchase and sale of the property located at 1012-14 S. Orange, Los Angeles, CA”; and (3) United Brands would “assist” D&K “with negotiating and pursuing voluntary vacancy agreements with the tenants, leasing and selling the property, tenant issues and other tasks that the client [D&K] needs.”
2. The Oral Modification In January 2015, the parties orally modified the agreement. Respondents informed United Brands “they were no longer interested in selling the property and instead wanted Plaintiff to manage the property. In lieu of paying a commission or fees to Plaintiff, Defendant offered to Plaintiff to become partners in managing the property,” and that United Brands would be considered a “joint venturer or partner.” Respondents agreed to pay United Brands 20 percent of the “net rental profits” generated from the Property. Specifically, United Brands alleged the parties agreed that “Defendants would first pay Plaintiff $300.00 each month, and at the end of the year, the true balance of twenty percent (20%) of net profits would be calculated. Defendants would then pay to Plaintiff the difference between
judicial notice of the pleading. United Brands does not oppose, and we grant the request.
what Plaintiff had already received and what Plaintiff was due under the terms of the oral modification.”
3. Alleged Wrongdoing Between February 2015 and August 2020, United Brands received monthly checks of $300. “In August 2020, Defendant discontinued the monthly $300.00 payments.” When the payments stopped, United Brands “requested all financial information on The Property since its purchase in order to ascertain the amount due to Plaintiff. Despite repeated requests over several months, Defendants refused to provide financial information despite Plaintiff’s right to that information as a partner or joint venturer.”
Because United Brands and D&K were partners, D&K “by and through its owner and managing agent” Suleminian, “knowingly undertook, on Plaintiff’s behalf, to collect property income, and then to accurately calculate, segregate, safeguard, and remit to Plaintiff at the agreed time Plaintiff’s share of the income and to account for the same to Plaintiff.”2 United Brands also alleged respondents misrepresented “that Defendants would accurately calculate and pay to Plaintiff twenty percent (20%) of the net rental profits generated from The Property.”
4. Causes of Action and Relief Sought Based on these allegations, United Brands pleaded six causes of action: (1) Breach of Contract; (2) Breach of Covenant of Good Faith and Fair Dealing; (3) Breach of Fiduciary Duty; (4)
2 Although the FAC does not expressly allege this,
presumably United Brands accuses D&K of failing to do these things.
Fraud and Deceit; (5) Conversion; and (6) Accounting. United Brands alleged it was “due approximately $150,000, an amount representing the true twenty percent (20%) of net profits from the rental income in The Property over the course of years, subtracted by the $300.00 monthly payments that were actually made by Defendant” and “twenty percent (20%) of the increase in the fair market value of the property from the time it was purchased through today,” which United Brands estimated to be approximately $400,000. United Brands also alleged an “accounting is necessary because the amounts alleged to be due and owed to Plaintiff is uncertain and can only be ascertained by an accounting including a determination of the total rental income generated over the period in question and the net profits.”
5. Demurrer
According to respondents’ appellate brief, “D&K demurred to the second cause of action for breach of covenant of good faith and fair dealing and fifth cause of action for conversion alleged in the First Amended Complaint, which the trial court sustained.” United Brands agrees that “[o]n April 28, 2023 the trial court sustained, without leave to amend, Appellants[’] claims for Breach of The Implied Covenant Of Good Faith And Fair Dealing, and Conversion.”3
3 Neither the pleadings relating to the demurrer nor the
court’s order sustaining the demurrer is in the appellate record.
B. Respondents Move for Summary Judgment
1. The Motion
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Filed 8/28/26 United Brands Worldwide v. D&K Worldwide CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
UNITED BRANDS B340640 WORLDWIDE, LLC, (Los Angeles County
Plaintiff and Appellant, Super. Ct. No. 22SMCV00951)
v.
D&K WORLDWIDE, LLC, et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County, Elaine W. Mandel, Judge. Affirmed.
McMurray Henriks and Yana Henriks for Plaintiff and Appellant.
Beitchman & Zekian, David P. Beitchman, and Andre Boniadi for Defendants and Respondents.
__________________________________
After respondents D&K Worldwide, LLC and Danny Suleminian successfully demurred to causes of action for breach of the implied covenant of good faith and fair dealing and for conversion in the operative complaint filed by appellant United Brands Worldwide, LLC, the trial court granted respondents’ motion for summary judgment on the remaining causes of action. The court subsequently denied United Brands’s motion for new trial.
On appeal, United Brands contends: (a) the court erred in granting summary judgment; (b) we should grant United Brands leave to amend to reallege causes of action for breach of the implied covenant and conversion; and (c) the court erred in denying its new trial motion. We conclude that: (a) the causes of action as framed by United Brands’s operative complaint are barred by the statute of limitations; (b) United Brands has not shown it could successfully amend; and (c) United Brands has forfeited any arguments regarding its new trial motion but, in any case, the court did not err in denying the motion. We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. United Brands Files a Complaint In June 2022, United Brands filed a complaint. After respondents filed a demurrer and motion to strike, United Brands filed a first amended complaint (FAC) in February 2023, the operative complaint.1 As relevant to this appeal, the FAC alleged:
1 Although United Brands failed to include the FAC in the
appellate record, in May 2026, respondents request we take (Fn. is continued on the next page.)
1. The Written Letter Agreement In October 2013, D&K and United Brands entered into a letter agreement. The agreement recited that D&K was “looking to purchase real estate or investments” and provided that: (1) United Brands would present D&K “with opportunities to purchase Real Estate or Investments”; (2) D&K agreed to pay United Brands “a consulting fee equal to 20% of the net profit from the purchase and sale of the property located at 1012-14 S. Orange, Los Angeles, CA”; and (3) United Brands would “assist” D&K “with negotiating and pursuing voluntary vacancy agreements with the tenants, leasing and selling the property, tenant issues and other tasks that the client [D&K] needs.”
2. The Oral Modification In January 2015, the parties orally modified the agreement. Respondents informed United Brands “they were no longer interested in selling the property and instead wanted Plaintiff to manage the property. In lieu of paying a commission or fees to Plaintiff, Defendant offered to Plaintiff to become partners in managing the property,” and that United Brands would be considered a “joint venturer or partner.” Respondents agreed to pay United Brands 20 percent of the “net rental profits” generated from the Property. Specifically, United Brands alleged the parties agreed that “Defendants would first pay Plaintiff $300.00 each month, and at the end of the year, the true balance of twenty percent (20%) of net profits would be calculated. Defendants would then pay to Plaintiff the difference between
judicial notice of the pleading. United Brands does not oppose, and we grant the request.
what Plaintiff had already received and what Plaintiff was due under the terms of the oral modification.”
3. Alleged Wrongdoing Between February 2015 and August 2020, United Brands received monthly checks of $300. “In August 2020, Defendant discontinued the monthly $300.00 payments.” When the payments stopped, United Brands “requested all financial information on The Property since its purchase in order to ascertain the amount due to Plaintiff. Despite repeated requests over several months, Defendants refused to provide financial information despite Plaintiff’s right to that information as a partner or joint venturer.”
Because United Brands and D&K were partners, D&K “by and through its owner and managing agent” Suleminian, “knowingly undertook, on Plaintiff’s behalf, to collect property income, and then to accurately calculate, segregate, safeguard, and remit to Plaintiff at the agreed time Plaintiff’s share of the income and to account for the same to Plaintiff.”2 United Brands also alleged respondents misrepresented “that Defendants would accurately calculate and pay to Plaintiff twenty percent (20%) of the net rental profits generated from The Property.”
4. Causes of Action and Relief Sought Based on these allegations, United Brands pleaded six causes of action: (1) Breach of Contract; (2) Breach of Covenant of Good Faith and Fair Dealing; (3) Breach of Fiduciary Duty; (4)
2 Although the FAC does not expressly allege this,
presumably United Brands accuses D&K of failing to do these things.
Fraud and Deceit; (5) Conversion; and (6) Accounting. United Brands alleged it was “due approximately $150,000, an amount representing the true twenty percent (20%) of net profits from the rental income in The Property over the course of years, subtracted by the $300.00 monthly payments that were actually made by Defendant” and “twenty percent (20%) of the increase in the fair market value of the property from the time it was purchased through today,” which United Brands estimated to be approximately $400,000. United Brands also alleged an “accounting is necessary because the amounts alleged to be due and owed to Plaintiff is uncertain and can only be ascertained by an accounting including a determination of the total rental income generated over the period in question and the net profits.”
5. Demurrer
According to respondents’ appellate brief, “D&K demurred to the second cause of action for breach of covenant of good faith and fair dealing and fifth cause of action for conversion alleged in the First Amended Complaint, which the trial court sustained.” United Brands agrees that “[o]n April 28, 2023 the trial court sustained, without leave to amend, Appellants[’] claims for Breach of The Implied Covenant Of Good Faith And Fair Dealing, and Conversion.”3
3 Neither the pleadings relating to the demurrer nor the
court’s order sustaining the demurrer is in the appellate record.
B. Respondents Move for Summary Judgment
1. The Motion
In December 2023, respondents moved for summary judgment. They agreed the parties entered into the letter agreement and, based on that agreement, D&K purchased the property. However, they claimed United Brands proceeded to materially breach the agreement by requiring D&K to undertake “extensive and costly remodeling” before finding new tenants and refusing to “handle the remodel,” requiring D&K to do it. When the remodel was completed, D&K listed the building for sale but received no bids. As a result, in early 2015, D&K decided to keep the property as a rental, and “the parties renegotiated their agreement.” “D&K offered to pay United Brands a monthly fee in exchange for United Brands agreeing to manage the property as an independent contractor. By way of an email dated January 27, 2015 . . . D&K initially offered to pay $300 per month and to revisit at the end of each year to figure out the 20% net profits for the year. In [a] reply email, United Brands said that it ‘will review’ D&K’s offer.” United Brands subsequently declined the offer, stating it did not want to perform property management duties. Instead, the parties agreed D&K would pay United Brands $300 a month “to handle existing/new lease papers.”
On January 21, 2017, Jack Abramov, the sole member of United Brands, sent Suleminian an e-mail stating that, if D&K intended to keep the property, Abramov was “requesting that you pay the consulting fee that is owed to United Brands according to today’s value.” Four days later, Abramov also requested “a copy of the books and records for [the property] for 2014-2016 to view the true profits and to determine what is the actual 20% due to United Brands.”
Suleminian replied within an hour, stating: “As was agreed in the beginning [¶] $300 a month between me and you[. ¶] If you like to change anything I am welling to discussed [sic] moving forward.” Abramov responded by claiming that “United Brands is still entitled to 20% of the profit from the purchase and sale of the building as we agreed in writing” and stating that, if D&K did not wish to sell the property, “you can pay my consulting fee or we can determine the % equity that will reflect on title.”
Suleminian disputed Abramov’s description, stating “it was not consulting fee it was the deal that you brought me as agent/ broker and as a friend I told you that I give you 20% of the profit when we sell it without you bringing any money because I knew you’re struggling in your life and I love you as a friend.” He added that “[e]ven though you were supposed to help me with managing[,] I am doing everything [and] I’m not telling you nothing about it.” United Brands made three more requests for the “books and records” in October 2020, December 2020, and February 2021, and respondents denied each request.
In July 2020, “due to unrelated disputes arising between the parties in connection with a separate business deal gone wrong, United Brands expressed refusal to further assist D&K in connection with the Property. As such, D&K’s last payment of $300 to United Brands was made in July 2020.”
Based on these purportedly undisputed facts, respondents alleged the first cause of action for breach of contract was barred by the statute of limitations. Specifically, respondents asserted a two-year statute of limitations applied to the breach of oral modification claim United Brands was asserting, and thus it could only seek damages sustained after June 23, 2020 (two years
before the complaint was filed). But “because Plaintiff has not provided any services in connection with the multi-unit property since July of 2020, as required by the parties’ agreement, there can be no viable claim for damages.” (Underline removed.)
Respondents also argued the breach of fiduciary duty and accounting causes of action were barred by a two-year statute of limitations because they were based on the oral modification, and that the statute of limitations began to run in January 2017. Finally, they contended the fraud cause of action was barred by a three-year statute of limitations that also began to run in January 2017.
2. The Opposition
In February 2024, United Brands opposed respondents’
motion. United Brands argued its claims were not barred by the statute of limitations both because “[t]he harm flowing from [respondents’] breach was not reasonably discoverable by Plaintiff until he was sued by Danny Suleminian in the failed TRO case in December 2020 and discovery was performed in this litigation,”4 and because the 2015 agreement the parties entered was an oral modification of a written contract and thus was governed by a four-year statute of limitations.
In Abramov’s declaration supporting the opposition, he disputed respondents’ characterization of the 2015 oral agreement, stating instead that the parties “agreed that it was
4 Specifically, “Suleminian’s December 16, 2020 testimony,
before another court, initially admitted Defendants agreed to pay Plaintiff 20% of the sales profit. But then under oath he immediately denied he would pay Plaintiff the 20% sales profit or rental income.”
only fair as partners in running the Property, that Plaintiff United Brands should receive 20% of the rental income.” Abramov acknowledged receipt of the January 2017 e-mails discussed above, but claimed both that the e-mails “confirm[ed] [D&K] would pay me the 20% of the proceeds from the Property” and that since the e-mails were sent, “Suleminian gave me repeated verbal and written assurances/representations on an ongoing basis through roughly the end of 2020 that he would honor our agreement and partnership by paying me the 20% from the sale of the Property.” United Brands additionally argued its 2015 modification did not create a “ ‘divisible’ contract” and thus “the Contract remains whole and Plaintiff can wait until the entire Contract is breached before filing its claim, as it did here in a timely manner within four years.”
As to breach of fiduciary duty, United Brands argued it did not arise from the breach of the oral agreement, but “out of a partnership” (underline removed), and thus was subject to a four- year statute of limitations.
For fraud, United Brands asserted it did not discover respondents’ fraud until Suleminian’s December 2020 testimony, and thus the statute of limitations did not begin to run until then, making its June 2022 complaint timely.
Finally, United Brands argued its accounting cause of action was based on the oral modification of a written contract, and therefore was not barred by the two-year statute of limitations.
3. The Reply
In March 2024, respondents replied to United Brands’s opposition. Respondents asserted that inasmuch as United Brands’s complaint was based on entitlement to 20 percent of the
net profits from a sale of the property, “there can be no finding of breach or damages because Defendants have not sold the subject property.” (Underline removed.) Respondents continued to maintain any cause of action for 20 percent of the rental income was time-barred.
C. The Court Grants Summary Judgment
1. The Court Takes the Motion Under Submission After the Initial Hearing At a March 2024 hearing, the court issued a tentative ruling partially granting and partially denying respondents’ motion. The court found the undisputed evidence demonstrated that, as of January 2017, United Brands was on notice that respondents rejected its interpretation of the parties’ agreement or that it was entitled to 20 percent of the property’s yearly rental profits. The court thus found the statute of limitations barred United Brands’s causes of action for breach of contract and fraud. The court also stated any cause of action for breach of contract or fraud relating to respondents’ failure to pay United Brands 20 percent of the profits from the sale of the building was “unripe” because the building had yet to be sold. However, the court tentatively denied the motion as to the causes of action for breach of fiduciary duty and accounting because United Brands “provided evidence indicating it did not discover those alleged breaches until 2020” and “[t]hat creates a triable issue of fact, allowing the breach of fiduciary duty and accounting causes of action to proceed.” The minute order from this hearing indicates the court took the motion under submission.
Eight days before the hearing on the motion for summary judgment, United Brands noticed the deposition of Suleminian
and the Person Most Knowledgeable of D&K. In the court’s March 2024 minute order taking respondents’ motion for summary judgment under submission, the court also noted: “Counsel agree to take defendant Danny Suleminian’s deposition in person on 04/01/24.”
2. The Court Grants Respondents’ Motion After the Second Hearing
On May 22, 2024, United Brands filed a “Supplemental Declaration of Yana G. Henriks” (United Brands’s counsel) in opposition to respondents’ motion for summary judgment. The declaration stated that she had taken the deposition of Suleminian as D&K’s Person Most Knowledgeable on April 8, 2024, and “Suleminian was presented with several agreements between different tenants of the Property and D&K Worldwide in which Jack Abramov signed on behalf of D&K Worldwide. These agreements ranged from ‘Lease Terminations and Voluntary Vacancy Agreements’ to ‘Residential Lease Agreements’ (attached hereto as Exhibit 1 are the various agreements). Mr. Suleminian could not provide an explanation as to why Mr. Abramov had signed on behalf of D&K Worldwide.” The declaration made no mention of any testimony about repudiation.
At the beginning of a hearing held the same day United Brands submitted the supplemental declaration, the court informed the parties: “We are here continued from the other day, that is 5/17[,] because [appellant’s counsel] Ms. Henriks requested to have a court reporter present.· We were discussing the motion for summary judgment, which is under submission[,] as well as the trial date. The court’s position, upon further reflection o[n] the motion for summary judgment, is that this matter is not ri[pe] as the property has not been sold so there are
as of yet no damages.” The court then permitted the parties to argue the summary judgment motion extensively.
After the hearing, the court issued an order reiterating that “the breach of contract claim for the sale of the property . . . is not yet ripe,” noting the “Abramov declaration confirms that Suleminian never repudiated UB’s rights to 20% profits at the time of the eventual sale.” The order repeated that United Brands could not claim delayed discovery for breach of the agreement to pay 20 percent of the rental profits because the January 2017 e-mails “put plaintiff on notice of the breaches.” The court also granted the motion as to the accounting cause of action, reasoning: “The accounting claims are derivative of the claims for lost rental income. If the rental income claims were not time-barred, an accounting as to those profits would be appropriate. However, since the rental income claims are time barred, there is no basis for an accounting as to rental profits.”5 In June 2024, the court entered judgment in favor of respondents.
5 While the order did not explain how the court was
disposing of the cause of actions for fraud and breach of fiduciary duty, in remarks during the second hearing, the court stated that paragraph 46 of the FAC (which was contained within the breach of fiduciary duty cause of action) “only deals with the rental income” and “the statute of limitations has run.” The court later reiterated that it found “the rental claims are barred by the statute of limitations.”
D. United Brands Moves for a New Trial
1. The Motion
On June 21, 2024, United Brands filed a “Notice of Intent to Move for New Trial on Grant of Summary Judgment” on the grounds that there was newly discovered evidence that could not, with reasonable diligence, have been presented at the summary judgment hearing; that there was an error in law; and that there was an irregularity in the proceedings of the court.
In July 2024, United Brands filed its motion for new trial, arguing it was entitled to relief under Code of Civil Procedure section 657, subdivisions (1), (4), and (7).6 First, United Brands argued that it was entitled to relief because “new evidence obtained after this Court had taken the matter under submission, proves Defendant repudiated under oath both any intent to pay Plaintiff the 20% and the 2013 Contract itself.” Specifically, United Brands claimed that during Suleminian’s April 8, 2024 deposition, he swore “under oath he
6 (Code Civ. Proc., § 657 [“The verdict may be vacated and
any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: [¶] 1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial. [¶] . . . [¶] 4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial. [¶] . . . [¶] 7. Error in law, occurring at the trial and excepted to by the party making the application”].)
will never pay Plaintiff the 20%,” and “repudiated the 2013 contract itself.” United Brands also accused respondents’ counsel of “conceal[ing] evidence of Suleminian’s April 8, 2024 sworn rejection of the 2013 contract, and repudiations to pay Plaintiff 20% from the sale of the property” instead “brazenly feign[ing] ignorance of any repudiation issue or Suleminian’s disregarding the 2013 Contract.”
United Brands also contended it was entitled to relief because respondents’ counsel stated at the May 2024 hearing, “There’s no claim allegation [sic] that my client denies the existence of the original contract, the written contract. There’s no claim by my client in the Complaint or in the evidence submitted in opposition to our motion for summary judgment that my client is refusing to acknowledge the existence of these original written agreements. He denies the existence of the alleged oral modified agreement, but there’s been no evidence suggesting that my client denies the existence of the original written agreement.” It also condemned counsel’s statement that “[t]here’s never been any allegation up until this hearing or any evidence that would suggest that Plaintiff is claiming now all of a sudden to be a partner of or member, I should say of a separate legal entity, D&K Worldwide. That’s the first time I’m hearing about this.”
Finally, United Brands argued that the court “fail[ed] to apply” Civil Code section 1698, subdivision (b), which provides that “[a] contract in writing may be modified by an oral agreement to the extent that the oral agreement is executed by the parties.”
2. The Opposition
Respondents pointed out that the “ ‘newly discovered evidence’ was readily available more than one month before the May 22, 2024 continued hearing on Defendants’ motion for summary judgment.” They further argued that United Brands’s counsel “failed to exercise any diligence so as to introduce such evidence in the record, either by way of supplemental briefing or at the hearing at the motion,” and that the evidence “fail[ed] to materially change this Court’s analysis.”
Respondents also asserted it was not their counsel’s job “to advance the claims of Plaintiff” but, in any case, “defense counsel never asserted on the record that Defendants ‘intend to pay’ 20% of any net profits from the future sale of the subject property. In fact, although Defendants do not deny the ‘existence’ of the 2013 written contract, they dispute its enforceability.”
Finally, respondents contended the court committed no errors of law, and argued United Brands was “seemingly confus[ing] the issues pertaining to the applicable statute of limitations relating to written versus oral contracts.”
3. The Reply
In its reply, United Brands disputed its ability to present Suleminian’s deposition testimony because “[a] deposition transcript is inadmissible until it has been authenticated.” Thus, United Brands contended, “[a]s a matter of law, Suleminian’s April 8, 2024 deposition transcript was not admissible evidence until after Suleminian had [a] statutory thirty (30) days to review and sign his deposition, and until the court reporter has authenticated the transcript which happened on April 22, 2024.”
E. The Court Denies the Motion for New Trial On July 31, 2024, the court denied United Brands’s motion.
It rejected United Brands’s argument about Suleminian’s deposition testimony “because [United Brands] does not assert any facts demonstrating why it was unable to provide the testimony before the May 22, 2024 hearing.” The court noted that United Brands “served notice for its deposition only eight days before the hearing on the summary judgment” and, although the deposition was taken on April 8, 2024, “the information obtained was not presented to the court at the hearing, nor did UB request a continuance to brief the transcript.” The court also found no conduct “indicating willful suppression of material evidence [by respondents’ counsel] during discovery or at both summary judgment hearings.”
The court additionally rejected United Brands’s argument under Code of Civil Procedure section 657, subdivision (7) (entitling a party to relief for an “[e]rror in law”), because that section “concerns an error of law occurring at trial” and “there was no trial, as judgment was entered in the defendant’s [sic] favor pursuant to a motion for summary judgment.”
United Brands timely appealed.
DISCUSSION
A. The Court Did Not Err in Granting Summary Judgment
“We review a grant of summary judgment de novo.” (Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 71 (Nieto).) “The general rule is that summary judgment is appropriate where ‘all the papers submitted show that there is no triable issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law. . . .’ ” (Ibid.) “A defendant moving for summary judgment meets this burden by presenting evidence demonstrating that one or more elements of the cause of action cannot be established or that there is a complete defense to the action.” (Ibid.) “Once the defendant makes this showing, the burden shifts to the plaintiff to show the existence of a triable issue of material fact as to that cause of action or defense.” (Ibid.) “To determine whether the parties have met their respective burdens, we consider ‘ “all of the evidence set forth in the [supporting and opposition] papers, except that to which objections have been made and sustained by the court, and all [uncontradicted] inferences reasonably deducible from the evidence.” ’ ” (Ibid.) “ ‘A trial court’s stated reasons for granting summary judgment do not bind us; we review the court’s ruling, not its rationale.’ ” (Severin Mobile Towing, Inc. v. JPMorgan Chase Bank, N.A. (2021) 65 Cal.App.5th 292, 302.)
1. Breach of Contract
(a) Allegations in the FAC United Brands alleged that in October 2013, it and D&K entered a letter agreement whereby, United Brands would present D&K with opportunities to purchase real estate or investments and assist it with dealing with the tenants in exchange for a “consulting fee equal to 20% of the net profit from the purchase and sale of the property.” When D&K decided not to sell the property, the parties orally modified this contract in January 2015: D&K “offered to Plaintiff to become partners in managing the property,” and “agreed to pay Plaintiff twenty percent (20%) of the net rental profits generated from The
Property.” The parties agreed D&K would initially pay United Brands $300 a month, then calculate at the end of the year what 20 percent of the net profits amounted to and pay United Brands the difference.
United Brands alleged respondents breached this contract when they ceased making payments in August 2020 and refused to provide financial information despite United Brands’s right to that information as a partner.
(b) Contentions on Summary Judgment In their motion for summary judgment, respondents submitted a January 2017 e-mail chain between Abramov and Suleminian, whereby Abramov asks Suleminian to “pay the consulting fee that is owed to United Brands according to today’s value” and “request[s] a copy of the books and records for 1012-14 Orange for 2014-2016 to view the true profits and to determine what is the actual 20% due to United Brands.” Suleminian responded that “[a]s was agreed in the beginning [¶] $300 a month between me and you.” Abramov replied that “United Brands is still entitled to 20% of the profit from the purchase and sale of the building as we agreed in writing.” Suleminian then stated, among other things, that “[e]ven though you were supposed to help me with managing [the property,] I am doing everything [and] I’m not telling you nothing about it.” In its opposition to summary judgment, United Brands acknowledged receiving these e-mails.
(c) Court’s Reasoning for Granting Summary Judgment
The court found that, to the extent United Brands was complaining that D&K breached its contract relating to the sale
of the property, the matter was not yet ripe because “[t]he property has not been sold, so there are no damages.” Additionally, there was no agreement to sell the property by a certain date. The court added that “[t]he Abramov declaration confirms that Suleminian never repudiated UB’s rights to 20% profits at the time of the eventual sale.”
As for United Brands’s claims for rental income, the court found “the 2 year statute of limitations has run for payments allegedly due 2015-19.” The court rejected United Brands’s delayed discovery claim because “the 1/17 emails put plaintiff on notice of the breaches.”
(d) United Brands’s Arguments on Appeal
United Brands argues the court erred in granting summary judgment as to its breach of contract cause of action because there are triable issues of fact as to whether: (i) United Brands could sue over respondents’ anticipatory repudiation of D&K’s obligation to pay United Brands 20 percent of the net profits from the sale of the property; and (ii) the parties orally modified the 2013 letter agreement, such that D&K was supposed to pay United Brands 20 percent of the rental profits.
(i) Anticipatory Breach of Contract to Share Sale Proceeds
The parties agree D&K has yet to sell the building. As such, the trial court found the issue of whether D&K breached the letter agreement was not yet ripe. United Brands argues that Suleminian provided evidence of anticipatory repudiation, permitting it to sue immediately, before the sale occurs.
But as respondents point out: “The First Amended Complaint does not allege any cause of action for damages for breach of the written contract, or anticipatory breach of that contract regarding D&K paying UB 20% from the net profits from the purchase and sale of the property.” Respondents argue that because the FAC “framed the issues for the motion, . . . D&K was not required to address any unalleged allegations or theories.” United Brands does not dispute the FAC did not allege respondents repudiated the letter agreement but counters that it “does not raise the repudiation [claim] as a new cause of action,” it instead “offers it to defeat the ripeness rationale on the court’s own terms.” We agree with respondents.
“It is well established that the pleadings determine the scope of relevant issues on a summary judgment motion.” (Nieto, supra, 181 Cal.App.4th at p. 74.) “The complaint limits the issues to be addressed at the motion for summary judgment. The rationale is clear: It is the allegations in the complaint to which the summary judgment motion must respond.” (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258.) “If a plaintiff wishes to expand the issues presented, it is incumbent on the plaintiff to seek leave to amend the complaint either prior to the hearing on the motion for summary judgment, or at the hearing itself.” (Ibid.) “A moving party seeking summary judgment . . . is not required to go beyond the allegations of the pleading, with respect to new theories that could have been pled, but for which no motion to amend or supplement the pleading was brought, prior to the hearing on the dispositive motion.” (Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 421.)
Here, United Brands does not contend it sought leave to amend its complaint to allege a claim for breach of the 2013 letter
agreement, and nothing in the record shows that it did. Thus, whether there was evidence properly before the trial court regarding Suleminian’s purported assertion that he would never pay United Brands the 20 percent of net sale profits contemplated under the letter agreement is irrelevant, because that issue was not before the trial court. Similarly, whether the trial court erred in its statements about the ripeness of such a hypothetical claim does not affect our review, which is de novo, and which looks at whether the court correctly granted summary judgment on the complaint before it, not whether the court did so for the right reasons. (Severin Mobile Towing, Inc. v. JPMorgan Chase Bank, supra, 65 Cal.App.5th at p. 302.) Because the FAC contained no allegation that respondents breached the 2013 letter agreement, it does not matter whether there is a triable issue of fact regarding whether respondents anticipatorily breached that agreement.7
(ii) Oral Modification
United Brands argues that the court erred in finding its breach of contract cause of action time-barred because “there are triable issues of fact that Appellant and Respondent intended to and did in fact enter into an oral modification, incorporating the 2013 written contract.” Although United Brands does not expressly argue this on appeal, presumably it contends this issue is material because, as it claims it argued in its motion for new trial, “a written contract can be modified orally, retaining the
7 Thus, although we affirm the trial court’s decision to
grant summary judgment, we express no opinion on whether a claim for breach of the 2013 letter agreement would have been ripe had it been pled.
four-year limitations period.” Respondents counter that the 2015 oral modification constituted a separate oral agreement, governed by a two-year statute of limitations. We need not resolve this dispute because we conclude the statute of limitations began running in January 2017, and the June 2022 complaint was thus outside even the four-year statute of limitations urged by United Brands.
The FAC alleges respondents breached three provisions of the parties’ agreement: (1) D&K and United Brands were “to become partners in managing The Property”; (2) D&K agreed to pay United Brands 20 percent of the net rental profits from the property every year; and (3) because D&K and United Brands were partners, D&K impliedly agreed to provide financial information about the property to United Brands.
It is undisputed that from 2015 to July 2020, D&K never wavered in paying United Brands a set $300 a month and never accounted to United Brands for any rental income supposedly due to it. In January 2017, United Brands expressly asked to be paid its “consulting fee” if D&K did not intend to sell a property and requested a “copy of the books and records for [the property] for 2014-2016 to view the true profits and to determine what is the actual 20% due to United Brands.” D&K stated the agreement was only “$300 a month between me and you.” When United Brands insisted it needed to be paid its “consulting fee,” D&K refused, stating there was no “consulting fee” and that “I told you that I give you 20% of the profit when we sell it without you bringing any money because I knew you’re struggling in your life and I love you as a friend.” Suleminian further insisted he was “doing everything” in regard to managing the property and was “not telling you nothing about it.” In other words, as of January
2017, United Brands was on notice that: (1) D&K did not consider United Brands a partner in managing the property; (2) D&K was not going to pay United Brands 20 percent of the net rental profits from the property every year; and (3) D&K would not provide financial information about the property to United Brands. Thus, assuming these actions breached the parties’ agreement as alleged in the FAC, the statute of limitations began running in January 2017, more than five years before United Brands filed suit. Whether the statute of limitations was two or four years does not matter.
Therefore, even adopting United Brands’s version of the oral agreement and assuming arguendo that a four-year statute of limitations applies, United Brands’s breach of contract cause of action is still time-barred.
2. Breach of Fiduciary Duty and Fraud
(a) Allegations in the FAC United Brands alleged the oral modification of the letter agreement transformed its relationship with D&K into a partnership, such that D&K owed United Brands a fiduciary duty. United Brands complained that respondents failed in their obligations “to collect property income, and then to accurately calculate, segregate, safeguard, and remit to Plaintiff at the agreed time Plaintiff’s share of the income and to account for the same to Plaintiff.” As for fraud, United Brands alleged respondents misrepresented that they “would accurately calculate and pay to Plaintiff twenty percent (20%) of the net rental profits generated from The Property.”
(b) Respondents’ Contentions on Summary Judgment
Respondents argued the breaches in fiduciary duty alleged by United Brands related to respondents’ failure to pay United Brands 20 percent of the rental income and to provide United Brands with the requested books and records, both obligations arising from the 2015 oral modification. They contended the cause of action was therefore barred by a two-year statute of limitations, because after Suleminian’s January 2017 e-mails, “United Brands knew for a certainty that D&K would not provide any information or documentation, nor would it pay more than the fixed monthly amount.” Respondents added that “any action for Fraud should [also] have been brought the latest on or before January 21, 2020.”
(c) Court’s Reasoning for Granting Summary Judgment
The court’s minute order did not mention breach of fiduciary duty or fraud, but at the May 22, 2024 hearing, the court stated that paragraph 46 of the FAC, which was contained within the breach of fiduciary duty cause of action, “only deals with the rental income” and “the statute of limitations has run.” The court later reiterated that it found “the rental claims are barred by the statute of limitations.”
(d) United Brands’s Arguments on Appeal
United Brands argues: (i) the statute of limitations for breach of fiduciary duty is four years; (ii) Suleminian’s use of the phrase “when we sell it” in his January 2017 e-mail “infers that Appellant and Respondents were partners involving the
Property”; and (iii) there are triable issues of fact that would permit a jury to find respondents “never intended on paying Appellant 20% of the income” or that they intentionally withheld financial records from United Brands.
(i) The Breach of Fiduciary Duty Claim Is Time-Barred
United Brands argues “[t]he statute of limitation for breach of fiduciary duty is four years.” Respondents argue “[t]he statute of limitations for breach of fiduciary duty depends on the gravamen of the claim” and thus is two years in this case, because it is based on an oral agreement. Again, we need not resolve this dispute because the cause of action is time-barred regardless of who is correct.
United Brands accuses respondents of breaching their fiduciary duty by failing “to collect property income, and then to accurately calculate, segregate, safeguard, and remit to Plaintiff at the agreed time Plaintiff’s share of the income and to account for the same to Plaintiff.” By January 2017, United Brands knew respondents were not going to remit to United Brands a share of the property income and recognized no obligation to do so. Thus, the statute of limitations began to run in January 2017, and a June 2022 complaint was time-barred, regardless of whether the statute of limitations was two or four years.
(ii) Respondents’ Use of “We” Is Irrelevant
United Brands contends Suleminian’s use of the phrase “when we sell it”—as opposed to “when I sell it”—in his January 2017 e-mail implies “that Appellant and Respondents were partners involving the Property,” and therefore “[t]here are
triable issues of fact to support the existence of a partnership, and thus, the creation of a fiduciary duty.”
Suleminian stated: “Jack respectfully it was not consulting fee it was the deal that you brought me as agent/ broker and as a friend I told you that I give you 20% of the profit when we sell it.” Suleminian is self-evidently referring to what he told Abramov when Abramov “brought [him the deal] as agent/ broker.”
United Brands expressly alleges that “the relationship that imposes a fiduciary obligation to act on behalf of and for the benefit of Plaintiff are a joint venture or partnership created when the parties entered into an oral modification to the original agreement.” (Italics added.) In other words, the partnership that occasioned the breach of fiduciary duty upon which United Brands brought suit arose in 2015.8 If the partnership at issue in this appeal was not created until 2015, then when Suleminian “told” Abramov through the 2013 letter agreement that D&K would pay United Brands 20 percent of the net profit when “we” sell it, “we” could not have referred to purported partners D&K and United Brands because they had not yet formed the partnership that is the subject of the FAC. Thus, even viewed in the light most favorable to United Brands, Suleminian’s e-mail cannot reasonably be construed as evidence that respondents viewed D&K and United Brands as partners in that 2015 partnership, especially when, for the next three years, D&K continued not paying United Brands 20 percent of the rental
8 United Brands also expressly alleged that “[t]he oral
modification transformed the relationship between the parties from a consultant/advisor and investor/client relationship into a partnership.”
profits and refusing to share financial information about the property.9
(iii) The Fraud Claim Is Time-
Barred
Finally, United Brands argues there are triable issues of material fact regarding whether respondents ever “intended on paying Appellant 20% of the income” or whether they intentionally withheld financial records from United Brands. Again, as discussed above, United Brands was on notice by January 2017 that respondents had no intention of paying appellants 20 percent of the rental income or providing it with financial records. Therefore, any claim for fraud is also time- barred.
3. Accounting
(a) Allegations in the FAC United Brands alleged an accounting was necessary to determine “the total rental income generated over the period in question and the net profits.”
(b) Respondents’ Contentions on Summary Judgment
Respondents contended the two-year statute of limitations also barred United Brands’s cause of action for accounting
9 In any case, regardless of whether Suleminian viewed
United Brands and D&K as partners in January 2017, as discussed above, respondents still breached whatever fiduciary duty they owed United Brands more than five years before United Brands filed suit, rendering its claim time-barred.
because its “sole basis for seeking an accounting is to ascertain what amounts, if any, Plaintiff may be owed pursuant to the oral agreement regarding net rental profits.” Thus, the cause of action failed because United Brands could not “assert damages during the applicable limitations period.”
(c) Court’s Reasoning for Granting Summary Judgment
The court agreed with respondents, finding “[t]he accounting claims are derivative of the claims for lost rental income. If the rental income claims were not time-barred, an accounting as to those profits would be appropriate. However, since the rental income claims are time barred, there is no basis for an accounting as to rental profits.”
(d) United Brands’s Arguments on Appeal
United Brands’s only argument on appeal regarding accounting is that it did not discover until Suleminian’s deposition that respondents “had repudiated the agreement to pay Appellant 20% from the sale of the business” and this “creates a triable issue of fact for a jury to determine repudiation, delayed discovery and, therefore, timely claims for breach of contract for approximately $400,000.00 owed to Appellant, breach of fiduciary duty arising from a partnership, breach of contract for the 20% of income payments from the Property, fraud, and accounting.” In its reply brief, it claims its accounting claim should be governed by a four-year statute of limitations.
As with its other causes of action, the statute of limitations for United Brands’s accounting claim began to run in January 2017, when United Brands was put on notice that respondents
were not going to pay it 20 percent of the rental income and refused to provide any financial information regarding that income. United Brands did not file suit until June 2022. Therefore, any cause of action for accounting for the rental profits is time-barred.
B. United Brands Fails to Demonstrate How It Could Successfully Amend Its Complaint Although none of the pleadings or the court’s order is in the appellate record, the parties agree the court sustained a demurrer to causes of action for breach of the implied covenant of good faith and fair dealing and conversion. United Brands asserts it can “show alternate theories on appeal” for both causes of action.
“[A]n ‘ “order sustaining a demurrer . . . is generally reviewable on appeal from the final judgment in the action.” ’ ” (Lopez v. Brown (2013) 217 Cal.App.4th 1114, 1132.) “Appellate review of an order sustaining a demurrer is de novo. [Citation.] ‘In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] . . .” Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action.’ ” (Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 1341.) “We review the ruling sustaining . . . demurrers de novo, exercising independent judgment as to whether the complaint states a cause of action as a matter of law.” (Sipple v. City of Hayward (2014) 225 Cal.App.4th 349,
355.) We are “unconcerned with the trial court’s reasons for sustaining . . . demurrers, as it is the ruling, not the rationale, that is reviewable.” (Ibid.) When a demurrer “is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
United Brands contends it “can amend its Complaint to allege facts to support its second cause of action for breach of the implied covenant of good faith and fair dealing” by alleging that “Suleminian admitted in late 2023 that he had been actively, and ongoing, concealing financial records from Appellant during the operative timeframes.” But, as discussed above, United Brands was aware as early as January 2017 that respondents were refusing to share financial records with it. An allegation that Suleminian admitted in late 2023 what United Brands had known since 2017 would not permit United Brands to successfully state a cause of action for the breach of the implied covenant that would not be time-barred.
Similarly, United Brands argues it can amend its conversion claim to add that in 2023, “Suleminian admitted he did not pay Appellant the 20% of income owed to Appellant.” Again, as discussed above, United Brands was aware as early as January 2017 that D&K was not going to pay it 20 percent of the rental income, and it certainly knew both before and after that time that D&K was not paying it 20 percent of the rental income. The statute of limitations for conversion is three years. (Coy v. County of L.A. (1991) 235 Cal.App.3d 1077, 1087.) The complaint
was not filed until more than five years after January 2017. United Brands’s proposed allegation would not cure this fatal defect.
We conclude United Brands has failed to show it could successfully amend its complaint to state a cause of action for either breach of the implied covenant of good faith and fair dealing or conversion.
C. United Brands Has Forfeited Its Argument Regarding the New Trial Motion In its reply brief, United Brands argues for the first time that the trial court abused its discretion in denying its motion for a new trial. “As this argument was first raised in the reply brief, it is forfeited,” and we need not consider it. (L.A. Taxi Cooperative, Inc. v. The Independent Taxi Owners Assn. of Los Angeles (2015) 239 Cal.App.4th 918, 926, fn. 7.)
Even were we to consider United Brands’s argument, we would reject it. United Brands argues the court erred because Suleminian’s deposition testimony was material in that it “established repudiation removing the ripeness defense” and “confirmed Respondent’s refusal to recognize and perform the partnership obligations.” But, as explained above, the “ripeness defense” relates to an alleged breach of the written contract, which was not alleged in the FAC. And United Brands was on notice of respondents’ “refusal to recognize and perform the partnership obligations” as early as January 2017. Therefore, Suleminian’s deposition testimony had no bearing on whether the court should have granted summary judgment.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
NOT TO BE PUBLISHED
M. KIM, J.
We concur:
BENDIX, Acting P. J.
WEINGART, J.
United Brands Worldwide v. D&K Worldwide CA2/1 (United Brands Worldwide v. D&K Worldwide CA2/1) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.