Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC373031 Conrad Richard Aragon, Judge.
Law Offices of Dawn T. Simon, Charles D. Collom and Dawn T. Simon for Plaintiff and Appellant.
Macias Counsel, Inc., Sean E. Macias, Sasha N. Brower; and Christopher L. Campbell for Defendant and Respondent.
ASHMANN-GERST, J.
Jose Cuellar (Cuellar) sued respondent Amy Weber individually (Weber) and doing business as Beauty Models/BC4 for dissolution of partnership and accounting, breach of contract, and constructive fraud. Weber’s demurrer to the first amended complaint was sustained without leave to amend. Cuellar appeals the dismissal. We find no error and affirm.
FACTS
The first amended complaint
Cuellar alleged: Shortly after Cuellar began working at Beauty Models/BC4 in 2004, Weber offered him a 30 percent interest in the business in consideration for his continued employment. He accepted the offer. On April 13, 2006, they memorialized a transfer of a 20 percent interest to Cuellar. Weber stated that she needed to give the other 10 percent to a third party investor. In fact, she transferred the other 10 percent to a person she had a romance with. The transfer created a partnership between Weber, her romantic interest, and Cuellar.
In March 2007, Weber transferred all commercial talent accounts out of Beauty Models/BC4 and into another business entity. This stripped the partnership of its main revenue stream. Cuellar did not consent to this transfer. Weber terminated Cuellar’s employment and locked him out of Beauty Models/BC4. He requested the right, as a partner, to inspect the books. He was denied access. Weber denied that Cuellar owned any part of Beauty Models/BC4.
Cuellar alleged causes of action for dissolution of partnership and accounting, breach of contract, and constructive fraud. He claimed that continued operation of the partnership was impossible due to Weber’s conduct; the only disbursements he received from the partnership were “payments made to him as an independent contractor employed by the partnership”; Weber’s actions “created an actual controversy which requires a judicial determination of rights among the parties”; and the “transfer of the commercial talent accounts by [Weber] was done with the intent to gain a financial advantage at the expense of” Cuellar.
A letter dated April 13, 2006, on Beauty Models/BC4 letterhead was attached to the first amended complaint as exhibit A. The letter stated: “This letter... is to state the transfer of partial ownership of Beauty Models/BC4 a dba [u]nder Amy Weber Productions, Inc. to [Cuellar]. [Twenty percent] interest of Beauty Models/BC4 shall be given to [Cuellar] for the life of the business. Any monies taken out of the company concerning David Dginger (12 1/2%), [Cuellar] (20%) or [Weber] (67 1/2 %) shall be discussed between all parties and agreed upon. Shall the agency change ownership[,] this percentage will be honored with every attempt possible.” The letter was signed by Weber as “Owner” and Cuellar.
The demurrer and opposition
Weber challenged the sufficiency of the first amended complaint by arguing that a partnership could not be dissolved because a dissolution was not requested by at least half of the partners; Cuellar failed to allege whether the contract at issue was written, oral or implied; there were no allegations that Weber breached any contractual obligations; exhibit A to the first amended complaint set forth a vague, incomplete set of terms involving Cuellar, an unnamed third party, and Amy Weber Productions, Inc., which rendered the pleading ambiguous; the constructive fraud claim was not pleaded with specificity; Cuellar failed to plead a fiduciary relationship; and he neglected to allege reliance and resulting damage.
In opposition, Cuellar argued: Beauty Models/BC4 was a joint venture that should be treated like a partnership and he was entitled to an accounting. He alleged the terms of the underlying contract and that the written memorialization confirmed Weber’s offer. Further, he alleged that the parties had a fiduciary relationship and Weber violated that relationship to Cuellar’s detriment.
The ruling and dismissal
When the parties convened for argument, the trial court termed the parties’ arrangement “illusory” and stated that Cuellar’s claims could not be saved. Cuellar’s attorney thought enough had been pleaded and could not imagine what more to add. The demurrer was sustained without leave to amend. A dismissal was entered about six weeks later.
This appeal followed.
STANDARD OF REVIEW
When a complaint is dismissed pursuant to a demurrer, our review is de novo. This means “‘“[w]e treat [a] demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.” [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.]’” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)
DISCUSSION
1. Dissolution and accounting.
Though he alleged a partnership, Cuellar contends that the first amended complaint demonstrated that he was involved in a joint venture with Weber and she wrongfully locked him out. He does not argue he is entitled to a dissolution and accounting. But he implies it.
We conclude that Cuellar cannot prevail.
Cuellar’s first task is to demonstrate that he alleged a joint venture. This task is not pro forma. Every brief must contain a citation to authorities on the points made or they are waived. (People v. Hovarter (2008) 44 Cal.4th 983, 1029.) Cuellar states that Weber and he had a joint venture but did not advert to any statutes or precedents that elucidate the issue. Instead, he quoted Orlopp v. Willardson Co. (1965) 232 Cal.App.2d 750, which stated: “[T]he relations of joint venturers as between themselves and as to third parties are generally the same as those of partners and to the extent they are the same, the law of partnerships applies to both.” (Id. at p. 754.) Then he cites Elsbach v. Mulligan (1943) 58 Cal.App.2d 354, 369–370, as holding that a wronged co-adventurer may sue the other for breach of contract, a share of the profits or losses, or an accounting. Cuellar did not establish that he and Weber had a joint venture. This analytical gap forecloses his challenge.
Though not required, we take up the mantle. A joint venture is formed when two or more people “carry out a single business enterprise jointly for profit.” (Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 525 (Pellegrini).) Cuellar alleged that he became a 20 percent partner in Weber’s business. But this allegation conflicts with exhibit A to the first amended complaint. As a result, we must “rely on and accept as true the contents of the exhibit[]” unless the exhibit is “ambiguous and can be construed in the manner suggested by” Cuellar. (SC Manufactured Homes, Inc. v. Liebert (2008) 162 Cal.App.4th 68, 83.) Exhibit A stated that Cuellar was given a 20 percent interest in a corporation called Amy Weber Productions, Inc. doing business as Beauty Models/BC4. Cuellar’s interest was subject to change if Beauty Models/BC4 changed ownership. Exhibit A is ambiguous as to whether Cuellar was receiving stock or simply a 20 percent interest in the income stream. The latter is suggested based on the instability of Cuellar’s interest. In other words, it appears he may have been promised a certain percentage of the business’s income as his wages. We arrive at this conclusion based on a simple observation. If Cuellar was an owner, his interest could not change. Suffice it to say, the first amended complaint does not evince a joint venture because it does not allege that Amy Weber Productions, Inc. and Cuellar agreed to share the profits and losses of Beauty Models/BC4, nor does it allege the nature of their responsibilities, the nature of his risk, and what he was supposed to receive. There is no indication that Amy Weber Productions, Inc. and Cuellar operated the business on a joint basis by, for example, sharing management. In fact, the pleading suggests otherwise because Cuellar alleged that the only money he received from Beauty Models/BC4 was for work as an independent contractor. Cuellar does not address these ambiguities, so we do not know if his construction is reasonable.
Even if the pleading demonstrated a joint venture between Cuellar and Amy Weber Productions, Inc., it would not matter. He did not name that entity as a defendant, and, ostensibly, any joint venture was not with Weber. As a result, Cuellar’s claims against Weber are wholly deficient.
2. Breach of contract.
Cuellar does not contend that he alleged a sufficient cause of action for breach of contract. Once again, he implies it. By not arguing the merits, he waived any contention that the trial court erred.
In any event, we find the pleading deficient.
To plead a cause of action for breach of contract, a plaintiff must allege: “(1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff. [Citations.]” (Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830.)
Based on the primacy of exhibit A, the first amended complaint establishes that there was an agreement between Amy Weber Productions, Inc. and Cuellar. We need not determine whether the agreement was enforceable because the cause of action was otherwise not adequately pleaded. Weber was not a party to it, so she could not have breached it. Moreover, the first amended complaint does not allege that she violated any terms of the agreement, or that Cuellar was damaged. The sole available conclusion is that Cuellar’s contract claim lacks merit.
3. Constructive fraud.
Cuellar tells us the elements of constructive fraud, but he does not argue that his pleading contains them. This is another waiver.
We note that Cuellar tells us that constructive fraud is the breach of a duty in the context of a confidential or fiduciary relationship. Tacitly, he suggests that Weber breached a fiduciary duty to him. We cannot accede. While it is true that members of a joint venture owe each other a fiduciary duty (Pellegrini, supra, 165 Cal.App.4th at p. 525), this does not help Cuellar’s cause. If Cuellar was in a joint venture, it was with Amy Weber Productions, Inc., not Weber. Undeniably, his cause of action against Weber lacks merit on that basis.
Our analysis need not go further.
DISPOSITION
The judgment of dismissal is affirmed.
Weber is entitled to her costs on appeal.
We concur: BOREN, P. J. CHAVEZ, J.