Filed 4/25/14 Webb v. Hadzicki CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



BARRY M. WEBB,                                                      D064245

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No.
                                                                     37-2012-00093982-CU-BT-CTL)
DAVID HADZICKI et al.,

         Defendants and Respondents.


         APPEAL from a judgment of the Superior Court of San Diego County, Joan M.

Lewis, Judge. Affirmed.

         Barry M. Webb, in pro. per, for Plaintiff and Appellant.

         David Hadzicki, in pro. per; Andrew J. Kessler for Defendant and Respondent

David Hadzicki.

         Keesal Young & Logan Audette Paul Morales and Kristy A. Hewitt for

Defendants and Respondents Morgan Stanley Smith Barney Global Impact Funding Trust

and Drew Cunningham.
                                             I.

                                    INTRODUCTION

       Barry M. Webb filed a first amended complaint against defendants David

Hadzicki, Drew Cunningham, Morgan Stanley Smith Barney Global Impact Funding

Trust (erroneously sued as Morgan Stanley Smith Barney Global Funding Trust, Inc.)

(Morgan Stanley), D & D Delta Fund, L.P. (Delta Fund), and D and D Capital Group,

LLC (Capital Group). The first amended complaint contained three causes of action

against each of the defendants: breach of contract, breach of fiduciary duty, and fraud.

All of the claims were premised on an alleged written contract between "Webb and

defendants David Hadzicki and Drew Cunningham." Webb attached several documents

to the complaint, including Delta Fund's private placement offering of limited partnership

interests and a subscription agreement that Webb executed to purchase limited

partnership interests in Delta Fund.1

       Hadzicki, Cunningham, and Morgan Stanley (respondents) each demurred to the

first amended complaint.2 In their demurrers, respondents argued that each of Webb's

causes of action was premised upon an alleged agreement between Webb and

respondents, and that Webb had failed to attach a copy of the alleged agreement to the

first amended complaint, as is required. Each respondent further argued that it was not a

party to any of the documents that Webb attached to his first amended complaint. The

1      Webb attached these documents to his complaint as an exhibit labeled, "A copy of
the contract."

2      Delta Fund and Capital Group did not demurrer.
                                             2
trial court sustained the demurrers without leave to amend, and entered judgment in favor

of respondents.

       On appeal, Webb claims that the trial court abused its discretion in denying him

leave to amend the first amended complaint because he had a pending motion to compel

discovery that would have "determin[ed] the roles and agency relationships or joint

venture relationships [of the defendants] to each other." Webb also contends that the trial

court's ruling sustaining the demurrers without leave to amend violated his right to a jury

trial. We affirm the judgment.

                                            II.

                  FACTUAL AND PROCEDURAL BACKGROUND

A.     The original complaint and the trial court's ruling sustaining Hadzicki's demurrer
       with leave to amend

       Webb filed the original complaint in this action against defendants in March

2012.3 Respondents each filed a demurrer to the complaint.

       In July 2012, the trial court sustained Hadzicki's demurrer. The court ruled:

          "All three causes of action of [Webb's] complaint are predicated on
          an alleged agreement between the parties. However, the contract is
          not attached to the complaint nor are its terms pled verbatim. Harris
          v. Rudin, Richman & Appel, (1999) 74 Cal.App.4th 299, 307
          [(Harris)]."




3      Although the summons to the original complaint is in the record, the complaint is
not.
                                             3
       The trial court granted Webb 20 days "for [Webb] to plead verbatim the terms of

the purported contract between the parties or attach a copy of the contract to the

complaint."

B.     The first amended complaint

       In August 2012, Webb filed the first amended complaint, which contained causes

of action for breach of contract, breach of fiduciary duty, and fraud against each of the

defendants.

       In his breach of contract cause of action, Webb alleged, "On or about May 30,

2007 a written contract was entered into by Barry M. Webb and Defendants David

Hadzicki and Drew Cunningham who were acting in their own behalf and on behalf of all

the other Co-Defendants . . . ." Webb further alleged that he tendered $50,000 to

Cunningham and Hadzicki pursuant to the contract, to be invested on his behalf. Webb

claimed that defendants breached the contract by failing to provide accountings specified

in the contract and by failing to invest prudently. Webb alleged that he suffered financial

damages as a result of these breaches.

       In his breach of fiduciary duty cause of action, Webb incorporated his breach of

contract allegations and claimed that the defendants had breached fiduciary duties owed

to Webb by "not wisely invest[ing] [Webb's] funds," and "fail[ing] to account as the

agreement required."

       In his fraud cause of action, Webb incorporated his breach of contract allegations

and further alleged:



                                             4
          "Webb was promised that his money would be invested prudently as
          provided by the written contract of investment, [Webb] was justified
          in his reliance upon such promises in the fiduciary investment
          contract that the money he invested would be timely accounted and
          invested in a proper fashion, had he known that the trust he placed in
          Defendants would be breached and that the Defendants would not, as
          promised, account and invest prudently the funds he tendered, he
          never would have[,] in justified reliance upon the assurances of the
          Defendants[,] entered into the contract and have invested any sums
          with them."

C.     Webb's motion to compel

       In September 2012, Webb filed a motion to compel discovery responses as to

Hadzicki. Hadzicki opposed the motion and Webb filed a reply.

D.     Respondents' demurrers to the first amended complaint

       Shortly thereafter, respondents each filed a demurrer to the first amended

complaint. The principal contention of the demurrers was that "each of [Webb's] causes

of action fails as each is based upon the existence of an alleged agreement between

[Webb] and [respondents] and the first amended complaint neither provides the verbatim

material terms nor a copy of any such agreement."

       Webb opposed the demurrers. In his opposition, Webb contended that he had

attached a "written copy of the contract" to the first amended complaint. Webb further

maintained that a "joint venture is properly alleged," and argued, "On page three of the

[first amended complaint] in paragraph 6 [Webb] alleges the Defendants and each of

them engaged in a joint venture to induce [Webb] to invest money and tender money to

them that [Webb] did tender to them."




                                             5
E.     The trial court's ruling on respondents' demurrers and on Webb's motion to
       compel

       After respondents filed replies, the trial court issued a tentative ruling sustaining

respondents' demurrers without leave to amend and denying Webb's motion to compel as

moot. A few days later, the trial court held a hearing on the demurrers. At the hearing,

the trial court stated that Webb had failed to attach a contract to the first amended

complaint that would demonstrate any potential liability on the part of respondents on the

claims alleged in the first amended complaint.

       Webb responded that he would "be able to show . . . in trial that these individuals

were conspiring together." Webb also noted that he had a pending motion to compel

discovery and that "[d]iscovery is still ongoing," and alleged that "[t]hey won't turn over

records."

       The trial court responded in part:

            "This is the second time that we've had the chance to look at this.
            The contract that you produced does not in any way implicate these
            folks to be parties to the contract. That doesn't mean that the party
            you contracted with isn't still involved, but these folks are not, and
            this is the second time for it, and I'm satisfied with the tentative, sir.
            So with respect to your motion to compel, it's off calendar . . . ."

       That same day, the trial court issued a ruling sustaining the demurrers without

leave to amend and denying Webb's motion to compel as moot. The court's order states

in relevant part:

            "All demurrers are sustained.

            "When this Court sustained David Hadzicki's demurrer to the
            original complaint it noted that all three causes of the complaint
            were predicated on an alleged agreement between the parties but that

                                                 6
the contract was not attached to the complaint nor were its terms
pled verbatim. [Webb] was given leave to amend to plead verbatim
the terms of the purported contract between the parties or attach a
copy of the contract to the complaint. Thereafter, [Webb] filed his
[first amended complaint] attaching certain documents thereto.

"In opposing the demurrers to the [first amended complaint], [Webb]
argues that 'a copy of the contract is attached to the complaint.'
Although documents are attached to the [first amended complaint],
no contract between [Webb] and the demurring Defendants was
attached.

"Because all three causes of action are based on the allegation that
there was a written contract between the parties and because [Webb]
has failed to attach a contract between these parties or plead a
contract's terms verbatim, all causes of action fail.

"Additionally, the second cause of action for breach of fiduciary
duty fails because [Webb] has not alleged that any of the demurring
defendants owed him a duty.

"The [demurrer to the] third cause of action for fraud is also
sustained because the cause of action is not pled with the specificity
required for a fraud cause of action.

"The Court previously afforded [Webb] the opportunity to amend his
complaint and pointed out the defects with the original complaint.
Having failed to cure those defects with the [first amended
complaint] and having offered no facts that could be pled to cure the
defects, the demurrer is sustained without leave to amend.

"Based on the ruling on the demurrer, [Webb's] motion to compel is
off calendar as moot."




                                   7
F.     The judgment and appeal

       The court entered a judgment in favor of respondents.4 Webb timely appealed

from the judgment.

                                             III.

                                       DISCUSSION

A.     The trial court did not abuse its discretion in denying Webb leave to amend the
       first amended complaint

       Webb contends that the trial court "abuse[d] its discretion by not allowing leave to

amend the complaint while discovery was subject to a motion to compel."

       1.     Governing law and standard of review

       Where a demurrer is "sustained without leave to amend, [the reviewing court]

decide[s] 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." (Blank v. Kirwan (1985) 39

Cal.3d 311, 318, italics added.)




4     The court's judgment is clear that it is in favor of respondents only. Delta Fund
and Capital Group are not parties to the judgment.
                                              8
       2.      Application

               a.     Webb's contentions on appeal

       On appeal, Webb does not contend that the first amended complaint adequately

stated a cause of action against respondents.5 Although it is not entirely clear from his

brief, Webb appears to argue that he could amend the first amended complaint to

sufficiently allege causes of action based on the private placement memorandum and the

subscription agreement offered by Delta Fund, on the theory that respondents were the

agents of Delta Fund or engaged in a joint venture with Delta Fund.6 The entirety of

Webb's argument with respect to this issue is as follows:

            "Several Defendants were acting as agents of each other and
            discovery was attempted to determine the roles and agency
            relationships or joint venture relationships to each other. Discovery
            was not forthcoming and a motion to compel was pending when the
            trial judge did not allow a motion to compel to be heard or allow
            leave to amend the complaint."




5       As the trial court correctly stated in both its ruling sustaining Hadzicki's demurrer
to the original complaint and its ruling sustaining respondents' demurrers to the first
amended complaint, "If [an] action is based on alleged breach of a written contract, the
terms must be set out verbatim in the body of the complaint or a copy of the written
agreement must be attached and incorporated by reference. [Citation.]" (Harris, supra,
74 Cal.App.4th at p. 307.) Respondents are not parties to the private placement offering
or the subscription agreement that Webb attached as "a copy of the contract" to the first
amended complaint.
6       Webb does not appear to contend that there was some other contract between the
parties that exists.
                                              9
              b.      Webb has not shown a reasonable possibility that he could
                      adequately allege a claim against respondents as agents of
                      Delta Fund

       With respect to respondents' potential liability as agents of Delta Fund, "an agent

for a disclosed principal to a contract is not liable on the contract itself or on a claim that

necessarily arises from the contract." (Freedman v. Brutzkus (2010) 182 Cal.App.4th

1065, 1071.) In this case, both the private placement memorandum and the subscription

agreement indicate on their faces that they are offered by Delta Fund. None of the

respondents signed either document. Further, even if respondents had signed the private

placement memorandum and/or the subscription agreement as agents of Delta Fund, they

would not be liable for claims arising from those documents since the documents on their

face indicate that they are offered by Delta Fund. (See, e.g., Ronay Family Limited

Partnership v. Tweed (2013) 216 Cal.App.4th 830, 837 ["Since it is apparent from the

face of the account agreement that Tweed signed as the agent of CapWest, he is not a

party to the agreement with rights and obligations thereunder"]; Filippo Industries, Inc. v.

Sun Ins. Co. (1999) 74 Cal.App.4th 1429, 1442-1443 [agent that contracts for disclosed

principal is not a party to contract].) In short, even assuming that Webb could adequately

allege that one or more of the respondents was an agent of Delta Fund, such allegations

would provide no basis for holding respondents liable for claims premised on the private

placement memorandum and/or the subscription agreement.




                                              10
              c.      Webb has not shown a reasonable possibility that he could
                       adequately allege a claim against respondents as members of
                      a joint venture with Delta Fund

       With respect to respondents' potential liability as members of a joint venture, the

court in Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th

343, 370, summarized the law governing joint ventures as follows:

           " 'A joint venture . . . is an undertaking by two or more persons
           jointly to carry out a single business enterprise for profit.' [Citation.]
           'There are three basic elements of a joint venture: the members must
           have joint control over the venture (even though they may delegate
           it), they must share the profits of the undertaking, and the members
           must each have an ownership interest in the enterprise. [Citation.]'
           [Citation.]"

       Webb's first amended complaint included vague allegations that defendants shared

control over, and profits from, an "investment scheme." Webb alleged, "Each named

Defendant acted in concert to pool and marshall all their efforts in the below investment

scheme to produce a financial gain and to work in concert for such purpose, they all acted

in concert to produce a profit in regard to take [sic] the money invested by [Webb] to

produce a financial gain and to share such effort and profit from such joint conduct as a

joint venture . . . ." However, apart from this essentially boilerplate allegation, Webb did

not allege any facts supporting his assertion that all defendants shared control and profits

over a joint venture in his first amended complaint. (See Martin v. Bridgeport

Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1031 ["plaintiff has the burden of

showing that the facts pleaded are sufficient to establish every element of the cause of

action" (italics added)]; Requa v. Regents of University of California (2012) 213

Cal.App.4th 213, 216 [" 'In ruling on . . . [a] demurrer, the trial court ha[s] to accept as

                                              11
true all material facts properly pleaded . . . disregarding . . . conclusions of law' [citation]"

(italics added)]; compare with Unruh-Haxton v. Regents of University of California,

supra, 162 Cal.App.4th at pp. 370-371 [complaint adequately alleged "facts supporting

creation of a joint venture," where complaint alleged facts that defendants entered into a

"written joint venture agreement" to finance and operate a fertility clinic and to earn

profits based on ownership interests in the joint venture].)

       Further, the first amended complaint did not allege that respondents all had "an

ownership interest in the enterprise" with which Webb contracted. (Unruh-Haxton v.

Regents of University of California, supra, 162 Cal.App.4th at p. 370.) In addition,

Webb failed to demonstrate, in either the trial court or in this court, how additional

discovery might permit him to adequately allege a joint venture relationship pursuant to

which respondents might be found legally liable to him. (See In re Social Services

Payment Cases (2008) 166 Cal.App.4th 1249, 1274 [party seeking leave to amend a

complaint "must show in what manner [he] can amend [his] complaint and how that

amendment will change the legal effect of [his] pleading"].)

       Under these circumstances, we conclude that the trial court did not abuse its

discretion in sustaining respondents' demurrer to the first amended complaint.




                                               12
B.     The trial court did not violate Webb's right to a jury trial

       Webb contends that the trial court violated his right to a jury trial by sustaining the

demurrer without leave to amend while he had a motion to compel discovery pending

before the court.

       Article 1, section 16 of the California Constitution provides in relevant part:

"Trial by jury is an inviolate right and shall be secured to all."

       "[T]he right to trial by jury pertains solely to questions of fact." (Dixon v.

Superior Court (1994) 30 Cal.App.4th 733, 746; see also Roos v. Red (2005) 130

Cal.App.4th 870, 885, fn. 17 (Roos) ["in absence of triable question of fact, no right to a

jury trial exists"]; People v. Loomis (1938) 27 Cal.App.2d 236, 239 [right to jury trial

applies "where an issue of fact is raised by the pleadings"].) A demurrer raises an issue

of law as to the legal sufficiency of the pleading and therefore presents an issue of law for

the court, not a question of fact for the jury. (See Kurlan v. Columbia Broadcasting

System, Inc. (1953) 40 Cal.2d 799, 806-807; Palmer v. Metro-Goldwyn-Mayer Pictures

(1953) 119 Cal.App.2d 456, 460 (Palmer).) In a case in which a plaintiff has failed to

state a legally sufficient cause of action, the sustaining of a demurrer without leave to

amend does not deprive a plaintiff of the constitutional right of trial by jury. (Palmer,

supra, at p. 460.)

       We concluded in part III.A., ante, that the trial court did not abuse its discretion in

sustaining respondents' demurrers without leave to amend, notwithstanding the existence

of the pending motion to compel. Further, in sustaining the demurrer, the trial court ruled

that the first amended complaint was legally insufficient. Webb's complaint did not

                                              13
present a question of fact for a jury, and the trial court thus did violate Webb's right to a

jury trial by sustaining the demurrer. (See Palmer, supra, 119 Cal.App.2d at p. 460;

Roos, supra, 130 Cal.App.4th at p. 870.)

                                             IV.

                                       DISPOSITION

       The judgment is affirmed. Webb is to bear costs on appeal.




                                                                                  AARON, J.

WE CONCUR:



              BENKE, Acting P. J.



                          IRION, J.




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