Marriage of Moca

Filed 4/3/06 Marriage of Moca CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEALS from judgments and orders of the Los Angeles Superior Court, Richard C. Hubbell, and Michael L. Stern, Judges. Reversed.

Nicholas & Doyle and John C. Doyle for Appellant Linda Moca.

Law Office of Louis P. Dell and Louis P. Dell for Respondent Hristos Moca.

Oddenino & Gaule and Michael L. Oddenino for Respondent David Gill.

DiJulio & Associates, David R. DiJulio and Michael M. Bergfeld for Respondent Stephen Whitlock.

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David Gill, acting as bankruptcy trustee for the estate of debtor Linda Moca, appeals from judgments in favor of Stephen Whitlock and Hristos Moca. Linda Moca appeals from an award of costs in favor of Whitlock. We conclude the trial court erred in granting Hristos's motion for judgment on the pleadings on the ground that a family court judgment barred this civil action under the doctrine of res judicata. We also conclude the trial court erred in granting summary adjudication on the remaining causes of action against Whitlock, leading to judgment in his favor. Gill, as bankruptcy trustee, had standing to pursue the action against Whitlock because it is not a derivative action. The evidence raised a triable issue of material fact precluding summary adjudication. Because we reverse the judgment in favor of Whitlock, we also reverse the award of costs in his favor against Gill and Linda Moca. We deny Whitlock's motion for sanctions on appeal.

FACTUAL AND PROCEDURAL SUMMARY

Hristos and Linda Moca, husband and wife, were equal shareholders in Moca Commercial Group. (We refer to the Mocas by their first names to avoid confusion.) Through Moca Commercial, Hristos operated a real estate brokerage business, facilitating the purchase of distressed properties by third parties who then rehabilitated them and sold them for a profit. Hristos located the properties and purchased them at auction using funds provided by the third parties. Moca Commercial received a share of the profits from these transactions.

Beginning in 1993 or 1994, E.T. Legg & Associates (Legg) invested in properties located by Hristos. There is some dispute about the relationship of Stephen Whitlock with Hristos. According to Whitlock, he told Hristos about distressed properties and worked out of the same office. According to Linda, Whitlock worked in close association with Hristos.

Hristos filed for dissolution of the marriage in 1997. According to Whitlock, as a result of the acrimonious dissolution, Hristos's investors, including Legg, became reluctant to continue doing business with Hristos. Hristos was forced to live on loans from friends, including Whitlock. Linda and Hristos owned rental properties, including one on Rosemary Street in Burbank. This property went into foreclosure and was sold at a public sale. It was purchased on behalf of Whitlock's mother-in-law by Whitlock, using a check drawn on an account in which he kept her funds. Whitlock denies having any legally cognizable interest in the Rosemary property.

Six months after the dissolution action was initiated, Linda filed a civil complaint as a joinder action in the dissolution. The defendants included two parties to this appeal, Hristos and Whitlock. Linda later filed for Chapter 7 bankruptcy, and David Gill was appointed trustee of her bankruptcy estate. He retained the lawyers who had represented Linda in her complaint to prosecute the joinder action. The joinder complaint was severed from the dissolution action.

Challenges to the pleadings by Whitlock left two causes of action against him: the fourth for tortious inducement of breach of contract and the fifth for unjust enrichment. Whitlock's motion for summary adjudication as to those causes of action was opposed by Gill. The trial court granted summary adjudication as to the fourth cause of action for intentional interference, finding no triable issue of material fact as to Gill's standing to raise that claim. The trial court denied summary adjudication as to the fifth cause of action because Whitlock had failed to establish there was no triable issue of material fact as to each alleged basis for unjust enrichment.

Whitlock then moved for clarification and reconsideration of the ruling on the fifth cause of action. He argued that the pleading was unintelligible because unjust enrichment is not a cause of action, but a general principle--a result--and therefore he was not obligated to respond to it as a claim. Whitlock argued that breaches of duty to Moca Commercial cannot be litigated in this action because the corporation is not a party, and because the family court later awarded Hristos all of the interest in Moca Commercial, valuing its shares at â€