Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 802823, Peter Polos, Judge.
Harold Pemstein, in pro. per., for Plaintiff and Appellant.
Manahan, Flashman & Brandon and Jeffrey S. Flashman for Defendant and Respondent.
OPINION
O’LEARY, J.
Harold Pemstein asserts the trial court erred in refusing to allow him to amend his complaint to conform to the evidence that had been introduced at trial by adding a cause of action for breach of fiduciary duty. The motion was orally made during the court’s consideration of Harold’s equitable accounting claim against his brother Martin Pemstein. Harold asserts the court verbally acknowledged it would consider damages for breach of fiduciary duty. However, he also concedes the court never made a final ruling on the motion to amend. The court rendered its judgment without a statement of decision because none was requested. The judgment did not award separate damages for breach of fiduciary duty. We must affirm the judgment because Harold failed to establish the trial court ruled on his motion or ruled erroneously.
We refer to the parties by their first names for ease of reading and to avoid confusion, and not out of disrespect. (In re Marriage of James & Christine C. (2008) 158 Cal.App.4th 1261, 1264, fn. 1.)
I
Harold, the minority shareholder of a small, closely held family corporation, brought an action for its involuntary dissolution pursuant to Corporations Code section 1800, subdivisions (4) and (5). He filed a separate lawsuit to dissolve HMS Holding Company (HMS), a partnership he owned with his brother, Martin. Harold also filed a third lawsuit seeking to hold Martin and others personally liable for various tort causes of action. The defendants in each case filed cross-complaints, and in the partnership dissolution action, the corporation (The Pemma Corporation) filed a complaint in intervention.
Confronted with this tangled web of lawsuits sharing the common thread of family discord, the trial court (before a different trial judge) consolidated all the cases for trial. In 2001, that trial judge bifurcated the potentially dispositive causes of action and engaged in a piecemeal decision-making process that resulted in a bundle of obscure and confusing rulings. Both parties appealed, and this court reversed the judgments. (Pemstein v. Pemstein (June 9, 2004, G030217) [nonpub. opn.]; Pemstein v. Pemstein (June 9, 2004, G029394) [nonpub. opn.]; Pemstein v. Pemma Corp. (June 9, 2004, G031227) [nonpub. opn.].) The case was remanded for a new trial and assigned to a different trial judge.
In June 2005, the court issued a 23-page statement of decision and judgment. The only issue remaining was the equitable accounting for the rents Harold claimed Martin owed him. However, before the issue could be tried, Pemma and HMS filed for bankruptcy.
After HMS’s bankruptcy case was dismissed in 2007, the case was placed back on calendar to complete the accounting. The court held a hearing over several days beginning on September 14 and ending on November 16, 2009.
Our record contains the December 2009 brief Harold submitted “in lieu of closing argument.” He argued Martin owed him $295,871, plus $400,347.03 in interest. In addition, Harold argued he lost $1,050,000 equity in HMS properties while the case was in the bankruptcy Martin filed without his consent and in breach of Martin’s fiduciary duty. Harold calculated lost interest was $252,262.50. He asserted the bankruptcy also cost him $510,000 in fees and costs.
The court’s minute order dated December 14, 2009, stated the court had “considered the arguments of all the parties, both written and oral, as well as the evidence presented, now rules as follows: [¶] Final Ruling: There having been no timely request for a [s]tatement of [d]ecision the [c]ourt enters its [f]inal [r]uling in this case. The only issue remaining as to all of the consolidated cases is the equitable satisfaction of Harold[’s]... equitable claims for RENT between himself and Martin... regarding Martin[’s] stewardship of HMS on behalf of the partnership.... That matter was tried to this [c]ourt, sitting without a jury, over multiple days. The prior partial rulings after the first trial to this [j]udge and the subsequent bankruptcy resolved all other issues. See minute order dated [May 1, 2009.] [¶] The [c]ourt finds for the plaintiff, Harold... and against Martin... as follows: The [c]ourt finds Martin... breached his duty of care to Harold... in the collection of rent on behalf of HMS. This [c]ourt finds that Harold... has been damaged as a result of this breach. The [c]ourt awards Harold... $295,871.00 in principal and $400,347.03 in interest against Martin.... The [c]ourt finds a lack of proof on all other claims by Harold... against Martin... or that the claims were not proper.” The court signed and entered a final judgment on January 5, 2010.
II
Code of Civil Procedure section 473, subdivision (a)(1), provides the trial court may, “in its discretion, after notice to the adverse party, allow, upon such terms as may be just, an amendment to any pleading....” “It is a basic rule of pleading in this state that amendments shall be liberally allowed so that all issues material to the just and complete disposition of a cause may be expeditiously litigated, but ‘the question whether the filing of an amended pleading should be allowed at the time of trial is ordinarily committed to the sound discretion of the trial court.’” (Vogel v. Thrifty Drug Co. (1954) 43 Cal.2d 184, 188.) In reviewing the trial court’s denial of a motion to amend, the appellate court must bear in mind both the policy of liberally allowing amendment of pleadings and the policy of upholding the trial court’s exercise of its discretion in the absence of a clear abuse. (Honig v. Financial Corp. of America (1992) 6 Cal.App.4th 960, 965 (Honig).)
If necessary to the furtherance of justice, the trial court may grant a motion to amend as late as the time of trial, and if necessary postpone the trial. (Honig, supra, 6 Cal.App.4th at p. 965.) In deciding whether to grant the motion, the trial court must consider a number of factors. These include whether the defendant has been made aware of the charges contained in the factual allegations of the amended complaint and will not be prejudiced by the proposed amendment. (Ibid.) They also include the conduct of the plaintiff and whether there is justification for any delay in the presentation of the proposed amendment. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613.)
After the parties rested their case, Harold’s counsel made a motion “to amend the complaint to conform to proof with regard to the evidence that has been adduced, particularly today from Martin... concerning the fact that he filed the bankruptcy for HMS without the permission of his co-partner....” Counsel argued, “The issue here is what was the purpose of the [bankruptcy] filing.... It was to avoid this court’s order concerning dissolution of the partnership.” He explained, “The point being is that one partner cannot take steps injurious to the other. It’s a violation of the fiduciary duty.”
The trial court responded, “You don’t need to reopen for that because I’m doing equity here.” Harold’s counsel replied, “Okay.” The court further explained, “Whatever equity is, it is what it is. If... Martin... took acts injurious to... Harold... they’ll be accounted for right here.” To which Harold’s counsel commented, “Thank you. As long as it’s on the record, that’s all I have to say with that.”
We conclude the record reflects the court understood counsel’s comment as a request to consider the additional damages caused by Martin’s bankruptcy filing as an issue relevant to the court’s current task to render an equitable accounting. If the court was mistaken, it was incumbent on Harold’s counsel to alert the court he was formally moving to amend and add an entirely new legal cause of action. He did not do this, but rather tacitly agreed an equitable ruling would cover the issue. As a result, the court did not make a ruling as to the propriety of an amendment.
We note Martin’s respondent’s brief misrepresented the record in this regard and, consequently, the argument he raised regarding waiver for failing to secure a ruling was useless.
On appeal, Harold does not focus on this part of the record. Looking only at the judgment, Harold points out the trial court failed to mention damages for breach of fiduciary duty. Based on this omission, Harold argues we must infer the court denied his motion to amend and failed to consider the issue. Based on the record, we cannot draw this inference. As discussed above, the court indicated the issue would be considered when it rendered its equitable accounting. In its judgment, the court gave Harold exactly what he requested in his closing argument brief with respect to the collection of rent ($295,871.00 in principal and $400,347.03 in interest for a total of over $696,000). It also noted Harold’s other claims were considered and rejected: “The [c]ourt finds a lack of proof on all other claims by Harold... against Martin... or that the claims were not proper.” (Italics added.) This reference to “other claims” would encompass Harold’s request for damages arising from the breach of Martin’s fiduciary duty.
Where no statement of decision is requested by the parties, we assume the trial court made whatever findings were necessary to support the judgment. (Whittington v. McKinney (1991) 234 Cal.App.3d 123, 129.) We must indulge all presumptions in favor of the judgment. (Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 140.) Absent evidence from Harold the decision was wrong, we assume the court correctly rejected Harold’s additional claim for lost equity and costs relating to the bankruptcy.
III
The judgment is affirmed. We conclude that in the interests of justice both sides shall bear their own costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., BEDSWORTH, J.