This case was last updated from Los Angeles County Superior Courts on 06/16/2019 at 18:22:58 (UTC).

DANIEL V. MANIACI...ET AL VS. HELGE K. BERGAN...ET AL

Case Summary

On 03/07/2017 DANIEL filed an Other lawsuit against MANIACI. This case was filed in Los Angeles County Superior Courts, Torrance Courthouse located in Los Angeles, California. The Judge overseeing this case is DEIRDRE HILL. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1913

  • Filing Date:

    03/07/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Torrance Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

DEIRDRE HILL

 

Party Details

Plaintiffs and Cross Defendants

MANIACI ERIC AN INDIVIDUAL

MANIACI DANIEL V. AN INDIVIDUAL

MANIACI ERIC

MANIACI DANIEL V

Defendants and Cross Plaintiffs

BERGAN HELGE K AN INDIVIDUAL

BERGAN KRIS HELGE

BERGAN HELGE KRIS

DOES 1 THROUGH 10 INCLUSIVE

BERGAN HELGE K

Attorney/Law Firm Details

Plaintiff Attorneys

LEE M. WEINBERG

WEINBERG LEE M.

Defendant Attorney

BAKER ROBERT CRAIG

Cross Plaintiff Attorney

LOWE DERRICK SEAN

Cross Defendant Attorney

PROUT SHANEN

 

Court Documents

Cross-Complaint

4/13/2017: Cross-Complaint

Case Management Statement

8/2/2017: Case Management Statement

Notice of Case Assignment

8/14/2017: Notice of Case Assignment

Unknown

11/7/2017: Unknown

Minute Order

4/20/2018: Minute Order

Motion in Limine

7/13/2018: Motion in Limine

Motion in Limine

7/17/2018: Motion in Limine

Motion in Limine

7/26/2018: Motion in Limine

Motion to Bifurcate

7/26/2018: Motion to Bifurcate

Notice of Case Reassignment and Order for Plaintiff to Give Notice

8/15/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Notice

8/21/2018: Notice

Minute Order

11/9/2018: Minute Order

Reply

12/31/2018: Reply

Stipulation and Order

1/7/2019: Stipulation and Order

Stipulation and Order

3/26/2019: Stipulation and Order

Declaration

4/16/2019: Declaration

Opposition

5/2/2019: Opposition

Notice of Ruling

5/17/2019: Notice of Ruling

55 More Documents Available

 

Docket Entries

  • 06/05/2019
  • Motion to Strike (not anti-SLAPP) - without Demurrer; Filed by Daniel V Maniaci (Cross-Defendant)

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  • 06/05/2019
  • Declaration (of Shanen R. Prout in support of Motion to Strike the First Amended Cross-Complaint); Filed by Daniel V Maniaci (Cross-Defendant)

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  • 05/29/2019
  • at 08:30 AM in Department B, Deirdre Hill, Presiding; Jury Trial - Not Held - Vacated by Court

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  • 05/22/2019
  • First Amended Cross-Complaint by Cross-Complainant Helge K. Bergen Against Defendant Daniel Maniaci; Filed by Helge K Bergan (Cross-Complainant); Helge K Bergan (Cross-Complainant)

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  • 05/17/2019
  • Notice of Ruling; Filed by Helge K Bergan (Defendant)

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  • 05/15/2019
  • at 08:30 AM in Department B, Deirdre Hill, Presiding; Final Status Conference - Not Held - Vacated by Court

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  • 05/14/2019
  • at 10:00 AM in Department B, Deirdre Hill, Presiding; Hearing on Motion for Judgment on the Pleadings - Held - Motion Granted

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  • 05/14/2019
  • at 08:30 AM in Department B, Deirdre Hill, Presiding; Hearing on Ex Parte Application (To Continue Trial) - Held - Motion Granted

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  • 05/14/2019
  • Minute Order ( (Hearing on Motion for Judgment on the Pleadings; Hearing on E...)); Filed by Clerk

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  • 05/13/2019
  • Ex Parte Application (To Continue Trial); Filed by Daniel V Maniaci (Plaintiff); Eric Maniaci (Plaintiff); Daniel V Maniaci (Cross-Defendant)

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90 More Docket Entries
  • 06/12/2017
  • Notice of Change of Address or Other Contact Information; Filed by Helge K Bergan (Defendant); KRIS HELGE BERGAN (Defendant); HELGE KRIS BERGAN (Defendant)

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  • 05/16/2017
  • Answer to Cross-Complaint; Filed by Daniel V Maniaci (Plaintiff)

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  • 04/13/2017
  • Cross-Complaint; Filed by Helge K Bergan (Defendant)

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  • 04/13/2017
  • Cross-Complaint by Cross-Complainant Helge K. Bergan Against Cross-Defendant Daniel Maniaci 1. Beach of Contract 2. Breach of Implied Covenant of Good Faith and Fair Dealing 3. Fraud 4. Accounting 5. Declaratory Relief; Filed by Helge K Bergan (Cross-Complainant)

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  • 04/13/2017
  • Answer; Filed by Helge K Bergan (Defendant)

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  • 03/20/2017
  • Proof-Service/Summons; Filed by Daniel V Maniaci (Plaintiff); Eric Maniaci (Plaintiff)

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  • 03/07/2017
  • Complaint; Filed by Daniel V Maniaci (Plaintiff); Eric Maniaci (Plaintiff)

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  • 03/07/2017
  • Summons; Filed by Daniel V Maniaci (Plaintiff); Eric Maniaci (Plaintiff)

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  • 03/07/2017
  • Civil Case Cover Sheet; Filed by Daniel V Maniaci (Plaintiff); Eric Maniaci (Plaintiff)

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  • 03/07/2017
  • Notice of Case Management Conference; Filed by Clerk

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Tentative Rulings

Case Number: YC071913    Hearing Date: July 27, 2020    Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

DANIEL V. MANIACI, et al.,

Plaintiffs,

Case No.:

YC071913

vs.

[Tentative] RULING

HELGE K. BERGAN,

Defendant.

Hearing Date: July 27, 2020

Moving Parties: Cross-defendant Daniel Maniaci

Responding Party: Cross-complainant Helge K. Bergan

Motion for Summary Adjudication

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

RULING

The motion is DENIED as to the 1st and 2nd causes of action and GRANTED as to the 3rd cause of action and claim for punitive damages in the FACC.

BACKGROUND

On March 7, 2017, Daniel Maniaci and Eric Maniaci filed a complaint against Helge K. Bergan for (1) declaratory judgment, (2) breach of oral, implied, and written contracts, and (3) an accounting.

On April 13, 2017, Helge K. Bergan filed a cross-complaint against Daniel Maniaci for (1) breach of contract, (2) breach of implied covenant of good faith and fair dealing, (3) fraudulent misrepresentation, (4) accounting, and (5) declaratory relief.

On May 14, 2019, the court granted cross-defendant D. Maniaci’s motion for judgment on the pleadings as to the 3rd cause of action for fraudulent misrepresentation.

On May 22, 2019, Bergan filed a First Amended Cross-Complaint adding a cause of action for conversion as the 3rd cause of action.

On July 2, 2019, the court denied Maniaci’s motion to strike the punitive damages claim.

LEGAL AUTHORITY

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843. “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519. A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” CCP § 437c(p)(2). “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” CCP § 437c(p)(2). “If the plaintiff cannot do so, summary judgment should be granted.” Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal. App. 4th 463, 467.

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Avivi, 159 Cal. App. 4th at 467; CCP §437c(c).

Discussion

Cross-defendant Daniel Maniaci requests that the court enter summary adjudication on cross-complainant’s claim for punitive damages and the 1st cause of action for breach of contract, 2nd cause of action for breach of the implied covenant of good faith and fair dealing, and 3rd cause of action for conversion in the First Amended Cross-Complaint.

Complaint

For context, the complaint is asserting causes of action for specific performance, declaratory relief, and an accounting. Plaintiff Maniaci is requesting that the court determine the parties’ respective rights and liabilities to each other and how much money Maniaci may owe to Bergan under their buy-sell agreement.

FACC

The FACC alleges that in 2004, Bergan and D. Maniaci entered into an oral agreement under which a partnership named “Secure Horizons Enterprises” (“SHE Venture”) was formed in the field of insurance sales. Under the terms of this partnership, profits from new business brought into the SHE Venture by Bergan was split 50%/50%, with all overhead costs to be paid for by Maniaci. This Profit-Sharing Agreement was later memorialized in a letter dated April 23, 2012, in conjunction with a Buy-Sell Agreement. FACC, ¶10. In 2015, cross-defendants deliberately engaged in a series of actions designed to remove Bergan from the SHE Venture and deprive him of his fair share of the profits, such that cross-defendants would thereafter remain all of the profits from the SHE Venture for themselves and keep the joint assets of the SHE Venture as their own, all to the detriment and injury of Bergan. Id., ¶11.

Cross-complainant further alleges that such wrongful actions included: (a) cross-defendants kept and refused to pay Bergan his full 50% share of the SHE Venture’s net profits after expenses subsequent to August 2015; (b) cross-defendants repeatedly and falsely communicated that Bergan retired on August 31, 2015 as a pretext for depriving him of his share of the SHE Venture’s profits and the taking of the SHE Venture’s assets; (c) cross-defendants substantially restricted Bergan’s ability to participate in the business and operations of the SHE Venture, including denying him access to the commission database at United HealthCare, with whom the SHE Venture had its primary business relationship and his work computer; (d) cross-defendants intentionally caused the creation of incomplete and deficient appraisals of the value of the SHE Venture, including by manipulating profit and loss reporting for the period of January to August 2015, all for the purpose of causing the SHE Venture to be undervalued and to diminish the potential payout to Bergan that would result from the sale of the SHE Venture; and (e) cross-defendants intentionally took the assets of the SHE Venture as their own without providing compensation to Bergan or obtaining his permission, including, taking the commission-generating renewal policies and accounts that served as the primary income stream for the SHE Venture. Id.

Evidentiary objections

Cross-defendant Maniaci’s objections are OVERRULED as to nos. 1-13.

1st cause of action for breach of contract

“To state a cause of action for breach of contract, [plaintiff] must plead the contract, his performance of the contract or excuse for nonperformance, [defendant’s] breach and the resulting damage. (Lortz v. Connell (1969) 273 Cal. App. 2d 286, 290). Further, the complaint must indicate on its face whether the contract is written, oral, or implied by conduct. If the action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference. (Wise v. Southern Pacific Co. (1963) 223 Cal. App. 2d 50, 59.)” Otworth v. Southern Pacific Transportation Co. (1985) 166 Cal. App. 3d 452, 458-59. “To state a cause of action for breach of contract, it is absolutely essential to plead the terms of the contract either in haec verba or according to legal effect.” Twaite v. Allstate Ins. Co. (1989) 216 Cal. App. 3d 239, 252.

“It is essential to the existence of a contract that there should be: 1. Parties capable of contracting; 2. Their consent; 3. A lawful object; and, 4. A sufficient cause or consideration.” Civil Code 1550. “To prove that a contract was created, [plaintiff] must prove all of the following: 1. That the contract terms were clear enough that the parties could understand what each was required to do; 2. That the parties agreed to give each other something of value [a promise to do something or not to do something may have value]; and 3. That the parties agreed to the terms of the contract. . . .” CACI 302. “Both an offer and an acceptance are required to create a contract. . . .” CACI 307. “The statutory presumption of consideration . . . does not, of course, apply to an oral contract. In an action on such an agreement, the essential element of consideration must normally be alleged.” Stevenson v. San Francisco Housing Authority (1994) 24 Cal. App. 4th 269, 284 (citation omitted). “Consideration is present when the promisee confers a benefit or suffers a prejudice. Although either alone is sufficient to constitute consideration, the benefit or prejudice must actually be bargained for as the exchange for the promise. Put another way, the benefit or prejudice must have induced the promisor’s promise. [T]hat the promisee relies on the promise to his injury, or the promisor gains some advantage therefrom, does not establish consideration without the element of bargain or agreed exchange.” Property California SCJLW One Corp. v. Leamy (2018) 25 Cal. App. 5th 1155, 1165-66.

Under this cause of action, Bergan alleges that Bergan and Maniaci entered into an oral partnership agreement in 2004, which was later memorialized into a written agreement on April 23, 2012, under which the SHE Venture was formed and/or operated and under which Bergan, as the managing partner of the SHE Venture, was entitled to receive 50% of all of the SHE Venture’s net profits after expenses. FACC, ¶13. Bergan did all, or substantially all, of the significant things that the contract required him to do, including, fulfilling all of his duties as a partner in the SHE Venture and working to build the SHE Venture into a successful business enterprise, such that all conditions required for Maniaci to perform under the contract were met. Id., ¶14. Subsequent to August 2015, Maniaci failed and continues in his failure to pay Bergan his full 50% share of the net profits, after expenses, generated by the SHE Venture. By keeping the profits for himself and failing to pay Bergan his share of the profits, Maniaci breached the partnership agreement and thereby caused harm to Bergan. Id., ¶15.

In his motion, cross-defendant Maniaci argues that they never agreed orally or in writing that Maniaci or the SHE Venture would pay Bergan any money beyond the date that Bergan last worked for the venture. Maniaci states in his declaration that Bergan and he have not worked together in the SHE Venture since at least August 31, 2015 because Bergan communicated to him on several occasions that he wished to retire and that he wanted Maniaci to purchase his interest in the SHE Venture. Maniaci decl., ¶24. He has not seen Bergan perform any work since at least August 2015 or heard from any of MIS’ employees that he was ever at the MIS office working after August 2015. Id., ¶27. Bergan and Maniaci never signed any document stating that after August 31, 2015, he must pay Bergan a portion of profits from the SHE Venture. Maniaci decl., ¶33. He never communicated to Bergan that after August 31, 2015, he would pay him a portion of profits from the SHE Venture. Id., ¶34. Other than in connection with the pleading s in this case, neither Bergan nor his attorneys have ever demanded that Maniaci pay Bergan any portion of profits from the SHE Venture. Id., ¶31. Bergan only ever communicated to him that he wanted MIS or Maniaci to purchase his share of the SHE Venture. Id., ¶30. ¶

Maniaci asserts that as to the April 2012 letter upon which Bergan relies, it was not signed by Bergan, and that the letter is not an executed contract. Further, the letter does not state anything about net profits, expenses, or payments. Maniaci argues that the letter is unenforceable as a contract because it is far too uncertain. As for Bergan’s claim of an ongoing share of the SHE Venture’s profits, Maniaci argues that Bergan has not established the existence of a partnership.

Maniaci also argues that any purported agreement to pay profits after August 2015 is unenforceable because it is not supported by consideration.

In opposition, Bergan argues that Maniaci has not met his burden because he did not address the “factual question of retirement.” When Maniaci was asked at his deposition, “And if Mr. Bergan didn’t retire, he owns 50 percent of SHE, you would agree with that?” he replied “If had had not retired, would he do so? Of course.” The court recognizes that plaintiff’s counsel objected to this question. Bergan disputes that he retired from the SHE Venture or that he ever told anyone that he retired. In 2015, Bergan attempted to negotiate a sale of the SHE Venture and later attempted to negotiate a buyout of his interest in the SHE Venture by Maniaci. If either of those had been successful, he would likely have retired afterwards. As no sale or buyout occurred, he never retired. Bergan decl., ¶5.

Bergan also argues that there are multiple agreements governing the partnership, including an oral agreement and two written agreements, all of which Maniaci assented to as the terms of the partnership. Id., ¶2. Bergan asserts that to the extent that the agreements are silent on any disputed matters covered by the California Uniform Partnership Act of 1994, as codified in the Corporations Code, the requirement of the Act determine the proper resolution of those disputed matters. Further, Bergan contends, the agreements do not require “sweat equity” as a precondition to distribution of the SHE Venture’s profits.

Bergan also argues that there was adequate consideration for the formation of the SHE Venture.

In reply, Maniaci contends that partners must participate in running the business to be entitled to ongoing profits. He also reiterates his argument that there is no evidence of consideration to receive a share of profits from August 2015 to the present.

The court finds that there are triable issues of material fact. The evidence indicates a partnership existed where there was an agreement of a 50/50 split. Maniaci and Bergan each give different versions of what occurred as to why Bergan stopped receiving his share of the profits. Maniaci states that it was because Bergan retired and stopped working for the SHE Venture. Bergan states that he did not retire but was rather forced out. These are triable issues of material fact. The buy-sell agreement states that Maniaci and Bergan are partners and that “Partners agree that such purchase and sale [of the other partner’s interest] shall occur upon the death, disability, retirement or withdrawal of either Partner.” There is also a triable issue as to if Bergan did retire, and Maniaci did not purchase Bergan’s interest, whether Bergan was entitled to a share of the profits after he purportedly retired.

The motion is DENIED as to this cause of action.

2nd cause of action for breach of implied covenant of good faith and fair dealing

The implied covenant of good faith and fair dealing imposes on the parties to a contract “not do anything to unfairly interfere with the right of any other party to receive the benefits of the contract.” CACI No. 325. However, “the implied promise of good faith and fair dealing cannot create obligations that are inconsistent with the terms of the contract.” Id.

Under this cause of action, cross-complainant alleges that Maniaci unreasonably, and without proper cause, acted and failed to act in a manner that deprived Bergan of the benefits of the partnership agreement, i.e., his 50% share of the profits generated by the SHE Venture. By so doing, Maniaci breached the implied covenant of good faith and fair dealing. FACC, ¶19.

Maniaci presents his declaration where he states that he has never communicated to any third person that Bergan was retired when he knew such statement was untrue or when he had an information that the statement might be untrue. Maniaci decl., ¶27. He never intended to remove Bergan from the SHE Venture or prohibit him from participating in or managing its work. On the contrary, between mid-2013 and mid-2015, he asked Bergan on several occasions to participate more in the venture to help it grow and become more profitable. During this time, Bergan told him on more than one occasion that he wished to retire and that he wished for Maniaci to purchase his interest in the SHE Venture. Id., ¶8. Maniaci states that he has never acted to remove, nor made any decision to remove, Bergan from the SHE Venture. His understanding and belief is that Bergan left the SHE Venture of his own volition and free will because he simply did not wish to work any longer. Between mid-2014 and early 2015, he noticed that Bergan was increasingly absent from MIS offices. Id., ¶9. He has never taken any action to block Bergan from participating fully in the SHE Venture or in the management of its work when he knew or had information that Bergan was his business partner. Id., ¶10. He has never acted to prohibit Bergan from entering MIS’ premises or any other place where Bergan might have performed work for the SHE Venture. Id., ¶11. He never acted to prohibit Bergan from accessing the commission database at UHC or from accessing any computer system. Id., ¶¶12-13.

In opposition, Bergan argues that Maniaci forced him out and prevented him from continuing to participating in the SHE Venture. When it became apparent that Maniaci would not buyout his interest in the SHE Venture, Bergan attempted to continue his duties but was flatly told by Manici in a March 2016 email that he would not be permitted to return and that he had taken over the SHE Venture. Bergan decl., ¶5. The forcible removal included blocking his access to the commission database for UHC. Id., ¶6. Although it is true that he has not performed work for the SHE Venture since the end of 2016, it is solely because Maniaci has refused to permit him to participate in the SHE Venture, has stolen the SHE Venture assets for himself, and commingled them within his company, and has blocked his access to the computer systems necessary to perform his duties for the SHE Venture. Id., ¶8.

As stated above, there are triable issues as to what extent, if at all, Bergan is owed 50% of the profits and whether Maniaci “forced out” Bergan or Bergan retired.

The motion is DENIED as to this cause of action.

3rd cause of action for conversion

A cause of action for conversion requires the following elements: (1) plaintiff's ownership or right to possession of personal property; (2) defendant’s disposition of the property inconsistent with plaintiff’s rights; and (3) resulting damages. Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 119. “ It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use.” Spates v. Dameron Hospital Association (2003) 114 Cal. App. 4th 208, 221. “Money cannot be the subject of a cause of action for conversion unless there is a specific, identifiable sum involved, such as where an agent accepts a sum of money to be paid to another and fails to make the payment. A generalized claim for money is not actionable as conversion.” PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro LLP (2007) 150 Cal. App. 4th 384, 395. “[A] mere contractual right of payment, without more, will not suffice” to establish conversion. Plummer v. Day/Eisenberg, LLP (2010) 184 Cal. App. 4th 38, 45.

Cross-complainant alleges that cross-defendants directly received the profits generated by the SHE Venture and, after the deduction of expenses, were contractually obligated to provide Bergan with 50% of the net profits. By September 2015, cross-defendants asserted complete control over the SHE Venture and thereafter misappropriated said profits for themselves and deliberately and knowingly withheld any payment of said profits from Bergan on the false assertion that he had retired. FACC, ¶22. Between August 2015 and April 2018, the SHE Venture earned net profits, after expenses, in the total amount of $645,540, 50% of which were to be paid to Bergan pursuant to the terms of the partnership agreement; however, cross-defendants deliberately kept and withheld full payment of Bergan’s share of profits and therefore deprived him of the amount of $322,770, less any amounts that cross-defendants assert were paid to Bergan through the monthly draws paid through approximately May 2016. Id., ¶23. Between April 2018 and April 2019, it is estimated that the SHE Venture earned net profits of $250,000, and deprived Bergan of approximately $125,000. Id., ¶24.

Maniaci argues that Bergan cannot show that Maniaci wrongfully took an identifiable sum of money that Maniaci indisputably owed to Bergan. As stated above, money cannot be the subject of conversion unless a specific sum capable of identification is alleged. Further, the conversion claim cannot be based on a contractual right of payment, without more. Maniaci argues that this claim for conversion is tantamount to breach of a contract that does not exist.

Maniaci further argues that Bergan lacks a valid ownership or possession interest in the SHE Venture’s assets to state a claim for conversion.

Maniaci also argues that this claim is barred by the three-year statute of limitations under CCP §338(c)(1). Bergan alleges that by September 2015, Maniaci allegedly pushed him out of the SHE Venture, asserted complete control over it, and began misappropriating Bergan’s money.

In opposition, Bergan argues that the failure of one partner to pay the other partner his share is sufficient to claim conversion, citing to Sanowicz v. Bacal (2015) 234 Cal. App. 4th 1027, 1041-42 (demurrer case). Bergan asserts that the claim for money is specific as it is “ specified percentage of a very specific revenue stream.” He also contends that the sum is readily calculable once Maniaci produces an up-to-date set of profit/loss statements for the SHE Venture. Further, Bergan argues, this claim is not barred by the statute of limitations because it relates back to the filing of the original complaint.

In reply, Maniaci reiterates that there is no agreement requiring him to continue paying money without services rendered and that any sum of money is uncertain. Bergan cannot identify the exact profits from April 2018 through June 2020 at this time.

The court finds that Maniaci has met his burden of showing that Bergan cannot establish the elements. Bergan is seeking a contractual right of payment. Further, Bergan is not seeking a specific, identifiable sum and has not been able to state the sum.

The motion is GRANTED as to the 3rd cause of action for conversion.

Claim for punitive damages

Civil Code § 3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice . . . .” The Court in Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95, found:

“Something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or ‘malice,’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.”

Indeed, “malice” is defined in Civil Code § 3294 to mean “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Civil Code § 3294(c)(1). As the Court noted in College Hospital v. Superior Court (1994) 8 Cal.4th 704, 713, Section 3294 was amended in 1987 to require that, where malice is based on a defendant’s conscious disregard of a plaintiff’s rights, the conduct must be both despicable and willful. The Court in College Hospital held further that “despicable conduct refers to circumstances that are base, vile, or contemptible.” Id. at 725 (citation omitted).

In response to an interrogatory as to his claim for punitive damages, plaintiff responded: “Plaintiff, despite his full knowledge that Defendant did not retire, deliberately and forcibly excluded Defendant from the SHE Venture operations and has knowingly and intentionally failed to pay Defendant his 50% share of the profits from the SHE Venture. Plaintiff also deliberately caused the SHE Venture to be reported at a low valuation so as to artificially reduce any payout to Defendant. In addition, . . . Plaintiff has improperly asserted control of all SHE Venture assets, whether by forcibly dissolving the SHE Venture and absorbing its assets into his own company, by merging the SHE Venture with his own company, or some other improper means.” Suppl. Response to Special Interrogatory No. 134.

Maniaci argues that cross-complainant Bergan cannot show that cross-defendant’s conduct constituted oppression, fraud, or malice. Maniaci contends that there is no evidence that shows that he intended to cause injury to Bergan or any facts that show cruel and unjust hardship. Maniaci also asserts that because the conversion claim is based upon an alleged contract, Civil Code §3294 bars recovery of punitive damages on contract claims. He also reiterates that he never failed to pay Bergan any money when Maniaci knew it was due and owing to Bergan; Maniaci never intended not to pay Bergan his share of any profits or acted to remove Bergan from the venture; never prohibited Bergan from entering MIS’ premises; Maniaci believes that he and Bergan have not worked together in the venture since August 2015; and that Bergan has not visited MIS’ offices to perform any work since 2015. See Maniaci decl.

In opposition, Bergan argues that there are triable issues as to whether he retired, whether Maniaci forcibly removed him from the SHE Venture, and whether Maniaci kept all of the profits for himself.

The court finds that Maniaci met his burden of showing that Bergan cannot establish a claim for punitive damages. Bergan fails to raise a triable issue. Bergan’s claims are based on contract, not tort. Further, he has not shown that Maniaci acted with oppression, fraud, or malice.

The motion is GRANTED as to the claim for punitive damages.

Moving party is ordered to give notice.