Filed 10/29/13 Precision Development v. Plyam CA2/3

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


PRECISION DEVELOPMENT, LLC,                                          B236085

      Plaintiff, Cross-defendant and                                 (Los Angeles County
Appellant,                                                           Super. Ct. No. BC384285)

         v.

YURI PLYAM et al.,

      Defendants, Cross-complainants and
Appellants.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Richard E. Rico, Judge. Affirmed.
         Latham & Watkins, Robert D. Crockett, Monica Klosterman and Justin
Woolverton for Plaintiff, Cross-defendant and Appellant.
         Mesisca, Riley & Kreitenberg, Dennis P. Riley and Rena E. Kreitenberg for
Defendants, Cross-complainants and Appellants.
                                        _________________________
         Yuri and Natalia Plyam (the Plyams) appeal from a judgment entered following a
trial in which the jury by special verdict awarded Precision Development, LLC
(Precision) $10.1 million in damages for breach of fiduciary duty. Precision filed suit
against the Plyams alleging they breached their fiduciary duty by mismanaging, and
diverting for their own personal use, $26.43 million invested by Clare and Sara Bronfman
in a real estate venture. The jury also awarded $200,000 in punitive damages. The
Plyams raise numerous errors that they argue individually or cumulatively mandate a new
trial.
         Precision also appeals from the judgment, contending the trial court erred by
denying any equitable remedy under the unfair competition law (Bus. & Prof. Code,
§ 17200 et seq.) (hereafter, the UCL). We affirm the judgment.
                                          FACTS1
1. The First Amended Complaint
         In the first amended complaint (complaint), Precision claimed that from April 13,
2005 to December 20, 2007, the Bronfmans wired $26.3 million to a Precision account
controlled by Yuri Plyam.2 Using these funds, Yuri acquired property in Precision‟s
name and partially developed 19 properties. Yuri also allegedly used Precision funds to
acquire nine properties, in which title was held in his or his wife‟s name, or in the name
of a business under his control, including a property that became his personal residence,
known as the Roxbury property (Roxbury) in Beverly Hills. Rather than develop the
Precision-acquired property as the parties intended, Yuri allegedly “diverted labor and
materials” to develop properties held in his name or his wife‟s name. While in control of



1
       We set out the facts giving rise to the underlying litigation and summarize the
proceedings. Additional facts related to the issues raised by the parties are included in
our legal discussion.
2
        Where the same surname is shared by more than one person discussed in this
opinion, for ease of reference we often use the first name. No disrespect is intended by
this informality. (Estate of Dito (2011) 198 Cal.App.4th 791, 794, fn. 1.)

                                              2
Precision, Yuri and his wife Natalia Plyam allegedly misused funds, and diverted
Precision assets to develop their personal properties.
       By the time of trial, the causes of action alleged against the Plyams were breach of
fiduciary duty, conversion, constructive trust, and a UCL violation. A jury trial was
conducted on the breach of fiduciary and conversion causes of action. Before the close of
evidence, Precision dismissed the conversion cause of action. After the jury rendered its
verdict, the trial court exercised its discretion and did not award any equitable remedy for
a UCL violation or did not impose a constructive trust.
2. The Creation and Management of Precision3
       The Plyams were introduced to Clare and Sara Bronfman through a mutual
business contact. Yuri is a licensed commodities broker, and he operated his own
commodities brokerage business called Castle Trading, Inc. (Castle Trading). One of
Yuri‟s clients was Keith Raniere. Raniere is the conceptual founder of NXIVM, a
company that specializes in human potential training. Nancy Salzman is the president of
NXIVM. The Bronfmans also were associated with NXIVM. Raniere and Salzman
acted as two of the Bronfmans‟ business advisers. Raniere introduced the Plyams to the
Bronfmans after he learned about the Plyams‟ real estate venture. The Plyams traveled to
Albany, New York to discuss the investment with the Bronfmans, Salzman, and Raniere.
       The Plyams had ventured into real estate development, and they presented to the
Bronfmans their concept of developing hillside residential properties in upscale areas of
Los Angeles. Clare testified that she and her sister initially agreed to invest $20 million,
and then later invested an additional $6.6 million to develop a condominium project.


3
       As Precision was the prevailing party at trial, we view the evidence, which was
conflicting and vigorously contested, in a light most favorable to them. (Greenwich S.F.,
LLC v. Wong (2010) 190 Cal.App.4th 739, 747.) In a bifurcated trial, the trial court is
bound by the jury‟s determination on common issues of fact. (Hoopes v. Dolan (2008)
168 Cal.App.4th 146, 155-158.) The breach of fiduciary duty and the UCL causes of
action presented common factual issues. The court, therefore, was bound by the jury‟s
determination that the Plyams breached their fiduciary duty. As discussed post, however,
the challenge to the court‟s UCL judgment addresses a legal error, not a factual error.

                                              3
       In April 2005, the Bronfmans authorized Salzman to sign the formation agreement
establishing Precision as a limited liability company (hereafter, 2005 agreement). Yuri
was the initial manager, and Natalia testified that she signed the checks for Precision.
The 2005 agreement stated that the property would be owned by Precision and title “shall
be vested” in the company‟s name. Bank accounts were to be maintained in Precision‟s
name, with regular audits on a quarterly basis.
       Yuri testified the parties also had a verbal agreement regarding the real estate
venture. The Bronfmans were funding the purchase and development of Precision
properties, and the Plyams‟ contribution was their time and effort in making the venture a
success. Yuri, the Bronfmans, and Salzman each would receive one-third of the profits
when a property was sold. Precision was the holding company for the properties. Yuri
used his own company, Castle Asset Management, LLC (CAM), sometimes referred to as
Castle Development, to develop the Precision properties. The Plyams also used CAM to
develop their own properties, including their Roxbury residence.
3. Acquisition of Property with Precision Funds
       In 2005, the Plyams acquired several properties with Precision funds. In an e-mail
to the Bronfmans‟ financial adviser, the Plyams stated: “The investments are all made in
Precision Development, LLC name (ie [sic] titles to all the land is in that name). The
expenses for architects, engineers etc. are also being paid from the LLC.”
       The following year, Precision acquired two additional properties, including the site
in which the company intended to develop condominiums.
       a. Alonzo
       One of the first properties purchased with Precision funds was called “Alonzo,”
and contrary to the 2005 agreement, Yuri held title to Alonzo in his name as his sole and
separate property. The Plyams, however, reported to the Bronfmans that Alonzo was a
Precision property. In June 2007, the Plyams transferred title to “Yuri Plyam and Natalia
Plyam, husband and wife, as joint tenants[.]” The Plyams encumbered Alonzo with a
construction loan.


                                             4
       b. 22560 Uhea Road
       Two of the five parcels known as the “Uhea” property, purchased in 2005 with
Precision funds, were transferred by quitclaim deed from Precision to the Plyams in
2007. The Plyams also encumbered 22560 Uhea Road with a construction loan.
       c. 9810 Wanda Park
       Title to 9810 Wanda Park, purchased with Precision funds, was transferred from
Precision to the Plyams in 2007. In construction loan applications, the Plyams indicated
they held title to 9810 Wanda Park, and that the property would be their primary
residence. The loan application also listed additional properties that the Plyams owned,
including Alonzo and 22560 Uhea Road.
       Natalia testified that the bank transferred title to 9810 Wanda Park and 22560
Uhea Road into their names because the bank would not loan money to a limited liability
company.
       d. Knobhill
       There was conflicting testimony that the Plyams contributed a property identified
as “Knobhill” to Precision‟s holdings. On January 8, 2008, the day the Plyams
surrendered control of Precision, the Plyams filed a quitclaim deed to transfer title to the
Knobhill property from Castle Trading to Precision. Ten days later, on January 18, 2008,
the Plyams transferred Knobhill by quitclaim deed from Precision to the Yuri Plyam and
Natalia Plyam Living Trust.
4. Development of Precision Properties
       From 2005 through 2007, CAM undertook the development of Precision
Properties, along with development of the Plyams‟ properties. Yuri represented to the
Bronfmans‟ adviser that the Precision properties acquired before October 2005 would be
completed by the end of 2006. But none of the Precision properties was completed by
2006, and by December 2007, Precision had no more money.
       In late December 2007, the Plyams asked the Bronfmans‟ financial advisers for an
additional $400,000 to meet CAM‟s payroll. The Plyams also were attempting to obtain


                                              5
a $5 million bridge loan from other sources, listing Precision as the borrower. The
Bronfmans introduced the Plyams to Frank Parlato, a possible lender.
       The Bronfmans retained Parlato to guide them in their real estate investments. In
early January 2008, Parlato and Jim Del Negro, among others, traveled to California to
inspect the Precision properties. Parlato and Del Negro observed that some of the
Precision properties were vacant, and others had foundations poured but were not framed.
The three Precision properties that the Plyams held title in their names were almost
completed or further developed than the other properties. By contrast, the Plyams‟
Roxbury residence was completed and occupied.
5. Takeover of Precision
       The Bronfmans asked Parlato to take control of Precision. Represented by
counsel, the Plyams signed an amendment to the 2005 agreement (2008 amendment).
The 2008 amendment recognized that Yuri, the Bronfmans, and Salzman were members
of Precision. The 2008 amendment also noted that each owned one-third of the
company.4
       With respect to the properties, the 2008 amendment identified the Precision
properties in which title was held by either the Plyams or Precision and stated the Plyams
would convey Alonzo, 9810 Wanda Park, and 22560 Uhea Road to Precision “on
demand.” As for Knobhill, the property would be transferred to Precision and would be
the subject of a separate joint venture agreement.
       The Plyams did not convey Alonzo, 9810 Wanda Park, and 22560 Uhea Road on
demand. They had obtained construction loans in their name and needed Precision to pay
off the loans before they could convey the properties to Precision. These Precision
properties were lost to foreclosure because, as Del Negro explained, the loans were in the
Plyams‟ name. The Plyams initially transferred Knobhill to Precision, but then they
recorded a quitclaim deed transferring Knobhill to their family trust.



4
       Salzman later assigned her interest to the Bronfmans.

                                             6
       After commencing the lawsuit, the parties entered into a “Standstill Agreement.”
Under the terms of the Standstill Agreement, Parlato controlled and managed the
Precision properties.
6. Evidence of Precision’s Damages
       The Plyams admittedly did not keep complete accounting records or maintain a
general ledger while Yuri managed Precision. Precision‟s expert Barbara Gottlieb
attempted to create a general ledger. Gottlieb explained that Precision paid out a net sum
of approximately $13.6 million to purchase the properties. CAM spent an additional $4.7
million of Precision‟s funds developing Precision properties. Thus, Gottlieb concluded
that approximately $18.3 million had been spent on Precision properties and
development.
       Gottlieb testified that $9.9 million of Precision funds were transferred to CAM and
used by the Plyams. This gross sum was reduced to $8,484,029 by crediting the Plyams
with $330,706 they appeared to have contributed to Precision, and a credit of $1,128,302
in loan proceeds. The Plyams spent approximately $1.16 million to purchase property
titled in their name, which included Alonzo, 9810 Wanda Park, 22650 Uhea Road, and a
Lake Arrowhead property. Construction costs totaled $6,756,277, and Gottlieb noted that
there were disbursements totaling $1,532,667 without supporting evidence.
       The Plyams challenged Gottlieb‟s calculation. Gottlieb did not account for
approximately $3.2 million that Natalia testified the Plyams loaned to Precision. Natalia
testified that she did not “have any writing as to loaning Precision money,” but she kept
track of loans and reimbursements in a personal notebook (Exhibit 816).5 Exhibit 816
surfaced for the first time at trial.
       Additionally, the Plyams believed that they should have been credited with their
Knobhill contribution, and Gottlieb should not have included Alonzo, 9810 Wanda Park,


5
       One such entry stated: “ „Loan to CAM slash Precision 30,000. Offset
$181,823.73 balance owed by Precision by work in Arrowhead by 125,199.48. Bring in
Precision balance equal to as of 2/8/6 56,621 – 624.25.‟ ”

                                             7
and 22650 Uhea Road. Natalia testified, as of January 2008, Precision owed the Plyams
$409,000.
       Del Negro, the current president of Precision, testified that in January 2008,
Precision and CAM had unpaid vendor invoices, and CAM employees had not been paid.
Precision paid a total of $1.9 million to settle these debts.
7. Special Verdict and Punitive Damages
       After an 18-day trial, the jury returned a special verdict, specifically finding
breach of fiduciary duty, and awarded Precision $10.1 million in damages.6 The jury also
awarded Precision $200,000 in punitive damages.
8. Equitable Causes of Action
       The trial court denied Precision‟s motion for entry of judgment on its causes of
action for constructive trust and for a UCL violation. The trial court reasoned that the
jury‟s award exceeded the amount of damages testified to by Precision‟s experts, and
therefore the court exercised its discretion not to award equitable relief. As for imposing
a constructive trust, the trial court concluded that there was insufficient evidence to award
this equitable remedy.
9. Motions for New Trial, JNOV, and Appeals
       The trial court denied the Plyams‟ motions for new trial7 and judgment
notwithstanding the verdict (JNOV).




6
       The special verdict refers to Natalia as “Natasha.” The question posed in the
special verdict is: “Did Yuri Plyam or Nata[s]ha Plyam breach their fiduciary duties to
Precision Development, LLC?”
7
       The trial court ruled on two motions for new trial. After the jury reached its
verdict, the Plyams moved for a new trial that was denied. Following the trial court‟s
judgment on the equitable claims, the Plyams again moved for a new trial. The Plyams
brought the motion because they believed their first motion was premature. Without
ruling on that issue, the trial court adopted its ruling related to the first motion, and then
addressed new issues raised in the second motion and the JNOV.

                                               8
    The Plyams appeal from the jury verdict awarding Precision $10.3 million in
damages. Precision appeals from the court‟s determination that it is not entitled to
equitable relief under the UCL.
                                        DISCUSSION
                                     The Plyams’ Appeal
       The Plyams‟ appeal sets forth numerous errors that they contend individually or
cumulatively require a new trial. Specifically: (1) the trial court erred in denying their
motion for new trial based on juror misconduct and insufficiency of the evidence; (2) the
trial court committed reversible error by refusing the Plyams‟ special instruction,
rejecting the Plyams‟ special verdict form, excluding evidence, and rendering an
inconsistent verdict; (3) the jury verdict must be reversed because Precision was not
entitled to a jury trial for its breach of fiduciary cause of action; (4) Precision‟s counsel
engaged in prejudicial misconduct; (5) the cumulative effect of the trial court errors and
juror misconduct requires a new trial; and (6) the trial court erred in granting summary
adjudication of the Plyams‟ accounting cause of action asserted in their second amended
cross-complaint. We discuss each in turn, concluding there is no reversible error.
1. New Trial Motions
       The Plyams challenge the trial court‟s denial of their motions for new trial,
arguing juror misconduct tainted the verdict and insufficient evidence supports the
judgment. When reviewing an order denying a new trial motion on the grounds that the
verdict is contrary to law or evidence (Code Civ. Proc., § 657, subds. (2), (5)), we
recognize the trial court has broad discretion, and there is a strong presumption that it
properly exercised that discretion. (City of Los Angeles v. Decker (1977) 18 Cal.3d 860,
871-872; Garcia v. Rehrig Internat., Inc. (2002) 99 Cal.App.4th 869, 874.)8




8
       In our review of an order denying a new trial, we review the entire record to make
an independent determination as to whether the error was prejudicial. (City of
Los Angeles v. Decker, supra, 18 Cal.3d at p. 872.)

                                               9
       a. Juror Misconduct
       The Plyams contend they are entitled to a new trial because (1) one of the jurors
was biased and withheld information during voir dire, (2) jurors discussed the evidence
before deliberations, and (3) during deliberations another juror made comments outside
the record. We conclude there was no prejudicial error.
       In ruling on a request for a new trial arising from juror misconduct, the trial court
undertakes a three-step process. (Whitlock v. Foster Wheeler, LLC (2008) 160
Cal.App.4th 149, 160.) First, it must determine whether the affidavits supporting the
motion are admissible. (Evid. Code, § 1150; People v. Dorsey (1995) 34 Cal.App.4th
694, 703.) Second, if the evidence is admissible, the trial court must determine whether
the moving party has presented facts to establish misconduct. (People v. Dorsey, at
p. 703; see also Donovan v. Poway Unified School Dist. (2008) 167 Cal.App.4th 567,
625.) Third, once misconduct is established, the trial court must determine whether the
misconduct is prejudicial. (Whitlock v. Foster Wheeler, LLC, at p. 160.) A presumption
of prejudice arises. (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 416-417.) The
presumption may be rebutted “by an affirmative evidentiary showing that prejudice does
not exist or by a reviewing court‟s examination of the entire record to determine whether
there is a reasonable probability of actual harm to the complaining party resulting from
the misconduct. [Citations.]” (Id. at p. 417, fn. omitted.) Thus, we independently review
the trial court‟s determination of whether the Plyams were prejudiced by the misconduct.
(Whitlock v. Foster Wheeler, LLC, at p. 158.) We note, however, juror misconduct is an
area in which broad discretion is accorded to the trial judge. (Id. at p. 159.)
                     (1) Motion
                             (a) Concealment and Bias
       Jurors Homayoun Shirkhani and Amanda Traxler submitted declarations relating
incidents in which Juror Ruben Salcedo commented on the Plyams‟ Russian ancestry and
their accents. After trial, the Plyams‟ counsel also discovered that Salcedo did not
disclose during voir dire his experiences with Russians, which included litigation arising


                                             10
from an auto accident in which counsel stated that two Russians had sued Salcedo for
damages.
                              (b) Discussions Before Deliberations
       Jurors Shirkhani and Traxler stated that the jurors discussed the case before
deliberations. Salcedo was the only juror specifically identified in their declarations.
Traxler overheard Salcedo “indicate[] that he would not want to do business with
Mr. Plyam,” “he wondered how the Plyams would be affected if they lost the case,” and
“he believed it would not affect them financially because they had plenty of money and
that the Plyams probably had a lot of other business deals and other sources of income.”
According to Traxler, in response to Salcedo‟s comments, an unidentified juror stated:
“the Plyams had probably taken money from others and had bilked other people like the
Bronfmans.” Shirkhani reported that Salcedo made the following statements to her: “I
don‟t like the way Mr. Plyam looks at me,” and “the Plyams had helped themselves to
other people‟s money.” Shirkhani overheard another juror comment that “the Plyams
were rich and should have paid the workers.”
                              (c) Conduct During Deliberations
       Jurors Shirkhani and Traxler also report that Salcedo made comments during
deliberations to the Spanish speaking jurors without translating his comments to the non-
Spanish speaking jurors. Another juror, who was a paralegal, commented “in her
experience the number of documents produced by the Plyams was not significant as
normally many more documents are produced.” And while deliberating on whether to
award punitive damages, both Shirkhani and Traxler report that Salcedo thought the jury
should award $12 million, even though Precision‟s attorney asked for $4 million.
                     (2) Opposition
       In opposition, Precision submitted Salcedo‟s declaration, along with two other
jurors‟ declarations. Salcedo stated that when asked during voir dire whether he had ever
been involved as a defendant or plaintiff in litigation, he “did not think at the time that
my fender-bender in 2004 was a real lawsuit and that I had been sued because it had
settled and it was handled entirely by an insurance company.” Salcedo also noted that the
                                              11
people in the other car were Armenian, and that he “had no prejudice against Russians.”
Salcedo stated that before the case was presented to the jury for deliberations, he “did not
make negative comments about the Plyams. I did my best to keep an open mind about
the case and evidence until it came time to deliberate.”
       Jurors Xuan Diep and Carolina Interiano stated that during trial and before
deliberations they did not remember or recall Salcedo making negative statements about
the Plyams or Russians. Diep reported: “On occasion the jurors might have made a few
comments about the witnesses they were watching, but I didn‟t hear anything along the
lines of somebody prejudging the case and saying they didn‟t want to hear any more
evidence.”
       During deliberations, Salcedo admitted to speaking Spanish, but his comments
were not about the evidence. Juror Interiano speaks Spanish and stated after deliberations
began, “I don‟t recall Mr. Salcedo commented upon the evidence in Spanish.”
                     (3) Analysis
                             (a) Admissibility of Declarations
       Without supporting argument, the Plyams cite Evidence Code section 1150 to
contend the declarations that Precision submitted are inadmissible. (See Barboni v.
Tuomi (2012) 210 Cal.App.4th 340, 349.) The Plyams did not contest the admissibility
of the declarations in the trial court and have forfeited this argument. (Premier Medical
Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th
550, 564.)
                             (b) Evidence of Misconduct
       The Plyams next contend that they have met their burden of establishing juror
misconduct. (Donovan v. Poway Unified School Dist., supra, 167 Cal.App.4th at p. 625.)
On appeal, we must accept the trial court‟s “credibility determinations and findings on
questions of historical fact if supported by substantial evidence.” (Barboni v. Tuomi,
supra, 210 Cal.App.4th at pp. 345, 349.) The trial court concluded that misconduct had
occurred based upon Salcedo‟s comments before deliberations, and presumably based


                                             12
upon the possibility that the paralegal juror‟s comments constituted matters outside the
record.
       As for the remaining allegations of juror misconduct, we accept the trial court‟s
determination because it is supported by substantial evidence. The trial court credited
Salcedo‟s declarations, and apparently found Jurors Shirkhani‟s and Traxler‟s
declarations insufficient to establish other incidents of juror misconduct.
                             (c) No Prejudicial Error
       The Plyams disagree with the trial court‟s conclusion that Salcedo‟s comments
and the paralegal‟s comment were not prejudicial. They argue that Salcedo‟s comments
indicate he prejudged the case, and the paralegal‟s comment affirmed Precision‟s theory
that the Plyams refused to produce documents because they were trying to hide their
wrongdoing.9 As noted, we review the entire record, including the evidence, and make
an independent determination as to whether the misconduct was prejudicial. (Sherman v.
Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1160-1161.)
       Salcedo‟s misconduct did not infect the trial with prejudicial matter relating to the
Plyams or their case itself, as they appeared to be isolated comments. These comments
were not brought to the trial court‟s attention during trial. Although Salcedo does not
directly deny making comments, Jurors Shirkhani and Traxler do not state that Salcedo




9
        The Plyams‟ opening brief inaccurately paraphrases Juror Traxler‟s affidavit
(without citation) to stress their point regarding juror misconduct. The opening brief
states: “The paralegal expressed the opinion that due to the small number of documents
produced by Appellants, it was likely Appellants had intentionally withheld or destroyed
documents in the case as contended by Precision.” Juror Traxler said no such thing.
Traxler‟s declaration actually states: “During the trial, one of the issues was the amount
of documents produced by the Plyams. During the deliberations this issue of document
production came up and one of the jurors, who was a paralegal, commented that in her
experience the number of documents produced by the Plyams was not significant as
normally many more documents are produced.”

                                             13
ignored further evidence or the defense case, or that they thought he disregarded
argument and instructions. They also do not state that Salcedo declined to deliberate. 10
       Assuming the paralegal‟s comment related to experiences outside the evidence,
rather than the juror‟s view of the evidence, this comment was consistent with the
evidence presented at trial. The Plyams contend this comment related to a hotly
contested issue of the Plyams‟ recordkeeping. The hotly contested issue was not the
amount of documents or records, but the accuracy of the Plyams‟ recordkeeping. Unlike
the juror misconduct at issue in Whitlock v. Foster Wheeler, LLC, supra, 160 Cal.App.4th
149, in which the juror interjected his experience to contradict evidence presented at trial,
here the Plyams told the jury that Natalia either did not produce documents, including
Exhibit 816, or she did not have documents to produce to show that the Plyams lent
money to Precision.
       Upon our review of the record, as discussed post, sufficient evidence presented at
trial supported the jury verdict. Salcedo‟s comments at some point during the trial before
the close of evidence, and the paralegal‟s comment during deliberations do not establish
the probability of actual prejudice. Thus, there was no prejudicial error.
       b. Sufficiency of the Evidence Supports the Jury’s Verdict
       The Plyams challenge the evidence that supported the jury‟s verdict.11 (Code Civ.
Proc., § 657, subd. (6).) “A new trial shall not be granted upon the ground of
insufficiency of the evidence to justify the verdict or other decision, nor upon the ground
of excessive or inadequate damages, unless after weighing the evidence the court is

10
       Contrary to the Plyams‟ opening brief, Traxler‟s declaration does not state that she
was persuaded by Salcedo‟s comments either before the case was submitted to the jury or
during deliberations. No evidence is admissible to show the effect of such statements
upon a juror in influencing him or her to assent to or dissent from the verdict.
(Evid. Code, § 1150, subd. (a).)
11
        On appeal from the denial of a JNOV motion, we determine whether there is any
substantial evidence, contradicted or uncontradicted, supporting the jury‟s conclusion. If
there is, we must affirm. (Shapiro v. Prudential Property & Casualty Co. (1997)
52 Cal.App.4th 722, 730.)

                                             14
convinced from the entire record, including reasonable inferences therefrom, that the
court or jury clearly should have reached a different verdict or decision.” (Code Civ.
Proc., § 657, subd. (7).) Under the substantial evidence rule, we determine whether there
is any substantial evidence, contradicted or not, that will support the conclusion reached
by the jury. (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 737-738.) A
party who challenges the sufficiency to support a finding must summarize the evidence
on that point, both favorable and unfavorable, and show how and why it is insufficient.
(Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409.) The Plyams have failed to
adhere to this appellate practice.
              (1) Breach of Fiduciary Duty
       The Plyams argue that because Precision‟s expert accounted for all of the
Bronfmans‟ investment, there was no breach of the fiduciary duties of loyalty or care. 12
                     (a) Breach of Duty of Loyalty
       The Plyams maintain that once all of the Bronfmans‟ money was accounted for,
Precision‟s case turned on the Plyams‟ holding title to three Precision properties. But, the
Plyams argue that Precision did not establish they intended to steal these properties, and
thus they did not breach the trustee‟s duty of loyalty to “hold as trustee for it any
property.” (Corp. Code, § 16404, subd. (b)(1).)13
       The Plyams ignore the evidence that although the Bronfmans‟ investment was
accounted for, they transferred funds out of the Precision account into CAM, their own
wholly owned company, and used those funds to develop their own properties. They also

12
       “The elements of a cause of action for breach of fiduciary duty are: (1) the
existence of a fiduciary duty; (2) a breach of fiduciary duty; and (3) resulting damage.”
(Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 524.) In their opening brief, the Plyams
do not contest the jury‟s finding on the first element. Issues raised for the first time in
reply related to Natalia‟s fiduciary duty are deemed waived. (Julian v. Hartford
Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761 & fn. 4.)
13
       Corporations Code section 17153 states: “The fiduciary duties a manager owes to
the limited liability company and to its members are those of a partner to a partnership
and to the partners of the partnership.”

                                              15
claimed on loan applications they owned certain Precision properties. While the 2008
amendment permitted the Plyams to hold title, this occurred after discovery of the
Plyams‟ wrongdoing, while Precision attempted to assess and salvage the Bronfmans‟
investment.
       The Plyams had explanations for transferring Precision funds to CAM and for
holding title to Precision properties, which the jury could have reasonably believed. But,
the jury apparently rejected these explanations. The question we face is whether a
reasonable jury could have found that the Plyams breached their fiduciary duty of loyalty.
We conclude there was sufficient evidence from which a reasonable jury could have
made such a finding.
                     (b) Breach of Duty of Care
       Having concluded there is sufficient evidence to establish a breach of the duty of
loyalty, we need not dwell on the Plyams‟ argument that there was no evidence to
establish a breach of the duty of care. To establish a breach of the duty of care, Precision
had to prove grossly negligent or reckless conduct, intentional misconduct, or a knowing
violation of the law. (Corp. Code, § 16404, subd. (c).) It is the Plyams‟ contention that
no such evidence exists because a fiduciary does not breach a duty of care by transferring
funds when the fiduciary is owed money. (Corp. Code, § 16404, subd. (f).) Again, this is
the Plyams‟ view of the evidence that they advanced/loaned $3.2 million to the venture.
It is true that the Plyams presented Exhibit 816, in which Natalia documented loans they
made to Precision while waiting for the Bronfmans‟ funds. The Plyams, however,
overlook the abundant evidence presented by Gottlieb in which she accounted for $8.4
million in Precision funds spent by the Plyams on their own properties. This was
sufficient evidence upon which the jury could have concluded that the Plyams breached
their duty of care. Thus, the trial court did not abuse its discretion in denying the motion
for new trial based on the Plyams‟ challenge that the evidence did not support the jury‟s
verdict.




                                             16
              (2) Excessive Damages
       The Plyams contend that there is no evidentiary support for the $10.1 million in
damages awarded to Precision, and the award includes money owed to CAM.14 The
Plyams take a narrow view of the evidence presented to the jury.
       Precision‟s expert testified that the Plyams used approximately $8.4 million of
Precision‟s funds (transferred to CAM), and Precision spent another $1.9 million to retire
debts to vendors and employees after taking over from the Plyams.15 The jury heard that
Precision properties had not been developed and were in disarray and must have
concluded that these funds were not spent on Precision properties.
       The Plyams offered an alternate calculation to the jury to discredit the $8.4 million
figure. Using Gottlieb‟s calculation, and eliminating Alonzo, 9810 Wanda Park, and
22650 Uhea Road, at most they spent $1.1 million of Precision funds on their own
properties, of which approximately $330,000 should be deducted as their contribution to
Precision. Moreover, the Plyams told the jury that holding title to the Precision
properties did not harm Precision, and Precision lost the properties to foreclosure. The
jury rejected the Plyams‟ calculations and justifications. There was sufficient, albeit
conflicting evidence, to support the damages award. The trial court reached the same
conclusion in denying the motion for a new trial.16


14
       The Plyams repeatedly argue that Precision‟s funds transferred to CAM became
CAM‟s funds, and any diversion of these funds harmed CAM, not Precision. Yuri, as
manager of Precision, opted to use CAM, his wholly owned company, to develop
Precision properties. In doing so, the Plyams transferred Precision‟s assets to Yuri‟s
company.
15
       Although the Plyams now challenge the admissibility of this evidence, the trial
court permitted this inquiry, and the Plyams‟ counsel attempted during cross-examination
to impeach Del Negro‟s credibility.
16
        The Plyams cite to the court‟s comments during oral argument on the motion as
further support that the damages were excessive. A judge‟s comments during oral
argument may never be used to impeach the final order. (Jespersen v. Zubiate-
Beauchamp (2003) 114 Cal.App.4th 624, 633.) Here is why. During oral argument, the
trial court stated that it intended to focus on the damages award because “where I have
                                               17
              (3) Punitive Damages
       Punitive damages may be awarded only when the jury finds oppression, fraud, or
malice by clear and convincing evidence. (Civ. Code, § 3294, subd. (a).) We review a
challenge to the sufficiency of evidence to support punitive damages by considering
whether the record contains substantial evidence to support a determination by clear and
convincing evidence. (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc.
(2000) 78 Cal.App.4th 847, 891.) The Plyams had the burden, however, to not only set
forth the facts in their favor, but all material evidence on this point. Their failure to do so
here forfeits the argument on appeal. (Stewart v. Union Carbide Corp. (2010) 190
Cal.App.4th 23, 34.)
       Addressing the merits, the jury heard the Plyams‟ version of events, recited in
their briefs, but the evidence also supports a different version. The jury believed that the
Plyams‟ used Precision funds for their benefit, and their conduct was more than negligent
or careless, and instead amounted to intentionally misleading the Bronfmans. As for the
amount awarded, the jury heard that the Plyams withdrew from their bank account
$200,000 to liquidate to cash. Our analysis of the record convinces us that there is
sufficient evidence based on the heightened burden of Civil Code section 3294,
subdivision (a), to support the jury‟s punitive damages award of $200,000.
2. Trial Court Errors
           a. Refusal of Proposed Special Instruction Regarding Damages
       The Plyams contend that the trial court committed reversible error by failing to
give their proposed instruction regarding damages. Their instruction read: “ „Plaintiffs,
if they prove their claim for breach of fiduciary duty, are only entitled to any monies that
they have proven were wrongfully taken from Precision.‟ ” Instead, the trial court


the problem in the case is the amount of damages.” But, during the same argument, the
trial court stated the Plyams had an obligation to keep accurate records, a question
lingered as to whether Exhibit 816 was created after the fact, and “the jurors could have
found that, quite frankly, Ms. Plyam was willfully false and disregard everything she had
to say about this case.”

                                              18
instructed the jury on the breach of fiduciary claim that to find for Precision, Precision
must prove the Plyams‟ conduct was a “substantial factor in causing Precision
Development‟s harm.” The Plyams argue that their instruction should have been given
because, unlike the given instruction, their instruction imposed limits by requiring the
jury to look only at Precision‟s loss, and not CAM‟s loss.
       “A court may refuse a proposed instruction if other instructions given adequately
cover the legal point.” (Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655,
685.) The refusal of a proper instruction is prejudicial only if “ „it seems probable‟ that
the error „prejudicially affected the verdict.‟ [Citations.]” (Soule v. General Motors
Corp. (1994) 8 Cal.4th 548, 580.) “[W]hen deciding whether an error of instructional
omission was prejudicial, the court must also evaluate (1) the state of the evidence,
(2) the effect of other instructions, (3) the effect of counsel‟s arguments, and (4) any
indications by the jury itself that it was misled. [Fn. omitted.]” (Id. at pp. 580-581.)
       The Plyams‟ arguments do not persuade us that the jury‟s verdict must be reversed
because they have not shown that the trial court‟s instructions did not adequately convey
to the jury the law or that the jury was misled. The trial court instructed the jury with
CACI No. 4101 (failure to use reasonable care), and an instruction patterned after
Corporations Code section 16404 addressing the fiduciary duty of loyalty and duty of
care, along with a damages instruction that was legally correct and specifically referred to
Precision. These instructions correctly stated the law and clearly indicated to the jury
that the issue in this case was Precision‟s damages arising from the Plyams‟ breach of
fiduciary duty. (See Michelson v. Hamada (1994) 29 Cal.App.4th 1566, 1582.) The
Plyams‟ arguments relate to the amount of damages awarded and are better suited for the
jury. Upon our review of the record, in the light most favorable to the Plyams, there was
no prejudicial error.
           b. Special Verdict Form Errors
       The Plyams also address deficiencies in the special verdict form that they maintain
constitute prejudicial error. The Plyams contend the trial court erred in rejecting their
special verdict form that asked the jury to separately determine the questions of whether
                                             19
the Plyams breached their fiduciary duty of loyalty and/or their fiduciary duty of care.
Instead, the jury was asked to determine the more general question of whether the
Plyams‟ had breached their fiduciary duties owed to Precision. The Plyams also contend
the question in the special verdict form addressing punitive damages was too general
because it did not ask the jury to determine whether Yuri or Natalia, or both, acted with
malice, oppression, or fraud.17 We review the special verdict form de novo. (Saxena v.
Goffney (2008) 159 Cal.App.4th 316, 325.)
       “The special verdict must present the conclusions of fact as established by the
evidence . . . .” (Code Civ. Proc., § 624.) “A special verdict is „fatally defective‟ if it
does not allow the jury to resolve every controverted issue.” (Saxena v. Goffney, supra,
159 Cal.App.4th at p. 325.) A special verdict form is not defective, however, merely
because it does not ask the jury to make separate findings on each element of a given
cause of action. (See Babcock v. Omansky (1973) 31 Cal.App.3d 625, 630-631 [jury
instructed on elements of fraud, and court rejected cumbersome interrogatories related to
several elements of fraud claim in special verdict], disapproved on other grounds in
Canal–Randolph Anaheim, Inc. v. Wilkoski (1978) 78 Cal.App.3d 477, 485-486, 496.)
       The trial court correctly noted the issue before the jury was whether the Plyams
breached their fiduciary duties, and whether they breached the duty of loyalty or the duty
of care was encompassed in the jury‟s finding. If the Plyams‟ conduct breached either
duty, Precision was still entitled to the relief granted. The jury also was instructed on
both the fiduciary duty of loyalty and duty of care. “Absent some contrary indication in
the record, we presume the jury follow[ed] its instructions [citations] „and that its verdict
reflects the legal limitations those instructions imposed‟ [citation].” (Cassim v. Allstate
Ins. Co. (2004) 33 Cal.4th 780, 803-804.) In view of the court‟s instructions to the jury,
we are not persuaded by the Plyams‟ contention the wording in the special verdict
regarding a breach of their fiduciary duties, was prejudicial to them.
17
      The special verdict stated: “Has Precision Development, LLC proven by clear and
convincing evidence that Yuri or Natasha Plyam acted with malice, oppression, or
fraud?”

                                              20
       As for the question in the special verdict addressing punitive damages, the
Plyams‟ proposed special verdict form asked the jury to make special findings with
respect to Yuri and Natalia, but the Plyams raised no objection on this point when the
trial court decided to use Precision‟s special verdict. Citing Amerigraphics, Inc. v.
Mercury Casualty Co. (2010) 182 Cal.App.4th 1538, 1557, the Plyams argue they
preserved this issue on appeal by raising it in their JNOV and second motion for a new
trial. Although Precision was responsible for having a verdict form submitted to the jury
on its case (Ibid.), given the Plyams‟ involvement in this process, and their insistence that
the special verdict specifically address Yuri and Natalia, it was incumbent upon them to
raise this point before the jury began deliberation. Moreover, “ „ “[i]f the verdict is
ambiguous the party adversely affected should request a more formal and certain verdict.
Then, if the trial judge has any doubts on the subject, he [or she] may send the jury out,
under proper instructions, to correct the informal or insufficient verdict.” [Citations.]‟
[Citation.]” (Behr v. Redmond (2011) 193 Cal.App.4th 517, 529-530.) At no time before
the jury was dismissed did the Plyams‟ counsel raise this issue. Given the circumstances
presented here, the Plyams have not demonstrated prejudicial error.
           c. Exclusion of Evidence
       The Plyams contend the trial court erred by excluding from evidence two
agreements that Parlato had with the Bronfmans and a loan agreement the Bronfmans
entered into with Raniere. In reviewing a “trial court‟s evidentiary ruling for abuse of
discretion [citation] . . . we review „the ruling, not the rationale.‟ [Citation.]” (Park v.
First American Title Co. (2011) 201 Cal.App.4th 1418, 1427.) “If evidence is excluded
on an improper objection but the evidence excluded is subject to objection on a different
ground, it does not matter that the reason advanced by counsel or relied upon by the court
was wrong. [Citations.] If the exclusion is proper upon any theory of law applicable to
the instant case, the exclusion must be sustained regardless of the particular
considerations which may have motivated the trial court to its decision. [Citations.]”
(Philip Chang & Sons Associates v. La Casa Novato (1986) 177 Cal.App.3d 159, 173.)


                                              21
The erroneous exclusion of evidence is not reversible error unless it caused a miscarriage
of justice. (Evid. Code, § 354.)
       The exclusion of two agreements between Parlato and the Bronfmans did not
result in a miscarriage of justice. The Plyams‟ counsel asked Clare about the agreements,
and she responded: “There was an agreement making him CEO. There was a separate
power of attorney [admitted into evidence]. There was a loan agreement . . . between
Mr. Parlato and my sister and myself.” Although not admitted into evidence, counsel
asked Clare about the content of these agreements. The elicited testimony permitted the
Plyams‟ counsel to use the agreements to advance their case. Thus, any error in
excluding these documents was harmless.
       The Raniere loan agreement was properly excluded under Evidence Code section
352. If admitted into evidence, this would have led to a line of questioning that was
unrelated to Precision‟s loss and instead focused on Raniere‟s losses in the commodities
market, the Bronfmans‟ relationship with Raniere, and Raniere‟s purported motives to get
“the Bronfmans to turn on the Plyams.” The trial court‟s evidentiary ruling excluding
this document did not constitute an abuse of discretion, and therefore does not constitute
reversible error.
            d. Consistency of the Verdict
       The Plyams contend the trial court‟s decision not to award equitable relief on the
UCL cause of action is inconsistent with the jury‟s verdict. The Plyams essentially argue
the court‟s conclusion that the Plyams transferred 9810 Wanda Park and 22650 Uhea
Road to their name to obtain construction loans was inconsistent with the jury‟s verdict
that the Plyams breached their fiduciary duty by holding title to Precision properties. We
cannot assume the jury‟s verdict was based only on holding title.
       The trial court was bound by the jury‟s determination that the Plyams breached
their fiduciary duty when determining factual issues common to the legal and equitable
issues. (Hoopes v. Dolan, supra, 168 Cal.App.4th 155-158.) The statement of decision
on the UCL cause of action is not inconsistent with the jury‟s verdict. The jury
concluded that the Plyams breached their fiduciary duty based upon the theory at trial that
                                            22
the Plyams diverted Precision funds to develop their own properties. There is no
reversible error.
3. Right to Jury Trial on Breach of Fiduciary Cause of Action
       The Plyams contend that after Precision dismissed its conversion claim, the jury
should not have decided Precision‟s cause of action for breach of fiduciary duty because
it is an equitable claim, not a legal one. The Plyams have forfeited this argument.
(Taylor v. Union Pac. R.R. Corp. (1976) 16 Cal.3d 893, 900 [in reverse situation, court
held “ „a party cannot without objection try his case before a court without a jury, lose it
and then complain that it was not tried by jury. . . . „Defendants cannot play “Heads I
win. Tails you lose” with the trial court.‟ ”].)
       After the conversion cause of action was dismissed, the Plyams did not raise the
objection they now advance on appeal. They made no request that the breach of fiduciary
cause of action should be decided along with the other equitable causes of action.
Instead, the Plyams proposed and argued jury instructions and submitted a special verdict
form. The Plyams cannot try the case to the jury, lose it, and then complain it should not
have been tried by jury.
4. Attorney Misconduct
       The Plyams assert that Precision‟s counsel engaged in misconduct during his
opening statement and closing argument when he violated court orders, and during trial
when he impugned opposing counsel‟s credibility and made unwarranted attacks on the
Plyams. In order to justify a new trial, the Plyams must demonstrate that the misconduct
was prejudicial. (Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at pp. 800-802.) We must
determine whether prejudice actually occurred in light of the entire record. (Id. at
pp. 801-802.)
            a. Opening Statement and Closing Argument
       With respect to opening statement and closing argument, the Plyams forfeited all
but two of these contentions because they failed to object and, when the objection was
sustained, did not ask for a curative admonition or seek a mistrial. (Cassim v. Allstate


                                              23
Ins. Co., supra, 33 Cal.4th at pp. 794-795; Garcia v. ConMed Corp. (2012)
204 Cal.App.4th 144, 148.) We address the remaining two contentions.
         First, at the outset of trial, Precision moved in limine for judicial notice of a trial
court order granting its temporary restraining order (TRO). During argument on the
motion, Precision‟s counsel represented he would not “argue the TRO for its own sake.”
When Precision‟s counsel mentioned the order during opening statements, the Plyams
objected, and out of the presence of the jury they moved for a mistrial. The trial court
denied the motion. Thereafter, the Plyams cite to three instances in which Precision‟s
counsel referred to the court order. The trial court, however, sustained the Plyams‟
objections, and the Plyams did not seek a curative admonition.
         Second, during opening statements, Precision‟s counsel referred to information
obtained during punitive damages discovery that was the subject of a court order.
Precision‟s counsel told the jury that the Plyams had a “safe with cash” at their personal
residence. At a sidebar, the Plyams objected to the use of this information. The court
admonished counsel and the issue never came up again during the liability phase of the
trial.
             b. Other Misconduct
         The Plyams contend that Precision‟s counsel made unwarranted attacks on
Natalia. Specifically, Precision‟s counsel repeatedly asked Natalia about a $6 million
secret account that held Precision‟s funds. Precision‟s counsel also posed the following
question related to Exhibit 816: “Did your lawyer participate with you in the creation of
this document [Exhibit 816]?”
         With respect to the Plyams‟ counsel, he was accused in front of the jury of
“stalling” to obtain a mistrial, writing a threatening letter, and, as noted, participating in
the fabrication of Exhibit 816.




                                                24
           c. No Prejudicial Error
       Of the numerous asserted instances of attorney misconduct,18 only the accusation
in the question to Natalia related to her counsel‟s participation in the creation of Exhibit
816 arguably constituted misconduct. Upon our review of the evidence, the instructions
delivered to the jury, and the entirety of Precision‟s counsel‟s comments and argument,
we conclude that even if characterized as misconduct, it was harmless. The question was
one of many questions posed to Natalia in a vigorous examination into the origin of
Exhibit 816. Exhibit 816 constituted only one exhibit entered into evidence during the
lengthy trial, and the exhibit was offered in the Plyams‟ defense to show loans to
Precision and reimbursements from Precision funds. While counsel focused on Exhibit
816 in his closing argument, he is given wide latitude to discuss the case. (Cassim v.
Allstate Ins. Co., supra, 33 Cal.4th at pp. 795-796.) We conclude that it is not reasonably
probable the Plyams would have obtained a more favorable result absent the misconduct.
5. Cumulative Error Doctrine
       Finally, the Plyams argue that even if no single error standing alone were
sufficient for a reversal, the cumulative effect of the errors at trial would require reversal.
The cumulative error doctrine applies when “the cumulative effect of the
errors . . . make[s] it „reasonably probable that a result more favorable to the appealing
party would have been reached in the absence of the error[s].‟ [Citation.]” (Johnson v.
Tosco Corp. (1991) 1 Cal.App.4th 123, 141.)
       To the extent the trial court made any errors, those errors were not prejudicial, as
we have discussed. There is no reasonable probability that a result more favorable to the
Plyams would have been reached in the absence of these errors.




18
       We employ the term “misconduct,” because it is commonly used to describe this
type of error. (Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at p. 800, fn. 5.)

                                              25
6. Summary Adjudication of the Plyams’ Cause of Action Seeking an Accounting
       The Plyams contend that the trial court erred as a matter of law in granting
summary adjudication of their cause of action seeking an accounting. The trial court
granted the motion because “[t]he Cross-Complainants failed to meet their burden of
argument as to why this remedial theory should not be dismissed.” By failing to address
Precision‟s arguments on this issue in the opposition to the motion for summary
adjudication, the Plyams waived any challenge to the court‟s ruling on appeal. (Waisbren
v. Peppercorn Productions, Inc. (1995) 41 Cal.App.4th 246, 263.)
       On appeal, the Plyams argue that as a matter of law, under Corporations Code
section 1640519 they may pursue a cause of action for an accounting against Precision.
“[T]he nature of a cause of action in accounting is unique in that it is a means of
discovery. An accounting is a „species of disclosure, predicated upon the plaintiff‟s legal
inability to determine how much money, if any, is due.‟ [Citation.]” (Teselle v.
McLoughlin (2009) 173 Cal.App.4th 156, 180.) Yuri was in a position to determine the
amount of money he and Natalia loaned to Precision. Natalia kept Precision books, and
under the 2005 agreement, Yuri had access to the books and records and was entitled to
receive a quarterly audit statement or a copy of the bank statements. The undisputed
evidence establishes an essential element of this cause of action could not be established.
(See 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, §§ 820 to 821, p. 238.) Upon our
de novo review (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460), the
accounting cause of action was properly adjudicated before trial.




19
          Corporations Code section 16405, subdivision (b) provides: “A partner may
maintain an action against the partnership or another partner for legal or equitable relief,
with or without an accounting as to partnership business, to do any of the following:
[¶] . . . [¶] (2) Enforce the partner‟s rights under this chapter, including all of the
following: [¶] (A) The partner‟s rights under Section 16401, 16403, or 16404.”
(Corp. Code, § 16405, subd. (b)(2)(A).)

                                             26
                                     Precision’s Appeal
        Precision contends the trial court‟s decision to deny relief under the UCL rests on
an error of law. The company challenges the trial court‟s legal analysis that the equitable
relief it sought was cumulative. The court stated in its decision: “Plaintiff does not
dispute that it has already been awarded a jury verdict that exceeds the amount of
damages testified to by Plaintiff‟s expert, and Plaintiff has not cited to any authority
authorizing a remedy under the UCL as an alternative to damages that have already been
awarded.” Precision argues that UCL remedies are expressly cumulative and are not to
be denied on the ground there are alternative remedies under a specific statute unless that
statute provides an exclusive remedy. (Blue Cross of California, Inc. v. Superior Court
(2009) 180 Cal.App.4th 1237, 1249; see also Bus. & Prof. Code, § 17205.) We
independently review questions of law. (See Ghirardo v. Antonioli (1994) 8 Cal.4th 791,
799.)
        The UCL remedy of restitution “means the return of money to those persons from
whom it was taken or who had an ownership interest in it.” (Madrid v. Perot Systems
Corp. (2005) 130 Cal.App.4th 440, 455, citing Korea Supply Co. v. Lockheed Martin
Corp. (2003) 29 Cal.4th 1134, 1144-1145.) The jury‟s damages award to Precision
constituted a return of Precision funds used to develop the Plyams‟ properties.
        In addition to restitution, the UCL remedies include “such orders or
judgments . . . as may be necessary to prevent the use or employment by any person of
any practice which constitutes unfair competition, as defined in this chapter, or as may be
necessary to restore to any person in interest any money or property, real or personal,
which may have been acquired by means of unfair competition.” (Bus. & Prof. Code,
§ 17203.) This provision constitutes “a grant of broad equitable power.” (Cortez v.
Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 180.)
        Precision seeks the following equitable remedy: “Precision needs a UCL
judgment to make sure it has priority to the equity in the properties over liens filed by the
Plyams and their counsel. No other cause of action supports the lis pendens.”
Precision‟s argument assumes the UCL judgment would relate back to the lis pendens
                                             27
recorded on the Plyams‟ property.20 (Code Civ. Proc., § 405 et seq.) We need not decide
whether Precision‟s lien priority argument is correct because the UCL cause of action is
not a real property claim affecting title or right of possession for the purposes of the
lis pendens statute. (See Code Civ. Proc., § 405.4.)
       “[A] lis pendens is a recorded document giving constructive notice that an action
has been filed affecting title or right to possession of the real property described in the
notice.” (BGJ Associates v. Superior Court (1999) 75 Cal.App.4th 952, 966; see also
Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 647.) Here, the UCL cause of action is
based on the diversion of Precision funds to acquire and improve the Plyams‟ property,
not the right to title or right to possession of that property. Courts have eschewed the
approach Precision advocates here, that is, transforming a lis pendens into a money-
collection remedy. (Lewis v. Superior Court (1994) 30 Cal.App.4th 1850, 1864.)
       Alternatively, Precision argues the UCL is an appropriate cause of action to obtain
the equitable remedy sought here to recover Precision‟s money that the Plyams put “in
their home, vacation homes and rentals.” Citing Kirkeby v. Superior Court, supra,
33 Cal.4th 642, Precision contends that although no court in a published decision has
discussed whether a UCL plaintiff may avail itself of “lis pendens relief,” that relief is
available in Uniform Fraudulent Transfer Act (UFTA) actions. (Civ. Code, § 3439
et seq.) In Kirkeby, the Supreme Court held that a fraudulent conveyance action seeking
avoidance of transfer affects title to or the right to possession of real property, and thus it
is a real property claim for the purposes of the lis pendens statutes. (Kirkeby v. Superior
Court, at p. 649.) The Kirkeby court, however, distinguished a fraudulent conveyance
from a situation such as the one presented here, in which a party alleged that its money
was wrongfully taken and used to buy real property. (Id. at p. 650; see also Lewis v.
Superior Court, supra, 30 Cal.App.4th at p. 1865.) Here, the claim is that the Plyams‟
wrongfully took Precision funds and used the money to buy and improve their property.
20
        Precision seeks judicial notice of certain documents to show that the principal
assets to be collected are in jeopardy of being lost to tax lien foreclosure. We decline this
request as these documents are not relevant to the issues on appeal.

                                              28
There is no claim that affects “title to, or the right to possession of, specific real property”
as required by Code of Civil Procedure section 405.4.21 Thus, Precision‟s UCL claim
would not support lis pendens relief as an equitable remedy. Accordingly, the equitable
remedy Precision seeks is not, as a matter of law, available in this case. In light of our
conclusion, we do not address Precision‟s remaining arguments premised on a new trial.




21
       During the pendency of this appeal, Precision filed a petition for writ of mandate
challenging the trial court‟s order granting a motion to expunge a lis pendens recorded on
the Plyams‟ personal residence. We issued an order to the trial court directing that
expungement of the lis pendens is stayed pending further order of this court. Although
we conclude that Precision is not entitled to lis pendens relief as an equitable remedy, we
do not discharge the stay of the trial court proceedings currently in effect. (See Behniwal
v. Superior Court (2005) 133 Cal.App.4th 1048, 1050.) The decision on the petition for
writ of mandate is deferred pending finality of the appeal.

                                              29
                                  DISPOSITION
     The judgment is affirmed. No costs are awarded on appeal.


     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                             ALDRICH, J.




We concur:




             KLEIN, P. J.




             KITCHING, J.




                                        30
