Judge Teresa A. Beaudet, Case BC599621 2023-02-10 Tentative Ruling

On October 30, 2015, Plaintiff Jonathan Balint filed this action on behalf of Karen Balint aka Karen D. Balint as the Conservator of her Person and Estate, against Defendant Kirk Shader, individually and as Power of Attorney of Karen Balint. The Complaint asserts causes of action for (1) remedies for financial abuse of an elder, (2) damages for conversion, (3) damages for conversion, (4) unjust enrichment, and (5) action for imposition of constructive trust.

On June 22, 2017, Kirk Shrader (“Shrader”) filed a Cross-Complaint against Jonathan Balint, as Personal Representative of the Estate of Karen Balint (Substituted for Conservatorship of Karen Balint, Jonathan Balint, Conservator). On November 20, 2017, Shrader filed the operative First Amended Cross-Complaint, asserting causes of action for (1) breach of contract, (2) breach of implied-in-fact contract, and (3) quantum meruit/unjust enrichment.

As set forth in the Court’s December 21, 2022 Judgment After Jury Verdict, “[o]n November 1, 2022, this matter came on for trial in Department 50 in this Court, the Honorable Teresa A. Beaudet, presiding.” Per the Judgment After Jury Verdict, “[a]fter deliberation, on November 17, 2022, the jury rendered the verdict set forth in the Jury Verdict Form appended hereto as Exhibit A. The verdict, having been published to the jury and to the parties and their counsel, the Court having accepted and filed the verdict, and the Court having polled the jury and the jury having confirmed that this was their verdict, the Court hereby enters judgment in accordance with the verdict.”

The December 21, 2022 Judgment After Jury Verdict further provides, “Judgment is entered in favor of Defendant, Kirk Shrader, and against Plaintiff, on all causes of action alleged against Defendant in the Complaint by Plaintiff, Estate of Karen Balint, aka Karen D. Balint, Jonathan Balint, Administrator. On said Complaint, Plaintiff takes nothing.” In addition, “Judgment is entered in favor of Cross-Complainant, Kirk Shrader, and against Cross-Defendant, Jonathan Balint, as Personal Representative of the Estate of Karen Balint, in the sum of $195,893.24. The Judgment shall be payable out of the property of the decedent’s estate in the course of administration, in the matter of the Estate of Karen Balint, Case No. 30-2016-00878904-PR-LA-CJC, in the Superior Court of California, County of Orange. The judgment shall bear interest as provided by law.”

Jonathan Balint, as Personal Representative of the Estate of Karen Balint (Substituted for Conservatorship of Karen Balint, Jonathan Balint, Conservator) (“Plaintiff”) now moves for the Court to “set aside the jury verdict and judgment as to the estate liability to Defendant, Kirk Shrader, and to enter judgment in Plaintiffs favor notwithstanding the (1) Judgment entered in favor of Defendant, Kirk Shrader, and against Plaintiff in the Complaint by Plaintiff, Estate of Karen Balint, aka Karen Balint, Jonathan Balint, Administrator; and (2) Judgment in favor of Cross-Complainant, Kirk Shrader, and against Cross-Defendant, Jonathan Balint, as Personal Representative of the Estate of Karen Balint, in the sum of $195,893.24 on the Special Verdicts dated November 17, 2022.” Plaintiff moves in the alternative for a new trial. Shrader opposes.

“The court . . . shall render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made.” (Code Civ. Proc., § 629, subd. (a).) The trial court has limited discretion to grant a motion for judgment notwithstanding the verdict; it may grant it only when there is no substantial evidence to support the verdict. (Teitel v. First L.A. Bank (1991) 231 Cal.App.3d 1593, 1603; Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68 [a JNOV motion “may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support”].) A judgment notwithstanding the verdict can be sustained only when it can be said as a matter of law that no other reasonable conclusion is legally deducible from the evidence, and that any other holding would be so lacking in evidentiary support that the reviewing court would be compelled to reverse it, or the trial court would be compelled to set it aside as a matter of law. (Moore v. City & County of San Francisco (1970) 5 Cal.App.3d 728, 733-734.) The trial judge cannot, therefore, reweigh the evidence, or judge the credibility of witnesses; if the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied. (Teitel v. First L.A. Bank, supra, at p. 1603.)

As an initial matter, the Court notes that the docket for this matter indicates that on December 30, 2022, Plaintiff also filed a Motion to Vacate Judgment on Special Verdict. However, no hearing appears to have been reserved as to this motion. Plaintiff indicates in the instant motion that he “incorporates the Motion to Vacate, in its entirety, in the instant motion.” (Mot. at p. 6, fn. 4.) Plaintiff makes several references to the motion to vacate in the instant motion, which mostly refer to the motion to vacate generally (e.g., “[s]ee generally Motion to Vacate.”) (Mot. at p. 7:7-8.) Plaintiff does not expressly indicate whether the “Motion to Vacate” he is referring to is the motion filed on December 30, 2022. Moreover, the Court finds that this attempt to incorporate by reference another motion is improper as it violates page limit rules. Pursuant to Cal. Rules of Court, Rule 3.1113, subd. (d) “[e]xcept in a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 15 pages.” It is also unclear in most instances what portion of the motion to vacate (if it is the December 30, 2022 motion) Plaintiff is referring to. Consequently, the Court is not considering any arguments made outside of the moving papers filed by Plaintiff in connection with the instant Motion for Judgment Notwithstanding the Verdict Or, in the Alternative, for New Trial.

Plaintiff asserts that the Court should grant judgment for Plaintiff notwithstanding the verdict because the evidence at trial was insufficient to support the jury’s verdict on the issues of breach of contract and unjust enrichment. (See Beavers v. Allstate Ins. Co. (1990) 225 Cal.App.3d 310, 323 [finding that a trial court may grant judgment notwithstanding the verdict “as to some but not all issues”].) Plaintiff makes a number of arguments in support of this assertion.

First, Plaintiff argues that “Defendant alleged he entered into an oral agreement with Karen Balint stating he would distribute assets to her from the estate of James Shrader, without deducting the expenses of the estate, with an the [sic] understanding that KAREN BALINT’s share of the expenses would be paid back to KIRK SHRADER upon the death of KAREN BALINT from her estate. Over the objection of Plaintiff, the court allowed hearsay evidence without exception to show assent to an alleged oral agreement when the alleged statement could not be corroborated by anyone other than the Defendant.” (Mot. at p. 5:18-24.)[1]

As an initial matter, the Court notes that there is no supporting evidence provided with the motion.[2] Rather, as noted in the opposition, Plaintiff relies on summaries of the evidence without any citations to evidence. As discussed above, “[t]he trial court’s discretion in granting a motion for judgment notwithstanding the verdict is severely limited…A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict. If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied.” (Teitel v. First L.A. Bank, supra, 231 Cal.App.3d at p. 1603.)

Second, Plaintiff argues that “Defendant’s entire case against Balint is grounded in their allegation that Karen Balint entered into an oral agreement with Kirk Shrader to be performed after she passed away…Assuming arguendo that Karen Balint assented to an agreement as alleged by Plaintiff to be completed after her death, such contract is rendered invalid by the statute of frauds and Defendant’s counts against Balint cannot lie.” (Mot. at p. 8:4-9.) Plaintiff similarly argues that “[t]he jury was mislead [sic] to believe that the unjust enrichment arose out of an alleged agreement between Karen Balint and Kirk Shrader for reimbursement to Kirk Shrader from Karen Balint’s estate. This formulated story which could only be corroborated by Karen Balint regarding an the [sic] oral agreement that, as a matter of law, cannot stand as the oral agreement was instead corroborated by Kirk Shrader through hearsay in violation of the Statute of Frauds.” (Mot. at p. 6:16-21.) Plaintiff notes that “[a]n agreement that by its terms is not to be performed within a year from the making thereof” is invalid, unless it, “or some note or memorandum thereof, [is] in writing and subscribed by the party to be charged or by the party’s agent…” (Civ. Code, § 1624, subd. (a)(1).)

As set forth above, no supporting evidence is provided by Plaintiff in connection with the motion. In addition, Shrader counters that enforcement of the oral contract between Karen Balint and Shrader is not barred by the statute of frauds based on the doctrine of estoppel. Shrader notes that “[e]quitable estoppel may preclude the use of a statute of frauds defense…[t]he doctrine of estoppel to assert the statute of frauds has been consistently applied by the courts of this state to prevent fraud that would result from refusal to enforce oral contracts in certain circumstances. Such fraud may inhere in the unconscionable injury that would result from denying enforcement of the contract after one party has been induced by the other seriously to change his position in reliance on the contract…” (Byrne v. Laura (1997) 52 Cal.App.4th 1054, 1068 [internal quotations omitted].) Plaintiff does not respond to this point in the reply.

Third, Plaintiff argues that “[r]egarding the count for Unjust Enrichment, the court was misguided to conclude that cross-plaintiff is entitled to relief under an unjust enrichment theory independent of a contract.” (Mot. at p. 8:10-11.) As Shrader notes, Plaintiff does not cite to any legal authority in support of this proposition.

Fourth, Plaintiff argues that “Plaintiff failed to satisfy the first element [of a cause of action for breach of contract], the existence of a valid contract with Balint and the precise material terms of such purported contract because Plaintiffs failed to introduce in evidence any actual piece of writing to evidence such a contract…” (Mot. at p. 9:16-19.) The Court notes that Plaintiff appears to have referred to “Plaintiff” and “Plaintiffs” in error in this assertion. The Court further notes that Plaintiff’s arguments pertaining to the statute of frauds are discussed above. In addition, as set forth above, no evidence was provided with the motion in support of Plaintiff’s arguments.

Fifth, Plaintiff notes that pursuant to Civil Code section 3300, “[f]or the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom.” Plaintiff asserts that “[t]here is no evidence that any damages suffered by Plaintiffs were ‘directly or necessarily’ caused by Balint’s alleged breach of an oral agreement. Testimony at trial purported to introduce a laundry list of expenses paid in the distribution of the James Shrader Estate which were disputed by a similar laundry list of expenses showing reimbursements made by money held by Karl Shrader for Karen Balint. In this regard, damages awarded against Balint were purely speculative in nature as it is unclear as to how the damages of $195,893.24 were derived.” (Mot. at p. 12:1-7.) However, as discussed, no supporting evidence was provided with the motion. The Court does not find that Plaintiff has demonstrated that there was no substantial evidence to support the amount of damages awarded.

“A motion for new trial is a creature of statute . . . .” (Neal v. Montgomery Elevator Co. (1992) 7 Cal.App.4th 1194, 1198.) “[A] motion for a new trial can be granted only on one of the grounds enumerated in the statute.” (Fomco, Inc. v. Joe Maggio, Inc. (1961) 55 Cal.2d 162, 166.) Accordingly, pursuant to Code of Civil Procedure section 657, a motion for new trial may be granted only if there is any:

2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors.

3. Accident or surprise, which ordinary prudence could not have guarded against.

4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.

6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.

7. Error in law, occurring at the trial and excepted to by the party making the application.

“A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.” (Code Civ. Proc., § 657.)

Plaintiff argues that “[a]s set forth above, Defendant’s damages evidence does not support the jury’s award in the amount of $195,893.24, and this Court should vacate the jury’s award of $195,893.24 as ‘excessive’ and unsupported by the evidence,” citing to Code of Civil Procedure section 657(5). (Mot. at p. 12:21-24.) The Court does not find that Plaintiff has demonstrated how the damages awarded here were excessive. As discussed, no evidence was provided in connection with the motion.

Based on the foregoing, Plaintiff’s motion for judgment notwithstanding the verdict or, in the alternative, for new trial is denied.

[1]The Court notes that the November 17, 2022 Verdict Form provides, inter alia, that as to Shrader’s claim for breach of contract, the Jury answered “Yes” as to the question “Did Mr. Shrader and Karen Balint enter into a contract?” As to Shrader’s claim for unjust enrichment, the Jury answered “Yes” to the question “Did Mr. Shrader pay Karen Balint’s share of the expenses for the Estate of James Shrader?”

[2]The “Motion to Vacate Judgment” referenced in the instant motion likewise does not have any supporting evidence.

Superior Court of California

County of Los Angeles

Department 50

“A judgment or decree, when based upon a decision by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment:

1. Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case when the judgment is set aside, the statement of decision shall be amended and corrected.

2. A judgment or decree not consistent with or not supported by the special verdict.”

“A motion to vacate under 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.)

Plaintiff argues that here, there was an incorrect or erroneous legal basis for the “Judgments entered.”[1] Plaintiff makes several arguments in support of this assertion.

First, Plaintiff argues that “Defendant is precluded as a witness from offering testimony regarding the alleged oral agreement.” (Mot. at p. 5:1-2.) In the First Amended Cross-Complaint (“FACC”), Shrader alleges that he was appointed as Executor of the Estate of James E. Shrader by the Los Angeles California Superior Court (Case No. VP 010797) on January 18, 2005, and that on October 13, 2006, the Court granted an Order for Final Distribution. (FACC, ¶¶ 5-6.) The Order for Final Distribution provided of the assets of the estate, after expenses and specific gifts, should be distributed fifty percent to Shrader and fifty percent to Karen Balint. (FACC, ¶ 6.) The FACC further alleges that “[p]rior to distribution, on or about August 15, 2006, KIRK SHRADER entered into an oral agreement, that was subsequently confirmed within a written agreement, with KAREN BALINT that he would distribute assets to her from the estate, without deducting the expenses of the estate, with the understanding that KAREN BALINT’s share of the expenses would be paid back to KIRK SHRADER upon the death of KAREN BALINT from her estate.” (FACC, ¶ 7)

Plaintiff argues that Shrader cannot be a witness in this matter to the alleged oral contract he made before Karen Balint passed away. In support of this assertion, Plaintiff cites to Vonchina v. Estate of Turner (1957) 154 Cal.App.2d 134, 136, which provides that “[i]t is hornbook law in this state that a party to an action against an administrator on a claim or demand against the estate of a deceased person cannot be a witness as to any matter or fact occurring before the death of such deceased person. (Code Civ. Proc., § 1880, subd. 3.) The statute is supported by sound public policy and was wisely adopted in the interests of justice.” But as Shrader notes, Code of Civil Procedure section 1880 was repealed in 1967.

Second, Plaintiff argues that “[t]he Court allowed Kirk Shrader to introduce statements made by Karen regarding her alleged assent to an oral contract for reimbursement of one half of expenses for the probate of James Shrader to be paid out of her estate after her death,” and that “Shrader’s request to allow the hearsay exception under Evidence Code § 1261 should have been denied as Evidence Code § 1261 also provides that evidence of such statement is inadmissable sic] if the statement was made under circumstances such as to indicate its lack of trustworthiness.” (Mot. at p. 7:12-21.)[2] Plaintiff contends that “[t]hroughout the trial, Kirk Shrader had exhibited numerous acts of untrustworthiness. Thus, the hearsay exception of § 1261…would not apply to any proposed hearsay testimony offered by Kirk Shrader.” (Mot. at p. 7:22-25.) As an initial matter, the Court notes that Plaintiff does not provide any evidence in support of this assertion. There is no supporting evidence provided with the motion. Rather, Plaintiff relies on asserted summaries of the evidence without any citations to evidence.

Third, Plaintiff argues that “[a]ssuming arguendo that Ms. Balint assented to a life time oral agreement as alleged by Defendant, such contract is rendered invalid by the statute of

frauds and Defendants’ judgment against Plaintiff cannot lie.” (Mot. at p. 10:6-9.) Plaintiff notes that “[a]n agreement that by its terms is not to be performed within a year from the making thereof” is invalid, unless it, “or some note or memorandum thereof, [is] in writing and subscribed by the party to be charged or by the party’s agent…” (Civ. Code, § 1624, subd. (a)(1).) Shrader counters that enforcement of the oral contract between Karen Balint and Shrader is not barred by the statute of frauds based on the doctrine of estoppel. Shrader notes that “[e]quitable estoppel may preclude the use of a statute of frauds defense…[t]he doctrine of estoppel to assert the statute of frauds has been consistently applied by the courts of this state to prevent fraud that would result from refusal to enforce oral contracts in certain circumstances. Such fraud may inhere in the unconscionable injury that would result from denying enforcement of the contract after one party has been induced by the other seriously to change his position in reliance on the contract…” (Byrne v. Laura (1997) 52 Cal.App.4th 1054, 1068 [internal quotations omitted].) Plaintiff does not offer any response to this point.

Plaintiff also argues without citing to any evidence that “[t]he evidence introduced at trial regarding the contract formation was limited,” and that “[t]he jury’s conclusion to reimburse Defendant in the amount of $195,893.24 was based on pure speculation and conjecture.” (Mot. at p. 10:11; 10:18-21.)

Lastly, Plaintiff argues that “[a]s Cross-Plaintiffs premise Count 2 for Unjust Enrichment upon the purported oral agreement that is invalid as a matter of law, the Court must vacate its Judgment for Unjust Enrichment.” (Mot. at p. 10:21-24.) The Court does not find that Plaintiff has shown herein that the subject oral agreement is invalid. Plaintiff further argues that “[t]he court is misguided to conclude that cross-plaintiff is entitled to relief under an unjust enrichment theory independent of a contract,” but fails to cite to any legal authority in support of this proposition. (Mot. at p. 11:1-2.)

In light of the foregoing, the Court does not find that Plaintiff has shown that the December 21, 2022 Judgment should be vacated under Code of Civil Procedure section 663.

Based on the foregoing, Plaintiff’s motion to vacate judgment on special verdict is denied.

[1]The Court notes that Plaintiff does not clearly specify what “Judgments” he is referring to, although it appears the motion concerns the December 21, 2022 Judgment.

[2] Evidence Code section 1261 provides that “(a) Evidence of a statement is not made inadmissible by the hearsay rule when offered in an action upon a claim or demand against the estate of the declarant if the statement was made upon the personal knowledge of the declarant at a time when the matter had been recently perceived by him and while his recollection was clear. (b) Evidence of a statement is inadmissible under this section if the statement was made under circumstances such as to indicate its lack of trustworthiness.”

In re Conservatorship of KAREN BALINT aka KAREN D. BALINT, JONATHAN BALINT, Conservator, Plaintiff, vs. KIRK SHRADER, individually and KIRK SHRADER as Power of Attorney of KAREN BALINT, et al. Defendants.	Case No.:	BC599621
	Hearing Date:	February 10, 2023
	Hearing Time:	2:00 p.m.
	[TENTATIVE] ORDER RE: MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT OR, IN THE ALTERNATIVE, FOR NEW TRIAL
AND RELATED CROSS-ACTION

In re Conservatorship of KAREN BALINT aka KAREN D. BALINT, JONATHAN BALINT, Conservator, Plaintiff, vs. KIRK SHRADER, individually and KIRK SHRADER as Power of Attorney of KAREN BALINT, et al. Defendants.	Case No.:	BC599621
	Hearing Date:	February 10, 2023
	Hearing Time:	2:00 p.m.
	[TENTATIVE] ORDER RE: MOTION TO VACATE JUDGMENT ON SPECIAL VERDICT
AND RELATED CROSS-ACTION