BRIARWOOD CAPITAL, LLC v. LENNAR HOMES OF CALIFORNIA, INC.Nos. D054803, D056061
BRIARWOOD CAPITAL, LLC, Plaintiff and Appellant,
LENNAR HOMES OF CALIFORNIA, INC., et al., Defendants and Respondents.
LENNAR HOMES OF CALIFORNIA, INC., et al., Defendants and Respondents.
Court of Appeals of California, Fourth District, Division One.
Filed December 1, 2010.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Plaintiff and appellant Briarwood Capital, LLC (Briarwood) appeals from a judgment on the pleadings in favor of defendants and respondents Lennar Homes of California, Inc., Lennar Corporation, Quadrant San Diego, LLC and Rancho Santa Fe Lakes Partners, LLC (collectively Lennar) and postjudgment orders awarding Lennar over $300,000 in costs as the prevailing party in the action. Briarwood had sued Lennar for imposition of a constructive trust or damages as a result of an alleged breach of an oral agreement between Briarwood and Lennar to acquire and develop property in Rancho Santa Fe. Following the deposition of Briarwood's principal Nicolas Marsch, Lennar successfully moved for judgment on the pleadings on grounds Marsch's deposition testimony conclusively negated an essential element of each of Briarwood's four causes of action.
On appeal, Briarwood contends the trial court erred by granting judgment on the pleadings in part based on excerpts of Marsch's deposition testimony, which it maintains were subject to interpretation and thus not the proper subject of judicial notice. It further contends other properly judicially noticeable evidence demonstrates the existence of the parties' oral agreement. Briarwood contends the court compounded its errors by applying incorrect legal standards, ignoring certain extrinsic evidence while considering other such evidence, and denying Briarwood leave to amend its complaint. In a separate appeal, Briarwood challenges the costs award in Lennar's favor on grounds it must fall with reversal of the judgment.
We agree the court erred by taking judicial notice of the truth of Marsch's deposition testimony and resolving the factual question of the existence of an oral joint venture or development agreement between Briarwood and Lennar. Because Lennar concedes Briarwood's complaint otherwise states causes of action, we reverse the judgment and the postjudgment costs orders.
FACTUAL AND PROCEDURAL BACKGROUND
We take the background facts from Briarwood's complaint. Briarwood is a company primarily engaged in the business of real estate development, including master-planned communities. In 1997, HCC Investors, LLC (HCC) was formed for the purpose of holding title to and developing real property in Rancho Santa Fe that eventually became a master-planned development known as "The Bridges." Briarwood, through its assignor and predecessor-in-interest Marsch, and Lennar, through wholly owned alter ego subsidiaries and other affiliates, jointly developed The Bridges, which ultimately enjoyed tremendous market success. The HCC limited liability company agreement (HCC agreement) contained a provision by which Marsch and Lennar agreed that "any real estate purchase . . . development, management, . . . sale or resale opportunity adjacent, or related to the Project shall be considered a Company opportunity, and neither Marsch or Lennar [sic] shall pursue such opportunity without first presenting it to the Company." The provision further states: "This is not meant to preclude (i) separate home building activities in the Project undertaken by Marsch or Lennar on the Property or adjacent property or (ii) either party engaging in non-Project related real estate acquisition and development alone or with others in the Rancho Santa Fe area."
At some point before 1998, Briarwood and Marsch began to actively pursue the acquisition of over 540 acres of property in Rancho Santa Fe known as the McCrink Ranch to develop into another high-end, master-planned residential community. Marsh met repeatedly with members of the McCrink family and other consultants for this purpose. In or about 1998, Briarwood advised certain Lennar executives of the McCrink Ranch opportunity and invited Lennar to join it in its pursuit. Lennar agreed to pursue the McCrink Ranch development opportunity jointly with Briarwood in order to create another community similar to The Bridges. Briarwood and Lennar confirmed the agreement by representing to the McCrink family in a joint communication that they intended to "closely align" the McCrink Ranch with The Bridges, including by presenting McCrink Ranch homes at their current sales facilities at The Bridges. Later, because Lennar did not want a particular HCC member to own any interest, Briarwood and Lennar agreed that the McCrink Ranch opportunity would be pursued jointly but through a vehicle other than HCC.
By 2005, the McCrink family had succeeded in obtaining virtually all of the key governmental entitlements necessary to develop a master-planned community. In December 2005, Lennar's regional vice president sent Marsch an email stating: "Nick, you have been great to deal with on this transaction and I have appreciated every amount of support you have provided Lennar. I do want to resolve the transactional side of our deal quickly, so that I can set it as a precedent of the Lennar deal with an equity partner. . . . I need you to tell me what your compensation expectations are on McCrink. . . . Please provide it to me by tomorrow at noon if at all possible. That way I can make the most of my sit down with Emil[e Haddad] and Jeff tomorrow. . . . I too look forward to completing this agreement and focusing on the successful development of McCrink."
However, in the months leading up to February 2006, Lennar manipulated the negotiations with the McCrink family so that the legal right to acquire the McCrink Ranch property was documented in the name of a Lennar affiliate; secretly negotiated with another person to enter into agreement to acquire the McCrink Ranch property via an entity that excluded Briarwood; formed Rancho Santa Fe Lakes Partners, LLC for the express purpose of acquiring McCrink Ranch; joined with Quadrant San Diego Partners, LLC to squeeze out Briarwood and usurp the McCrink Ranch property; and misled Briarwood about its intent to exclude it from the McCrink Ranch opportunity. Rather than construct the style of home exhibited in The Bridges, Lennar intended to build lower-priced, lower-quality houses and wholesale large portions of the McCrink Ranch property to merchant builders.
In November 2006, Briarwood sued Lennar for declaratory relief (first and second causes of action), breach of fiduciary duty/imposition of a constructive trust (third cause of action) and breach of contract (fourth cause of action). In its first cause of action, it sought a judicial determination of the alter ego status of Lennar Homes of California, Inc. and Lennar Corporation. In the second cause of action, it sought a judicial declaration that those defendants, along with Quadrant San Diego, LLC and Rancho Santa Fe Lakes Partners, LLC, held the McCrink Ranch property as constructive trustees for Briarwood's benefit. In its third cause of action, Briarwood alleged in part that by their actions, words and conduct, Briarwood, Lennar Corporation and Lennar Homes of California, Inc. entered into a joint venture or partnership to acquire the McCrink Ranch property and jointly pursue the development of the McCrink Ranch master-planned community. In the fourth cause of action, it alleged Lennar Homes of California, Inc. and Lennar Corporation breached their contractual duties to Briarwood.
The parties engaged in discovery and the matter proceeded to trial, which was eventually set for October 16, 2008. In responses to requests for admission, Briarwood admitted it did not have a formal written agreement to jointly pursue the McCrink Ranch development opportunity, but that Marsch and Jonathan Jaffe, Lennar's then chief operating officer, expressly agreed to jointly pursue the opportunity, an agreement that was assertedly evidenced by writings and emails between the parties. Briarwood admitted that Lennar's fiduciary duty to Briarwood with regard to the McCrink Ranch real estate development "derive[d] from their agreement to jointly pursue that valuable opportunity, not from the language of the HCC operating agreement."
On October 8, 2008, Marsch underwent his deposition as Briarwood's person most knowledgeable relating to the agreement between Briarwood and Lennar to jointly acquire and develop the McCrink Ranch. Marsch was asked about and described his discussions in 2004 and 2005 with representatives of the McCrink family, project manager Tom Harbrecht, and others concerning the project, and proposals made on HCC letterhead to the McCrink family in January 2005 for the property's possible acquisition. He testified that while the McCrink family was considering those HCC proposals, another developer, Davidson Homes (Davidson), who had seen their proposals, approached the family asking for an exclusive right to negotiate and offered to "sweeten every term." Marsch, who believed there was little risk of Davidson taking the deal, suggested to Harbrecht an arrangement to give Davidson some rights so that HCC would acquire the land, create the community and finish some sites, then sell them on some basis to Davidson. Marsch testified that he and Harbrecht discussed the approach, by which HCC would enter into an agreement with the McCrinks and then enter into a parallel and negotiated agreement with Davidson.
Lennar's counsel then asked about HCC's involvement:
In response to further questioning, Marsch testified that when starting discussions with Harbrecht, he and Harbrecht had discussed the fact that Marsch was "part of the deal." Counsel asked whether Marsch told Harbrecht that he, Marsch, would be a partner in the acquiring entity:
The day after Marsch's deposition concluded, Lennar moved for judgment on the pleadings on grounds elements of each of Briarwood's causes of action were conclusively negated by Marsch's deposition statement that "the only agreement that [Briarwood] entered into with Lennar regarding McCrink is the HCC Agreement." It argued, "Because there is no independent partnership agreement, there can be no breach of that agreement; nor can there be a breach of fiduciary duty arising from the agreement." Lennar characterized Marsch's deposition testimony as conceding that Briarwood never entered into a separate partnership agreement with Lennar concerning the McCrink Ranch, and that the only rights and obligations of the parties stemmed from the 1997 HCC agreement. It asserted that as a result, Briarwood lacked standing to bring the claims in its complaint because the testimony revealed the acquisition of McCrink Ranch was a corporate opportunity of HCC.
In opposition, Briarwood argued Lennar took Marsch's testimony out of context; that in it, Marsch only established that the HCC agreement was the only written partnership agreement between the parties and thus the testimony did not contradict Briarwood's allegations of an oral agreement. It argued the deposition was extrinsic matter that was not properly considered on Lennar's motion and further, the matters at issue in Marsch's deposition transcript were reasonably disputable and in fact disputed as evidenced by other portions of Marsch's deposition — preventing the court from converting Lennar's motion into an evidentiary hearing as to the testimony's meaning. Briarwood also argued the testimony gave rise to a dispute as to whether the opportunity to acquire and develop McCrink Ranch was a corporate opportunity of HCC. Briarwood sought leave to amend its original complaint in the event the court granted Lennar's motion.
The court granted judgment on the pleadings. It ruled the complaint's allegations as to an oral agreement pertaining to McCrink were contradicted by Marsch's deposition statement that "`the only agreement that [plaintiff] ha[s] entered into with Lennar regarding McCrink is the HCC agreement.'" The court observed Briarwood "disputes this judicially noticed `fact' by contending that Mr. Marsch was actually testifying that the HCC agreement was the only written agreement" but it ruled, "Unlike the `dispute' raised in Joslin [v. H.A.S. Insurance Brokerage (1986)
Briarwood moved for reconsideration and a new trial. In support of the request for reconsideration, Marsch explained in an accompanying declaration that when he heard and answered counsel's question about the only agreement with Lennar regarding McCrink Ranch being the HCC agreement, he understood "[he] was only being questioned about the HCC operating and formation agreements." He averred: "I did not mean by my responses to the above-referenced questions that there were no oral agreements created between Lennar and Briarwood as it related to McCrink." He stated his response stemmed from the earlier question as to whether he had ever entered into a partnership or joint venture with Lennar regarding McCrink Ranch, and further explained: "[B]ut for the fact that I had entered into the HCC agreement with Lennar [which contemplated acquisition of additional adjacent or related properties], I would not have brought this deal to Lennar in the first place. Thus, in response to the questions put to me at the Briarwood [person most knowledgeable] deposition, I was only referring to written, not oral, agreements."
The court denied both motions. It entered judgment in Lennar's favor, and Briarwood appealed from that judgment. Thereafter, following a contested hearing on the matter, the court awarded Lennar $301,152.50 in costs. Briarwood then appealed from the postjudgment orders (1) granting in part and denying in part Briarwood's motion to tax and awarding those costs and (2) correcting a mathematical error in the court's prior costs order. We consolidated the appeals on our own motion.
I. Standard of Review/Principles of Judicial Notice
We apply the same rules governing review of an order sustaining a general demurrer. (Smiley v. Citibank (1995)
In addition to the complaint's allegations and exhibits, we consider matters that must or may be judicially noticed. (Blank v. Kirwan (1985)
Notwithstanding these rules, on appeal of a judgment on the pleadings, the plaintiff's ability to prove the allegations or the possible difficulty in making such proof does not concern the reviewing court. (Frances T. v. Village Green Owners Assn. (1986)
A court granting judgment on the pleadings resolves a "mixed question of law and fact that is predominantly one of law" and its order is therefore subject to de novo review. (Gerawan Farming, Inc. v. Lyons, supra, 24 Cal.4th at p. 515; see Angelucci, supra, 41 Cal.4th at p. 166.) Accordingly, "`we are not bound by the determination of the trial court, but are required to render our independent judgment on whether a cause of action has been stated.'" (Mendoza v. Rast Produce Co., Inc. (2006)
II. Judicial Notice of Deposition Statements
We turn our analysis to the propriety of taking judicial notice of deposition testimony in connection with a motion for judgment on the pleadings.
Judicial notice is a substitute for formal proof. (Sosinsky v. Grant, supra, 6 Cal.App.4th at p. 1564.) Its consequence is to establish a fact as indisputably true, eliminating the need for further proof. (Ibid; see Post v. Prati (1979)
"The appropriate setting for resolving facts reasonably subject to dispute is the adversary hearing. It is therefore improper for courts to take judicial notice of any facts that are not the product of an adversary hearing which involved the question of their existence or nonexistence." (Lockley, supra, 91 Cal.App.4th at p. 882.)
Application of these rules largely compels courts to decline judicial notice of a pleader's deposition statements to defeat material allegations of the complaint. (See Silguero v. Creteguard, Inc., supra, 187 Cal.App.4th at p. 64 [court rejected request for judicial notice of plaintiff's deposition testimony for the first time on appeal, holding plaintiff's ability to prove the allegations or other possible difficulty in making such proof does not concern the reviewing court: "One of the dangers of winning on demurrer is that you are stuck, on appeal, with your opponent's version of the facts"]; Joslin, supra,
In Joslin, our colleagues in the Fourth District, Division Two squarely addressed whether a court may properly take judicial notice of a plaintiff's deposition testimony and rely on its truth in sustaining a demurrer. (Joslin, supra, 184 Cal.App.3d at p. 374.) There, the defendant insurer successfully demurred on statute of limitations grounds on the theory the plaintiff — who had alleged the insurer wrongfully refused her claim for repairs under a vehicle service contract — knew its identity when the original complaint was filed. (Id. at pp. 372-373.) It relied in part on portions of the plaintiff's deposition, in which she admitted contacting an employee of the defendant after her car broke down in an attempt to obtain payment. (Ibid.)
Addressing whether the trial court could properly judicially notice that testimony on demurrer, the appellate court rejected the notion — assertedly suggested in Garcia v. Sterling (1985)
This court applied the same principle in Columbia Casualty, supra,
Applying these principles, and noting there was no opportunity on judgment on the pleadings to present parol evidence on the apparent meaning of the policies, we held "a judgment on the pleadings granted in reliance on the terminology of an incorporated complex contract to negate an express allegation of its meaning is highly suspect" and such a motion could be granted "only if the instrument incorporated by reference conclusively negates the express allegation in the pleading . . . ." (Columbia Casualty, supra, 231 Cal.App.3d at p. 470.) We found that possibility unlikely "except in the extraordinary case" because of the "inevitable prospect that parol evidence may lead to an interpretation of the contract consistent with the pleading's express allegation." (Ibid.) We held the moving cross-defendant's showing was deficient for purposes of judgment on the pleadings: its construction of the agreement was not the only meaning to which the policy was susceptible, parol evidence was admissible to interpret it, and it had the burden to establish conclusively an interpretation of the policy that negated the construction expressly alleged in the second amended cross-complaint. (Id. at p. 471.)
We further held certain court files and Columbia's concession were not properly considered on the motion; the court files constituted both hearsay and contained content that was reasonably subject to dispute, and the concession with its related hold-harmless agreement were "evidentiary admissions, not judicial admissions in pleadings, and hence are not conclusive on Columbia." (Columbia Casualty, supra, 231 Cal.App.3d at p. 474.) The lack of conclusivity of the evidentiary admissions sufficed to defeat the motion. (Ibid.)
III. Marsch's Deposition Testimony is Not A Proper Subject of Judicial Notice
This case does not concern the propriety of judicial notice of a document
However, under Joslin, supra,
Lennar, on the other hand, characterizes Marsch's testimony as "disavowing" any claim by Briarwood based on an oral agreement and "repeatedly testif[ying] there was no oral McCrink agreement . . . ." It argues Marsch's testimony cannot be disputed, and it proceeds to analyze it line by line, stating Marsch's references to "any contract or agreement" or "any type of contract" must include all written or oral agreements. It claims Marsch's assertion that he believed he was being asked about written agreements is "impossible."
Our thorough review of Marsch's deposition compels us to agree with Briarwood. The issue Lennar asserts was negated by Marsch's deposition testimony is the existence of a joint agreement between Briarwood and Lennar to acquire and develop the McCrink Ranch. Ultimately, whether or not the parties had formed a binding agreement with regard to McCrink Ranch depends on mutual consent, which is a factual question where the evidence is conflicting or admits of more than one inference. (Fair v. Bakhtiari (2006)
This matter presents a factual issue that cannot be resolved by motion for judgment on the pleadings even in view of Marsch's deposition statements. Marsch did not directly concede there was no oral agreement between him and Lennar principals pertaining to McCrink Ranch. His testimony does not "undisputably establish" (Joslin, supra, 184 Cal.App.3d at p. 375) that Briarwood and Lennar principals never entered into an oral understanding pertaining to their joint acquisition and development of McCrink Ranch. Rather, Marsch's testimony was that he and Lennar executives represented to McCrink's project manager that they were proposing to acquire and develop McCrink Ranch (Lennar and Marsch "would be [the] central figure[s]" in this [McCrink Ranch] transaction . . . .") and possibly would do so via their existing limited liability company. This testimony implies some sort of understanding between Lennar and Marsch. But Marsch's deposition answers were obviously guided and limited by the deposition examiner's questions, which only tangentially pertained to the communications or discussions between Marsch and Lennar leading up to the McCrink Ranch proposals, and the substance of those discussions. The deposition examiner was initially focused on Marsch's talks with McCrink's project manager Harbrecht and Harbrecht's understanding of the role HCC would be playing in the acquisition or purchase of McCrink Ranch. It is reasonable to conclude, in the context of the questioning, that Marsch had the general topic of written agreements in mind, and his answers can be reasonably interpreted as focusing on written agreements. Hence, Marsch testified there was never any partnership or joint venture "separate from HCC" and that when he was referring to the "only agreement that [he] had entered into with Lennar regarding McCrink" he meant "an agreement that is in writing." His post-deposition explanation, in our view, is neither inherently incredible nor necessarily inconsistent with his deposition testimony as we have recounted it above.
In short, Marsch's answers are not clear and unequivocal concessions or admissions that contradict Briarwood's pleading and claims of the existence of an oral agreement; indeed at no time did the deposition examiner specifically ask Marsch whether he and Lennar entered into an oral agreement. Because Marsch did in fact dispute the trial court's interpretation of his deposition answers, and the testimony is reasonably subject to dispute, it is not properly judicially noticed in this context. (Joslin, 184 Cal.App.3d at pp. 374-375.)
Lennar emphasizes that the trial court found no ambiguity in Marsch's testimony and that Marsch's later explanations were inconsistent with his deposition testimony. But as stated, on review of a judgment on the pleadings, we are not bound by the trial court's determinations. (Smiley v. Citibank, supra, 11 Cal.4th at p. 146; Mendoza v. Rast Produce Co., Inc., supra, 140 Cal.App.4th at p. 1401.) Lennar also advances an argument based on Joslin and Columbia Casualty in which it suggests Marsch "accepted he had made a concession" as the plaintiff did in Columbia Casualty. It argues that under those circumstances, Columbia Casualty holds judgment on the pleadings is proper without need to decide whether the conceded fact "cannot reasonably be controverted." But Marsch did not make a concession in points and authorities like the plaintiff in Columbia Casualty. Further, he never accepted that he made any such concession, and even if he had, as in Columbia Casualty, it would not bind him on judgment on the pleadings. (Columbia Casualty, supra, 231 Cal.App.3d at p. 474.) Under the circumstances, the court erred by granting judgment on the pleadings.
IV. Postjudgment Costs Orders
Reversal of the judgment compels reversal of the award of costs to Lennar based on the judgment, and thus moots Briarwood's appeal from the postjudgment costs orders awarding Lennar $301,152.50. (Allen v. Smith (2002)
The judgment and postjudgment orders are reversed. Briarwood shall recover its costs on appeal.
HUFFMAN, Acting P. J.
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