Mosley v. Hudner

Filed 4/11/06 Mosley v. Hudner CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tuolumne County. Manuel C. Rose, Jr., Judge. (Retired judge of the former Mun. Ct. of the Delta Jud. Dist. assigned by the Chief Justice pursuant to art. VI, § 6 of the California Constitution.)

Carolyn Sue Mosley, in pro. per., for Plaintiff and Appellant.

Pillsbury Winthrop Shaw Pittman, Philip S. Warden and William J. Dorgan for Defendant and Respondent.

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Carlisle B. Lane inherited a 40-acre parcel of property (the property) in Tuolumne County from his parents. He later transferred ownership of the property to a trust. The trustees of the trust were Lane and respondent Philip Hudner.

Appellant Carolyn Sue Mosley claimed she reached an oral agreement with Lane for the purchase of the property. According to Mosley, the agreement, in essence, permitted her to subdivide the property into five parcels, find buyers for four of the parcels, and use the funds from the sale of the four parcels to pay the trust. The intent, according to Mosley, was to close the sale of the four lots at the same time the sale of the 40-acre parcel closed. Mosley would retain ownership of the fifth parcel.

Lane became incapacitated before the sale was completed. Hudner, unaware of any agreement between Lane and Mosley, sold the property to other buyers. Mosley sued numerous individuals and entities and alleged numerous theories of liability as a result of the claimed breach of a contract.

Hudner was named as a defendant in his capacity as a trustee of the trust and also in his individual capacity. Relying on Probate Code section 18000 et seq.,^[1] Hudner moved for summary judgment contending there was no triable issue of material fact related to his personal or individual liability. The trial court granted the motion and judgment was entered in Hudner's favor, only in his individual capacity. He remains a defendant in his capacity as a trustee.

Mosley appeals from the judgment, making numerous arguments. The issue is whether there exists a triable issue of any fact material to the question of whether Hudner is personally liable to Mosley pursuant to the provisions of section 18000 et seq., that is, whether Hudner personally is at fault. Because Hudner denied any knowledge of Mosley's claimed agreement with Lane, and since Mosley did not present any evidence to support the claimed agreement before Hudner sold the property, we affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

The operative pleading is the second amended complaint verified by Mosley. Since the complaint forms the background for our analysis of Hudner's motion (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 767), we summarize the pleadings.

The complaint alleges that in 1988 Mosley was contacted by Lane regarding 40 acres of property Lane owned in Tuolumne County. Lane subsequently transferred title to the property to a trust in which he and Hudner were the named trustees. Lane wanted to subdivide the property into five parcels. Mosley expressed an interest in purchasing one of the parcels that was to be created by the subdivision. Lane then requested that Mosley provide various services required by the proposed subdivision. Mosley agreed, with the understanding she would be compensated for her services through payment and through transfer to her of ownership of one of the lots. She provided these services from 1988 to 2000.

In 1991 the terms of Mosley's compensation again were discussed between Lane and Mosley. Mosley alleges Lane insisted it would be advantageous for both parties if Mosley purchased the entire undivided parcel, sold the lots at a profit, and retained the lot she wanted to own. Structuring the transaction in this manner would permit the trust to avoid certain provisions of the Subdivision Map Act (Gov. Code, § 66410 et seq.) and would allow Mosley to make a greater profit. It does not appear the parties signed a written contract for the sale of the property at this time, or at any time thereafter.

Various items of correspondence were sent by Lane over the years that Mosley contends show the above agreement. In one letter Lane apparently enclosed a real estate transfer disclosure statement (Civ. Code, § 1102 et seq.), and in other correspondence provided a revised purchase agreement. In accordance with this agreement, Mosley located purchasers for three of the four lots. In 2001 Mosley learned the trust was selling one of the parcels to the buyer she had located, and she was being excluded from the transaction. Mosley later learned the remaining parcels, including the parcel she was to receive, were sold to another party.

These allegations form the basis for 10 causes of action. The first cause of action names Lane and Hudner, individually and as trustees. It alleges, in essence, there was an oral agreement between Lane and Mosley for the sale of the property that was subsequently memorialized by the parties through various items of correspondence. In 1998 Mosley lost contact with Lane. She eventually was contacted by Hudner, who requested Mosley forward all rent monies to him. They also discussed the pending transactions on the parcel. In 2000 Mosley discovered the sale to the purchaser she had located had closed without notifying her. She later learned the remaining lots had been sold to another buyer. Lane and Hudner, as trustees, allegedly breached the contract between Lane and Mosley.

The third cause of action is entitled â€