Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC353230. Ann I. Jones, Judge.
Dana Sherman for Defendant and Appellant.
Lanak & Hanna and Eric N. Kibel for Plaintiff and Respondent.
EPSTEIN, P.J.
Mina N. Sirkin appeals from judgment against her in this breach of contract action brought by American Contractors Indemnity Company (ACIC). She claims the contract is unlawful, and that the damages are unsupported by the evidence. We conclude the contract does not violate statute, rule, or public policy, and is enforceable. But we also find insufficient evidence to support the damages awarded, and for that reason, we reverse the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Necitas Villapando died intestate in October 2002. She was survived by her two minor children and her ex-husband, Apollo Villapando (Villapando). Villapando retained attorney Mina N. Sirkin to represent him in his capacities as administrator of Necitas’s estate (the probate action, Los Angeles Superior Court No. BP076567), and as guardian of their children (the guardianship action, San Diego Superior Court No. P183698).
The probate court appointed Villapando administrator of the estate, and required him to post a bond in the amount of $450,000. Sirkin contacted Will Mingram, an agent at Bond Services of California Insurance Agency & Brokerage, to assist Villapando in obtaining the required bond. The bond application signed by Villapando contained an indemnity agreement, providing that the applicant would indemnify the surety for any liability, charges, or expenses incurred under the bond. Villapando’s bond application and credit check revealed Villapando had a number of financial problems. Among other things, he did not own a home and had declared bankruptcy in 2001. The application estimated that Necitas’s estate included $50,000 in cash and $400,000 in real estate. According to Mingram, Villapando was “unbendable” as an administrator without additional contractual obligations or limits.
On December 30, 2002, Mingram sent Sirkin a letter agreement which is at the heart of this controversy. The document, which the parties refer to as the joint control agreement, provides:
“Dear Mina:
“Thank you for allowing us the opportunity to write the bond in the Estate of Necitas M. Villapando, case number BP076567.
“In order for us to execute this bond, we will require the following:
“1. Acknowledgement that all funds received by the Estate will be placed in a joint bank account requiring both Mina N. Sirkin and Apollo L. Villapando’s signatures for any withdrawals.
“2. After issuance of the bond immediate disclosure to American Contractors Indemnity Company of any change in legal representation.
“3. If for any reason the account is to be modified or surrendered your client agrees to obtain American Contractors Indemnity Company’s written consent change.
“Please sign and return this original letter agreeing to the terms and conditions set forth above. Please feel free to call with any questions.”
Sirkin and Villapando signed and returned the letter, as requested. ACIC then issued a $450,000 bond, and in early January, 2003, the probate court issued letters of administration to Villapando, giving him full authority to administer the estate under the Independent Administration of Estates Act. (Prob. Code, § 10400 et seq.; all statutory references are to the Probate Code unless otherwise indicated.)
Villapando marshaled and reduced to cash various estate assets, including credit union accounts, a 401(k) account, proceeds from the sale of the decedent’s real property, and life insurance proceeds. Sirkin never established a joint bank account with Villapando. Thus, these and other estate funds were not deposited into such an account, nor were Villapando’s expenditures subject to Sirkin’s signature. Villapando used proceeds from the real property sale to purchase real property in San Diego County for the use of his family; he took title in his own name, not the name of the estate; and paid no rent to the estate for his use of the property. He also used estate funds for other questionable expenditures, including the purchase of a new vehicle.
On April 18, 2005, the court suspended Villapando as administrator of the estate. Sirkin notified ACIC that Villapando was expected to be surcharged in the probate estate based on objections to his accounting filed by the successor administrator. On May 20, 2005, Sirkin moved to be relieved as counsel for Villapando. Over ACIC’s objections, the court granted the motion.
Villapando filed a final accounting, prepared by Sirkin. The successor administrator filed objections, charging that Villapando had absconded with $410,891.61 of assets belonging to the estate. The court found that Villapando had breached his fiduciary duty as administrator by failing to properly inventory and account for probate assets, using probate property for his own benefit, and converting probate assets without authorization and against the interest of the beneficiaries. The court ordered a surcharge against Villapando in the amount of $687,898.91, which it doubled based on Villapando’s bad faith.
After judgment was entered, ACIC tendered the full amount of the bond, $450,000, to the successor administrator of the estate. ACIC obtained judgment against Villapando for breach of the indemnity agreement. ACIC then brought this action against Sirkin based on the joint control agreement. The original complaint alleged causes of action for breach of contract, intentional and negligent misrepresentation, and negligence. Sirkin’s demurrer to the first amended complaint was sustained without leave to amend as to all causes of action except breach of contract.
The case was tried to the court. The court found in favor of ACIC and awarded judgment in the amount of $450,000, but rejected ACIC’s claim for attorney fees and costs incurred in defense of the surcharge action. Sirkin filed a timely appeal from the judgment.
DISCUSSION
I
We deal briefly with appellant’s claim that the joint control agreement is not a contract. She argues there was no meeting of the minds, since she thought the joint control letter only applied until letters of administration were issued. “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.” (Alexander v. Code masters Group Limited (2002) 104 Cal.App.4th 129, 141.) Applying this standard, there is no objective support for the contract interpretation urged by appellant, a certified probate specialist.
As we have seen, the joint control agreement stated: “In order for us to execute this bond, we will require the following: [¶] 1. Acknowledgment that all funds received by the Estate will be placed in a joint bank account requiring both Mina N. Sirkin and Apollo L. Villapando’s signatures for any withdrawals.”
Under section 8400, “A person has no power to administer the estate until the person is appointed personal representative and the appointment becomes effective. Appointment of a personal representative becomes effective when the person appointed is issued letters.” Letters could not be issued to Villapando until he was bonded, and ACIC would not issue the bond until Sirkin and Villapando signed the joint control agreement. Thus, the requirement “that all funds received by the Estate will be placed in a joint bank account requiring both Mina N. Sirkin and Apollo L. Villapando’s signatures for any withdrawals[]” necessarily referred to funds received by the estate after the letters were issued to Villapando, because only then did he have power to receive and control estate assets.
Appellant argues there was no consideration for the agreement. In return for Sirkin and Villapando’s promise to place all estate funds in a joint bank account requiring both their signatures, ACIC issued the bond. With this promise, ACIC was to receive the benefit of Sirkin’s oversight of Villapando’s use of estate funds. And ACIC’s issuance of the bond allowed Villapando to proceed as personal representative and Sirkin to represent him in that capacity. There was consideration for the agreement. (Civ. Code, § 1605.)
We also reject appellant’s assertion that the agreement lacks essential contract terms. Villapando’s duties as personal representative included marshaling the assets of the estate and collecting money owed to the estate. The joint control agreement required that “all funds received by the Estate” be placed in a joint bank account which would require the signature of both Villapando and Sirkin for any withdrawals. The agreement also required that notice be given to ACIC of any change in representation or in the bank account. Although these requirements are not particularly detailed, they clearly express the actions required by the signatories.
II
This brings us to appellant’s primary argument, that the joint control agreement is contrary to statutory law and public policy, and hence is void and unenforceable. We find no such conflict.
The duties of a personal representative are set out in section 9650, and include taking possession or control of the property of the decedent which is to be administered in the estate; collecting debts due to the decedent or the estate; receiving the rents, issues and profits from the real and personal property in the estate until the estate is distributed; and paying taxes on and taking all steps reasonably necessary for the management, protection, and preservation of the estate in his or her possession. The personal representative with independent administration authority has the power to manage and control property of the estate. (§ 10531.)
As explained in section 9600, in exercising management and control of the estate, the personal representative “shall use ordinary care and diligence.” Section 10502, which addresses the powers of the personal representative authorized for independent administration of estate, expressly incorporates the duty set out in section 9600. The California Law Revision Commission Comment to section 10502 explains: “The reference to Section 9600 (duty to manage estate using ordinary care and diligence) in subdivision (a) of Section 10502 recognizes that the personal representative acts in a fiduciary capacity in exercising the powers under this part. The personal representative is required to exercise the power granted under this part to the extent that ordinary care and diligence requires that the power be exercised and may not exercise the power to the extent that ordinary care and diligence requires that the power not be exercised.”
Under section 9601, if a personal representative breaches a fiduciary duty, he or she is chargeable with any loss or depreciation in value resulting from the breach, any profit the personal representative made from the breach, and any profit that would have accrued to the estate in the absence of the representative’s breach of duty. To protect the estate from improper action by the personal representative, section 8480 requires the personal representative to post a bond before letters are issued unless there is a waiver of the bond requirement. (See § 8481.) “The bond shall be for the benefit of interested persons and shall be conditioned on the personal representative’s faithful execution of the duties of the office according to law.” (§ 8480, subd. (b).)
Given Villapando’s negative credit history, ACIC required additional safeguards before it was willing to assume the risk of issuing a bond for him. It sought and obtained the written joint control agreement, under which Villapando and appellant agreed that all funds received by the estate would be placed into “a joint bank account requiring both Mina N. Sirkin and Apollo L. Villapando’s signatures for any withdrawals.”
We find nothing in the Probate Code prohibiting such an arrangement. Section 9700 authorizes the personal representative to “deposit money of the estate in an insured account in a financial institution in this state. Unless otherwise provided by court order, the money may be withdrawn without order of the court.” This section is silent as to the use of a joint bank account requiring the signatures of both the personal representative and his attorney for withdrawals; its thrust is that a court order is unnecessary for withdrawals. In the case of a personal representative operating with independent administration authority, section 10533 gives the representative the power to: “Deposit money belonging to the estate in an insured account in a financial institution in this state.” Section 10556 gives such personal representative the power to pay all taxes, assessments, and expenses incurred in the collection, care, and administration of the estate. Nothing in these provisions precludes use of a bank account which requires the signature of the attorney and the personal representative for withdrawals.
Appellant argues that Civil Code section 2811, which authorizes a bonded principal to enter into an agreement with his or her surety for a joint account, reflects the Legislature’s intent to permit such an arrangement only with a surety, not with anyone else. That statute was enacted in response to the Supreme Court decision in Estate of Woods (1911) 159 Cal. 466. (See Guardianship of Ounjuian (1935) 4 Cal.2d 659, 661.) In Woods, a guardian relied on his attorney and his bondsman to select a bank in which to deposit trust funds. The account was set up to require both his signature and the signature of the surety company for withdrawals. This arrangement was not brought to the attention of the guardianship court. The bank failed, and the guardian was held liable for the lost funds. The Supreme Court affirmed, holding that “the rule forbidding the surrender by a trustee of his control over trust funds, on penalty of becoming a guarantor of the fund, an eminently salutary rule, applies to such an arrangement between the guardian and his surety as is shown by the evidence in this case.... [T]he effect of such an arrangement is to give a surety a complete veto power in the matter of any proposed change of a place of deposit, no matter what circumstances may arise.... If it be desired to provide some method by which a surety company may have some control of a trust fund as to which it has merely become surety for the officer of a court, such as a guardian or administrator, to whom the court has given such fund in charge, the method must be provided by the legislative department of the government, for the law as it now stands in this state does not authorize it.” (Estate of Woods, supra, 159 Cal. at pp. 473-474.)
The Legislature did so, in what is now Civil Code section 2811. “By expressly authorizing the fiduciary to enter into agreements of joint control with a surety, the legislature has indicated that the arrangement is perfectly proper, and that the guardian who makes it is free from fault. Consequently he cannot be held accountable for the loss of estate funds merely by reason of such a lawful agreement, but only upon a showing of some other culpable conduct.” (Guardianship of Ounjuian, supra, 4 Cal.2d at p. 661.) This legislative authorization of a joint control agreement between a surety and a fiduciary was aimed at protecting the fiduciary from being held strictly liable for a loss of estate funds based solely on the existence of such joint control. It does not address, and hence does not limit, the right of a fiduciary to maintain a joint account for the estate with his or her attorney.
Section 2811 permits a bonded principal to “agree with his surety for the deposit of any money and assets for which the surety is responsible with a bank, savings bank, safe deposit, or trust company authorized by law to do business as such, or other depository approved by the court or a judge thereof, if such deposit is otherwise proper, for the safekeeping of such money and assets and in such manner as to prevent the withdrawal of any or all such money and assets without the written consent of the surety, or an order of court or a judge thereof, made on such notice to the surety as the court or judge may direct. Such agreement shall not in any manner release, or change the liability of, the principal or surety as established by the terms of the bond.”
There are limits on the extent to which a fiduciary can relinquish control of the estate or trust to the care of another. For example, in Estate of Guiol (1972) 28 Cal.App.3d 818, 825, the administrator of the estate gave her attorney possession and control of the money belonging to the estate. The court held this was a breach of her duty as estate representative. “Even though the selection of the attorney was without negligence, the surrender of all of the duties of the administration of the estate without the administratrix’ becoming responsible to the distributes for any losses sustained would negate the purpose of bonding the estate representative to assure administrative integrity; were such to become the rule, both the estate representative and the attorney would have to be bonded to give adequate safeguard to distributes.”
In Estate of Spirtos (1973) 34 Cal.App.3d 479, 488-489, the administrator challenged the trial court’s finding that she was negligent in relying on the advice of her attorneys with regard to the sale of estate property, and thus liable for the ultimate loss to the estate from that sale. In affirming that finding, the court held there was either “a complete abdication” of the administration of decedent’s estate by appellant, or she knowingly acquiesced in the failure to comply with the Probate Code.
In Borissoff v. Taylor & Faust (2004) 33 Cal.4th 523, 533, the Supreme Court warns not to read these cases as establishing a broad rule of nondelegability: “In those decisions, fiduciaries were held liable for estate losses caused by their attorneys because the fiduciaries had completely abdicated their duties....” (See also § 16012 [trustee has duty not to delegate the entire administration of the trust to co trustee or other person].) The joint control agreement in our case permits no such abdication. It requires the action of both the personal representative and the attorney for estate transactions. ACIC was not seeking a complete delegation of Villapando’s authority to Sirkin, but rather the cooperation of both fiduciary and attorney in the handling of estate assets.
This safeguard does not conflict with appellant’s role as counsel for the personal representative. “[I]t is well established that the attorney for the administrator of an estate represents the administrator, and not the estate.” (Goldberg v. Frye (1990) 217 Cal.App.3d 1258, 1267.) “It is of course the purpose and obligation of both the fiduciary and his attorney to serve the estate.” (Id. at p. 1269.) Just as the personal representative is required to use care and diligence in the management and control of the estate, the attorney is required to advise the personal representative about the proper execution of his duties to the estate. It is entirely consistent with this duty for the attorney and the personal representative to maintain a joint bank account for the assets of the estate, and for withdrawals from that account to require both their signatures. Counsel is not representing an interest adverse to the personal representative by agreeing to the joint account, and thus rule 3-300 of the Rules of Professional Conduct is not implicated. The joint control agreement is not investing a stranger to the estate with cosigning authority. Sirkin, as counsel for the personal representative, is vested with the same interest in protection of estate funds as is the personal representative.
In the event of a disagreement between counsel and the personal representative with regard to a withdrawal of funds, the employment relationship can be terminated in accordance with rule 3-700 of the Rules of Professional Conduct. The joint control agreement did not, and could not, prevent counsel from leaving the case. The agreement only required immediate notification to ACIC of any such change in counsel.
Appellant claims the joint control agreement seeks to make her a surety for the performance of her client, in violation of Code of Civil Procedure section 995.510. Subdivision (a)(1), the pertinent portion of that statute, provides that a personal surety on a bond is sufficient if “[t]he surety is a person other than the principal. No officer of the court or member of the State Bar shall act as a surety.” We do not read the agreement as making appellant a surety for her client’s performance. A surety “promises to answer for the debt, default, or miscarriage of another,...” (Civ. Code, § 2787.) Appellant instead promised to act with her client by placing estate assets in a joint account and withdrawing those funds only with both their signatures. She did not obligate herself to answer for Villapando’s debt, default, or wrongdoing, except to the extent the losses resulted from her own failure to create and jointly control the estate bank account called for by the agreement.
Appellant also argues that the joint control agreement violates Civil Code section 2847, which precludes the surety from seeking reimbursement from anyone other than the principal, Villapando. In its action against Sirkin, ACIC sought the damage proximately caused by her breach of the joint control agreement, a contract which is separate from the bond. (See Civ. Code, § 3300.) It did not seek reimbursement under the bond, and thus did not violate Civil Code section 2847. (See Golden Eagle Ins. Co. v. First Nationwide Financial Corp. (1994) 26 Cal.App.4th 160, 167-168 [surety may seek reimbursement only from principal, but can assert subrogation claim against other parties].)
We find no statute, rule, case authority, or public policy which prohibits Sirkin and Villapando from entering into the joint control agreement with ACIC.
The fact that there are other statutory methods available to protect the surety, or to administer the estate without a bond does not render this method unlawful.
III
ACIC obtained judgment against Villapando based on the indemnity agreement in the bond application, and then brought this action against appellant based on the joint control agreement. Appellant argues ACIC was required to proceed jointly against her and Villapando, in order to prevent ACIC from obtaining double recovery of the same loss.
Joinder of parties is governed by Code of Civil Procedure section 389. subdivision (a) provides: “A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party.”
“Where all the parties who unite in a promise receive some benefit from the consideration, whether past or present, their promise is presumed to be joint and several.” (Civ. Code, § 1659.) Sirkin and Villapando united in their promise to place all estate funds in a joint bank account requiring both their signatures for withdrawals, and as we have explained, they each received a benefit from this agreement. Their promise is joint and several, and ACIC could thus obtain complete relief for its breach from Sirkin alone.
Looking at the other factors, ACIC already has a judgment against Villapando based on the indemnity clause in the bond, so Villapando had no interest to protect in this action. To the extent Sirkin was concerned about inconsistent or duplicative obligations, she could have brought a cross-complaint against Villapando for contribution. And given that ACIC had not recovered on its judgment against Villapando, there was no risk at that point of double recovery. We agree with the trial court that Villapando is not a necessary party to this action.
IV
Having concluded that the joint control agreement is valid, we consider appellant’s final claim, that the evidence is insufficient to support the award of damages. The measure of damages for breach of an obligation arising from contract, “is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom.” (Civ. Code, § 3300.) “No damages can be recovered for a breach of contract which are not clearly ascertainable in both their nature and origin.” (Civ. Code, § 3301.)
ACIC became obligated to the estate on its bond when the probate court ordered a surcharge against Villapando in the amount of $687,898.91, which the court doubled pursuant to section 859, based on Villapando’s bad faith. The surcharge order is not proof against Sirkin that ACIC suffered damages as a result of her breach of the joint control agreement. The surcharge may have involved other improper transactions and mishandling of assets by Villapando, not just improper expenditures of funds that should have been in the joint control account and subject to the two-signature requirement. While the trial court could properly take judicial notice of the existence of pleadings and orders in the surcharge proceeding, neither the surcharge order nor other pleadings in that proceeding could be used against Sirkin, who was not a party to the probate proceedings, as evidence of facts found and recited in the order or pleadings. (See Kilroy v. State of California (2004) 119 Cal.App.4th 140, 145.)
Nor can the resolution of issues in the surcharge proceeding be asserted against Sirkin under the doctrine of collateral estoppal. Collateral estoppal precludes re litigation of an issue only if: the issue is identical to an issue decided in the prior proceeding; the issue was actually litigated and necessarily decided in the prior proceeding; the decision in the prior proceeding is final and on the merits; and the party against whom collateral estoppal is asserted was either a party, or in privily with a party to the prior proceeding. (Plumley v. Mockett (2008) 164 Cal.App.4th 1031, 1048-1049.) Sirkin was not a party to the surcharge proceeding, nor was she in privily with her former client (Villapando) in that proceeding. (See Dawson v. Toledano (2003) 109 Cal.App.4th 387, 399-400.) Issues resolved in the surcharge proceeding were not determined as against her.
We turn to the court’s findings in this case. The trial court found that if Sirkin had established the joint account as required by the agreement, $470,866 in estate funds would have been deposited in this account. Only a portion of this amount is supported by the evidence. Exhibit 119 included three checks from the Courts & Records Federal Credit Union, totaling $1,856.12, which were the proceeds of decedent’s IRA account. Exhibit 23 is a copy of a check from decedent’s Tenet 401(k) retirement account for $86,738.68. Appellant testified that she advised Villapando to deposit the check into the estate account, but “I have no idea if he ever deposited it anywhere. He certainly did not deposit it into a joint-control account with me.” Exhibit 28 is a check from David Gibson Escrow Co. for $210,034.99, made out to Villapando as administrator of decedent’s estate. Appellant testified this was either all or a portion of the cash proceeds from the sale of the Wagner property, which belonged to the estate. It is reasonable to conclude that these checks, totaling $298,629, were estate funds received by Villapando which should have been, but were not deposited into a joint estate account.
The court also found that $140,248 in proceeds from an Unum life insurance policy should have been placed into a joint account. We find no evidence in the record that Villapando received this money. Relying on an entry on exhibit 246, which is not part of the record on appeal, the court asked appellant whether life insurance proceeds from Unum were ever part of the estate. Appellant replied, “My understanding from what [Villapando] had told me is that it had no beneficiary designation. I sent him an inventory based on that information, which I have confirmed in a letter. Whether or not it was settled by the guardian—the successor guardian in the estate or the guardianship, I don’t know. She may have settled it in the guardianship account.” The court was concerned that in the absence of a beneficiary designation, the estate might have had an interest in that policy. Appellant replied, “That’s true. But I don’t believe any of the damages sought by [the successor representative] indicated anything relating to any Unum property, insurance.”
At oral argument, ACIC pointed to exhibit 57 as evidence that the Unum policy was an estate asset which should have been deposited in a joint estate account. That exhibit is Sirkin’s worksheet of anticipated estate assets; it is not proof that the Unum policy was an estate asset. Neither appellant’s testimony nor this exhibit support the court’s finding that the Unum policy was an estate asset which would have been placed in the joint account if appellant had complied with the agreement.
The court also found that if appellant had kept the estate account in her name as well as Villapando’s, “she would have required the administrator to pay monthly rent into that account.” Thus, the court found that during the 20 months that Villapando was administrator and resided in the house owned by the estate, appellant “would have ensured that $32,000 in rent was deposited into the estate account.” The joint control agreement did not obligate appellant to marshal estate assets, or to collect receivables on behalf of the estate. She was only required to deposit estate funds which were received into a joint account, and to cosign for estate expenditures. The court erred in considering this item as an estate asset that would have been protected under the joint control agreement. Excluding the Unum life insurance proceeds and the unpaid rent, we conclude there is substantial evidence that $298,629 should have been deposited in the joint estate account, but was not.
But proof that this money was not placed into a joint account was not sufficient; ACIC also had to prove that Villapando made improper disbursements of these estate funds which he would not have been able to make if appellant had also been required to sign the estate checks, as contemplated under the joint control agreement. The court found a total of $119,462 in “unauthorized withdrawals of estate funds” that appellant “questioned or challenged.” These included $3,227 in checks Villapando made payable to himself for “miscellaneous,” $15,409 in checks to various retailers for “furnishings,” $51,222 in checks for “automobile expenses,” and $49,604.04 in checks for “repair and maintenance” at the Santee residence in San Diego County, which had been purchased with estate funds.
The trial court questioned appellant about Villapando’s expenditures, utilizing exhibit 58, a notebook marked for identification but not admitted into evidence. Appellant testified that exhibit 58 was a ledger of the estate checking account prepared by attorney David Dufek, who was retained by the successor personal representative in March 2005. Appellant did not verify the accuracy of the entries. But even if we assume the information is correct, it provides only partial support for the trial court’s award of damages.
Exhibit 58 describes two payments to “ALV” (presumably Villapando), one for $1,873.98 for “misc. expenses for estate” and one for $1,354.69 for “misc. expenses for home needs.” Without more, these listings do not support the inference that the expenses were not legitimate, or that appellant would not have cosigned these checks. Thus, the evidence does not support the court’s inclusion of $3,227 for “miscellaneous” as an item of damages.
The court also included in its damages award $15,409 based on checks to retailers for “furnishings,” and $49,604.04 in checks for “repair and maintenance” at the Santee residence, where appellant lived with his and decedent’s two minor children. No evidence was presented that these were improper expenditures which appellant could and would have prevented had there been a joint account. Appellant annotated some of these ledger entries with question marks and requests for further information, but her questions do not establish that the expenses were not legitimate, or that she would not have cosigned checks for them upon receipt of Villapando’s answers. These items should not have been included as damages.
We turn to the automobile expenses. Appellant was asked about an entry showing “Mossy Nissan One Down Payment $10,000.” Asked if she would have cosigned a check for that expenditure, appellant explained: “If [Villapando] had just told me, write a check for Mossy Nissan, I would have asked, what’s that check for? And the answer would have been, let’s say that he said I wanted to buy a car, in which case I would have had to tell him, no, you can’t buy a car.” The court also asked her about the listing for a second check to Mossy Nissan for $28,222.71. Appellant did not challenge the accuracy of these listed expenditures. These listings, with appellant’s testimony, support the conclusion that Villapando improperly spent $38,222.71 to purchase a car for himself. But exhibit 83, the First Account and Report of Administrator, includes a listing of the property on hand at the close of the estate account. According to schedule E, attached to the pleading, the Nissan Pathfinder was turned over to the successor guardian for safekeeping. At oral argument, counsel for ACIC did not dispute that the estate had recovered the vehicle. Its purchase price thus should not have been included as an item of damages for breach of contract.
Exhibit 58 also lists two payments to Honda West, one for $4,000, one for $9,000. The expenditures are listed as payments for decedent’s car, and the court apparently included these items as part of the automobile expenses Villapando improperly paid with estate funds. ACIC presented no evidence that these were improper expenditures. And appellant’s question mark next to these entries does not supply the missing proof.
Sirkin breached the joint control agreement, but ACIC failed to prove that it suffered damages as a result of her breach. Damages are a necessary element for breach of contract. (Navellier v. Sletten (2003) 106 Cal.App.4th 763, 775.) In the absence of proof of damages, ACIC was not entitled to judgment.
DISPOSITION
The judgment is reversed. Appellant is to have her costs on appeal.
We concur: WILLHITE, J. MANELLA, J.