Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC378334, Judith C. Chirlin, Judge.
Charles L. Abrahams, in pro. per., for Plaintiff and Appellant.
Gilchrist & Rutter, Frank Gooch III and Kevin M. Yopp for Defendants and Respondents Thomas M. Tunnicliffe, F. Jane Tunnicliffe, Thomas Realty Co., Inc., Thomas R. Tunnicliffe, 230-248 N. Golden Mall Associates, LLC, and 230 Manager, Inc.
Neufeld, Marks, Gralnek & Maker and Gaelle H. Gralnek for Defendant and Respondent Mathias Hentz.
ASHMANN-GERST, J.
In a confusing and largely unintelligible opening brief, plaintiff and appellant Charles L. Abrahams challenges a judgment of dismissal following a trial court order sustaining the demurrers to plaintiff’s second amended complaint brought by defendants and respondents Thomas M. Tunnicliffe (Thomas), F. Jane Tunnicliffe, Thomas Realty Co., Inc., Thomas R. Tunnicliffe, 230-248 N. Golden Mall Associates, LLC, and 230 Manager, Inc. (230 Manager; collectively, the Tunnicliffe defendants) and Mathias Hentz (Hentz). Plaintiff also challenges the trial court’s order awarding attorney fees to defendants.
Plaintiff has not met his burden on appeal. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
“Because this matter comes to us on demurrer, we take the facts from plaintiff’s complaint, the allegations of which are deemed true for the limited purpose of determining whether plaintiff has stated a viable cause of action. [Citation.]” (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 885.)
The Partnership
In 1972, Thomas formed a limited partnership called 230-248 N. Golden Mall Associates (the LP) for the purpose of constructing a large multi-use property in Burbank, California. Plaintiff was one of the LP’s original limited partners, acquiring a 4 percent interest for $4,400.
In 2003, the LP was converted to a limited liability company called 230-248 N. Golden Mall Associates, LLC (the LLC). The LLC initially had eight members, including plaintiff (4 percent), Hentz (38 percent), and Thomas (38 percent, including interests he controlled but held in the name of 230 Manager, Inc.). The remaining 20 percent was held by four individuals and later was acquired in equal shares by Hentz and Thomas. As a result, by early 2007, the LLC was comprised of plaintiff (4 percent), Hentz (48 percent), and Thomas/230 Manager, Inc. (48 percent).
Original Complaint, First Amended Complaint, and Demurrers
On September 28, 2007, plaintiff initiated these proceedings by filing a 112-paragraph verified complaint against defendants, alleging breach of fiduciary duties, constructive fraud, fraud and deceit, request for an accounting and production of partnership records, and injunctive relief. Attached to the complaint are a host of exhibits, including a copy of the LLC’s operating agreement and four amendments. The LLC’s operating agreement identifies plaintiff as a member, and the fourth amendment to the operating agreement, which confirms the status of the entity as an LLC (and not a partnership), is signed by plaintiff. Also attached to the verified complaint is a letter confirming conversion of the LP to the LLC.
Defendants demurred. In lieu of filing an opposition to defendants’ demurrers, plaintiff filed a verified amended complaint. The same exhibits are attached to the amended pleading. Defendants again demurred. The trial court sustained defendants’ demurrer with leave to amend.
Second Amended Complaint (SAC); Demurrers; Trial Court Order
On February 3, 2009, plaintiff filed his SAC, alleging (1) breach of fiduciary duties, (2) constructive fraud, (3) conversion, fraud, and deceit, (4) accounting and production of records, (5) declaratory relief, and (6) injunctive relief. While a copy of the partnership agreement is attached to the pleading, the LLC operating agreement and the amendments thereto are noticeably absent—without any explanation.
In response to the SAC, defendants demurred. Plaintiff opposed both demurrers.
At the hearing on April 16, 2009, the trial court indicated its intent to sustain defendants’ demurrers with leave to amend. At plaintiff’s counsel’s request, the matter was continued to allow for adequate time for oral argument.
The trial court entertained extended oral argument at the continued hearing. Following counsel’s argument, the trial court sustained the demurrers without leave to amend.
Defendants’ Motions for Attorney Fees
After the trial court sustained defendants’ demurrers, Hentz and the Tunnicliffe defendants separately filed motions for attorney fees. Plaintiff opposed both motions.
The trial court took the matter under submission and then granted both motions. It found that defendants were entitled to attorney fees pursuant to paragraph 11.15 of the operating agreement, “from which this litigation stems.” Moreover, the trial court commented that plaintiff’s oppositions to the motions did “not really address the issues involved here. Instead, [plaintiff made] a belated argument as to why the [trial court] should have granted... earlier motions.”
Paragraph 11.15 provides, in relevant part: “If any party to this Agreement institutes any action, suit, counterclaim, appeal, arbitration or mediation for any relief against another party, declaratory or otherwise (collectively an ‘Action’), to enforce the terms hereof or to declare rights hereunder or with respect to any inaccuracies or material omissions in connection with any of the covenants, representations or warranties on the part of the other party to this Agreement, then the prevailing party in such Action, whether by arbitration or final judgment, shall be entitled to have and recover of and from the other party all costs and expenses of the Action, including reasonable attorneys’ fees and costs... incurred in bringing and prosecuting such Action and/or enforcing any judgment, order, ruling or award (collectively, a ‘Decision’) granted therein.”
Turning to the reasonableness of the fee requests, the trial court found the Tunnicliffe defendants’ request “somewhat excessive.” Thus, it awarded them a reduced award of $364,924. As for Hentz’s fee request, the trial court noted that plaintiff’s “counsel conceded in oral argument that the Hentz fees appeared reasonable, ” and it concurred. Consequently, Hentz was awarded $91,497.75.
Appeal
Judgment was entered, and plaintiff’s timely appeal ensued.
DISCUSSION
I. Inadequacies of Plaintiff’s Appellate Briefs
The major problem with plaintiff’s appeal lies in his opening brief. His brief begins: “Appellant filed demurrers and stated causes of action. This is a simple case. The demurrers were not overruled because the Respondents convinced the Court that it was Retired Judge Judith Chirlin’s obligation to consider defenses when ruling on the demurrers. [¶] The Court did not sustain the demurrers and stated a motion for summary judgment would be granted if one was filed.” The 45 pages that follow are similarly unintelligible, and even a cursory review of the opening brief reveals that it does not provide us with the basic information we need to determine what is being challenged by plaintiff. As another court observed in describing a similarly inadequate brief, “[i]ndeed, this document is strongly reminiscent of those magazine puzzles of yesteryear where the reader was challenged to ‘guess what is wrong with this picture.’” (People v. Dougherty (1982) 138 Cal.App.3d 278, 280.)
Plaintiff’s reply brief is no better. Many assertions are made without reference to law or the appellate record. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [appellant bears the burden of supporting a point with reasoned argument]; County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591 [appellant must present argument on each point made]; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115 [appellate court is not required to make an independent, unassisted search of the appellate record].) And, as in his opening brief, plaintiff refers to other proceedings and other hearings that have no bearing on the issues in this action and appeal.
An appellate court presumes that the judgment appealed from is correct. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574; Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) We adopt all intendments and inferences to affirm the judgment unless the record expressly contradicts them. (See Brewer v. Simpson (1960) 53 Cal.2d 567, 583.) The appellant has the burden of overcoming the presumption of correctness, even when the appellate court is required to conduct a de novo review. “Although our review of [an order sustaining a demurrer] is de novo, it is limited to issues which have been adequately raised and supported in [plaintiff’s] brief.” (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.)
We decline to consider the issues raised in plaintiff’s opening brief that are not properly presented or sufficiently developed to be cognizable, and we treat them as waived. (People v. Stanley (1995) 10 Cal.4th 764, 793; People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19; In re David L. (1991) 234 Cal.App.3d 1655, 1661; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545–546.) Plaintiff’s election to act in propria persona on appeal does not entitle him to any leniency as to the rules of practice and procedure; otherwise, ignorance unjustly is rewarded. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984–985; Lombardi v. Citizens Nat. Trust Etc. Bank (1955) 137 Cal.App.2d 206, 208–209.)
With these principles in mind, we turn to the merits of plaintiff’s appeal.
On February 16, 2011, we declined the defendants’ motion to dismiss plaintiff’s appeal.
II. Demurrer
Plaintiff repeatedly asserts in his appellate briefs that the trial court did not sustain defendants’ demurrers to the SAC. A cursory review of the appellate record confirms that that is exactly what the trial court did. Thus, we review the SAC and consider whether plaintiff stated a claim against defendants.
A. Standard of Review
“Our Supreme Court has set forth the standard of review for ruling on a demurrer dismissal as follows: ‘On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed “if any one of the several grounds of demurrer is well taken. [Citations.]” [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]’ [Citations.]” (Payne v. National Collection Systems, Inc. (2001) 91 Cal.App.4th 1037, 1043–1044.)
On appeal, plaintiff does not argue that he could amend his pleading to state any proper claim against defendants or otherwise request leave to amend. (Benach v. County of Los Angeles, supra, 149 Cal.App.4th at p. 852.) In fact, in his reply brief, plaintiff expressly states that “[t]here is no reason for [him] to request leave to amend the SAC.” Thus, we do not discuss whether the trial court abused its discretion in denying plaintiff leave to amend.
Although the courts generally assume the truth of factual allegations of a complaint, “an exception exists where a party files an amended complaint and seeks to avoid the defects of a prior complaint either by omitting the facts that rendered the complaint defective or by pleading facts inconsistent with the allegations of prior pleadings.” (Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 383–384.) Furthermore, “the policy against sham pleading... requires that the pleader explain the inconsistency.” (Id.; see also American Advertising & Sales Co. v. Mid-Western Transport (1984) 152 Cal.App.3d 875, 879.)
Moreover, the contents of documents submitted in support of a pleading take precedence over inconsistent allegations in the pleading itself. (Building Permit Consultants, Inc. v. Mazur (2004) 122 Cal.App.4th 1400, 1409; Vallejo Development Co. v. Beck Development Co. (1994) 24 Cal.App.4th 929, 946 [“‘A pleader may not attempt to breathe life into a complaint by omitting relevant facts which made his previous complaint defective.’ [Citation.]”].)
B. Breach of Fiduciary Duties
The first cause of action alleged against defendants is for breach of fiduciary duties. The elements of this cause of action are: (1) the existence of a fiduciary relationship, (2) its breach, and (3) damage proximately caused by that breach. (Mendoza v. Continental Sales Co., Inc. (2006) 140 Cal.App.4th 1395, 1405.)
1. Hentz
Regarding Hentz, there are no allegations in the SAC to support plaintiff’s conclusion that Hentz owed fiduciary duties to him. While the SAC alleges that Hentz was an agent or joint venturer of the Tunnicliffe defendants, no facts are set forth to support this conclusion. In fact, the SAC avers the contrary: At paragraph 6, the SAC alleges that “Hentz was not a limited partner, ” thereby negating any fiduciary relationship between Hentz and plaintiff.
Furthermore, the SAC fails to identify any conduct by Hentz that supposedly breached any fiduciary duty owed to plaintiff. Hentz is named only in a spotty and random fashion. To the extent Hentz is actually named, the SAC fails to specify anything he supposedly did. While the SAC is replete with generic allegations that Hentz had “knowledge of [Thomas’s] breach of fiduciary duty” or “conspired” with the other defendants, it fails to describe how Hentz knew of any wrongdoing or anything Hentz did.
Likewise, plaintiff’s attempt to allege a conspiracy claim against Hentz, fails. A claim for civil conspiracy requires allegations concerning the formation and operation of the conspiracy, wrongful conduct in furtherance of the conspiracy, and damages arising from the wrongful conduct. (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1581.) Moreover, where the purpose of an alleged conspiracy is to breach a fiduciary duty, a plaintiff must allege acts that would have given rise to a tort cause of action without the conspiracy; absent such allegations, the conspiracy allegations are meaningless. (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 511 [“Standing alone, a conspiracy does no harm and engenders no tort liability. It must be activated by the commission of an actual tort”].)
These critical elements are glaringly absent from the SAC. While the SAC alleges that Thomas and Hentz “conspired by entering into a secret agreement to defraud” plaintiff, there are no allegations of any supposed conduct by Hentz, and no allegation that Hentz knew about Thomas’s supposed plan to violate any fiduciary duties owed to plaintiff or intended to assist in any such wrongful conduct. (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 589.) In fact, the SAC expressly alleges otherwise. For example, the SAC alleges that Hentz filed a complaint against Thomas, a “complaint... prompted by [Thomas’s] attempt to secretly obtain the 20% interest without Hentz’s knowledge.”
In light of these numerous deficiencies, the trial court rightly sustained Hentz’s demurrer to the first cause of action without leave to amend.
2. Tunnicliffe Defendants
The trial court also correctly sustained the demurrer brought by the Tunnicliffe defendants. Plaintiff insists on citing law and basing his claim on partnership law. The problem for plaintiff is that the entity here is a limited liability company, not a limited partnership. Thus, the foundation of plaintiff’s theory of liability against the Tunnicliffe defendants falls.
Plaintiff attempts to maneuver around this hurdle by alleging that the LP never converted to an LLC. His efforts fail. In plaintiff’s first amended complaint, he admits that the LP converted to an LLC, that he is a member of the LLC, and that the LLC is governed by the operating agreement. Plaintiff’s signature on the fourth amendment to the LLC operating agreement confirms that he is a member of the LLC. Moreover, while plaintiff avers that the LP was not converted to an LLC because there was no unanimous written consent to the conversion, a majority vote was not required; the LP agreement only mandates a simple majority of the partners to change the basic structure of the partnership. Furthermore, plaintiff’s assertion that Hentz was not a partner of the LP is contradicted by exhibits he attached to the first amended complaint. Finally, plaintiff’s allegation that defendants failed to notify him of the conversion of the LP to the LLC is belied by exhibit F to plaintiff’s verified complaint and first amended complaint, a letter confirming that Thomas previously sent LLC members “conversion documents reflecting the conversion from [an LP] to [an LLC].” (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [although we take the factual allegations of a pleading as true, courts do “not close their eyes to situations where a complaint contains allegations of fact inconsistent with attached documents, or allegations contrary to facts which are judicially noticed”]; Holland v. Morse Diesel Internat., Inc. (2001) 86 Cal.App.4th 1443, 1447, superseded by statute on other grounds as stated in White v. Cridlebaugh (2009) 178 Cal.App.4th 506, 521 [if the provisions of the exhibit are inconsistent with or contradict the allegations of the complaint, the facts in the exhibit control].)
Even if we generously gave plaintiff the benefit of the doubt and allowed his breach of fiduciary duties claim to proceed, it is still time-barred. A breach of fiduciary duty claim must be filed within four years of the date the claim accrues. (Code Civ. Proc., § 343; Stalberg v. Western Title Ins. Co. (1991) 230 Cal.App.3d 1223, 1230.) The statute begins to run when a plaintiff suspected or should have suspected his injury was caused by wrongdoing or that someone had done something wrong to him. (Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 932; Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397–398.) A plaintiff has reason to suspect a factual basis for his claim when he has notice or information of circumstances to put a reasonable person on inquiry. (Id. at p. 398.)
The allegations of the SAC and the prior pleadings confirm that plaintiff’s claim is based upon incidents that occurred far more than four years ago. For example, plaintiff alleges that in 1976 certain defendants wrongly received additional interests in the LP without notice to plaintiff. As evidenced by allegations in the first amended complaint, plaintiff knew about these transfers in the mid-1990’s, well before four years prior to 2007 when this action was filed.
Plaintiff contends that the trial court erred in considering the Tunnicliffe defendants’ defenses, such as the statute of limitations, in connection with a demurrer. The law is otherwise. When a ground for objection to a complaint, such as the statute of limitations, appears on its face or from matters of which the court may or must take judicial notice, a demurrer on that ground is proper. (Code Civ. Proc., § 430.30, subd. (a); Black v. Department of Mental Health (2000) 83 Cal.App.4th 739, 745.)
C. Constructive Fraud
In the second cause of action, plaintiff alleges constructive fraud against all defendants. To state a claim for constructive fraud, a plaintiff must allege facts showing: “(1) [a] fiduciary relationship; (2) nondisclosure (breach of fiduciary duty); (3) intent to deceive, and (4) reliance and resulting injury (causation).” (Younan v. Equifax Inc. (1980) 111 Cal.App.3d 498, 516, fn. 14; see also Civ. Code, § 1573; Tyler v. Children’s Home Society (1994) 29 Cal.App.4th 511, 548.)
Plaintiff’s claim against defendants fails for the reasons set forth above. The SAC fails to allege a viable fiduciary relationship between plaintiff and defendants. Because a claim for constructive fraud depends upon the existence of a fiduciary relationship, the trial court rightly sustained defendants’ demurrer to the second cause of action.
D. Fraud and Deceit
Plaintiff alleges fraud and deceit (concealment and suppression of facts) against all defendants. The elements of a cause of action for 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.’ [Citations.]” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Notwithstanding the policy of liberal construction of the pleadings, fraud must be pled with particularity (id. at p. 645; Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184); general and conclusory allegations do not suffice. (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384.) Thus, “‘[e]very element of the cause of action for fraud must be alleged in the proper manner and the facts constituting the fraud must be alleged with sufficient specificity to allow defendant to understand fully the nature of the charge made.’ [Citation.]” (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) “This particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’” (Ibid.) A plaintiff must be specific and identify the persons who allegedly made the false representations. (See generally 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, §§ 711-712, pp. 126-128.)
The fraud cause of action is woefully deficient against defendants. In large part, this cause of action asserts fraud against “[d]efendants” as a group. Such a generalization is insufficient. Moreover, plaintiff does not allege fraud with requisite detail. For example, he never describes “[d]efendants’ wrongful acts.”
Regarding Hentz, the SAC does not make any particular allegations against him. Other than loosely alleging that he aided some of the Tunnicliffe defendants’ concealment of facts and abused his power, the SAC is bare.
While the SAC alleges that Thomas made false representations to plaintiff, he does not describe those misrepresentations with adequate detail. When were they made? By what means were those representations tendered? Were they oral or in writing?
Absent these details, plaintiff has not pled a proper fraud claim.
On appeal, plaintiff claims that he need not plead fraud with specificity because his claim is based upon the fiduciary relationship between plaintiff and defendants. While that law may be true, as set forth above, plaintiff has not alleged a viable fiduciary relationship between himself and defendants. We likewise reject plaintiff’s claim that he need not plead fraud with particularity because Hentz has exclusive knowledge of the facts constituting the fraud causes of action. Plaintiff did not allege what Hentz supposedly did wrong or concealed. And, plaintiff did not aver that Hentz made false representations to him and how those misrepresentations are more within his knowledge than plaintiff’s knowledge. At a minimum, plaintiff knows when Hentz made false statements, whether those statements were made orally or in writing, and where they were made.
E. Accounting and Production of Records
In the fourth cause of action, plaintiff demands an accounting of partnership records and a full review of all partnership books and records. In order to properly allege an action for accounting, plaintiff is required to (1) show the existence of a relationship that requires an accounting, and (2) allege that some balance is due to him. (Kritzer v. Lancaster (1950) 96 Cal.App.2d 1, 7.) In addition, plaintiff must show that an accounting is necessary. (Civic Western Corp. v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1, 14.) Plaintiff has failed to allege the required components of this cause of action.
As set forth above, the relevant entity is an LLC, not an LP. Thus, plaintiff’s arguments regarding his status and rights as a limited partner are irrelevant. In addition, plaintiff failed to allege the existence of a relationship between plaintiff and defendants (other than 230 Manager) that requires an accounting. (See, e.g., Kritzer v. Lancaster, supra, 96 Cal.App.2d at pp. 7–8; Fox v. Hall (1912) 164 Cal. 287, 290 [existence of fiduciary relationship sufficient to compel an accounting]; Whann v. Doell (1923) 192 Cal. 680, 684 [action for accounting is only permitted where “existence of the copartnership or other relationship which requires an accounting” is stated].) Here, there is no fiduciary relationship alleged between plaintiff and defendants.
While plaintiff could theoretically pursue a claim for an accounting against 230 Manager, he has failed to meet his burden on appeal. His appellate briefs do not offer any relevant legal analysis or authority on this point. As a consequence of plaintiff’s failure to properly present this argument, we deem his contentions to be forfeited and do not address them. (Evans v. Centerstone Development Co. (2005) 134 Cal.App.4th 151, 165.)
F. Declaratory Relief
Plaintiff asserts the fifth cause of action for declaratory relief against all defendants.
“A complaint for declaratory relief is legally sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the parties under a written instrument or with respect to property and requests that the rights and duties of the parties be adjudged by the court. (Code Civ. Proc., § 1060; Maguire v. Hibernia [S. & L.] Soc. (1944) 23 Cal.2d 719.)” (Wellenkamp v. Bank of America (1978) 21 Cal.3d 943, 947.)
Plaintiff’s claim fails because he does not allege an actual controversy under any particular written instrument. All is asks for is “a judicial determination of his rights to a greater percentage of partnership profits and income; over and above his initial 4% limited partnership interest.” But, as set forth above, there no longer is a partnership; the relevant entity is an LLC. And plaintiff does not indicate that there is an actual controversy regarding the parties’ rights under the LLC operating agreement or any amendment thereto.
G. Injunctive Relief
Finally, in the sixth cause of action, plaintiff purports to state a claim for injunctive relief against all defendants. In order to establish a basis for injunctive relief, plaintiff was required to allege (1) the elements of a cause of action involving the wrongful act sought to be enjoined, and (2) the grounds for equitable relief. (San Diego Unified Port Dist. v. Gallagher (1998) 62 Cal.App.4th 501, 503.) “An injunction properly issues only where the right to be protected is clear, injury is impending and so immediately likely as only to be avoided by issuance of the injunction.” (East Bay Mun. Utility Dist. v. Department of Forestry & Fire Protection (1996) 43 Cal.App.4th 1113, 1126.)
Plaintiff fails to allege the elements of any cause of action involving the wrongful act sought to be enjoined; thus, this claim fails as a matter of law. Moreover, at the risk of sounding redundant, plaintiff’s arguments in his opening brief mistakenly focus on the partnership agreement and the erroneous assumption that the parties are partners. As set forth above, the entity is no longer a partnership. Any and all arguments regarding partnership law are irrelevant.
III. Attorney Fees
A. Standard of Review
We consider de novo whether the prevailing party fee award should have been made. (City of Long Beach v. Stevedoring Services of America (2007) 157 Cal.App.4th 672, 678.) We review the amount of fees awarded for abuse of discretion. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)
B. The Fee Awards Were Proper
Defendants were entitled to attorney fees. Despite plaintiff’s suggestion to the contrary, defendants prevailed in this action as a judgment of dismissal was entered in their favor. (Code Civ. Proc., § 1032, subd. (a)(4).) The fee award was authorized by paragraph 11.15 of the LLC operating agreement. And there is no challenge in plaintiff’s opening brief that the amount of fees awarded was unreasonable. (Benach v. County of Los Angeles, supra, 149 Cal.App.4th at p. 852.)
Plaintiff asserts that the attorney fee award was improper because his causes of action did not arise out of any contract. His is mistaken. The language of paragraph 11.15 of the operating agreement is broad enough to allow for attorney fees for both contract actions and actions in tort. (Xuereb v. Marcus & Millichap, Inc. (1992) 3 Cal.App.4th 1338, 1342–1343; Santisas v. Goodin (1998) 17 Cal.4th 599, 608.) In addition, the LP agreement, upon which plaintiff bases his claims against defendants and a copy of which he attached to the SAC, contains a broad attorney fee provision.
IV. Defendants’ Motion for Sanctions and for Attorney Fees and Costs on Appeal
On January 14, 2011, the Tunnicliffe defendants filed a motion to dismiss plaintiff’s appeal, along with a request for attorney fees incurred on appeal and for sanctions. On January 18, 2011, Hentz filed a joinder in the Tunnicliffe defendants’ motion. Plaintiff opposed the motion and the joinder.
On February 16, 2011, we issued an order denying the motions to dismiss and deferring our ruling on defendants’ request for attorney fees and sanctions. On May 31, 2011, we gave notice to the parties pursuant to California Rules of Court, rule 8.276(c) that we were considering the imposition of sanctions, both pursuant to defendants’ requests and on our own motion.
Plaintiff filed his response on June 10, 2011. After reviewing the parties’ papers and hearing oral argument, we grant the Tunnicliffe defendants’ motion for sanctions against Abrahams in the amount of $3,000. We also grant Hentz’s request for monetary sanctions and award him $1,000.
“[S]ection 907 provides, ‘When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just.’ (See also Cal. Rules of Court, rule [8.276(a)].) Our Supreme Court in In re Marriage of Flaherty [(1982)] 31 Cal.3d 637, set forth the applicable standard: ‘an appeal should be held to be frivolous only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit. [Citation.]’ [Citation.]” (Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1431–1432.)
As discussed above, this appeal utterly lacks merit. From plaintiff’s opening brief, it is impossible to determine what order plaintiff is appealing; in the same breath, he claims that the trial court never sustained defendants’ demurrers, yet he then purports to argue that he alleged viable causes of action against each defendant. He relied upon matter outside the scope of this appeal, including by repeatedly referring to matters in other litigation. And, his arguments are wholly unsupported by legal authority. Such conduct warrants the imposition of sanctions.
As for the amount of sanctions, we consider the facts in relation to the policy underlying section 907. (Pollock v. University of Southern California, supra, 112 Cal.App.4th at p. 1433.) We have also considered the declaration filed by the Tunnicliffe defendants’ counsel and their request for $3,000 in monetary sanctions. (Ibid.) Based on these factors, the reasonable amount of sanctions for pursuing an improper appeal is $4,000, with $3,000 to be paid by plaintiff to the Tunnicliffe defendants and $1,000 to be paid by plaintiff to Hentz.
DISPOSITION
The judgment of the trial court is affirmed. Defendants are entitled to attorney fees and costs on appeal. In addition, plaintiff is directed to pay the Tunnicliffe defendants $3,000 and Hentz $1,000 as sanctions for prosecuting a frivolous appeal.
We concur: BOREN, P. J., CHAVEZ, J.