Mulberg v. Amster CA1/1

Filed 7/14/21 Mulberg v. Amster CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

FRANK MULBERG,
Plaintiff and Appellant,
A158954
v.
PATRICIA DAVIS DANEMAN (Marin County
AMSTER, Super. Ct. No. CIV 1703628)
Defendant and Respondent.

Plaintiff Frank Mulberg, a licensed attorney appearing in propria
persona, appeals from a posttrial judgment the trial court entered in favor of
defendant Patricia Amster after it rejected all six causes of action Mulberg
alleged in his complaint.1 The court rejected three of the causes based on its
finding that Amster paid Mulberg $62,820 for attorney fees she owed him in
her individual capacity. We agree with Mulberg that substantial evidence
does not support this finding, and we therefore reverse the court’s rulings on
those three causes and remand for further proceedings. We otherwise affirm.

For purposes of simplicity we refer to the six claims as causes of
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action although, as we explain further below, some are more accurately
described as “common counts.”

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 I.
BACKGROUND
The parties have spent years litigating various disputes. This one
arose after Amster hired Mulberg from 2008 to 2012 to help her with matters
related to an anticipated inheritance. During this time, Amster paid Mulberg
for some, but not all, of the attorney fees incurred.
When her mother died in 2011, Amster inherited property titled in a
trust and, with the apparent authority to do so, she appointed Mulberg as
trustee. It is uncontested that, as the trial court found, Mulberg used trust
funds to pay himself the attorney fees that Amster incurred in her individual
capacity. Specifically, Mulberg used trust assets to pay himself $35,000 in
October 2011 and $27,819.75 in January 2012. The total amount was
$62,819.75, which we, as do the parties, round to $62,820. After Mulberg
made these payments to himself, he sent Amster a statement in April 2012
notifying her that her individual attorney fees had been paid in full.
In 2013, the parties’ relationship deteriorated, and in 2014 probate
proceedings were initiated, with Amster petitioning to remove Mulberg as
trustee, and Mulberg cross-petitioning to challenge Amster’s right to remove
him and to seek approval of the estate’s accounts. A probate trial was held in
2015, and one of the main issues was whether Mulberg had paid himself
excessive trustee fees, which the evidence showed amounted to over
$500,000. In its ruling, the probate court removed Mulberg as trustee,
approved a trustee fee for him of $227,897.59, representing “1% of the total
trust corpus per annum,” and ordered him to return—in what the parties
refer to as a “surcharge”—more than $200,000 to the estate.2

2The exact amount Mulberg was ordered to return is immaterial for
purposes of this appeal. The trial court found that the amount was
$226,222.16, while Mulberg insists that it was $267,222.16.

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 Mulberg appealed, and we affirmed the probate court’s decision.
(Amster v. Mulberg (Nov. 18, 2016, A146374) [nonpub. opn.].) Mulberg
thereafter reimbursed the estate the amount ordered, with interest.3 He then
sent Amster a new bill for the $62,820, plus interest. After Amster refused to
pay, Mulberg filed this suit. In his complaint, he asserted six causes of
action: promissory fraud, breach of contract, account stated, open book
account, quantum meruit, and unjust enrichment. Amster answered with a
general denial, and she also asserted 33 affirmative defenses.
After a bench trial, the trial court ruled against Mulberg on all his
causes of action, and it therefore did not consider Amster’s affirmative
defenses. The court then entered judgment in Amster’s favor.
II.
DISCUSSION
A. The Standards of Review
We review factual determinations made after a trial for substantial
evidence. In doing so, “[o]ur authority begins and ends with a determination
as to whether, on the entire record, there is any substantial evidence,
contradicted or uncontradicted, in support of the judgment.” (Howard v.
Owens Corning (1999) 72 Cal.App.4th 621, 630–631.) The testimony of a
single witness may constitute substantial evidence in support of the
judgment. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) “Even in cases
where the evidence is undisputed or uncontradicted, if two or more different
inferences can reasonably be drawn from the evidence this court is without
power to substitute its own inferences or deductions for those of the trier of
fact, which must resolve such conflicting inferences in the absence of a rule of

3 Mulberg satisfied the probate judgment in March 2017. Thus, he
“had full compensation for his services (and use of the [$62,820]) for more
than five years” before the money was returned to the estate.

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law specifying the inference to be drawn. We must accept as true all evidence
and all reasonable inferences from the evidence tending to establish the
correctness of the trial court’s findings and decision, resolving every conflict
in favor of the judgment.” (Howard, at p. 631.) To the extent the trial court’s
determinations rest on purely legal issues, our review is de novo. (Snow v.
Woodford (2005) 128 Cal.App.4th 383, 393.)
B. The Trial Court Properly Rejected Mulberg’s Cause of Action for
Promissory Fraud.
In its ruling, the trial court rejected Mulberg’s claim of promissory
fraud, finding “no proof of [Amster’s] fraudulent intent.” Mulberg argues that
this ruling was erroneous because he proved all the claim’s elements. We
perceive no error.
The elements of fraud “ ‘are (a) misrepresentation (false representation,
concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”);
(c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and
(e) resulting damage.’ ” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)
“ ‘Promissory fraud’ is a subspecies of the action for fraud and deceit. A
promise to do something necessarily implies the intention to perform; hence,
where a promise is made without such intention, there is an implied
misrepresentation of fact that may be actionable fraud.” (Ibid.)
The trial court found that Amster intended to fulfill her obligation to
pay her individual attorney fees to Mulberg. This finding is supported by
substantial evidence, which includes the undisputed evidence that Amster
had been making payments on the fees she owed and that trust assets were
used to pay off that amount before the probate court ordered the money
returned to the estate as part of the surcharge. Although the extent of
Amster’s acquiescence in Mulberg’s use of the trust funds to pay the
individual fees obligation is contested, Mulberg stated that Amster approved

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the trust payment, and no evidence was presented that Amster disapproved
of it at the time it was made. Collectively, this evidence constitutes more
than sufficient evidence to support the court’s finding that Amster intended
to pay the debt. Therefore, the court properly rejected Mulberg’s promissory
fraud cause of action.
C. No Substantial Evidence Supports the Trial Court’s Finding that
Amster Paid Mulberg for the Individual Attorney Fees She
Incurred.
We come to a different conclusion, however, regarding the causes of
actions that the trial court rejected on the basis of its finding that Amster
paid Mulberg for the individual attorney fees she incurred. We agree with
Mulberg that there was “no substantial evidence to support the [trial] court’s
conclusion that Amster made any unconditional payment of $62,820 to [him]
to satisfy her existing outstanding balance.” Because there was no
substantial evidence to support the finding, the court incorrectly relied on it
to reject Mulberg’s claims based on breach of contract, account stated, and
open book account.
1. Breach of contract
We first consider the trial court’s ruling on the cause of action for
breach of contract. “The elements of a cause of action for breach of contract
are well known. A plaintiff must establish: the existence of a contract,
plaintiff’s performance (or excuse for nonperformance), defendant’s breach,
and resulting damages.” (Professional Collection Consultants v. Lujan (2018)
23 Cal.App.5th 685, 690 (Lujan).) Whether a party breached a contract is a
question of fact, which we ordinarily review for substantial evidence. (Kotler
v. PacifiCare of California (2005) 126 Cal.App.4th 950, 956.) But when the
operative facts are not in dispute, our review is de novo. (See, e.g.,
Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.) Here,

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most of the operative facts are undisputed, suggesting the less deferential de
novo standard applies, but we conclude that the court’s finding that Amster
paid the $62,820 (and therefore did not breach the contract) cannot be
sustained under either standard.
The trial court held that although the parties had a contract requiring
“Amster . . . to pay Mulberg for his services,” the contract was not breached.
This holding was based on the court’s finding that “Mulberg’s own evidence
proved that as of April 2012 he had been paid in full,” since as trustee he
used trust assets to pay himself for the fees Amster incurred in her individual
capacity.
The trial court also found, however, that, while “the evidence presented
was less than precise, it appears that part of the surcharge [ordered to be
returned to the estate by the probate court] included fees Mulberg had paid
himself out of [the] trust for his prior legal services to Amster.” Amster
affirmatively acknowledges in her appellate briefing that the probate court
“applied the surcharge to these funds.” The court did not consider it to be
consequential that Mulberg was required to return the $62,820 to the estate
as part of the surcharge. It reasoned that “Mulberg offer[ed] no legal
authority for the proposition that [Amster’s attorney fee] debt was somehow
‘resurrected’ (his words) as a result of the probate action,” and it held that an
“order of the [probate] court (affirmed on appeal) cannot be imputed to
Amster as an act in breach of contract.”
To the contrary, the fact that Mulberg was required to return the
$62,820 to the estate is consequential. True enough, both parties agree that
Amster’s individual fees obligation had been paid by the estate before the
probate court ordered Mulberg to return the money. The trial court believed
that Mulberg’s payments to himself with estate funds meant that “Amster . . .

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in fact did . . . pay Mulberg for his work.” But the uncontested evidence is
that it was the estate, not Amster, that paid the fees, and Mulberg was
ordered to return this money to the estate as part of the surcharge. In turn,
this left Amster’s individual fees obligation unsatisfied. Her contractual
obligation to pay fees incurred in her individual capacity was not
extinguished simply because estate assets were improperly used in a failed
attempt to pay off the obligation. While we agree with the court that the debt
was not “somehow ‘resurrected’ . . . as a result of the probate action,” we
think it is accurate to say that Amster’s debt remained unsatisfied, even if
the parties might have intended for the debt to be paid with estate assets.
Amster argues that Mulberg is collaterally estopped from denying that
the bill was satisfied, but she is mistaken.4 She contends that Mulberg is
precluded from now litigating an “issue that was ‘actually litigated’ ” in the
probate proceeding. But collateral estoppel does not apply, because the issue
here is different, and it was not actually litigated in the probate proceeding.
(See Lucido v. Superior Court (1990) 51 Cal.3d 335, 341 [elements required
for application of collateral estoppel].)
The issue in the probate proceeding was whether Mulberg paid himself
excessive trustee fees. The probate court found that he had, and we affirmed
the court’s order requiring him to reimburse the estate the amount of the
surcharge, which included the payments for Amster’s individual attorney

4 At one point in her appellate brief, Amster asserts that Mulberg’s
claim is barred because of “judicial estoppel,” but the argument she advances
and the law she cites reveal she means to contend that the claim is barred by
collateral estoppel because the probate court determined that Mulberg used
trust assets to pay her individual attorney fees obligation. (See The Swahn
Group, Inc. v. Segal (2010) 183 Cal.App.4th 831, 835 [discussing difference
between judicial and collateral estoppel].)

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fees. (Amster v. Mulberg, supra, A146374.) In doing so, we concluded that
sufficient evidence supported the probate court’s finding that the amount was
part of the excessive payment made “in connection with [Mulberg’s] services
as trustee.” (Ibid.) We rejected Mulberg’s theory that he should not have to
return the $62,820 to the estate because it was “previously owed attorney
fees earned prior to his trusteeship.”5 (Ibid.) Here, however, the parties
agree that the surcharge included the amount Mulberg used to pay Amster’s
individual attorney fees, and no contrary determination was made in the
probate proceeding.
The fact that Mulberg unsuccessfully tried as trustee to use trust
assets to pay off Amster’s individual attorney fees obligation does not support
the conclusion that the debt was satisfied and extinguished. Because no
substantial evidence supported the trial court’s finding that Amster satisfied
her contractual obligation to pay the fees she incurred in her individual
capacity, we must reverse the court’s ruling that there was no breach of
contract. (See Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873–874.) We
make no determinations regarding the strength of Amster’s affirmative
defenses, and we leave it for the trial court on remand to consider those
defenses in the first instance.
2. Account stated and open book account
Mulberg asserted claims for account stated and open book account as
well. The trial court also rejected both of these claims based on its finding
that Mulberg had been paid the $62,820 from the estate assets.
Each of these claims is technically a common count, which “ ‘is not a
specific cause of action . . . , [but] rather . . . a simplified form of pleading

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We are at a loss to understand why Mulberg argued that he did not
have to return the $62,820 to the estate, in light of his unabashed admission
that he, as the estate’s trustee, used estate assets to pay a non-estate debt.

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normally used to aver the existence of various forms of monetary
indebtedness.’ ” (Lujan, supra, 23 Cal.App.5th at p. 690.) A common count
“is proper whenever the plaintiff claims a sum of money due, either as an
indebtedness in a sum certain, or for the reasonable value of services, goods,
etc., furnished. It makes no difference that the proof shows the original
transaction to be an express contract, a contract implied in fact, or a quasi-
contract.” (4 Witkin Cal. Proc. (5th ed. 2020) Pleading, § 554.)
“ ‘A “book account” is “a detailed statement which constitutes the
principal record of one or more transactions between a debtor and a creditor
arising out of a contract or some fiduciary relation, and shows the debits and
credits in connection therewith . . . .” ’ [Citation.] The creditor must keep
these records in the regular course of its business and ‘in a reasonably
permanent form,’ such as a book or card file. (Code Civ. Proc., § 337a.) ‘A
book account is “open” where a balance remains due on the account.’ ”
(Lujan, supra, 23 Cal.App.5th at pp. 690–691.) “ ‘An account stated is “an
agreement based on prior transactions between the parties, that the items of
an account are true and that the balance struck is due and owing.” ’
[Citation.] ‘When an account stated is “ ‘assented to, either expressly or
impliedly, it becomes a new contract.’ ” . . . Accordingly, an action on an
account stated is not based on the parties’ original transactions, but on the
new contract under which the parties have agreed to the balance due.’ ” (Id.
at p. 691.)
Mulberg maintained that he sent invoices to Amster, and they
established an account stated or an open book account. The trial court found
that the “main evidentiary problem with accepting Mulberg’s invoices . . . is
that they demonstrated he had been paid in full.” But as we have
determined, no substantial evidence supports the finding that Amster

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satisfied her contractual obligation to pay Mulberg for the $62,820 in
attorney fees she incurred in her individual capacity. We therefore reverse
the court’s rulings as to these common counts. (See Bowers v. Bernards,
supra, 150 Cal.App.3d at pp. 873–874.)
D. The Trial Court Properly Rejected Mulberg’s Equitable Claims for
Quantum Meruit and Unjust Enrichment.
We lastly consider, and affirm, the trial court’s rulings on Mulberg’s
equitable claims for quantum meruit and unjust enrichment.
These doctrines are interconnected. To state a claim for quantum
meruit, a plaintiff must allege performance of certain services for the
defendant, the reasonable value of those services, that the services were
rendered at the special instance and request of the defendant, and that the
services are unpaid. (Haggerty v. Warner (1953) 115 Cal.App.2d 468, 475.)
Quantum meruit “ ‘refers to the well-established principle that “the law
implies a promise to pay for services performed under circumstances
disclosing that they were not gratuitously rendered.” [Citation.] To recover
in quantum meruit, a party need not prove the existence of a contract
[citations], but it must show the circumstances were such that “the services
were rendered under some understanding or expectation of both parties that
compensation therefor was to be made.” ’ ” (Unilab Corp. v. Angeles-
IPA (2016) 244 Cal.App.4th 622, 642.) “However, it is well settled that there
is no equitable basis for an implied-in-law promise to pay reasonable value
when the parties have an actual agreement covering compensation.”
(Hedging Concepts, Inc. v. First Alliance Mortgage Co. (1996) 41 Cal.App.4th
1410, 1419.)
“ ‘The right to restitution or quasi-contractual recovery is based
upon unjust enrichment. Where a person obtains a benefit that [the person]
may not justly retain, the person is unjustly enriched. The quasi-contract, or

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contract “implied in law,” is an obligation . . . created by the law without
regard to the intention of the parties, and is designed to restore the aggrieved
party to [that party’s] former position by return of the thing or its equivalent
in money.’ ” (Unilab Corp. v. Angeles-IPA, supra, 244 Cal.App.4th at p. 639.)
In rejecting Mulberg’s equitable causes, the trial court observed that
equitable relief is generally not available when an obligation, such as
Amster’s debt for her individual attorney fees, is founded in contract. But the
court held that even if there had been no contract, “the evidence was
insufficient to support a finding of unjust enrichment.” The court pointed out
that in imposing the surcharge the probate court had found that “Mulberg’s
liability to the trust came about in large measure because of his inadequate
record-keeping, his breach of fiduciary duties, and his failure to abide by the
rules applicable to trustees. The factual circumstances do not show that
Amster was unjustly enriched here or that Mulberg was unfairly aggrieved.”
Stated otherwise, the court found that even if there had been no contract
Mulberg would not be entitled to equitable relief as a result of his own
conduct and malfeasance.
We review a trial court’s exercise of its equity powers for an abuse of
discretion. (Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 771.) “Under
that standard, we resolve all evidentiary conflicts in favor of the judgment
and determine whether the court’s decision ‘ “falls within the permissible
range of options set by the legal criteria.” ’ ” (Ibid.) Applying the abuse of
discretion standard here, we cannot say that the court’s rationale in denying
equitable relief to Mulberg fell outside such a range of options. Accordingly,
we affirm its ruling rejecting his equitable claims.

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 III.
DISPOSITION
The trial court’s rulings on the claims for promissory fraud, quantum
meruit, and unjust enrichment are affirmed. The rulings on the claims for
breach of contract, account stated, and open book account are reversed. The
judgment is vacated, and the matter is remanded for further proceedings on
the latter three claims, including a consideration of Amster’s affirmative
defenses. The parties shall bear their own costs on appeal.

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 _________________________
Humes, P.J.

WE CONCUR:

_________________________
Margulies, J.

_________________________
Banke, J.

Mulberg v. Amster A158954

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