Opinion
B332735
04-05-2024
WILLIAM C. MILKS, III, Plaintiff and Appellant, v. AFFIRMED TECHNOLOGIES, LLC, et al., Defendants and Respondents.
Law Office of Monti J. Stegen and Monti J. Stegen for Plaintiff and Appellant. Fennemore Craig and Wade Beavers for Defendant and Respondent Dwight J. Baum, Individually and as Trustee, etc.
NOT TO BE PUBLISHED
APPEALS from a judgment and order of the Superior Court of Los Angeles County No. 21STCV47544, Barbara A. Meiers, Judge. Affirmed.
Law Office of Monti J. Stegen and Monti J. Stegen for Plaintiff and Appellant.
Fennemore Craig and Wade Beavers for Defendant and Respondent Dwight J. Baum, Individually and as Trustee, etc.
No appearance for Defendant and Respondent Affirmed Technologies, LLC.
EDMON, P. J.
Plaintiff William Milks III (Milks) appeals from (1)a judgment of dismissal following an order sustaining a demurrer without leave to amend (appeal no. B330311), and (2)an order awarding attorney fees to defendant Dwight Baum (Baum) (appeal no. B332735). Milks contends the trial court erred by finding his claims for breach of promissory notes and intentional misrepresentation were time-barred, and his claim for fraudulent concealment failed to state a claim. Milks further contends Baum was not entitled to contractual attorney fees because he was not a signatory to the relevant contracts and had not been adjudicated the alter ego of defendant Affirmed Technologies, LLC. We find no error, and thus we will affirm.
Prior to oral argument, we advised the parties that the two appeals would be considered together for purposes of oral argument and decision.
FACTUAL AND PROCEDURAL BACKGROUND
I. Complaint.
Milks filed the present action on December 30, 2021, and filed the operative first amended complaint (complaint) in October 2022. The complaint alleges as follows:
Baum demurred to the original complaint. In order to respond to the arguments raised in the demurrer, Milks voluntarily filed the first amended complaint.
All Protect, LLC (All Protect) was a California limited liability company formed in 2006 by Steven White (White). Defendant Baum was a manager and member of All Protect and provided funding for its operations.
Defendant Affirmed Technologies, LLC (Affirmed), a Nevada limited liability company, is the successor of All Protect. Affirmed has assumed all of All Protect's liabilities.
Milks loaned All Protect and/or Affirmed approximately $325,000 between 2009 and 2011. In 2012, Milks became one of Affirmed's managers. In exchange for Milks's loans, All Protect and Affirmed issued Milks 15 promissory notes (Notes) in amounts ranging from $10,000 to $30,0000. The Notes issued in 2009 and 2010 were due on December 31, 2010, and the Notes issued in 2011 were due on December 31, 2011. None of the Notes was repaid.
Baum seized control of Affirmed in 2017, and thereafter funded arbitration against Affirmed's former managers, including Milks. In January 2019, Baum filed for dissolution of Affirmed. Baum is alleged to be Affirmed's alter ego and to "personally hold[ ] what were the assets of Affirmed."
The complaint alleges three causes of action. The first cause of action asserts breach of the Notes by Affirmed and Baum. It alleges that on October 30, 2012, Milks mailed a notice to Affirmed demanding payment of the Notes, which were then overdue. From 2012 through 2015, Affirmed requested additional time to repay the Notes, and Milks extended the Notes' maturity dates through the end of 2015. Affirmed "breached the terms of the Notes by failing to pay the principal and interest on the Notes as promised."
The first and second causes of action are alleged against "Baum's alter ego Affirmed." For purposes of this appeal, we assume without deciding that these causes of action are alleged against both Affirmed and Baum.
The second cause of action alleges intentional misrepresentation by Affirmed and Baum. It asserts that "White on behalf of Affirmed knowingly made false representations regarding their willingness and ability to repay the Notes with the intent to deceive and fraudulently induce [Milks] to delay collection of the money owed on the Notes, to delay [Milks] from filing actions to collect the money owed, and to induce [Milks] to provide further loans to Affirmed." Milks "reasonably and justifiably relied upon White's false representations by not only delaying the collection or filing of lawsuits to collect the money owed, but also in providing additional loans thereby increasing the amount that Affirmed owed to [Milks]." Had Milks known that White's representations were indeed false, he "would not have loaned money to Affirmed, would not have delayed filing lawsuits to collect the monies Affirmed owed to [Milks], and would not have loaned additional monies to Affirmed."
The third cause of action alleges fraudulent concealment by Baum. It asserts that Baum intentionally concealed facts from Milks, including that Affirmed had been dissolved, and prevented Milks from discovering the dissolution by failing to provide him with notice as required by Affirmed's operating agreement.
Copies of the 15 Notes issued to Milks were attached as exhibits to the complaint. Each Note stated that in the event of a default, Milks "by notice in writing to the Company, may declare the principal of and all accrued interest on [the] Note then outstanding immediately due and payable without further notice or demand." Each Note provided that if Affirmed failed to make payment, Milks "will be entitled and empowered to take such measures as may be appropriate to enforce the Company's obligations under this Note, by judicial proceedings or otherwise." Each Note was "to be construed under the laws of the State of California, and subject to the exclusive jurisdiction of the courts located in Los Angeles County, California."
II. Demurrer and opposition.
Baum demurred to the complaint. He asserted, first, that Nevada law bars civil claims against a dissolved limited liability company, as well as claims brought by or against the company's managers and members, if the claims arose prior to dissolution and were not filed" 'within 2 years after the effective date of the articles of dissolution.'" (Nev. Rev. Stats., § 86.505.) Affirmed was formally dissolved on November 1, 2019, and Milks filed the present action more than two years later, on December 30, 2021. Because Milks's first and second causes of action arose out of Affirmed's alleged failure to repay promissory notes in 2015 or 2016-well prior to Affirmed's dissolution-the two-year bar applied and the first and second causes of action were untimely.
Second, Baum asserted that even if the first two causes of action were timely, they were not properly asserted against him as Affirmed's alleged alter ego. Baum contended that to plead alter ego, the complaint had to allege facts sufficient to show a unity of interest and ownership-that is, that Affirmed had no existence separate from Baum. In the present case, the complaint did not allege that Baum was ever Affirmed's sole owner or manager-to the contrary, it alleged that a board of managers controlled Affirmed at all times.
Finally, Baum asserted that the third cause of action for fraudulent concealment failed to state a claim because it did not allege all essential elements or failed to do so with sufficient specificity. As a threshold matter, the complaint did not show that either Affirmed or Baum as its representative actively "concealed" Affirmed's dissolution from Milks-the dissolution had always been a matter of public record. Further, the complaint did not allege facts sufficient to give rise to a legal duty by Baum to notify Milks of Affirmed's dissolution. Specifically, Milks did not assert a right to notice of dissolution under the plain language of the Notes, and Nevada law does not require managers of a Nevada limited liability company to notify creditors of a dissolution. Further, although Affirmed's operating agreement required notice to creditors of dissolution, Milks did not allege he was a party or intended third party beneficiary of the operating agreement. Finally, Baum asserted that the complaint did not plead facts showing reliance or damages with the specificity required of fraud claims.
In support of his demurrer, Baum sought judicial notice of the "Certificate of Dissolution/Cancellation Limited-Liability Company" evidencing Affirmed's dissolution as of November 1, 2019.
Milks opposed the demurrer. He asserted that the Notes provided for the application of California law, and thus the causes of action against Affirmed were governed by California's six-year statute of limitations for convertible promissory notes, not Nevada's two-year corporate survival statute. Milks further contended that the complaint adequately alleged Baum was Affirmed's alter ego, and thus the first and second causes of action were properly asserted against both Baum and Affirmed.
Finally, Milks urged that the third cause of action for fraudulent concealment adequately alleged all of the elements of the claim, was timely, and was pled with adequate specificity.
III. Order sustaining demurrer; judgment.
The trial court sustained the demurrer without leave to amend. Among other things, the court concluded that the first and second causes of action were untimely under Nevada's corporate survival statute, Milks could not hold Baum liable as Affirmed's alter ego, and the complaint did not adequately allege a cause of action for fraudulent concealment. The court further found that Milks had not persuasively demonstrated that he could cure the complaint by amendment, and it thus denied Milks's request for leave to amend.
The court entered a judgment of dismissal as to all defendants on February 21, 2023. Milks timely appealed.
Affirmed was dissolved in 2019 and has not appeared in this action.
IV. Baum's motion for attorney fees.
Baum filed a motion for attorney fees in May 2023. Baum noted that pursuant to Civil Code section 1717: "In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs." (Italics added.) In the present case, each of the Notes provided for an award of attorney fees against the issuer "[i]n the event suit is brought to enforce payment of this Note." Milks's action was a suit "to enforce payment of" the Notes, and thus Baum was entitled to recover his reasonable attorney fees as the prevailing party.
Milks opposed the motion for attorney fees, contending solely that the motion was untimely.
The trial court granted Baum's motion and ordered Milks to pay Baum attorney fees of $45,601. Thereafter, the court entered an amended judgment of dismissal that included the award of attorney fees. Milks appealed.
APPEAL FROM JUDGMENT OF DISMISSAL (B330311)
Milks contends the trial court erred by sustaining the demurrer or, alternatively, that the court should have granted leave to amend. Milks's claims lack merit, as we discuss.
I. Legal standards.
"We review an order sustaining a demurrer de novo, applying our independent judgment to assess whether the complaint states a cause of action. (Minton v. Dignity Health (2019) 39 Cal.App.5th 1155, 1161.) We assume the truth of all properly pleaded facts, as well as all facts that may be implied or reasonably inferred from those expressly alleged, but we do not assume the truth of contentions, deductions, or conclusions of fact or law." (Sonoma Luxury Resort LLC v. California Regional Water Quality Control Board (2023) 96 Cal.App.5th 935, 940.)
" 'In order to prevail on appeal from an order sustaining a demurrer, the appellant must affirmatively demonstrate error. Specifically, the appellant must show that the facts pleaded are sufficient to establish every element of a cause of action and overcome all legal grounds on which the trial court sustained the demurrer.'" (Save Lafayette Trees v. East Bay Regional Park District (2021) 66 Cal.App.5th 21, 35.)
We review the trial court's denial of leave to amend the complaint for an abuse of discretion. We will not find an abuse of discretion unless there is a reasonable possibility that any defect in the complaint may be cured by amendment. (Stettner v. Mercedes-Benz Financial Services USA, LLC (2023) 98 Cal.App.5th 45, 52.)
II. Nevada's corporate survival statute bars the first and second causes of action.
The first and second causes of action allege breach of the Notes and intentional misrepresentation against Affirmed and Baum. Milks contends the trial court erred by applying Nevada corporation law to conclude that these causes of action were time-barred because the Notes stated they were to be "construed under the laws of the State of California." For the reasons that follow, we disagree.
A. Relevant law.
At common law, a corporation ceased to exist for all purposes upon its dissolution. Consequently, a corporation's capacity to sue or be sued "was completely destroyed upon dissolution." (19 C.J.S. (2023) Corporations § 939; see also 16A Fletcher, Cyclopedia of the Law of Corporations (2023) § 8144; Oklahoma Natural Gas Co. v. Oklahoma (1927) 273 U.S. 257, 259 ["It is well settled that at common law and in the federal jurisdiction a corporation which has been dissolved is as if it did not exist, and the result of the dissolution can not be distinguished from the death of natural person in its effect.
[Citations.] It follows, therefore that, as the death of the natural person abates all pending litigation to which such a person is a party, dissolution of a corporation at common law abates all litigation in which the corporation is appearing either as plaintiff or defendant."].)
Most states have adopted "survival statutes" that temporarily extend the lives of corporations and other business entities for the purposes of suing or being sued. (19 C.J.S. Corporations, supra, § 939; 16A Fletcher, Cyclopedia of the Law of Corporations, supra, § 8144.) Under California law, a limited liability company that has filed a certificate of cancellation continues to exist indefinitely "for the purpose of winding up its affairs, prosecuting and defending actions by or against it in order to collect and discharge obligations, disposing of and conveying its property, and collecting and dividing its assets." (Corp. Code, § 17707.06, subd. (a).) Because California sets no time limitation for suing a canceled limited liability company for injuries arising from predissolution conduct, the time to file suit is governed by the applicable statute of limitations relating to each cause of action. (See Greb v. Diamond Internat. Corp. (2013) 56 Cal.4th 243, 247 (Greb) [construing analogous statute governing dissolved California corporations].)
All subsequent undesignated statutory references are to the Corporations Code.
Under Nevada law, in contrast, any claim against a dissolved limited liability company or its manager or members must be brought "within 2 years after the effective date of the articles of dissolution, with respect to any remedy or cause of action as to which the plaintiff learns, or in the exercise of reasonable diligence should have learned of, the underlying facts on or before the date of dissolution, or within 3 years after the date of dissolution with respect to any other remedy or cause of action." (Nev. Rev. Stat., § 86.505, subd. (1), italics added.) Any remedy or cause of action not commenced within the applicable period "is barred." (Ibid.)
In Greb, supra, 56 Cal.4th 243, our Supreme Court considered whether California's corporate survival statute applied to a foreign corporation-there, a Delaware corporation doing business in California. It was undisputed that there was a three-year corporate survival period under Delaware law, and thus that if Delaware law applied, the plaintiff's claims, filed more than three years after the corporation's dissolution, would be barred. However, if California law applied, the court "would then be required to perform a choice-of-law analysis in order to determine which state's law should apply and govern defendant's capacity to be sued." (Id. at p. 247.)
The Supreme Court held that California's Corporations Code applies only to "domestic corporations" unless otherwise specified, and the Legislature had not provided for or intended the corporate survival statute to apply to foreign corporations. (Greb, supra, 56 Cal.4th 257.) Thus, the action against the dissolved Delaware corporation had properly been dismissed as untimely under the Delaware survival statute. (Id. at pp. 245-246, 272-273.)
Although Grebs addressed California's survival statute under section 2010 (corporations), rather than under section 17707.06 (limited liability companies), its analysis applies equally here. The language of subdivisions (a) and (b) of sections 2010 and 17707.06 is identical in all material respects. (Compare §§ 2010, subds. (a)-(b) & 17707.06, subds. (a)-(b)). Further, under the Corporation Code's express terms," '[l]imited liability company,' except in the phrase 'foreign limited liability company,' means a domestic entity formed under this title." (§ 17701.02, subd. (k), italics added.)
B. Analysis.
Based on the foregoing, the first and second causes of action necessarily are time-barred as against both Affirmed and Baum. It is undisputed that Affirmed was dissolved on November 1, 2019, and that the present action was filed more than two years later, on December 30, 2021. It also is undisputed that Milks was aware that Affirmed had defaulted on the Notes no later than 2015, when the last deferral expired and the Notes had not been repaid. Thus, Milks was aware of the facts on which the first two causes of action are based before Affirmed's dissolution, and he was required under Nevada law to bring his claims within two years of the effective date of the articles of dissolution. (Nev. Rev. Stat., § 86.505.) Because he did not do so, the first two causes of action therefore are untimely.
Milks does not suggest that California's survival statute governs the present case, but he urges that the time to file his claims is governed by the six-year statute of limitations applicable to an action to recover on a note pursuant to Commercial Code section 3118, not by Nevada's survival statute. Not so. A statute of limitations defines the time within which a particular cause of action may be brought, while a survival statute defines the time within which certain defendants may be sued. (See Fletcher, Cyclopedia of the Law of Corporations, supra, § 8144.20.) Compliance with an applicable statute of limitations thus is "an additional requirement that must be met when bringing suit against" a defunct business entity. (Fletcher, Cyclopedia of the Law of Corporations, supra, § 144.20; see also Michigan Indiana Condominium Ass'n v. Michigan Place, LLC (Ill. App. 2014) 8 N.E.3d 1246, 1257 (Michigan Indiana) [statute of limitations does not "trump[ ] or nullif[y] the statutory . . . period after which a corporate entity ceases to exist"].) As one court has explained: "The distinction between a statute of limitations and a survival statute is that the former affects the time in which a stale claim may be brought, while the latter gives life for a limited time to a right or claim that could otherwise not be brought because a dissolved corporation is not an entity that can be sued." (Wittman v. National Supermarkets, Inc. (Mo.Ct.App. 2000) 31 S.W.3d 517, 520; see also Fletcher, Cyclopedia of the Law of Corporations, supra, § 8144.20 [statutory survival period "has been construed as a limitation upon the capacity to sue or be sued rather than as a statute of limitations" because if a party fails to sue within the statutory period for doing so, "there is no longer an entity that can sue or be sued"]; Michigan Indiana, at p. 1257 [compliance with applicable statute of limitations "is merely an additional requirement that must be met when bringing suit against a dissolved corporation"].) Accordingly, a statute of limitations may shorten the period of time within which a claim can be brought against a dissolved limited liability company, but cannot extend it.
Milks also suggests that Nevada's survival statute does not apply because he was not given written notice of Affirmed's dissolution. But while Milks cites a California statute that requires a domestic corporation to provide written notice to all its members and creditors of a voluntary winding up proceeding (§ 12633), he provides no authority for the proposition that the statute applies to foreign or domestic limited liability companies. He also cites no authority for his suggestion that failing to give proper notice of dissolution extends the survival period under either California or Nevada law-or, indeed, for his suggestion that paragraph 10(b) of the Notes, which says that "This Note is to be construed under the laws of the State of California," governed any of Affirmed's obligations during a voluntary dissolution. (Italics added.) Milks's contentions therefore are forfeited. (Wright v. City of Los Angeles (2001) 93 Cal.App.4th 683, 689 ["Generally, asserted grounds for appeal that are unsupported by any citation to authority and that merely complain of error without presenting a coherent legal argument are deemed abandoned and unworthy of discussion"]; Singh v. Lipworth (2014) 227 Cal.App.4th 813, 817 [appellate contentions forfeited if "unsupported by 'adequate factual or legal analysis' "].)
Section 12633 sets out requirements for winding up corporations, not limited liability companies.
Finally, Milks suggests that the first two causes of action may be pursued against Baum as Affirmed's alter ego. Assuming without deciding that the complaint properly pled alter ego claims against Baum-an issue we do not reach-we conclude they too are time-barred. As noted above, under Nevada law any claim against a dissolved limited liability company or its manager or members must be brought within two years after the effective date of the articles of dissolution with respect to any remedy or cause of action as to which the plaintiff learns, or in the exercise of reasonable diligence should have learned of, the underlying facts on or before the date of dissolution. (Nev. Rev. Stat., § 86.505, subd. (1).) For all the reasons that the first two causes of action are time-barred as against Affirmed, they are equally time-barred as against Baum.
III. The complaint does not state a cause of action for fraudulent concealment (third cause of action).
Milks contends he adequately alleged the elements of a cause of action against Baum for fraudulent concealment (third cause of action). We do not agree.
Milks's appellate briefs do not demonstrate that the complaint adequately alleged a cause of action for fraudulent concealment. Milks's entire contention in this regard is as follows: "Paragraphs 84-104 of the [complaint] recite factual allegations respecting all of the elements of a cause of action for concealment." Because Milks has failed to support his contention with reasoned argument, he has forfeited it. (See Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277 ["' "[A]n appealed judgment is presumed correct, and appellant bears the burden of overcoming the presumption of correctness." [Citation.] As a result, on appeal "the party asserting trial court error may not . . . rest on the bare assertion of error but must present argument and legal authority on each point raised. [Citation.]" [Citations.] When an appellant raises an issue "but fails to support it with reasoned argument and citations to authority, we treat the point as waived."' "].)
In any event, Milks's contention fails on the merits. "Fraudulent concealment requires the 'suppression of a fact, by one who is bound to disclose it.' (Civ. Code, § 1710, subd. 3.)" (Huy Fong Foods, Inc. v. Underwood Ranches, LP (2021) 66 Cal.App.5th 1112, 1121.) The elements of a fraudulent concealment claim are:" '" '(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.'"' (Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th 230, 248.)" (Nissan Motor Acceptance Cases (2021) 63 Cal.App.5th 793, 826 (Nissan).)
"No liability for concealment exists unless there is a duty to disclose.' "[W]here material facts are known to one party and not to the other, failure to disclose them is not actionable fraud unless there is some relationship between the parties which gives rise to a duty to disclose such known facts."' (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336-337).)" (Nissan, supra, 63 Cal.App.5th at p. 826.)
The complaint alleges that Baum had a duty to disclose Affirmed's dissolution under section 10.04 of Affirmed's operating agreement, which provided: "The Persons winding up the affairs of Affirmed Technologies shall give written notice of the commencement of winding up by mail to all known creditors and claimants whose addresses appear on the records of Affirmed Technologies." But the complaint does not allege that Baum was "a Person winding up [Affirmed's] affairs" within the meaning of section 10.04; and, in any event, Milks cites no authority for the proposition that the duties created by a limited liability company's operating agreement are enforceable by its creditors.
Accordingly, Milks has failed to state a claim for fraudulent concealment.
IV. The trial court did not abuse its discretion by denying Milks leave to amend the complaint.
"When a demurrer is sustained without leave to amend, '" 'we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.' [Citation.]"' (State of California ex rel. Bowen v. Bank of America Corp. (2005) 126 Cal.App.4th 225, 239.)" (State of California ex rel. McCann v. Bank of America, N.A. (2011) 191 Cal.App.4th 897, 906 (McCann).) To meet his burden, the plaintiff must show"' "in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading."' (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)" (Vann v. City and County of San Francisco (2023) 97 Cal.App.5th 1013, 1020; see also Williamson v. Genentech, Inc. (2023) 94 Cal.App.5th 410, 418 [no abuse of discretion in denying leave to amend complaint where plaintiff did not satisfy his burden to show a reasonable possibility he could cure complaint's defect].)
On appeal, Milks does not explain how he would amend his complaint to cure its defects if he were given an opportunity to do so. Instead, he says only that the trial court abused its discretion by denying leave to amend because it "had not previously had a hearing on the sufficiency of a complaint filed by Milks." Milks therefore has failed to demonstrate an abuse of discretion.
APPEAL FROM AWARD OF ATTORNEY FEES (B332735)
In his second appeal, Milks contends the trial court erred by granting Baum's motion for contractual attorney fees because Baum was not a party to the Notes and has never been adjudicated Affirmed's alter ego. Baum urges that Milks forfeited these arguments because he did not provide this court with an adequate appellate record and did not raise these issues below; Baum also contends the arguments fail on the merits.
We agree that Milks forfeited his claims of error with regard to the attorney fee award. It is the appellant's burden to provide an adequate record to permit review of a claimed error, and a failure to do so may be deemed a waiver of the issue on appeal. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; People v. Akins (2005) 128 Cal.App.4th 1376, 1385.) Here, Milks did not provide us with any of the relevant documents-namely, Baum's motion for attorney fees, Milks's opposition, Baum's reply, and the trial court's order granting the motion. Accordingly, Milks's claims must be resolved against him. (See Maria P., at pp. 1295-1296.)
Alternatively, Milks forfeited his claims of error by failing to raise them below. In the trial court, Milks's only argument in opposition to Baum's motion for attorney fees was that the motion was untimely. On appeal, Milks has abandoned that claim and urges instead that Baum was not entitled to attorney fees because he was a not a party to the Notes and had not been adjudicated Affirmed's alter ego. Neither of these claims was made below, and thus Milks has forfeited them. (E.g., Johnson v. Greenelsh (2009) 47 Cal.4th 598, 603 [" 'issues not raised in the trial court cannot be raised for the first time on appeal' "]; Green v. Healthcare Services, Inc. (2021) 68 Cal.App.5th 407, 418-419 ["' "[Theories not raised in the trial court cannot be asserted for the first time on appeal; appealing parties must adhere to the theory (or theories) on which their cases were tried. This rule is based on fairness-it would be unfair, both to the trial court and the opposing litigants, to permit a change of theory on appeal"' "].)
DISPOSITION
The judgment and order awarding attorney fees are affirmed. Respondent is awarded his appellate costs.
We concur: LAVIN, J., ADAMS, J.