Mateyko v. Mateyko CA2/7

Filed 11/17/20 Mateyko v. Mateyko CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

RAYMOND MATEYKO, B291105

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. PC057235)
v.

MICHAEL MATEYKO, et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Stephen Pfahler, Judge. Affirmed.
John Sullivan for Plaintiff and Appellant.
Raymond M. Sutton for Defendants and Respondents.

_______________________
 INTRODUCTION

Plaintiff Raymond Mateyko appeals the court’s grant of
summary judgment in favor of Michael Mateyko, his son, and
Hoist Elevator Company (Hoist) (collectively defendants) and its
denial of his motion for a new trial.1 We conclude the court
correctly granted defendants’ motion for summary judgment and
denied Raymond’s motion for a new trial based on admissions
Raymond made during discovery in the case, and Raymond
otherwise did not present evidence that raised a triable issue of
fact. We, therefore, affirm the judgment.

PROCEDURAL AND FACTUAL BACKGROUND

On August 5, 2016, Raymond filed a complaint in which he
alleged causes of action for breach of oral contract, breach of
fiduciary duty, conversion, unjust enrichment/constructive trust,
and money had and received.2 Hoist is an elevator maintenance
and repair business that was founded by Michael in 2005.
Raymond contends he was entitled to a share of Hoist’s net
profits based on an oral agreement among him and his wife
(Michael’s mother) and Michael.

1 Because Raymond, Michael, and Raymond’s brother,
Anthony Mateyko, share a last name, we refer to them by their
first names to avoid confusion.

2 In addition to defendants, Raymond sued Michael’s wife,
Rochelle Buller, and 2117 Venice LLC. On November 21, 2017,
Raymond requested dismissal with prejudice of all claims against
Buller and 2117 Venice LLC and of the conversion cause of action
as to all defendants on February 2, 2018. The court entered the
dismissals as requested.

2
 In deposition testimony, Raymond made significant and
consequential admissions regarding there being no agreement to
share profits; there was no partnership agreement; and he was
not a director, officer, or shareholder of Hoist. Among other
things, Raymond indicated he did not have an agreement put into
writing because Michael was his son, and he believed Michael
would fulfill the verbal promises he claimed Michael made to
him.

A. Defendants’ Motion for Summary Judgment
Defendants filed a motion for summary judgment ,
which was heard and argued on February 9, 2018. In their
motion papers, defendants claimed Raymond could not
establish triable issues of material facts existed because
Raymond had admitted in his responses to discovery and in
deposition testimony that no agreement to share profits
existed between him and Michael, and they never entered
into a partnership agreement. Additionally, defendants
maintained Raymond’s causes of action were barred by
applicable statutes of limitations because he filed his
complaint in 2016, although Raymond admitted to not
having received any profits as early as 2008.
In support of the motion, defendants filed a separate
statement of undisputed material facts in which they
claimed, as relevant to this appeal, Michael started his own
elevator repair and service business and incorporated it
under the name Hoist, and he was the sole shareholder,
director, and officer of the corporation; no oral agreement
with Raymond was ever formed; Raymond was owed no
fiduciary duty, as neither a confidential relationship nor
partnership agreement existed between Raymond and

3
Michael; and relevant statutes of limitations barred all
causes of action.
In his declaration in support of his opposition to the
summary judgment motion, Raymond stated the following.
He went into the elevator maintenance and repair business
with Kevin Brockway as his partner, and they started the
West Coast Elevator Corporation. Michael joined West
Coast after he returned from college in 2004, and Raymond
trained him in all aspects of the business. In 2005, the
Mateyko family decided to open its own business which
became Hoist, and Raymond amicably split with Brockway.
Raymond and his wife contributed $40,000 as start-up
money for Hoist, and they divided up responsibilities with
Michael regarding Hoist. Almost all of Hoist’s work resulted
from contacts Raymond had from the many years he had
worked in the elevator repair business.
Raymond added he and his wife and Michael agreed
they would split the net proceeds of large repair or
maintenance jobs which were over $100,000. After his wife
died, Raymond’s relationship with Michael became strained.
In early 2009, he approached Michael concerning a split of
the net proceeds, and Michael gave him a check for $75,000
from Hoist’s account, but Michael soon thereafter asked
Raymond to return it. When Raymond resisted, Michael
assured him he was good for the money, stated they were
“partners for life,” and repeatedly promised to pay him
bonuses.3 Raymond believed, since they were family, and he

3 In his declaration and his appellate briefs, it appears
Raymond uses the terms “bonuses” and “net proceeds” and the
phrase “share of profits” interchangeably.

4
had contributed much to the business, Michael would keep
his promise. However, in 2015, after a verbal altercation
with Michael, Michael ordered Raymond out of the business,
and when Raymond asked about his share of profits, Michael
told him he would be paid. But Michael later denied that he
owed Raymond anything.
As proof of an agreement to share profits, Raymond
submitted copies of a $75,000 check made out to him by
Hoist, one he made out for $75,000 to Michael, and another
he wrote to Michael for $10,000. There was a notation on the
memorandum line of the $75,000 check to Raymond that
read “loan as per contract.”4
In opposing defendants’ summary judgment motion,
Raymond asserted factual issues existed with respect to his
partnership with Michael; Michael owed fiduciary duties to
him; and a constructive trust should be imposed because
Michael had retained profits that rightfully belonged to him.
Raymond replied to defendants’ statement of undisputed
material facts by asserting defendants were estopped from
relying on the statute of limitations; he and Michael owed
fiduciary duties to each other based on a partnership or
agreement to pay Raymond bonuses; Michael told him on
numerous occasions Michael would eventually pay him profits
from Hoist; and he relied on Michael’s promises.

4 Raymond also submitted a declaration from his
brother, Anthony. Although that declaration is referenced in
defendants’ objections to Raymond’s evidence and in the
court’s ruling on the motion , it was not included as part of
the record on appeal.

5
 B. Plaintiff’s Deposition Testimony
As significant for purposes of the issues on appeal, the
court considered certain of Raymond’s deposition testimony, as
reflected in the series of questions and answers below:
“Q Okay. But you mentioned sharing in the profits;
right?
A Yeah. Yeah. The profits weren’t on the maintenance.
The profits were on big jobs . . . And the big repair jobs that’s
where we were supposed to share the profits.
Q Okay. When was the first time that you had an
agreement with Michael concerning Hoist?
A I never had an agreement with him.
Q Okay. Was there ever any agreement to be partners?
A No. I told him verbally. I had a choice to give him a
percentage of the business or apprenticeship thing, but I figured
he’s my son. Let me give him an equal part of it so he has—he
has a lot of sail under his—a lot of wind under his sail and he
would work harder. So I told him, ‘Look. We’re splitting with
Kevin. We’ll start a new company, and we’re partners 50/50.’
Q Okay. So in this case, have you produced all of the
documents, as far as you know, in discovery? ¶ And discovery is
the exchange of written questions and answers and documents. ¶
As far as you know, have you provided us with all of the
documents that help support your complaint in this case?
A I think so.
Q Okay. Are there any contracts among those
documents?
A No.
Q Okay. Why is that?
A Why would I need a contract? Contract for what?

6
 Q For any of your claims to help protect your rights.
A No. I never had any contracts with my son because
he’s my son. Why would I have a contract? Everything is verbal
with him. ¶ These were—it was my company, my clients. I took
him as a partner. . . .
Q So go ahead. Now, you were mentioning to me that
when you were forming Hoist with Michael, you said ‘Okay.
We’re going to be partners’ or words to effect; correct?
A I—he—I told him it was—when I broke up with
Kevin, I told him we were going to be partners. I never used the
term ‘50/50’ or anything like that. We were going to be partners.
And I told my wife about it, and she said, ‘Oh, that’s
okay’ I brought—I ran it through my wife. ¶ So I only did that—I
didn’t have to make him a partner. He would have stayed—he
would have worked for me without being a partner. I could have
gave [sic] him a good salary without being a partner. But I
figured I wanted him to take over the business eventually
because I can’t work forever. So I’m going to teach him the ropes.
He’s going to keep on working. That was my objective.
Q Did you express that to Michael?
A What?
Q Did you tell that to Michael?
A No.
Q What else did you say to Michael in terms of what the
terms of the agreement related to Hoist between you and Michael
were? Besides—
A I had no agreement. Whatever I said went at the
time.

7
 Q Okay. So when you and Michael were first forming
Hoist, there was no agreement? It was just what you were telling
him?
A Right.
Q Okay. So was there a point in time when you and
Michael kind of came to an agreement? ‘Okay. We’re partners.’?
A There was never an agreement. I just told him we
were going to be partners, and he agreed. He went along with
that. . . .
Q Okay. Was there ever an agreement between you
and Michael to be partners?
A No.
Q Okay.
A Other than verbal.
Q But that was just you telling him–
A Yeah.”

C. The Court’s Ruling on the Summary Judgment
Motion
After the hearing on the motion, on February 9, 2018, the
court issued a tentative ruling in defendants’ favor. On April 3,
2018, the court adopted the tentative ruling and entered a
judgment for defendants. The court found Raymond’s discovery
admissions to be determinative and concluded that a contract for
sharing profits never existed; Raymond did not discuss with
Michael splitting profits after individual jobs; and Raymond and
Michael did not have an agreement to be partners. The court also
invoked the statute of limitations as a bar to Raymond’s breach of
contract claim. It reasoned that even if a profit sharing
agreement were in place regarding “big” repair jobs, any breach

8
had occurred well beyond the two-year statute of limitations for a
breach of an oral contract claim.
With respect to the breach of fiduciary duty cause of action,
the court held the claim failed because the evidence established
no partnership existed between Raymond and Michael.
Additionally, the court found Raymond’s argument that
defendants were estopped from arguing the statute of limitations
applied to this claim, because of Michael’s alleged
representations that he and Raymond were partners for life, was
contradicted by Raymond’s discovery responses in which he
admitted no partnership agreement existed.
The court held the unjust enrichment/constructive trust
claim failed because Raymond could not demonstrate the
existence of a binding agreement with Michael to share profits,
he was defrauded out of the money, Michael owed him a fiduciary
duty, or that Michael committed a breach of trust or wrongful act.
The court also found the money had and received cause of
action was a common count that depended upon the same facts as
Raymond’s other causes of action and, because those other claims
failed, the money had and received claim also failed.
The court indicated it sustained defendants’ objections to
certain portions of Raymond’s and Anthony’s declarations
submitted in opposition to the summary judgment motion. The
objectionable statements in Raymond’s declaration were that he
helped to form Hoist; Raymond and his wife contributed $40,000
to start Hoist; Michael agreed with Raymond that Raymond and
Raymond’s wife would split profits from Hoist on repair or
maintenance jobs; Michael assured Raymond that Michael would
take care of him because they were “partners for life,” and
Michael repeated that phrase many times thereafter; and

9
Raymond returned money to Michael and believed he would be
repaid based on Michael’s promises to him.
The court sustained objections to Anthony’s averments
concerning Raymond having told him Michael would be joining
Raymond and Raymond’s wife in the elevator and maintenance
business in California; Michael talked about the existence of a
partnership agreement between them; Michael acknowledged to
him the existence of a partnership; and, although he was
unaware of the terms of an agreement, he understood Raymond
and Michael continued to be partners until Michael fired
Raymond from Hoist.
Notice of entry of the judgment in defendants’ favor was
filed on April 12, 2018.

D. Raymond’s Motion for New Trial
On April 26, 2018, Raymond filed a motion for new trial
based on purported newly discovered evidence that consisted of a
draft settlement agreement and declarations submitted by
Raymond and Brockway. The draft settlement agreement
indicated Raymond had made claims for “an ownership interest
in or a percentage of profits derived from 2117 Venice, Hoist and
certain real property” owned by Michael and Buller and that
defendants had denied Raymond’s claims in this regard.
Raymond argued this draft document supported his claim that a
partnership existed between him and Michael, and Michael
acknowledged money was owed to him. Raymond also
maintained that, although he may not have had a formal
agreement with Michael, both an informal partnership and a
profit-sharing agreement existed.
Defendants opposed the motion, arguing the evidence
Raymond submitted was not new because Raymond had such

10
evidence in his possession for a considerable period of time even
before he filed his complaint. Further, defendants asserted there
was no cognizable claim for breach of a contract because there
was no underlying partnership agreement and no other basis for
a fiduciary relationship. Defendants also noted Raymond was
again attempting to support his claims with declarations that
contradicted his prior discovery responses.
On June 4, 2018, the trial court ruled the proffered
evidence was not newly discovered and was inadmissible in any
event, Brockway’s declaration did not support a finding that a
partnership existed between Raymond and Michael, and
Raymond had conceded in his own discovery admissions that no
agreement existed between the parties. The court sustained
defendants’ objections to the entirety of Raymond’s and
Brockway’s declarations and found that Raymond had failed to
establish a basis for a new trial.
Raymond filed a timely appeal on July 2, 2018.

DISCUSSION

A. Standards of Review
Review of a grant or denial of summary judgment is de
novo. (Samara v. Matar (2018) 5 Cal.5th 322, 338.) The question
is whether the moving party was entitled to judgment as a
matter of law. (Code Civ. Proc., § 437c, subd. (c); Doe v. Good
Samaritan Hospital (2018) 23 Cal.App.5th 653, 661.) The initial
burden is on a defendant to present evidence that either
conclusively negates an element of each of plaintiff’s causes of
action or shows that plaintiff does not possess, and cannot
reasonably obtain, evidence necessary to establish at least one
element of each cause of action. (Aguilar v. Atlantic Richfield Co.

11
(2001) 25 Cal.4th 826, 853-854.) Once defendant satisfies this
initial burden, the burden shifts to plaintiff to show a triable
issue of one or more material facts exists as to the cause of action.
(Id. at p. 850; Code Civ. Proc., § 437c, subd. (p)(2).)
The reviewing court considers ““““all the evidence set forth
in the moving and opposing papers except that to which
objections were made and sustained.’” [Citation.] We liberally
construe the evidence in support of the party opposing summary
judgment and resolve doubts concerning the evidence in favor of
that party.”’” (Hampton v. County of San Diego (2015) 62 Cal.4th
340, 347.) “[R]esponsive evidence that gives rise to no more than
mere speculation cannot be regarded as substantial, and is
insufficient to establish a triable issue of material fact.”
(Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.)
The grant or denial of a new trial motion is reviewed for
abuse of discretion. (Martine v. Heavenly Valley Limited
Partnership (2018) 27 Cal.App.5th 715, 722 (Martine).) The
court’s decision is reviewed on appeal from the judgment. (Code
Civ. Proc. §§ 904.1, subd. (a)(2), 906; Walker v. Los Angeles
County Metropolitan Transportation Authority (2005) 35 Cal.4th
15, 18; Hamasaki v. Flotho (1952) 39 Cal.2d 602, 608.) On an
appeal from the order denying a new trial motion, the appellate
court reviews the entire record, including evidence, in order to
make an independent determination of whether the error was
prejudicial. (Cal. Const., art. VI, § 13; Whitlock v. Foster Wheeler,
LLC (2008) 160 Cal.App.4th 149, 158.) Appellant must
affirmatively demonstrate error because it is his or her burden to
overcome the presumption of correctness of the court’s ruling.
(Martine, at p. 727.)

12
 B. Analysis

1. The Trial Court’s Evidentiary Rulings
As explained above, the court sustained defendants’
objections to certain portions of Raymond’s and Anthony’s
declarations submitted in support of Raymond’s opposition to the
summary judgment motion and all of Raymond’s and Brockway’s
declarations submitted in support of Raymond’s motion for a new
trial. In its written rulings for both motions, the court cited
Benavidez v. San Jose Police Department (1999) 71 Cal.App.4th
853, 860-861 (Benavidez) and expressly stated Raymond could
not rely on his declarations to contradict his prior admissions
made during discovery.
Because objections to the evidence Raymond discusses in
his appellate briefs were sustained by the trial court, and
Raymond has not challenged on appeal those evidentiary rulings,
he has forfeited any claim of error. (See Arnold v. Dignity Health
(2020) 53 Cal.App.5th 412, 420, fn. 5, citing Lopez v. Baca (2002)
98 Cal.App.4th 1008, 1014-1015 [in absence of proper challenge
to trial court’s evidentiary rulings, appellate court will consider
all affected evidence to have been excluded].)
Consequently, our review on appeal is limited to the
admissible evidence and not evidence that was subject to well-
taken objections. (See Code Civ. Proc. § 437c, subd. (c) [“[i]n
determining if the papers show that there is no triable issue as to
any material fact, the court shall consider all of the evidence set
forth in the papers, except the evidence to which objections have
been made and sustained by the court . . . .” (italics added)].)

13
 2. The Trial Court Did Not Commit Reversible Error By
Granting Summary Judgment in Defendants’ Favor

a. Breach of contract
In support of his contention that the court erred, Raymond
argues the existence of a partnership or profit-sharing agreement
is a disputed fact that could not be resolved on summary
judgment. He asserts he maintained throughout his responses to
interrogatory questions and requests for admissions he had a
partnership or profit-sharing agreement with Michael.
Similarly, he claims in his deposition testimony he had a verbal
agreement to split profits with Michael. Raymond then insists
such evidence, combined with his brother Anthony‘s declaration
and the payments of two checks to him from Hoist, established
the existence of a partnership. Raymond, therefore, contends the
trial court committed reversible error by precluding him from
“making statements in his opposition that the trial court found
contradicted other statements made by [him] in discovery.”
Raymond acknowledged no written agreement existed
between the parties. Thus, the primary question is whether
Raymond provided the court with sufficient evidence of the
existence of an oral agreement concerning profit sharing. The
prerequisites for establishing the existence of an agreement are
the parties being capable of contracting, consenting to
contracting, and providing sufficient consideration. (Civ. Code,
§ 1550.) The parties’ consent must be free, mutual, and
communicated to each other. (Civ. Code, § 1565.) This mutual
consent must be determined by objective, not subjective,
considerations. “““‘Contract formation requires mutual consent,
which cannot exist unless the parties “agree upon the same thing
in the same sense.”’” [Citation.]” ““The manifestation of mutual
consent is generally achieved through the process of offer and

14
acceptance.” [Citation.]” ““‘“Mutual assent is determined under
an objective standard applied to the outward manifestations or
expressions of the parties, i.e., the reasonable meaning of their
words and acts, and not their unexpressed intentions or
understandings.” [Citations.]’ [Citation.] ‘Where the existence of
a contract is at issue and the evidence is conflicting or admits of
more than one inference, it is for the trier of fact to determine
whether the contract actually existed. . . .’”” (Pacific Corporate
Group Holdings, LLC v. Keck (2014) 232 Cal.App.4th 294, 309.)
In his opposition to the summary judgment motion,
Raymond contends he did offer evidence of the existence of both a
partnership and a profit sharing agreement. He points to
declarations submitted by himself and others. As discussed,
Code of Civil Procedure section 437c, subdivision (c), provides, in
pertinent part, “[i]n determining if the papers show that there is
no triable issue as to any material fact, the court shall consider
all of the evidence set forth in the papers, except the evidence to
which objections have been made and sustained by the court . . . .”
(Code Civ. Proc., § 437c, subd. (c) (italics added).)
Raymond repeatedly relies upon evidence to which
evidentiary objections were sustained and disregards the impact
of the court’s rulings in that regard. Raymond cannot rely upon
those averments in his or Anthony’s declarations, to which the
court sustained defendants’ objections, to show the existence of a
triable issue. As discussed, Raymond does not argue the court
abused its discretion with respect to its evidentiary rulings.
“Summary judgment law . . . no longer requires a defendant
moving for summary judgment to conclusively negate an element
of the plaintiff’s cause of action. . . . [Citation.] Instead, a
defendant may simply show the plaintiff cannot establish an
essential element of the cause of action ‘by showing that the

15
plaintiff does not possess, and cannot reasonably obtain, needed
evidence.’ [Citation.] Thus, . . . a defendant moving for summary
judgment has the option of presenting evidence reflecting the
plaintiff does not possess evidence to prove that element. . . .
Under [this] approach, a defendant’s initial evidentiary showing
may ‘consist of the deposition testimony of the plaintiff’s
witnesses, the plaintiff’s factually devoid discovery responses, or
admissions by the plaintiff in deposition or in response to
requests for admission that he or she has not discovered anything
that supports an essential element of the cause of action.’
[Citation.] In other words, a defendant may show the plaintiff
does not possess evidence to support an element of the cause of
action by means of presenting the plaintiff’s factually devoid . . .
responses from which an absence of evidence may be reasonably
inferred. [Citation.]” (Leyva v. Garcia (2018) 20 Cal.App.5th
1095, 1102-1103.)
Under the circumstances of this case, Raymond did not
establish there was a genuine issue of material fact concerning
the existence of an oral agreement between the parties. In his
deposition testimony, Raymond admitted he never communicated
to Michael his belief that a partnership and a profit sharing
agreement existed. Although Raymond disavowed the
admissions he made at his deposition and claims there were
triable issues of material fact, he cannot rely on contradictions in
his own testimony to create triable issues. (Benavidez, supra, 71
Cal.App.4th at p. 861.)
In the instant case, defendants met their initial burden by
showing through admissions Raymond made in his deposition
testimony that he was not in a partnership with Michael and no
agreement for profit sharing with Michael existed. Defendants
also demonstrated that Raymond did not possess evidence to

16
support his claims. Rather, Raymond believed a partnership and
profit sharing agreement were in place, but he provided no
evidence he ever told Michael he held this belief or that Michael
otherwise shared that belief, which are critical elements for the
formation of a contract. The absence of evidence supporting
Raymond’s claims could be reasonably inferred from Raymond’s
deposition testimony because such testimony was factually
devoid of any evidence of the existence of a partnership or an oral
profit sharing agreement. (Leyva v. Garcia, supra, 20
Cal.App.5th at pp. 1102-1103.)
Because there was no evidence there ever was a meeting of
the minds or mutual consent that led to the formation of a
partnership or profit sharing agreement as between Raymond
and Michael, the court did not err in granting defendants’
summary judgment motion with respect to the breach of contract
cause of action.
As we conclude the court correctly granted summary
judgment in defendants’ favor on the basis that there was no
genuine issue of material fact concerning the existence of a
partnership or profit sharing agreement between the parties, we
need not address Raymond’s other contentions relating to the
breach of contract claim, including the issue of whether
Raymond’s claims are barred by the applicable two-year statute
of limitations.

b. Breach of fiduciary duty
Raymond’s breach of fiduciary duty cause of action was
predicated on his assertion that he and Michael were partners
and on the basis that they are father and son. But Raymond’s
contention in this regard also fails. First, Raymond did not
demonstrate there was a triable issue of material fact concerning

17
whether a fiduciary relationship existed between him and
Michael based on some partnership that was in place. A
partnership is defined by statute as “the association of two or
more persons to carry on as co-owners a business for profit . . .
whether or not the persons intend to form a partnership.” (Corp.
Code, § 16202, subd. (a).) A person is not a partner by virtue of
receiving benefits from the business for services rendered or for a
capital contribution; rather an essential element of a partnership
involves the right of joint participation in the management and
control of the business. (Kaljian v. Menezes (1995) 36
Cal.App.4th 573, 586.) Nor does receiving a share of the profits of
a business as payment for services as an independent contractor
makes an individual a partner. (Corp. Code, § 16202, subd.
(c)(3)(b).) Moreover, Raymond admitted at his deposition that no
partnership existed between him and Michael.
Second, Raymond does not provide authority for his
proposition that Michael owed him a fiduciary duty simply
because Michael is his son. For that reason, this contention has
been forfeited. (Allen v. City of Sacramento (2015) 234
Cal.App.4th 41, 52 [“When legal argument with citation to
authority is not furnished on a particular point, we may treat the
point as forfeited and pass it without consideration”].)
Nonetheless, even on the merits, such a familial relationship does
not automatically create fiduciary duties. (Briggs v. Nilson
(1964) 226 Cal.App.2d 342, 346.)

c. Unjust enrichment/constructive trust
Raymond’s unjust enrichment/constructive trust cause of
action fails because he does not present a cogent legal argument
with citations to authority and the record that supports this
claim. As such, his contention that the court erred in entering

18
summary judgment on this claim is forfeited. (Allen v. City of
Sacramento, supra, 234 Cal.App.4th at p. 52.)

d. Money had and received
As explained above, the claims underlying Raymond’s
cause of action for money had and received were properly subject
to summary disposition. When a common count for money had
and received “is used as an alternative way of seeking the same
recovery demanded in a specific cause of action, and is based on
the same facts, the common count is demurrable if the cause of
action is demurrable.” (McBride v. Boughton (2004) 123
Cal.App.4th 379, 394.)
Therefore, in the instant case, Raymond’s separate common
count for money had and received must also fail, and we uphold
the grant of summary judgment as to it.

3. Raymond’s Motion for New Trial
Raymond argues the court erred because it did not accept
the newly discovered evidence he presented and denied his
motion for new trial.
Code of Civil Procedure section 657 provides a judgment
may be vacated based on newly discovered evidence if the
involved party could not have, with reasonable diligence,
discovered and produced the evidence at the trial. Raymond
offered as the newly discovered evidence supporting his motion
for a new trial what he claimed to be a draft settlement
agreement between himself and defendants that was drafted
before Raymond filed his complaint and Brockway’s declaration.
In his declaration, Brockway stated he partnered with
Raymond in forming West Coast. He added Raymond supervised
Michael’s work. Michael had urged Raymond to buy West Coast,

19
but Raymond declined, and instead Brockway and Raymond split
up West Coast’s accounts. Brockway then agreed to give
Raymond and Michael many of West Coast’s accounts.
Raymond admitted he was aware of the draft settlement
agreement nearly a year before he filed the subject lawsuit. Also,
in response to written discovery propounded by defendants,
Raymond had identified Brockway, as a witness who would
support his claims. Therefore, Raymond had ample time to
secure Brockway’s declaration for purpose of opposing the
summary judgment motion. In fact, Raymond filed his motion for
new trial on April 27, 2018. But Brockway signed his declaration
on January 15, 2018, and the document states it is in support of
Raymond’s mandatory settlement conference scheduled to take
place on January 25, 2018.
Even if the submission of Brockway’s declaration were
considered timely, given the substance of Brockway’s statements,
there was no indication they were material because they do not
establish that a profit sharing agreement, let alone a
partnership, existed between Raymond and Michael.
Further, the court has discretion to admit or exclude
evidence, and it sustained defendants’ objections to Raymond’s
and Brockway’s declarations in their entirety. In this instance,
Raymond offers no argument that the court, by excluding the
declarations, exercised its discretion in an arbitrary, capricious,
or patently absurd manner that resulted in a miscarriage of
justice.5

5 Raymond asserts alternative grounds for a new trial are
insufficiency of the evidence to justify a decision or the decision is
contrary to law. However, Raymond’s deposition testimony
established that no oral agreement to share profits and no

20
 As such, we conclude the court properly exercised its
discretion in denying the motion for a new trial.

DISPOSITION

The orders granting defendants’ motion for summary
judgment and denying Raymond’s motion for a new trial and the
judgment are affirmed. Defendants to recover their costs on
appeal.

RICHARDSON, J.

We concur:

PERLUSS, P. J.

FEUER, J.

partnership existed, and the Benavidez case dictates that
Raymond cannot create triable issues of fact by later presenting
statements contradicting those admissions.

Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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