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This case was last updated from Los Angeles County Superior Courts on 06/17/2021 at 20:59:28 (UTC).

MAUREEN TARICCO VS DEANE TARICCO

Case Summary

On 04/21/2016 MAUREEN TARICCO filed a Contract - Other Contract lawsuit against DEANE TARICCO. This case was filed in Los Angeles County Superior Courts, Torrance Courthouse located in Los Angeles, California. The Judges overseeing this case are ROBERT B. BROADBELT and DEIRDRE HILL. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1264

  • Filing Date:

    04/21/2016

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Torrance Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

ROBERT B. BROADBELT

DEIRDRE HILL

 

Party Details

Plaintiffs and Cross Defendants

TARICCO MAUREEN TRUSTEE

TARICCO MAUREEN

ACE ATTORNEY SERVICE INC

LAWRENCE TARICCO AS SUCCESSOR

Plaintiff and Appellant

TARICCO MAUREEN

Defendants and Respondents

DOES 1 TO 50

FUEL ENGINEERING CORPORATION

TARICCO DEANE

Attorney/Law Firm Details

Plaintiff Attorneys

DENTONS US LLP

KROOT JOSHUA ESQ.

Defendant Attorneys

SAUER GERALD LAWRENCE

COOPER MICHAEL B.

COOPER MICHAEL B. ESQ.

SAUER GERALD L. ESQ.

TORKAMANI AMIR

Other Attorneys

SCOULAR ROBERT FRANK

SCOULAR ROBERT F. ESQ.

 

Court Documents

Opposition - OPPOSITION TO EX PARTE APPLICATION TO ADVANCE HEARINGS ON PLAINTIFF'S DISCOVERY MOTIONS

7/18/2019: Opposition - OPPOSITION TO EX PARTE APPLICATION TO ADVANCE HEARINGS ON PLAINTIFF'S DISCOVERY MOTIONS

Notice - NOTICE OF CONTINUANCE OF HEARING ON PLAINTIFF MAUREEN TARICCOS MOTION TO QUASH SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS DIRECTED TOWARDS BUSS/SHELGER ASSOCIATES, AND FOR PROTECTIVE ORDER

8/21/2019: Notice - NOTICE OF CONTINUANCE OF HEARING ON PLAINTIFF MAUREEN TARICCOS MOTION TO QUASH SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS DIRECTED TOWARDS BUSS/SHELGER ASSOCIATES, AND FOR PROTECTIVE ORDER

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

10/3/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Declaration - DECLARATION OF JOSHUA KROOT IN SUPPORT OF PLAINTIFF'S EX PARTE APPLICATION RE: EVIDENCE AT NEW TRIAL

10/23/2019: Declaration - DECLARATION OF JOSHUA KROOT IN SUPPORT OF PLAINTIFF'S EX PARTE APPLICATION RE: EVIDENCE AT NEW TRIAL

Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)

11/1/2019: Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)

Witness List

11/5/2019: Witness List

Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

11/13/2019: Order Appointing Court Approved Reporter as Official Reporter Pro Tempore

Order - ORDER RE: OBJECTIONS TO SECOND SUPPLEMENTAL JOINT SUBMISSION RE: TRIAL TRANSCRIPTS DESIGNATIONS

11/15/2019: Order - ORDER RE: OBJECTIONS TO SECOND SUPPLEMENTAL JOINT SUBMISSION RE: TRIAL TRANSCRIPTS DESIGNATIONS

Brief - BRIEF PLAINTIFFS CLOSING REPLY BRIEF

1/31/2020: Brief - BRIEF PLAINTIFFS CLOSING REPLY BRIEF

Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND FURTH...)

3/9/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND FURTH...)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 11/20/2020, COURT'S TENTATIVE DECISION

11/20/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 11/20/2020, COURT'S TENTATIVE DECISION

Notice - NOTICE OF ENTRY OF STATEMENT OF DECISION ON NEW TRIAL ON LIMITED ISSUES

1/20/2021: Notice - NOTICE OF ENTRY OF STATEMENT OF DECISION ON NEW TRIAL ON LIMITED ISSUES

Minute Order - MINUTE ORDER (HEARING ON MOTION TO SET ASIDE/VACATE JUDGMENT (CCP 473) , AN...)

3/25/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION TO SET ASIDE/VACATE JUDGMENT (CCP 473) , AN...)

Notice - Notice of Case Reassignment

12/28/2018: Notice - Notice of Case Reassignment

Minute Order - Minute Order (Non-Appearance Court Order re: Judgment and Statement of Deci...)

1/15/2019: Minute Order - Minute Order (Non-Appearance Court Order re: Judgment and Statement of Deci...)

Proof of Service by Mail

3/1/2019: Proof of Service by Mail

Notice of Ruling

3/29/2019: Notice of Ruling

Notice - NOTICE OF TAKING HEARING OFF CALENDAR

4/10/2019: Notice - NOTICE OF TAKING HEARING OFF CALENDAR

315 More Documents Available

 

Docket Entries

  • 05/11/2021
  • DocketAppeal - Notice of Filing of Notice of Appeal; Filed by Clerk

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  • 05/03/2021
  • DocketAppeal - Ntc Designating Record of Appeal APP-003/010/103; Filed by Maureen Taricco (Appellant)

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  • 04/23/2021
  • DocketAppeal - Notice of Appeal/Cross Appeal Filed; Filed by Maureen Taricco (Appellant)

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  • 04/22/2021
  • DocketDeclaration (Declaration of Amir A. Torkamani re Interest on Judgment); Filed by Deane Taricco (Defendant)

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  • 04/22/2021
  • DocketWrit of Execution ((LOS ANGELES )); Filed by Deane Taricco (Defendant)

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  • 04/22/2021
  • DocketApplication for Issuance of Writ of Execution, Possession or Sale; Filed by Deane Taricco (Defendant)

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  • 04/09/2021
  • Docketat 4:11 PM in Department 53, Robert B. Broadbelt, Presiding; Court Order

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  • 04/09/2021
  • DocketCertificate of Mailing for ((Court Order) of 04/09/2021); Filed by Clerk

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  • 04/09/2021
  • DocketMinute Order ( (Court Order)); Filed by Clerk

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  • 04/02/2021
  • DocketNotice (of Entry of Order); Filed by Deane Taricco (Defendant)

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631 More Docket Entries
  • 07/01/2016
  • DocketFirst Amended Complaint; Filed by TARICCO, MAUREEN, TRUSTEE (Legacy Party)

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  • 06/22/2016
  • DocketNotice of Hearing on Demurrer; Filed by Deane Taricco (Defendant)

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  • 06/08/2016
  • DocketDeclaration; Filed by TARICCO, MAUREEN, TRUSTEE (Legacy Party)

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  • 06/06/2016
  • DocketDeclaration; Filed by Deane Taricco (Defendant)

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  • 05/19/2016
  • DocketAnswer; Filed by Fuel Engineering Corporation (Defendant)

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  • 05/12/2016
  • DocketProof-Service/Summons; Filed by TARICCO, MAUREEN, TRUSTEE (Legacy Party)

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  • 05/12/2016
  • DocketProof-Service/Summons; Filed by TARICCO, MAUREEN, TRUSTEE (Legacy Party)

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  • 04/21/2016
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 04/21/2016
  • DocketSummons; Filed by null

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  • 04/21/2016
  • DocketComplaint; Filed by null

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Tentative Rulings

Case Number: YC071264    Hearing Date: March 25, 2021    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

maureen taricco ;

Plaintiff,

vs.

deane taricco , et al.,

Defendants.

Case No.:

YC071264

Hearing Date:

March 25, 2021

Time:

10:00 a.m.

[Tentative] Order RE:

(1) motion to change the statement of decision, modify or vacate the judgment, and/or reopen the case for further proceedings;

(2) motion to set aside and vacate the judgment and to enter a new and different judgment

MOVING PARTY: Plaintiff Maureen Taricco

RESPONDING PARTY: Defendant Deane Taricco

  1. Motion to Change the Statement of Decision, Modify or Vacate the Judgment, and/or Reopen the Case for Further Proceedings;

  2. Motion to Set Aside and Vacate the Judgment and to Enter a New and Different Judgment

The court considered the moving, opposition, and reply papers.

BACKGROUND

On April 21, 2016, plaintiff Maureen Taricco, in her individual capacity, as personal representative of the Estate of Tari Lawrence Taricco, as successor trustee of the Taricco Family Trust Dated October 3, 1989, as trustee of Survivor’s Trust Under Taricco Family Trust Dated October 3, 1989, and as trustee of Residuary Trust Under Taricco Family Trust Dated October 3, 1989, and derivatively on behalf of Fuel Engineering Corporation (“FEC”) (“Plaintiff”), filed this action against defendants Deane Taricco (“Defendant”) and FEC. Defendant FEC was named as a nominal defendant.

On July 1, 2016, Plaintiff filed her First Amended Complaint, which alleges causes of action for (1) specific performance (breach of contract – 1992 agreement to sell nine shares of FEC stock), (2) specific performance (breach of contract – 2008 stock option agreement), (3) fraud, (4) breach of fiduciary duty (by Plaintiff in her individual capacity), (5) breach of fiduciary duty (by Plaintiff derivatively on behalf of FEC), (6) declaratory relief, and (7) involuntary dissolution and appointment of receiver.

The court held a trial by the court in this action in July and August 2018. The court issued its Statement of Decision and entered judgment on January 15, 2019 (the “2019 Statement of Decision”).

On March 29, 2019, the court issued an order granting in part and denying in part Defendant’s motion for new trial. The court granted Defendant’s motion for new trial solely on the issues of (1) whether Defendant received adequate consideration for the 2008 option agreement and (2) whether the 2008 option agreement was, as to Defendant, just and reasonable.

The court held a new trial on the limited issues by the court in this action on November 13-15, and 18-19, 2019.

After each party rested her case and the presentation of evidence was completed on November 19, 2019, the court ordered the parties to present closing arguments by written briefs. Plaintiff filed her closing argument brief on December 23, 2019. Defendant filed her closing argument brief on January 24, 2020. Plaintiff filed her reply closing argument brief on January 31, 2020.

On November 20, 2020, the court took the new trial on limited issues under submission and issued its Tentative Decision on New Trial on Limited Issues, which stated that it is the court’s proposed statement of decision, subject to a party’s objection under subdivision (g) of California Rules of Court, rule 3.1590. On December 7, 2020, Defendant filed “Defendant Deane Taricco’s Objection to Tentative Decision on New Trial on Limited Issues.” On December 8, 2020, Defendant lodged a “[Proposed] Amended Judgment.” On December 8, 2020, Plaintiff filed “Plaintiff Maureen Taricco’s Objections to Tentative Decision on New Trial on Limited Issues” and “Plaintiff Maureen Taricco’s Objections to [Proposed] Amended Judgment.”

On January 20, 2021, the court issued an order ruling on Plaintiff’s and Defendant’s objections, and issued its Statement of Decision On New Trial On Limited Issues. On the same day, the court entered the Amended Judgment in favor of Defendant and against Plaintiff.

Plaintiff now moves (1) for a new trial and to change the January 20, 2021 statement of decision (the “2021 Statement of Decision”), to modify or vacate the Amended Judgment, or to reopen the case for further proceedings and for the introduction of additional evidence pursuant to Code of Civil Procedure section 657 et seq., and (2) to set aside and vacate the Amended Judgment and to enter a new and different judgment in favor of Plaintiff pursuant to Code of Civil Procedure section 663. Defendant opposes the motion.

DISCUSSION

  1. Motion for New Trial

A motion for new trial pursuant to Code of Civil Procedure section 657 asks the trial court to reexamine one or more issues of fact or law by challenging a trial court judgment for judicial error. (Carney v. Simmonds (1957) 49 Cal.2d 84, 90.) “A motion for a new trial is ‘a new statutory proceeding, collateral to the original proceeding’ and constitutes a new action brought to set aside the judgment.” (Spruce v. Wellman (1950) 98 Cal.App.2d 158, 161 (quoting Frowden v. Pacific Coast Steamship Co. (1906) 149 Cal. 151, 154).) “A verdict may be vacated, in whole or in part, and a new trial granted for any of the grounds listed in Code of Civil Procedure section 657 materially affecting the substantial rights of a party. [Citation.] Those grounds are ‘Irregularity in the proceedings,’ . . . ‘Insufficiency of the evidence,’ and “Error in law.’ [Citation.]” (Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181 Cal.App.4th 1108, 1121.)

In ruling on a motion for a new trial in a nonjury case, “the court may, on such terms as may be just, change or add to the statement of decision, modify the judgment, in whole or in part, vacate the judgment, in whole or in part, and grant a new trial on all or part of the issues, or, in lieu of granting a new trial, may vacate and set aside the statement of decision and judgment and reopen the case for further proceedings and the introduction of additional evidence with the same effect as if the case had been reopened after the submission thereof and before a decision had been filed or judgment rendered.” (Code Civ. Proc., § 662.)

Plaintiff moves for a new trial or to modify the statement of decision and Amended Judgment on the grounds of (1) irregularity in the proceedings of the court and adverse party, orders of the court, and abuse of discretion by the court by which Plaintiff was prevented from having a fair trial (Code Civ. Proc., § 657, subd. (1)), (2) insufficiency of the evidence to justify the 2021 Statement of Decision and Amended Judgment, and the Amended Judgment is against law (Code Civ. Proc., § 657, subd. (6)), and (3) error in law, occurring at the trial and excepted to by Plaintiff (Code Civ. Proc., § 657, subd. (7)). (Plaintiff’s Notice of Intention, filed February 4, 2021, p. 2:12-22.) Plaintiff contends that the court must change the 2021 Statement of Decision to find that the consideration for the 2008 option agreement was adequate, and that the 2008 option agreement was just and reasonable as to Defendant. (Plaintiff’s Memo. of P’s & A’s, filed February 16, 2021, p. 9:2-3.) Alternatively, Plaintiff moves to reopen the case for further proceedings pursuant to Code of Civil Procedure section 662. (Plaintiff’s Notice of Intention, filed February 4, 2021, p. 2:12-14; Plaintiff’s Memo. of P’s & A’s, filed February 16, 2021, p. 9:4-5.)

First, Plaintiff moves for a new trial or to modify the 2021 Statement of Decision and Amended Judgment because Plaintiff asserts those orders are based on insufficient evidence, errors in law and an abuse of discretion, and are against law. (Plaintiff’s Memo. of P’s & A’s, filed February 16, 2021, p. 9:6-7.) Plaintiff contends that (1) the court’s findings in the 2021 Statement of Decision (on which the court bases its ruling that Defendant did not receive adequate consideration for the 2008 option agreement and that it was not just and reasonable as to Defendant) “are inconsistent with, and contravene, the findings in the 2019 [Statement of Decision] which have not been vacated and remain binding” (Plaintiff’s Memo. of P’s & A’s, filed February 16, 2021, p. 9:21-24), (2) the 2021 Statement of Decision, in contravention of the court’s prior factual findings, erroneously recasts the “circumstances” of Defendant’s signing of the 2008 option agreement, and (3) the 2021 Statement of Decision erroneously contravenes the court’s prior findings in the 2019 Statement of Decision regarding the “object” to be obtained by the contract and the “relationship” of the parties.

The court disagrees with Plaintiff’s contention that the 2021 Statement of Decision is inconsistent with the 2019 Statement of Decision for the following reasons.

  1. Plaintiff contends that the court’s findings in its 2019 Statement of Decision are in conflict with its findings in 2021 Statement of Decision that (1) Defendant did not receive adequate consideration for the 2008 option agreement, and (2) it was not, as to Defendant, just and reasonable. (2021 Statement of Decision, p. 15:22-24.) Without citing to any specific findings, Plaintiff argues that the court made findings in the 2019 Statement of Decision on the object to be obtained by the 2008 option agreement, the relationship between Defendant and Tari Taricco, and historical stock transfers between Defendant and Tari[1] which are inconsistent with the court’s findings in the 2021 Statement of Decision. Plaintiff also asserts that “[n]ow, considering only the evidence of the value of Defendant’s stock, as measured by a hypothetical transaction between unrelated parties . . . – not the familial and business relationship the Court had previously found – everything is changed in the 2021 [Statement of Decision].” (Plaintiff’s Memo. of P’s & A’s, filed February 16, 2021, pp. 19:27-11:2.)

    Contrary to Plaintiff’s assertions, in the 2021 Statement of Decision, the court did consider the entire circumstances of the 2008 option agreement, including the object to be obtained by the 2008 option agreement, the relationship between Defendant and Tari, and historical stock transfers between Defendant and Tari. (2021 Statement of Decision, pp. 9:23-10:5, 10:21-13:14.)

    In the 2019 Statement of Decision, the court determined that Defendant’s continued employment established, as a matter of law, that consideration existed to support the 2008 option agreement. (2019 Statement of Decision, pp. 8:5-11:12.) The court found that “defendant did not meet her burden of producing evidence to rebut the presumption under Civil Code § 1614 that the written agreement was supported by consideration.” (2019 Statement of Decision, p. 11:13-15.) In the 2021 Statement of Decision, the court considered and made findings on the adequacy of consideration for the 2008 option agreement, and whether the 2008 option agreement was just and reasonable as to Defendant. (2021 Statement of Decision, pp. 4:16-15:24.) The court’s findings in the 2021 Statement of Decision are not inconsistent with its findings in the 2019 Statement of Decision because, in the 2019 Statement, the court did not make any finding on the adequacy of consideration for the 2008 option agreement, or whether the 2008 option agreement was just and reasonable as to Defendant.

  2. Plaintiff points out that, in the 2019 Statement of Decision, the “facts and legal findings as to the circumstances surrounding Defendant’s signing of the 2008 Agreement” included the following: (1) Defendant signed the 2008 option agreement (2019 Statement of Decision, p. 4:15-16), (2) “Tari did not make any representations to defendant about the contents of the agreement to mislead her or to induce her to sign it” (2019 Statement of Decision, p. 17:9-10), (3) “‘[t]he parties are bound by the terms of the contract even if they do not read it’ [Citation]” (2019 Statement of Decision, p. 17:12-13), and (4) “[r]easonable diligence requires a party to read a contract before signing it’ [Citation.]” (2019 Statement of Decision, p. 17:15-16). Plaintiff argues that those findings in the 2019 Statement of Decision are inconsistent with the court’s finding in the 2021 Statement of Decision that the circumstances in which Defendant signed the 2008 option agreement support the conclusions that Defendant did not receive adequate consideration for the agreement and it was not just and reasonable as to Defendant. The court disagrees.

    The court addressed this issue in the 2021 Statement of Decision: “Although the court found in its Statement of Decision in the first trial that defendant did not meet ‘her burden of proving that Tari’s conduct in obtaining defendant’s signature on the 2008 Agreement bars recovery based on unclean hands’ (Statement of Decision, filed January 15, 2019, p. 17:3-4), that finding addressed defendant’s affirmative defense of unclean hands and did not address Civil Code section 3391’s separate rule that specific performance cannot be enforced against a party to a contract if it is not just and reasonable as to that party. While defendant’s affirmative defense of unclean hands focused on Tari’s and plaintiff’s conduct, section 3391’s restriction on specific performance focuses on whether the contract is just and reasonable as to defendant. . . . . Thus, the court’s finding in its Statement of Decision in the first trial that defendant did not meet her burden of proving that Tari’s or plaintiff’s conduct bars recovery based on defendant’s affirmative defense of unclean hands is consistent with the court’s finding here on the new trial on limited issues that the 2008 Agreement is not just and reasonable as to defendant.” (2021 Statement of Decision, pp. 14:25-15:17.)

  3. Plaintiff asserts that the court’s findings in the 2021 Statement of Decision as to the object to be obtained by the 2008 option agreement conflict with the findings in the 2019 Statement of Decision. The court disagrees.

    In the 2019 Statement of Decision, the court determined that Tari’s continuing employment with FEC established the existence of consideration as a matter of law. Specifically, the court stated: “[T]he evidence at trial established that, at the time defendant and Tari entered into the 2008 Agreement, Tari was an employee and President of FEC, defendant expected that Tari would continue his employment at FEC, and defendant expected and wanted to continue to manage and operate FEC. . . . . Thus, applying the Court of Appeal’s ruling in Newberger, the court finds that Tari’s continued employment at FEC was consideration that supported the 2008 Agreement.” (2019 Statement of Decision, p. 11:16-23.)

    In the 2021 Statement of Decision, the court considered Defendant’s testimony as to the circumstances of her signing the 2008 option agreement. (2021 Statement of Decision, pp. 11:20-12:14.) The court concluded: “Taken together, all of these facts concerning the circumstances in which defendant signed the 2008 Agreement show that the parties did not have a ‘mutual intention’ to be obtained by the contract other than the objective meaning of the words stated in the contract.” (2021 Statement of Decision, p. 12:11-14.) From this and other factors, the court found that Plaintiff did not meet her burden of proving that Defendant received adequate consideration for the 2008 option agreement. (2021 Statement of Decision, p. 13:7-14.)

    The 2019 Statement of Decision and the 2021 Statement of Decision do not contradict each other because the 2019 Statement of Decision, on the one hand, found that Tari’s continuing employment established the existence of consideration for the 2008 option agreement as a matter of law, and the 2021 Statement of Decision, on the other hand, found that Plaintiff did not meet her burden of proving that Defendant received adequate consideration for the agreement.

Second, Plaintiff moves for a new trial or to modify the 2021 Statement of Decision and Amended Judgment on the ground of insufficiency of the evidence to justify the 2021 Statement of Decision and Amended Judgment. The court notes that Plaintiff also argues for a new trial or to modify the 2021 Statement of Decision and Amended Judgment on the ground that those orders are inconsistent with the evidence. However, Plaintiff’s contention that the statement of decision and Amended Judgment are inconsistent with the evidence is not a ground for relief under Code of Civil Procedure section 657. Nevertheless, the court has considered Plaintiff’s arguments on that issue because “[i]ncorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts” is a ground to set aside and vacate a judgment under Code of Civil Procedure section 663 (which is relief Plaintiff has also requested in her motion and is discussed below).

Plaintiff contends that the 2021 Statement of Decision is contradicted by evidence showing Defendant’s knowledge of the 2008 option agreement and its contents. Plaintiff points to certain events occurring in 2013 and 2014 purportedly showing Defendant’s knowledge of the 2008 option agreement. But this evidence does not establish that Defendant knew the contents of the 2008 option agreement at the time it was executed on 2008. Whether Defendant received adequate consideration for the 2008 option agreement and whether it is just and reasonable as to Defendant “must be determined as of the time the contract was made.” (Berkeley Lawn Bowling Club v. City of Berkeley (1974) 42 Cal.App.3d 280, 290.)

Plaintiff also contends that the 2021 Statement of Decision does not consider (1) Defendant’s statements of intent regarding disposition of her FEC stock, and (2) the history of Tari’s acquisition of FEC shares. But, contrary to Plaintiff’s contention, the court did consider the evidence on these two points.

In the 2021 Statement of Decision, the court discussed Plaintiff’s testimony that Defendant told Plaintiff on several occasions of Defendant’s intent regarding disposition of her FEC stock (2021 Statement of Decision, p. 10:6-19), and then stated the following: “The court has considered these statements but finds that, in light of the circumstances under which defendant signed the 2008 Agreement . . . , the fact that these statements were made in various contexts not addressing the 2008 Agreement, and the great disparity between the option price and the fair market value of defendant’s shares, these statements do not establish the object to be obtained by the 2008 Agreement or that defendant received adequate consideration for that contract.” (2021 Statement of Decision, p. 10:14-19.)

In the 2021 Statement of Decision, the court also considered Plaintiff’s evidence of prior transactions in which Defendant transferred shares of her FEC stock to Tari. (2021 Statement of Decision, pp. 10:20-11:4.) The court concluded: “Although plaintiff points to these prior transactions where defendant transferred shares of her FEC stock to Tari to enable the court to view the entire circumstances of the parties’ 2008 Agreement . . . and to support plaintiff’s position on the object to be obtained by the 2008 Agreement, the court finds that, given the substantial length of time between the prior transactions where defendant transferred shares of her stock to Tari (in 1976, 1991, and 1992) and the 2008 Agreement, and the lack of competent evidence to show what the fair market value of defendant’s shares were at the time of each of the prior transactions (except for defendant’s gifting five shares to Tari in 1976 (Ex. 9)), these prior stock transactions between defendant and Tari have little probative value in determining whether defendant received adequate consideration for the 2008 Agreement. The previous stock transactions between defendant and Tari are also not probative of the parties’ mutual intention as to the object to the 2008 Agreement because, as discussed below, at the time defendant signed the 2008 Agreement, she did not know she was signing a contract that would allow plaintiff to buy her stock.” (2021 Statement of Decision, p. 11:5-19.)

Plaintiff next contends that the court’s 2021 Statement of Decision fails to discuss evidence of Defendant’s alleged knowledge of the value of her FEC stock prior to entering into the 2008 option agreement. Plaintiff points to evidence that Defendant received multiple appraisals for FEC’s real estate holdings in connection with the 2002-2006 ACTA condemnation proceedings. But that evidence does not establish any error in the court’s findings in the 2021 Statement of Decision that Plaintiff did not meet her burden of proving that Defendant received adequate consideration for the 2008 option agreement and that the agreement was just and reasonable as to Defendant. First, the court’s findings are supported by Defendant’s testimony that she did not know the value of FEC’s shares (as opposed to the value of FEC’s real estate holdings) in January 2008. (Defendant’s oppos., Ex. H (11/18/19 Reporter’s Transcript, p. 105:9-14).) Second, evidence of Defendant’s alleged knowledge of appraisals for FEC’s real estate holdings in 2006 would not establish that Defendant had knowledge of the value of FEC’s shares in 2008. As discussed above, whether Defendant received adequate consideration for the 2008 option agreement and whether it is just and reasonable as to Defendant “must be determined as of the time the contract was made.” (Berkeley Lawn Bowling Club, supra, 42 Cal.App.3d at p. 290.)

Plaintiff also argues that the 2021 Statement of Decision is erroneous because it does not discuss Defendant’s statement that she had no need for monetary assistance. But, in light of the evidence and circumstances considered by the court in the 2021 Statement of Decision in making its findings that Plaintiff did not meet her burden of proving that Defendant received adequate consideration for the 2008 option agreement and that the agreement was just and reasonable as to Defendant, the fact this evidence is not discussed in the 2021 Statement of Decision does not establish any error in the court’s findings.

Third, Plaintiff argues that the fact Tari continued to be employed by FEC after entering into the 2008 option agreement constituted a waiver of any claim of inadequacy of consideration. The court disagrees that Defendant has waived any claim of inadequacy of consideration for the 2008 option agreement by Tari’s continued employment at FEC after entering into the agreement. In the 2021 Statement of Decision, the court stated: “The court finds that, although Tari’s continued employment at FEC as of January 22, 2008 was consideration for the 2008 Agreement, plaintiff did not establish that the value of Tari’s continued employment to defendant justified the incredible disparity between the option price at which she was compelled to sell her FEC shares under the 2008 Agreement and their fair market value at the time. Although Tari’s continued employment at FEC after the 2008 Agreement was entered into had some value to defendant, it does not appear that it had so much value to defendant as to justify her agreeing to divest herself of her ownership interest in FEC for 10.3 times (or even 6.7 times) less than it was worth.” (2021 Statement of Decision, p. 9:15-22.) Moreover, even assuming arguendo that Tari’s continuing to be employed by FEC after entering into the 2008 option agreement were to constitute a waiver of any claim of inadequacy of consideration, it would not relieve Plaintiff of her burden to prove that the 2008 option agreement was just and reasonable as to Defendant, which is a separate and independent requirement for specific performance of a contract under Civil Code section 3391.

Fourth, Plaintiff argues that, “[a]s a result of the errors specified above, if the Court does not reinstate the prior judgment, the Court should re-open the case for further proceedings and the introduction of additional evidence, including the statements of decedent, Tari Taricco . . . .” (Plaintiff’s Memo. of P’s & A’s, filed February 16, 2021, p. 19:21-23.) But, for the reasons set forth above, the court finds that Plaintiff has not met her burden of establishing any of the grounds set forth in Code of Civil Procedure section 657 or any errors made by the court in its 2021 Statement of Decision or Amended Judgment. The court therefore denies Plaintiff’s request to vacate and set aside the 2021 Statement of Decision and Amended Judgment and to reopen the case for further proceedings and the introduction of additional evidence. (Code Civ. Proc., § 662.)

Fifth, Plaintiff moves for a new trial or to modify the 2021 Statement of Decision and Amended Judgment on the ground of error of law. Plaintiff contends that the 2021 Statement of Decision and Amended Judgment erroneously apply Civil Code section 3391 to Plaintiff’s sixth cause of action for declaratory relief. Plaintiff contends that Civil Code section 3391 only applies to the second cause of action for specific performance, not the sixth cause of action for declaratory relief.

In the 2021 Statement of Decision, the court ruled on Plaintiff’s second cause of action for specific performance and found that, because Defendant did not receive adequate consideration for the 2008 option agreement, and the 2008 option agreement was not just and reasonable as to Defendant, specific performance cannot be enforced against Defendant under Civil Code section 3391. (2021 Statement of Decision, p. 15:22-27.) In Plaintiff’s sixth cause of action for declaratory relief, she seeks a declaration that “[t]he option agreement is valid and binding on Defendant Deane Taricco, and requires her to sell her remaining shares of stock to Plaintiff Estate, subject to the Estate paying the price per percentage interest specified in the agreement . . . .” (First Amended Complaint, filed July 1, 2016, ¶ 74.d) (2021 Statement of Decision, p. 16:2-7.) In the 2021 Statement of Decision, the court stated: “Because the court has found that plaintiff is not entitled to specific performance of the 2008 Agreement, the court also finds that plaintiff is not entitled to a judgment making the declaration she seeks in Paragraph 74.d of her First Amended Complaint.” (2021 Statement of Decision, p. 16:7-10.) Thus, the court did not err in finding that plaintiff is not entitled to a judgment making the declaration she seeks in Paragraph 74.d of her First Amended Complaint.

For the reasons set forth above, the court denies Plaintiff’s motion for new trial and to change the 2021 Statement of Decision, to modify or vacate the Amended Judgment, or to reopen the case for further proceedings and for the introduction of additional evidence pursuant to Code of Civil Procedure section 657 et seq.

  1. Motion to Set Aside and Vacate the Amended Judgment

A motion to set aside and vacate a judgment and enter a different judgment under Code of Civil Procedure section 663 “is a remedy to be used when a trial court draws incorrect conclusions of law or renders an erroneous judgment on the basis of uncontroverted evidence.” (Simac Design, Inc. v. Alciati (1979) 92 Cal.App.3d 146, 153.) Section 663 provides that a judgment may be vacated on the ground of an “[i]ncorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts . . . .” (Code Civ. Proc., § 663; see Glen Hill Farm, LLC v. California Horse Racing Board (2010) 189 Cal.App.4th 1296, 1302 [noting that the court cannot “in any way change any finding of fact”].)

Here, Plaintiff has not met her burden of establishing any incorrect or erroneous legal basis for the Amended Judgment that is not consistent with or not supported by the facts. The court therefore denies Plaintiff’s motion to set aside and vacate the Amended Judgment under Code of Civil Procedure section 663.

ORDER

For the reasons set forth above, the court (1) denies plaintiff Maureen Taricco’s motion for new trial and to change the 2021 Statement of Decision, to modify or vacate the Amended Judgment, or to reopen the case for further proceedings and for the introduction of additional evidence pursuant to Code of Civil Procedure section 657 et seq., and (2) denies plaintiff Maureen Taricco’s motion to set aside and vacate the Amended Judgment pursuant to Code of Civil Procedure section 663.

The court orders defendant Deane Taricco to give notice of this order.

IT IS SO ORDERED.

DATED: March 25, 2021

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court


[1] Because the parties and a number of other persons discussed in this case have the same last name, the court sometimes refers to them by their first names for clarity, and not with disrespect.

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