Mulberg v. Amster CA1/1
A158954
| Cal. Ct. App. | Jul 14, 2021Background
- Mulberg, an attorney, represented Amster 2008–2012; Amster paid some but not all individual attorney fees.
- As trustee after Amster’s mother died, Mulberg used trust funds to pay himself $35,000 (Oct 2011) and $27,819.75 (Jan 2012), totaling $62,820, and sent Amster a statement (Apr 2012) saying her individual fees were paid in full.
- Probate litigation followed; the probate court removed Mulberg as trustee, approved reduced trustee fees, and ordered a surcharge requiring him to return more than $200,000 to the estate (which included the $62,820); this ruling was affirmed on appeal and Mulberg reimbursed the estate.
- Mulberg then billed Amster for $62,820 (plus interest); she refused and he sued asserting six causes of action (promissory fraud, breach of contract, account stated, open book account, quantum meruit, unjust enrichment).
- At bench trial the court rejected all six causes, finding Amster had paid the $62,820; on appeal the court affirmed rejection of promissory fraud and the equitable claims but reversed the rulings on breach of contract, account stated, and open book account for lack of substantial evidence that Amster paid the debt.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Promissory fraud: did Amster have fraudulent intent when promising to pay? | Mulberg: Amster promised to pay and intended not to, satisfying fraud elements. | Amster: evidence shows she intended to pay (made payments, acquiesced to trust payment). | Affirmed for defendant — substantial evidence supports finding no fraudulent intent. |
| Breach of contract: was Amster’s $62,820 debt extinguished by the trust payments? | Mulberg: debt remained unpaid because estate — not Amster — ultimately bore and returned the funds; contract unpaid. | Amster: the $62,820 was paid (Mulberg paid himself as trustee), so no breach. | Reversed for plaintiff on this claim — no substantial evidence that Amster paid; debt remained unsatisfied. |
| Account stated / Open book account: do invoices create indebtedness given alleged payment? | Mulberg: invoices and billing records establish a sum due and an open/book account. | Amster: records show the debt was paid by trust funds, so no balance due. | Reversed for plaintiff — trial court’s finding of payment lacked substantial evidence; claims must be reconsidered. |
| Quantum meruit / Unjust enrichment: are equitable remedies available? | Mulberg: alternatively entitled to restitution for services if contract relief fails. | Amster: equitable relief barred by existing contract and also by Mulberg’s misconduct as trustee. | Affirmed for defendant — court reasonably denied equitable relief given contract remedy and Mulberg’s conduct. |
Key Cases Cited
- Lazar v. Superior Court, 12 Cal.4th 631 (1996) (elements of fraud and promissory fraud)
- Howard v. Owens Corning, 72 Cal.App.4th 621 (1999) (standard for substantial-evidence review)
- Bowers v. Bernards, 150 Cal.App.3d 870 (1984) (reversal required where no substantial evidence supports payment defense)
- Lucido v. Superior Court, 51 Cal.3d 335 (1990) (requirements for collateral estoppel)
- Unilab Corp. v. Angeles-IPA, 244 Cal.App.4th 622 (2016) (quantum meruit and unjust enrichment principles)
- Hedging Concepts, Inc. v. First Alliance Mortgage Co., 41 Cal.App.4th 1410 (1996) (equity not available where parties have an express agreement on compensation)
- Professional Collection Consultants v. Lujan, 23 Cal.App.5th 685 (2018) (nature of common counts, account stated and book account)
- Haggerty v. Warner, 115 Cal.App.2d 468 (1953) (elements for recovery in quantum meruit)