Judge Gail Killefer, Case 20STCV33175 2023-02-21 Tentative Ruling

Judge: Gail Killefer, Case: 20STCV33175, Date: 2023-02-21 Tentative Ruling

Case Number: 20STCV33175 Hearing Date: February 21, 2023 Dept: 37

HEARING DATE: February 21, 2023

CASE NUMBER: 20STCV33175

CASE NAME: Holly Wiersma v. Frank Logan Levy, et al.

MOVING PARTY: Plaintiff/Cross-Defendant, Holly Wiersma

OPPOSING PARTIES: Defendants/Cross-Complainants, Frank Levy, Frank Logan Levy and Coya Levy

TRIAL DATE: April 11, 2023

PROOF OF SERVICE: OK

MOTION: Plaintiff’s Motion for Summary Judgment

OPPOSITION: January 26, 2023

REPLY: February 1, 2023

TENTATIVE: Plaintiff’s motion is granted as to the third issue, and otherwise denied. Plaintiff is to give notice.

Introduction

This action arises out of a divorce settlement between Holly Wiersma (“Plaintiff”) and Cassian Elwes (“Elwes”). According to the operative Third Amended Complaint (“TAC”), Plaintiff and Elwes formally dissolved their marriage in September 2013 and Elwes granted Plaintiff an option (“Option”) to purchase fee simple title to a residence located at 7776 Firenze Avenue, Los Angeles, California (the “Property”) until September 30, 2015 (the “Option Period”).

Plaintiff moved back into the Property in October 2013 with Defendant Frank Logan Levy (“Logan”). They became engaged to be married on October 30, 2015. Logan and Plaintiff moved into the Property with the intention of buying it. After Logan and Plaintiff moved in, Plaintiff began renovations on the Property. On December 15, 2016, Plaintiff convinced Elwes to transfer the Option to Logan’s parents, Coya Levy and Frank Levy (the “Elwes/Levy Agreement”), following which Frank Levy and Coya Levy exercised the Option and purchased the Property (the “Levy Firenze Purchase”).

Following the Levy Firenze Purchase, Frank Levy and Coya Levy arranged in July 2017 for Logan to take out a loan and purchase the Property through Defendant Lagniappe Properties CA, LLC (“LP”). In January 2018, after Plaintiff had allegedly vacated the Property following a dispute, Logan started decimating the Property. Thereafter, Plaintiff and Logan reached an agreement for Plaintiff to move back into the Property as a renter (the “Rental Agreement”).

Pursuant to the Rental Agreement, Plaintiff moved back in on July 1, 2018. Plaintiff then began spending money to repair damage to the Property. According to Plaintiff the parties settled their various disputes in December 2019 through a Settlement Agreement (the “Agreement”). The TAC alleges that Plaintiff moved out of the Property as agreed despite continuing to pay all utilities for the Property. The TAC also alleges that Logan continues to wrongfully withhold Plaintiff’s personal property and wrongfully accused her of criminal trespass in connection with her attempts to get her personal property.

On January 25, 2022, the court sustained Defendants’ demurrer to the sixth cause of action of Plaintiff’s Second Amended Complaint (“SAC”). On February 23, 2022, Plaintiff filed her Third Amended Complaint.

Plaintiff’s TAC alleges the following causes of action: (1) breach of written settlement agreement against Logan and LP, (2) breach of the Elwes/Levy Agreement against Frank Levy and Coya Levy, (3) declaratory relief against all defendants, (4) specific performance against all defendants, (5) conversion against all defendants, (6) breach of fiduciary duty against Frank Levy, (7) constructive trust against Logan and LP, (8) unjust enrichment against all defendants, (9) injunction against all defendants, (11) accounting against Logan and LP, (13) fraud against Logan, Frank Levy and Coya Levy, (14) tortious conspiracy against all defendants.

On April 28, 2022, Plaintiff filed her Fourth Amended Complaint (“4AC”) alleging identical causes of action, and omitting the sixth cause of action.

On June 13, 2022, Frank Levy, Logan and Coya Levy (“Cross-Complainants”) filed a Cross-Complaint against Plaintiff. The Cross-Complaint alleges two causes of action: (1) breach of contract; and (2) defamation.

Plaintiff now moves for summary adjudication as follows:

1. Issue 1: Plaintiff's First Cause of Action for Breach of Contract should be granted as there are no triable issues of material fact.

2. Issue 2: Cross-Complaint’s First Cause of Action for Breach of Contract fails as a matter of law as there are no triable issues of material fact.

3. Issue 3: Cross-Complaint’s Second Cause of Action for Defamation is without merit and should be summarily adjudicated in favor of Plaintiff.

Defendants oppose the motion.

Evidentiary Objections

Defendants’ Objections to Declaration of Plaintiff

Overruled: 1, 3-4,

Sustained: 2, 5-6,

Discussion

I. Legal Authority

“The purpose of the law of summary judgment 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.) Pursuant to CCP § 437c(a):

A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct…. The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading.

A motion for summary judgment may be granted “if 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.” (CCP § 437c(c).) The requirement that there be “no triable issue of material fact” means that summary judgment can be granted only where the essential facts are either conceded or beyond dispute. If there is one, single material fact in dispute, the motion must be denied. A factual issue is material whenever its determination “could make a difference to the disposition of the motion.” (See CRC, rule 3.1350(a)(2).)

“The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denial of the motion.” (CCP § 437c(b)(1); see also CRC, rule 3.1350(c)(2) & (d).)

In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294 (Hinsley).) CCP § 437c(p)(2) provides:

A defendant or cross-defendant 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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.

The court must “view the evidence in the light most favorable to the opposing party and accept all inferences reasonably drawn therefrom.” (Hinesley, 135 Cal.App.4th at p. 294; Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389 [Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”].) A motion for summary judgment must be denied where the moving party’s evidence does not prove all material facts, even in the absence of any opposition (Leyva v. Sup. Ct. (1985) 164 Cal.App.3d 462, 475) or where the opposition is weak (Salasguevara v. Wyeth Labs., Inc. (1990) 222 Cal.App.3d 379, 384, 387). The court does not partake in a weighing of evidence. (Mann v. Cracchiolo (1985) 38 Cal.3d18, 39.)

II. Factual Summary

Background: Plaintiff met Defendant Logan during production of a motion picture and began a relationship with him in February 2012, as her marriage to film producer Cassian Elwes was ending; Plaintiff’s marital residence with Cassian had been the Property. (Undisputed Material Fact (“UMF”), ¶¶ 1-2.) In September 2013, Cassian gave Plaintiff an option to acquire title to the property in fee simple by payment of the sum of $2,150,00 on or before September 30, 2015 (“Option Price”), which was substantially lower than market value for the Property. (UMF ¶3.)

In October 2013, Defendant Logan and Plaintiff moved into the Property with the intention of exercising the Option to purchase the Property at the Option Price. In December 2016, Plaintiff convinced Cassian to assign the Option to Defendants Frank and Coya Levy at the Option Price. (UMF ¶¶4-5.) Defendants Frank and Coya Levy exercised the Option on December 31, 2016 and purchased the Property. (UMF 6.)

Crucially, Defendants here dispute Plaintiff’s assertion that Cassian insisted Defendant Logan honored his promise to sell the Property to Plaintiff for the original Option Price if Logan and Plaintiff ended their relationship. (Separate Statement in Opposition to Motion (“DSS”) ¶6.)

In July 2017, Defendant Logan used his funds to make a down payment to purchase the Property for the Option Price with a secured loan; Logan purchased the Residence through Defendant LP. (UMF 7.)

On April 18, 2018, Plaintiff returned to the Property and found a journal/diary written by Logan during his period in rehabilitation; Plaintiff took the journal to her rental home, took pictures of certain pages where her name was mentioned, sent those pictures to Logan and confronted him with his use of heroin in her home, his use of a mixture of cocaine and heroin, and his attempts to blame Plaintiff for his behavior. (UMF ¶¶9-10.)

While Plaintiff contends she returned the journal to Logan, deleted all pictures of the journal, and can no longer access to those pictures, Defendants dispute the contention and argue Plaintiff retained copies of Logan’s journal until at least April 16, 2020. (DSS ¶11-12.)

On July 1, 2018, Logan leased Plaintiff the Property at the rate of $9,500 per month, and Defendants dispute the expenditures Plaintiffs contends were spent to repair damages done to the Property. (DSS ¶13.)

In May 2019, Logan filed a first Application For Restraining Order against Plaintiff. On September 24, 2019, LP filed an unlawful detainer action against Plaintiff after the lease expired. (DSS ¶¶14-15.) On December 8, 2019, Plaintiff and Defendants agreed to settle all disputes in connection with the Property through a Settlement Agreement (“Settlement Agreement”). (UMF ¶16.) Pursuant to ¶ 2.d of the Settlement Agreement, LP agreed to finish the remodel of the Property, to pay Plaintiff 50% of the gross proceeds of the sale after deduction of (a) closing costs, escrow fees etc., (b) payment of LP carrying costs, mortgage, insurance etc. from February 1, 2020, until completion of the sale, (c) payment to Plaintiff and LP of each of their costs of remodel from and after the date of the Settlement Agreement and (d) $2,200,000 to LP. (UMF ¶17.)

Plaintiff contends LP sold the Property on November 17, 2020, and has never accounted for monies owed to Plaintiff pursuant to the Settlement Agreement. Defendants dispute Plaintiff is owed any money from any alleged sale of the Property. (DSS ¶18.)

It is further undisputed that Plaintiff expended $37,162.46 to “restore” the Property to “its original condition.” (UMF ¶21.) On May 27, 2020, Plaintiff returned to the Property to retrieve some of her remaining personal property as Logan had demanded. Logan later appeared at the Property, called the police, and reported Plaintiff as a criminal trespasser. (UMF ¶23.)

The parties also dispute whether any statements made by Plaintiff are defamatory towards Defendants and whether any alleged defamatory statements could cause damage to Logan’s work in the film industry. (DSS ¶¶29-30.)

The Settlement Agreement: the parties dispute the effect and scope of the provisions of the Settlement Agreement.

The Settlement Agreement provides, in relevant part:

2. Settlement.

d. Sale of the Property. Lagniappe agrees to finish the remodel of the Property for purposes of sale as soon as reasonably possible. Upon sale of the Property, the proceeds shall be allocated and distributed in the following order:

i. Payment of all closing costs, escrow fees, transfer costs and related costs and fees;

ii. Payment to Lagniappe of all carrying costs — mortgage, insurance, etc. — from February 1, 2020 until sold;

iii. Payment to Lagniappe and Wiersma of all costs of remodel from and after the date of this Agreement;

iv. Payment to Lagniappe in the sum of 2.2 million;

v. Remaining sale proceeds shall be [split] 50 – 50 between Lagniappe and Wiersma.

e. Return of Property. Wiersma agrees to return to Levy any and all copies of his private journal that she has in her possession and agrees not to release any portion of said journal to any individual or entity. In the event that Wiersma releases any portion of Levy’s journal to any person or entity, Wiersma shall be in material breach of this Agreement, entitling Levy to receive liquidated damages as set forth below.

4. Release. Except for the obligations created under this Agreement, the Parties on behalf of themselves and their respective agents, officers, employees, affiliates, partners, successors, heirs, assigns, and attorneys, fully release and discharge each other and their respective agents officers, employees, affiliates, partners, successors, heirs, assigns, and attorneys, from any and all claims, rights and causes of action, of any nature or sort, known or unknown, liquidated or unliquidated, past present and future, which they may have against each other arising out of or relating to the facts and circumstances which formed the basis of the dispute. This includes, but is not limited to, any rights to or in the Property by Wiersma and the Wiersma Allegations.

...

6. Liquidated Damages. In the event Wiersma breaches any provision of this Agreement, Lagniappe shall be entitled to liquidated damages in the amount of $200,000.00 per breach plus attorney fees and costs. In the event Wiersma breaches paragraph 2.e of this Agreement, said damages shall be paid directly to Levy.

(UMF ¶ 16; Wiersma Decl. ¶ 26; Exh. A.)

III. Analysis

A. First and Second Issue: Breach of Contract

A cause of action for breach of contract consists of the following elements: (1) the existence of a contract; (2) the plaintiff’s performance or excuse for nonperformance; (3) the defendant’s breach; and (4) the resulting damages to the plaintiff. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) “The essence of a contract is the meeting of minds on the essential features of the agreement.” (Krasley v. Superior Court (1980) 101 Cal.App.3d 425, 431.) A contract “is unenforceable if the parties fail to agree on a material term or if a material term is not reasonably certain.” (Lindsay v. Lewandowski (2006) 139 Cal.App.4th 1618, 1623.)

A written contract must be pled verbatim in the body of the complaint, be attached to the complaint and incorporated by reference, or be pled according to its legal effect. (Bowden v. Robinson (1977) 67 Cal.App.3d 705, 718.) An allegation of an oral agreement must “set[] forth the substance of its relative terms.” (Gautier v. General Tel. Co. (1965) 234 Cal.App.2d 302, 305.)

Plaintiff first contends that summary adjudication is warranted for the 4AC’s first cause of action as the monies owed to her are “readily calculable,” and that “[LP] and Logan have no right to reduce [Wiersma’s] 50% Share by application of the Permitted Deductions.” (Memorandum of Points and Authorities (“MPA”), 12.) Plaintiff contends Defendants have “failed to provide any admissible evidence of any such Permitted Deductions in discovery,” pursuant to ¶ 2.d of the Settlement Agreement, which Plaintiff further contends “is solely within the control of Defendants...” (Id.) As such, Plaintiff argues she is entitled to “an award of issue or evidence sanctions against Defendants regarding any claim of Permitted Deductions,” and “is entitled to a permissible presumption that any such evidence would be adverse to Defendants.” (Id.) Plaintiff further asserts that Defendants “bear both the burden of production and the burden of proof of the amount of any Permitted Deductions,” and argues they have failed to satisfy these burdens. (MPA, 12-13.)

Plaintiff also contends summary adjudication is warranted here as Plaintiff did not breach ¶ 2.e of the Settlement Agreement since she “had inadvertently retained a few cell phone photos of one or more of pages [sic] of the journal relevant to her disputes with Logan but had resent all photos to Logan, and Logan only. [Plaintiff] did not disclose the journal or any images thereof to any persons other than Logan and possibly Logan’s mother and father.” (MPA, 13.) Plaintiff also argues Defendants’ attempt to enforce the liquidated damages provision of ¶ 6 is presumably illegal pursuant to Civ. Code §1671(c) and Defendants carry the burden of proving the clause is a valid liquidated damage clause. (MPA, 14.)

“The Cross Complainants have no evidence whatsoever that Holly did not return all copies or records of Logan’s journal to Logan or disclosed any part of Logan’s journal to anybody but Logan (and perhaps his parents). Cross Complainants have no evidence whatsoever that Logan could be ‘damaged’ by a return of his own journal to himself.

...

As with respect to the illusory Permitted Deductions, it is Cross Complainants’ burden to both produce evidence of disclosure of Logan’s journal and resulting damage and to prove by a preponderance of the evidence both improper disclosure and resulting damage. Holly has carried her burden of persuasion that there is no disputed material fact of either improper disclosure or resulting damage.” (MPA, 15-16.)

In opposition, Defendants first point to conflicting timelines regarding Plaintiff’s return of Logan’s journal in Plaintiff’s Separate Statement and Declaration. (Opposition, 4-5.) Further, Defendants contends “the evidence discussed below establishes that Plaintiff still had copies of the Journal long after 2018, and may still have copies to this day.” (Id.) Additionally, Defendants contend there is a lack of admissible evidence regarding the sale price of the Property and Plaintiff fails to introduce evidence to support her claims for expenses used to repair the Property. (Opp., 5.) Defendants further argue that any contention that the Settlement Agreement’s ¶ 4 released any claims arising from the Settlement Agreement is “contradictory” and “Plaintiff’s subsequent breach of the Settlement Agreement is a new dispute and does not arise of the dispute settled in the Settlement Agreement.” (Opp., 5-6.)

Additionally, Defendants contend on April 16, 2020, Plaintiff “sent via text message photographic copies of the Journal. Examination of the metadata of the photograph discloses that the photograph was taken the same day the text message was sent,” and this evidence points to Plaintiff’s retaining of copies of the journal. (Opp., 6.) Defendants further argue:

“Defendants’ obligations to pay Plaintiff a portion of the sale proceeds from the Property would not arise until the Property was sold in November 2020. Defendants’ obligations to pay Plaintiff pursuant to the Settlement Agreement became unenforceable when Plaintiff breached the Settlement Agreement in April 2020.

The evidence establishing that Plaintiff materially breached the Settlement Agreement is well known to Plaintiff and was produced by Defendants through the discovery process. Even in the most charitable light, there is a factual dispute known to Plaintiff regarding whether Plaintiff breached the Settlement Agreement and therefore Plaintiff is precluded from enforcing the Settlement Agreement. Plaintiff’s Motion is therefore frivolous and brought in bad faith.

Defendants proffer evidence that Plaintiff breached the Settlement Agreement and therefore Plaintiff cannot enforce the Settlement Agreement against Defendants... This is equally true of Defendants’ claim against Plaintiff for breach of the Settlement Agreement. The only disputed facts relate to Plaintiff’s performance and damages. As discussed hereinabove, Plaintiff’s breached the Settlement Agreement and Defendants’ damages are as specified in the Settlement Agreement. The facts on all parties’ claims under the Settlement Agreement are in dispute, precluding granting summary judgment on that issue.” (Opp., 7.)

In reply, Plaintiff contends Defendants have failed to produce discoverable evidence regarding the sale price of the Property. (Reply, 3-4.) Further, Plaintiff contends “Defendants have no evidence that [Plaintiff] breached Paragraph 4.d of the Settlement Agreement because nothing in Paragraph 4.d provides” that Plaintiff’s “mere possession” of copies of the journal are a breach of the Settlement Agreement. (Reply, 4-5.) Plaintiff further specifies that Defendants fail to proffer any evidence that Plaintiff “ever ‘released’ [Logan’s] journal to anyone but Logan,” and that her possession of the journal alone cannot constitute a material breach which would entitle to Defendants to not perform their duties under the Settlement Agreement. (Reply, 6-7.) The court disagrees.

Viewing the evidence submitted in the light most favorable to Defendants, the court agrees with Defendants that several triable issues of material fact remain regarding the first and second issues. Here, ¶ 2.e clearly states Plaintiff “agrees not to release any portion of said journal to any individual or entity.” The language of the Settlement Agreement does not create a caveat for the alleged release of copies of the journal to Logan and Logan’s parents, following an attempt to return all copies of the Journal before the Settlement Agreement was finalized. Whether the photographic copies of the journal sent through text message are a “release” as deliberated by the Settlement Agreement is a question left to a trier of fact which cannot be adjudicated as a matter of law here. Further, whether the “Permitted Deductions” Defendants allege under ¶ 2.d of the Settlement Agreement are actually permitted under the contract is another triable issue left to a trier of fact. Also, whether Plaintiff expended approximately $120,000.00 in repairs, which would allow her to avail herself of a larger portion of the sale proceeds from the Property under ¶ 2.d of the Agreement again, is also a triable issue of material fact left to a trier of fact and not ripe for summary adjudication. As such, the court finds that the Settlement Agreement is littered with triable issues of material fact as it relates to the parties claims for breach of contract in the 4AC and Cross-Complaint.

For these reasons, Plaintiff’s motion is denied as to the first and second issue.

B. Third Issue: Defamation

“The tort of defamation ‘involves (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.’ ”¿ (Taus¿v. Loftus¿(2007) 40 Cal.4th 683, 720), implicitly overruled on unrelated grounds as recognized in¿Burrill v. Nair¿(2013) 217 Cal.App.4th 357, 380.)¿¿“To prevail on a claim¿for defamation, plaintiff must show four elements: that defendants published the statements; that the statements were about plaintiff; that they were false; and that defendants failed to use reasonable care to determine the truth or falsity.”¿ (Hecimovich¿v.¿Encinal¿School Parent Teacher Org.¿(2012) 203 Cal.App.4th 450, 470.)¿The truth of a statement is a complete defense to a claim for defamation. (Campanelli v Regents of University of California (1996) 44 Cal.App.4th 572, 582-83.)

Defamation has two forms—libel and slander.¿ (Civ. Code, § 44.)¿ “Libel is a false and unprivileged publication by writing, printing¿…¿which¿[in relevant part]¿exposes any person to hatred, contempt, ridicule, or obloquy, …¿or which has a tendency to injure him in his occupation.”¿ (Civ. Code, § 45.)¿¿“Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which¿[in relevant part]:¿…¿3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits….”¿ (Civ. Code, § 46, subd.¿(3).)¿¿¿

Plaintiff contends that summary adjudication as to the third issue regarding the Cross-Complaint’s claim of defamation is required because the claims are vague, and fail to show the “specificity required to state an actionable libel claim.” (MPA, 17; citing Gilbert v. Sykes, (2007) 147 Cal.App.4th 13, 32.)

In reply, Plaintiff also correctly contends the November 23, 2020 email is the “sole allegation of defamation in Defendants’ Cross-Complaint filed on August 30, 2022.” (Reply, 8.) Plaintiff further explains “Defendants do not allege that the purported defamatory statements occurred with the one year limitation period of CCP §340(c).” (Id.) As the alleged defamations were made more than one-year prior to the filing of the Cross-Complaint on August 30, 2022, Plaintiff also correctly explains these claims are time-barred as Defendants cannot avail themselves of equitable tolling here. (Id.; Shively v. Bozanich (2003) 31 Cal. 4th 1230, 1247-48.)

Viewing the evidence submitted in the light most favorable to Defendants, the court finds that no triable issue of material fact exists with regard to the defamation claim. Plaintiff correctly explains that the claims underpinning the defamation cause of action of the Cross-Complaint are time-barred, and Defendants submit no evidence demonstrating that there are triable issues of material fact regarding the applicable statute of limitations or when the defamations were allegedly made. Thus, no triable issue exists with regard to this cause of action.

For these reasons, Plaintiff’s motion is granted as to the third issue.

Conclusion

Plaintiff’s motion is granted as to the third issue, and otherwise denied. Plaintiff is to give notice.