Opinion
C077028
06-01-2018
CIVIC PARTNERS STOCKTON, LLC, Plaintiff and Appellant, v. CYRUS YOUSSEFI et al., Defendants and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 03AS00193)
In protracted litigation arising from a hotel redevelopment project by the City of Stockton and its former Redevelopment Agency (collectively, City), this appeal disposes of the sole remaining cause of action by the initial developer, plaintiff Civic Partners Stockton, LLC (Civic), against the successor developer that took over the project, Hotel Stockton Investors (H.S.I.), its general partner CFY Development, Inc. (CFY), and CFY's owner, Cyrus Youssefi. We refer to Youssefi, CFY, and H.S.I. collectively as Youssefi.
We disposed of Civic's other claims against Youssefi in Civic Partners Stockton, LLC v. Youssefi (2013) 218 Cal.App.4th 1005 (Youssefi I), leaving only a conversion claim alleging that Youssefi used Civic's architectural plans in preparing a tax credit application for the project.
Civic now appeals from summary judgment entered by the trial court in favor of Youssefi on the conversion claim. Civic contends (1) the trial court erroneously sustained Youssefi's evidentiary objections to Civic's evidence; (2) Youssefi's hotel contract "admits" Youssefi converted Civic's architectural plans; and (3) City admitted Civic did not breach its hotel contract such that Civic retains equitable title to the hotel property.
We conclude Civic forfeits some arguments by violating appellate rules, despite our admonition about Civic's noncompliance in Youssefi I. We also affirm summary judgment based on facts Civic agrees are undisputed and conclude Civic fails to show a material dispute precluding summary judgment.
Civic's separate appeal from a judgment disposing of Civic's claims against defendants City and Agency that had alleged wrongful removal from the project without proper compensation was decided in an unpublished opinion with this court filed on March 2, 2018. (Civic Partners Stockton, LLC v. City of Stockton, (2018) 2018 Cal.App.Unpub. LEXIS 1412.) Civic's claims against City have also been the subject of prior appellate review. (City of Stockton v. Superior Court (Civic Partners Stockton, LLC) (2007) 42 Cal.4th 730 (City of Stockton).)
We denied Civic's request to consolidate the separate pending appeals. Nevertheless, we briefly address Civic's attempt in this appeal to present a theory of complicity between City and Youssefi, based on Civic's mischaracterization of a judge's earlier comment about an indemnity clause.
This appeal puts an end to Civic's litigation against Youssefi.
BACKGROUND
In Youssefi I, we held that Civic's fourth amended complaint adequately alleged a tort cause of action for conversion on the following theory: "[Civic] is suing for conversion of a particular object on which . . . copyrighted work is embodied. As alleged in the fourth amended complaint, [Civic] obtained a copy of the architectural plans from the architect, the copyright owner, for use in [Civic's] credit application. That copy was then given to the Agency which in turn gave it to the Youssefi defendants. The latter used the copy of the architectural plans to prepare part of its own credit application for the same building project. Thus, the copy of the plans was used as the architect intended, but by a different party. This does not state a claim for copyright violation but for conversion of a particular object containing a copyrightable work." (Youssefi I, supra, 218 Cal.App.4th at p. 1017; italics added.) We reversed and remanded for the trial court to vacate its order and enter a new order denying the Youssefi defendants' motion for judgment on the pleadings on the conversion claim. (Id. at p. 1018.)
On remand, Youssefi moved for summary judgment.
On appeal, Civic omits the complaint from its Appellant's Appendix, in violation of California Rules of Court, rule 8.124(b) which says "an appellant's appendix must contain . . . [?] . . . items . . . [?] . . . necessary for proper consideration of the issues, including, for an appellant's appendix, any item that the appellant should reasonably assume the respondent will rely on . . . ." (Further undesignated rule references are to the California Rules of Court.) The complaint is necessary for summary judgment review. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381 (FPI) [pleadings delimit the scope of issues material in summary judgment proceedings].)
Youssefi supplies the operative complaint in the Respondents' Appendix. The complaint alleged: In May 2000, Civic and the Agency signed a contract for Civic to redevelop and purchase the Hotel Stockton. In January 2002, Civic was preparing an application for federal and state tax credits for housing the elderly in the upper floors of the hotel. The Agency's Steve Pinkerton told Civic that the Agency wanted to substitute the Youssefi defendants to develop the upper floors. A meeting was held at Civic's offices in Newport Beach, attended by Youssefi, his attorney Patrick Sabelhaus, and Mr. Pinkerton, all of whom allegedly said they needed Civic's consent to transfer the hotel contract to Youssefi, and the Agency was prepared to repay Civic for its investment.
On February 19, 2002, the Agency asked Civic for its architectural plans to be used in Youssefi's tax credit application to the California Tax Credit Allocation Committee (CTCAC). Civic gave the plans to the Agency, which agreed to hold them in trust and not give them to Youssefi until the Agency and Civic signed a binding written contract for return of Civic's investment. Around February 19th, the Agency gave the architectural plans to Youssefi's architect, Michael Malinowski, in violation of the trust. On March 19, 2002, the Agency signed a new hotel contract with Youssefi's company H.S.I.
The complaint alleged that in the summer of 2002, the Agency cancelled Civic's hotel contract, claiming for the first time that Civic was in breach of the contract that the Agency had already transferred to Youssefi four months earlier with Civic's consent.
The complaint alleged Youssefi could not have obtained the tax credits without using Civic's architectural plans. Youssefi's architects admitted they used Civic's plans to prepare Youssefi's March 25, 2002, tax credit application. Youssefi knew when he used Civic's plans for the March 25, 2002, tax credit application that the Agency had not honored the commitments made at the Newport Beach meeting by the Agency, Youssefi, and Youssefi's attorney. The City, Agency, and Youssefi defendants contracted to divide among themselves the liability to Civic for their joint torts.
In its complaint, Civic "reserve[d] the right to seek punitive damages from the Youssefi defendants based on the nature of their conduct disclosed in this case and in the indemnity agreement with the [C]ity and [A]gency, which discloses their intent to join with the [C]ity and [A]gency in converting Civic's property to their own profit."
Youssefi filed a motion for summary judgment on grounds that undisputed facts showed (1) Youssefi did not engage in the alleged conduct such that there was no causal link between the architectural plan and the alleged harm, and/or (2) there was no actual, substantial interference with Civic's alleged right to dominion over the plans. Youssefi's motion also sought summary adjudication that Civic had not pleaded and could not prove grounds for punitive damages.
We pause to comment on Civic's appellate presentation. Its Appellant's Appendix omits all of the evidence Youssefi submitted with its summary judgment motion, forcing Youssefi to supply all of it in a Respondents' Appendix. We could reject the appeal on that basis (rule 8.124(b) [appellant must provide adequate record for review]), but we can easily affirm summary judgment based on the facts stated in Youssefi's separate statement of undisputed facts, which Civic agreed are "undisputed." (Code Civ. Proc., § 437c.) Though we need not do so, we briefly address Civic's purported disputed facts.
Thus, Civic agreed the following facts are undisputed:
On January 12, 2002, Youssefi entered a contract with architect Michael Malinowski of Applied Architecture, Inc., for architectural services in connection with the project to redevelop the Hotel Stockton into commercial use and low-income housing. Youssefi wanted to apply for tax credits through the California Tax Credit Allocation Committee (CTCAC), and Malinowski had experience helping developers prepare such applications. The contract stated that as part of the "Pre-Design and Pre-Development" project work, Applied Architecture would "[p]rovide sketches, drawings and notes required to assist with tax credit package preparation." At that time, California regulations required applications to include "Architectural drawings. Preliminary drawings of the proposed project, including a site plan, building elevations, and unit floor plans (designate square footage). . . . Drawings shall be to a scale that clearly shows all requested information. Blueprints need not be submitted."
In January 2002, Malinowski received from the City and Agency documents with drawings of the Hotel Stockton, a July 1991 Architectural and Structural Assessment of the Hotel Stockton, and original 1908 architectural drawings for the hotel. In the last week of January and the first week of February 2002, Malinowski used these materials to create the set of preliminary drawings needed for the tax credit application.
On February 8, 2002, Malinowski completed and gave Youssefi the 11" by 17" set of 14 preliminary drawings needed for the tax credit application. The drawings involved designs for parking on the basement level, residential and commercial uses on the ground level, affordable residential apartments on four floors, and residential amenities on the ground floor, mezzanine, and top floor. Youssefi incorporated those drawings into its tax credit application.
On February 19, 2002, pursuant to an agreement between Civic and the Agency, Civic gave the Agency a "reproducible set" of Civic's architectural plans that had been prepared for Civic by architect Milford Wayne Donaldson, Inc. (AMWD or Donaldson). On or after February 19, 2002, the Agency gave those plans to Malinowski as a thick, rolled-up set of approximately 200 pages of full-sized (2' by 3'), detailed plans of designs for retail use on the ground floor of the Hotel Stockton and office space on the upper floors.
Malinowski and Youssefi submitted declarations that Civic's plans were not used for Youssefi's tax credit application that it submitted to CTCAC in March 2002 or for a second tax credit application it submitted in July 2002. Mr. Malinowski attested he and his firm completed their drawings before receiving Civic's architectural plans, returned Civic's plans without using them, thought that any prior work done might become useful in the event the project went forward and so contacted Civic's architect AMWD to discuss cooperation, learned AMWD had not been paid by Civic, and received a letter from AMWD's lawyer asserting its rights. Youssefi's declaration attested that, when he learned of AMWD's claims, Youssefi was "confident that neither we nor our architects had done anything wrong. Nonetheless, we wanted the indemnity provision in [our contract with City] in case we had to defend against untrue allegations in the future. Concern over the prior architect's objection was the reason, and the only reason, we negotiated for the indemnity provision related to architectural plans."
As we discuss post, Civic "disputed" Youssefi's evidence about the reason for indemnity clause, but failed to show a material dispute.
In June 2014, the trial court issued an order granting summary judgment in favor of the Youssefi defendants. The court noted this rendered moot the complaint's reservation of a right to make a punitive damages claim, but the court nevertheless found the defense showed entitlement to summary adjudication of any punitive damage claim. Civic appeals from the ensuing judgment.
DISCUSSION
I
Appellate Rules and Standard of Review
We previously admonished Civic for its failure to comply with appellate rules in an unpublished portion of our prior opinion in Youssefi I, C067304. We there noted that California Rules of Court, rule 8.204, requires an appellant's brief to contain a summary of the significant facts in the record with appropriate citation to where in the record such facts appear. (Youssefi I, supra, C067304, filed August 8, 2013, slip opn. pp. 8, 11-12.) We said Civic made a number of factual assertions without appropriate citation, included citations that did not establish the matter asserted, and cited documents without citation to where or how they were authenticated. (Ibid.) We considered only factual assertions supported by proper citations to the record and considered only documents shown to be properly authenticated. (Ibid.)
In this appeal, Civic repeats some of the same transgressions and adds new ones. For example, Civic proceeds with this appeal by way of an Appellant's Appendix that omits critical items such as the complaint, the answer, Youssefi's evidence in support of the summary judgment motion, and the trial court's ruling on Youssefi's evidentiary objections to Civic's evidence. "[A]n appellant's appendix must contain . . . [?] . . . items . . . necessary for proper consideration of the issues, including, for an appellant's appendix, any item that the appellant should reasonably assume the respondent will rely on . . . ." (Rule 8.124(b).) The complaint and answer are necessary for appellate review of summary judgment, because it is the complaint and answer which define what issues are material for summary judgment purposes. (FPI, supra, 231 Cal.App.3d at p. 381 [pleadings delimit the scope of issues in summary judgment proceedings].) The other omitted items are also necessary for appellate review, and Civic should reasonably have assumed that Youssefi would rely, as it does, on its own evidence and its own evidentiary objections.
Youssefi in its respondents' brief correctly complains of Civic's continued disregard of appellate rules but, in an abundance of caution, has put itself to the task of supplying the missing records in a Respondents' Appendix.
As we did in the prior appeal, we consider only matter properly presented by Civic. The rule that an appellant has the burden of affirmatively showing error by an adequate record applies to summary judgments. (Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1140.) Though summary judgment review is de novo, "[a]s with an appeal from any judgment, it is the appellant's responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority. In other words, review is limited to issues which have been adequately raised and briefed." (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116.)
II
Evidentiary Rulings
On appeal, Civic challenges the trial court's evidentiary rulings sustaining Youssefi's evidentiary objections to (1) the declaration of Civic's attorney attaching exhibits opposing summary judgment, and (2) Civic's evidence that Youssefi was present at the Newport Beach meeting when the Agency said it would pay for Civic's rights. We separately address the latter point, post, to supply context.
As to the first point, Civic contends the trial court erroneously struck the declaration of Civic's attorney, Malcolm Misuraca, which purportedly described the foundation for exhibits submitted in opposition to the summary judgment motion. Youssefi objected to Civic's evidence on various grounds, including that Mr. Misuraca's declaration, which stated it was executed in Coral Gables, Florida, failed to attest its contents were true and correct under penalty of perjury under the laws of the State of California, as required by Code of Civil Procedure section 2015.5. The trial court sustained the evidentiary objection but noted that, even if it had considered Civic's evidence, the court would still grant summary judgment.
While we can also conclude that Civic's evidence, even if admissible, is insufficient to preclude summary judgment, the flagrant disregard of rules warrants comment for counsel's edification.
On appeal, Civic forfeits all of its challenges to the trial court's evidentiary rulings by (1) failing to offer even a single citation to the record, (2) failing to include necessary items in the Appellant's Appendix, and (3) failing to fairly describe the reasons for Youssefi's evidentiary objections. Thus, rule 8.204(a)(1)(C) says each appellate brief must support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears. The failure to cite to the record is not forgiven by Civic's failure to include items (e.g., the complaint, answer, and the trial court's evidentiary rulings) in the Appellant's Appendix, as required by rule 8.124(b) which says "an appellant's appendix must contain . . . [?] . . . items . . . [?] . . . [?] necessary for proper consideration of the issues, including, for an appellant's appendix, any item that the appellant should reasonably assume the respondent will rely on . . . ."
In addition to failing fairly to describe the reasons for the evidentiary objections, Civic fails to present any legal analysis or authority showing error. Civic cites no authority, except to cite Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 612 (Kulshrestha), as supposed support that its attorney's Coral Gables declaration satisfied Code of Civil Procedure section 2015.5 by including on the cover page the attorney's California State Bar number and a San Francisco office address (that indicates a street address and box number). Kulshrestha does not support such proposition but instead affirmed our opinion that a trial court properly excluded a declaration that showed it was executed in Ohio and did not reference California's perjury laws. (Id. at p. 607.) The Supreme Court said, "We now decide if declarations signed under penalty of perjury outside this state satisfy section 2015.5[ of the Code of Civil Procedure], and are admissible in summary judgment and other authorized proceedings, even though the contents are not certified as true 'under the laws of the State of California.' The answer to this narrow question is no." (Kulshrestha, supra, 33 Cal.4th at p. 606.) We reject Civic's apparent reliance on a footnote referencing a case finding sufficient compliance where a declaration did not say where it was executed but the court found the place of execution was established by the declarant's address that appeared near the signature. (Id. at p. 612, fn. 5.)
Here, the attorney's declaration affirmatively stated on the last page (page four) that it was executed in Coral Gables, Florida. The office address at the top of the cover page was not near the signature and, contrary to Civic's appellate assertion, neither that address nor the attorney's California State Bar number constitute acknowledgement that perjured statements might trigger criminal prosecution in California. To the contrary, a California lawyer would know the declaration did not subject him to criminal prosecution in California. The Legislature in Code of Civil Procedure section 2015.5 "sought to enhance the trustworthiness of out-of-state unsworn declarations used in California proceedings by maximizing the declarant's specific understanding that his false promises to tell the truth carried the potential for criminal prosecution in California." (Kulshrestha, supra, 33 Cal.4th at p. 618; orig. italics.) To forgive the defect in this case would not serve the legislative goal.
We do not mean to suggest that Mr. Misuraca is untrustworthy. The point is that his declaration failed to comply with Code of Civil Procedure section 2015.5, and his arguments in the trial court and on appeal reflect a failure to appreciate that fact.
Thus, though Civic suggests the trial court improperly denied its attorney's motion to amend the declaration, no amended declaration was proffered. Rather, counsel just verbally assured the court of his integrity, blamed his young Florida associate for defective drafting of the declaration, blamed Youssefi for making a "petty" evidentiary objection, and asked "nunc pro tunc to have the Court satisfied that the declaration was given under the penalty of perjury under the laws of the State of California." Though the declaration on its face purported to authenticate the attached exhibits, Civic's attorney said at the hearing in the trial court, "all I do in the declaration is point out what the various tabs represent in the evidence volume. [¶] So the declaration is not meant to advance anything except to say, you need the evidence in tab A, here's where to look and so forth."
We conclude Civic forfeits its challenges to the evidentiary rulings, and we need not address the evidence submitted with the attorney's declaration.
III
Civic Fails To Show Grounds For Reversal
Even if we disregard Civic's forfeiture of evidentiary rulings, the facts Civic admits were "undisputed," as recited ante, suffice for summary judgment.
Although Civic says there was no evidence that Youssefi did not reproduce the plans before returning them, the elements of conversion are (1) the plaintiff's ownership or right to possess property, (2) the defendant's conversion by wrongful act or disposition of property rights, and (3) damages. (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.) The complaint alleged Youssefi converted the plans by using them in the tax credit application. Youssefi defeated that claim.
In the trial court and on appeal, Civic has tried to defeat summary judgment by deflection and raising new theories not pleaded in its complaint, for example, about who ultimately paid off Civic's architect, whether payment went to Civic or to the architect, and whether Youssefi "change[d] [its] defense" at the summary judgment hearing to say the agency bought the plans from Civic's architect. This is not allowed. The scope of issues in summary judgment is limited to the claims framed by the pleadings, and a plaintiff cannot oppose summary judgment by raising new theories without moving to amend or supplement the complaint before the hearing on the motion, which was not done in this case. (Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 421.)
We do, however, address two issues: The Newport Beach meeting and the indemnity clause.
On appeal, Civic claims the trial court erred in excluding Civic's evidence that the Agency told Civic in Youssefi's presence at the Newport Beach meeting, i.e., that the Agency would "pay for Civic's rights," which according to Civic included Civic's equitable title to the property. But Civic does not even describe the basis for Youssefi's objection or offer any legal authority or analysis. Civic has thus forfeited its challenges to the trial court's sustaining of Youssefi's objection.
Despite the forfeiture, we briefly comment on the lack of merit in Civic's position.
Civic wants to use Youssefi's silence at the Newport Beach meeting as proof of complicity between Youssefi and the Agency to harm Civic or at least an acknowledgement by Youssefi that Youssefi had no right to proceed with the project until the Agency paid Civic. Civic argues, "Mr. Youssefi's lawyers said later that Mr. Youssefi 'made no commitments' at the meeting, as if he and his lawyer could sit through the meeting, hear his name and commitment to take over the hotel invoked by the agency, say nothing to the contrary, and remain unaffected by Civic's belief that what Civic was told was true."
However, nothing about that meeting is material to disposition of Civic's claim about use of its architectural plans in Youssefi's tax credit application. Any claims Civic may have against the City and/or Agency are the subject of a different appeal and are not at issue in this appeal. Moreover, Civic's argument that it retains equitable title to the property is based on an unproven argument -- not at issue in this appeal -- that the City/Agency's dismissal of a cross-complaint against Civic without prejudice operated as a retraxit making Civic the holder of equitable title as a matter of law.
In a further effort to show some sort of complicity between City and Youssefi, Civic claims that proof of complicity between the City, Agency, and Youssefi to violate Civic's rights is shown by an indemnity provision in the Agency's hotel contract with H.S.I., section 11.8, which says: "The Agency shall indemnify, defend and hold harmless CYF [sic] Development, Inc., a California corporation, and its directors, agents, successors and assigns from and against all claims made against them which arise out of or in connection with the use of architectural plans for the Property prepared by architects for another developer for the Property; provided, however, that this indemnity shall not extend to any claim arising solely from CYF [sic] Development, Inc.'s or its directors', agents', successors' and assigns' gross negligence or willful misconduct."
Civic makes a frivolous argument that in a prior proceeding in this case before a different judge, Judge Loren McMaster "held" in a ruling that is "law of the case" that indemnity, "if proved up," meant that Youssefi is not a bona fide purchaser of the hotel. Civic makes this claim three times in its appellate brief, but offers no cite to the record until the third instance, where it cites to the wrong page of the record of a prior appeal "incorporated by reference" in this appeal.
Thus, Civic claims, "Judge Loren McMaster learned of the indemnity in 2008. He held that if the indemnity is what it appeared to be, it means that the Youssefis are not bona fide purchasers of the hotel. In none of the appeals since 2008 have the Youssefis briefed or argued a basis to defeat Judge McMaster's order." "Judge McMaster had seen in 2008 that if Civic proved up the indemnity that Civic cited in the Youssefi hotel contract, the Youssefis could not be bona fide purchasers for value of the hotel. Judge McMaster's order is law of the case." "Judge Loren McMaster held in 2008 that the indemnity, if proved up, meant that the Youssefi defendants are not bona fide purchasers of the hotel."
Civic misstates and mischaracterizes the incorporated record. That record, C067304, is from the appeal that resulted in our opinion in Youssefi I, supra, 218 Cal.App.4th 1005. Youssefi I involved the fourth amended complaint, but the record included a third amended complaint. (Id. at p. 1011.) Civic now asks us to consider the overruling of Youssefi's demurrer to the conversion claim in that third amended complaint, in which Civic alleged Youssefi knew when he made his tax credit application that the Agency had not honored its commitments to Civic, and therefore Youssefi "joined in" the Agency's conversion of Civic's hotel contract. Youssefi argued on demurrer that there were insufficient allegations of any representations or statements made by Youssefi. Civic's opposition to the demurrer argued Youssefi could not claim he was a bona fide purchaser of Civic's hotel assets -- in part because the indemnity clause demonstrated that Youssefi knew his use of Civic's plans was not with Civic's consent, which meant he converted them, which voids the indemnity clause, because the clause did not extend to willful misconduct.
In overruling Youssefi's demurrer to the conversion claim, Judge McMaster adopted his tentative ruling that: "Civic alleges that Youseffi [sic] knew when he made his tax credit application that the Agency had not honored its commitments to Civic on the Hotel Contract, and thereby joined in the agency's conversion of the Hotel Contract. Defendant contends there are insufficient allegations of any representations or statements made by [Youssefi] . . . . The Court finds that the allegations regarding [Youssefi's] knowledge of the circumstances of Agency's wrongdoing are sufficient to negate his bona fide purchaser defense, particularly in light of the alleged indemnification agreement between the Agency and [Youssefi] in the [H.S.I.'s] contract. . . ."
Judge McMaster did not make any "holding" upon which Civic can rely as "law of the case." Civic cites no authority about the doctrine of law of the case. The doctrine is that, where an appellate court states a rule of law necessary to an appellate opinion, it becomes law of the case and must be adhered to throughout the subsequent progress of the case. (Crossroads Investors, L.P. v. Federal National Mortgage Association (2017) 13 Cal.App.5th 757, 773.)
Moreover, Judge McMaster was addressing an allegation that Youssefi joined in the Agency's conversion of the hotel contract. The only claim at issue in this appeal is the allegation that Youssefi converted Civic's architectural plans.
Civic claims the indemnity clause somehow constitutes proof that Youssefi used Civic's plans improperly. But it does not. Youssefi's moving papers submitted evidence to the trial court -- omitted from Appellant's Appendix -- that the indemnity clause was prompted by Youssefi's discovery that Civic's architect, AMWD, was claiming an interest in the plans because it had not been paid in full by Civic and was perhaps challenging the Agency's right to give those plans to anyone. Thus, Youssefi submitted a declaration from his architect, Mr. Malinowski, attesting he and his firm completed their drawings before receiving Civic's architectural plans, returned them without using them, thought that any prior work done might become useful in the event the project went forward, contacted AMWD to discuss cooperation, learned AMWD had not been paid, and received a letter from AMWD's lawyer asserting its rights. Youssefi also submitted his own declaration attesting that, when he learned of AMWD's claims, Youssefi was "confident that neither we nor our architects had done anything wrong. Nonetheless, we wanted the indemnity provision in [our contract with City] in case we had to defend against untrue allegations in the future. Concern over the prior architect's objection was the reason, and the only reason, we negotiated for the indemnity provision related to architectural plans."
Although Civic purported to dispute this evidence, it submitted nothing to controvert it but instead just speculated that indemnity might have something to do with other statements in the tax credit application that are also outside the pleadings. Even taking into consideration Civic's evidence that the trial court ruled inadmissible, Civic's purported evidence was that Youssefi's tax credit application said Youssefi's architect had replaced Civic's architect and included a true statement that $713,500 of a $1.3 million allocation for architect was attributable to Civic's architect (Donaldson), but contained a false statement by H.S.I. that Donaldson's contract had been terminated by mutual agreement. Civic's "principal officer" Steven Semingson attested to an opinion (not apparent on the face of the application) that H.S.I. used that statement to gain credit from CTCAC for the $713,500 Civic paid for the plans that Youssefi never acquired from Civic. These claims are outside the scope of the fourth amended complaint, and Civic did not move to amend the pleading to add them, so they are immaterial to this summary judgment motion.
We conclude neither the indemnity clause nor Civic's allegations of complicity or excess credit save Civic's appeal.
Finally, Civic contends the City initially said Civic was in "breach" of the hotel contract but later said the contract had just become impracticable or even impossible to perform due to the need for historical preservation of the building's features. Civic argues it was therefore entitled to rely on the restitution the Agency committed to Civic. This too is outside the scope of the conversion claim against Youssefi.
We conclude the trial court properly entered summary judgment in favor of Youssefi on Civic's conversion claim and claim for punitive damages, which would necessarily depend on the conversion claim.
DISPOSITION
The judgment is affirmed. Defendants Youssefi, CFY, and H.S.I. shall recover their costs on appeal. (Rule 8.278(a).)
HULL, J. We concur: RAYE, P. J. MURRAY, J.