*388 Opinion
INTRODUCTION
Plаintiffs PCO, Inc., and Personal Choice Opportunities, by and through their duly appointed receiver, Barry A,. Fisher (plaintiffs), filed an action against Robert L. Shapiro (Shapiro) and his law firm, Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP (Christensen Firm), alleging that Shapiro improperly obtained monies that belonged to the receivership. Shapiro, a named partner in the Christensen Firm, was the attorney for David W. Laing (Laing), who was arrested and ultimately convicted for engaging in fraudulent activities with PCO, Inc., and Personal Choice Opportunities (collectively PCO).
The trial court granted the Christensen Firm’s motion for summary judgment on the ground that the Christensen Firm cannot be held vicariously liable for Shapiro’s alléged acts. We reverse the summary judgment, holding that plaintiffs have raised triable issues of fact with respect to whether Shapiro committed his alleged acts within the scope of his authority as a partner of the Christensen Firm. We affirm, however, the trial court’s order granting summary adjudication in favor of the Christensen Firm on plaintiffs’ causes of action for conversion and breach of fiduciary duty.
BACKGROUND 1
Plaintiffs alleged in their third amended complaint that PCO purported to be in the business of investing in viatical settlements, 2 but that, in fact, PCO never purchased any viatical settlements even though Laing, operating through PCO, obtained over $89 million in loans from investors for that purpose. Plaintiffs alleged that Laing was arrested and charged with various federal offenses in connection with PCO arid ultimately pleaded guilty to certain charges. Plaintiffs further alleged that Shapiro and the Christensen *389 Firm 3 appeared as Laing’s counsel of record in federаl criminal proceedings; Shapiro, acting for himself and as the agent of the Christensen Firm, directed a group of those associated with Laing to go to Laing’s residence in Palm Springs, California, and there to obtain 12 duffel bags, each containing $500,000 in cash that Shapiro knew or should have known had been unlawfully obtained; Laing’s associates converted 10 of those bags of money; and some of that money was used to post bail for Laing and to pay the fees of Shapiro and the Christensen Firm. Plaintiffs alleged that the money belongеd to the receivership, and asserted causes of action for conversion, breach of fiduciary duty, money had and received, violation of Business and Professions Code section 17200 et seq. (fraudulent practice), violation of Government Code section 13975.1 (receiver recovery of monies unlawfully obtained), and violation of Civil Code section 3439.04 et seq. (fraudulent transfers).
Shapiro was a nonequity partner in the Christensen Firm. He did not share in the profits or losses of the Christensen Firm. (See
Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro
(2001)
Shapiro and the Christensen Firm brought a joint motion for summary judgment or, in the alternative, summary adjudication, attacking each of plaintiffs’ claims. The Christensen Firm also brought a second motion for summary judgment, arguing, inter alia, that the Christensen Firm cannot be held vicariously liable for Shapiro’s conduct.
*390 On the first motion, the trial court granted summary adjudication in favor of the Christensen Firm as to plaintiffs’ claims for conversion and breach of fiduciary duty. On the second motion, the trial court granted summary judgment in favor of the Christensen Firm. The trial court entered judgment in favor of the Christensen Firm. Plaintiffs timely appealed. 5
DISCUSSION
A. Standard of Review
We review the grant of summary judgment de novo and therefore make, an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. A defendant moving for summary judgment meets its burden of showing that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a completе defense to that cause of action. Once the defendant has made such a showing, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2);
Aguilar
v.
Atlantic Richfield Co.
(2001)
B. Plaintiffs Raised a Triable Issue of Fact Regarding the Christensen Firm’s Vicarious Liability for Shapiro’s Alleged Acts
The trial court granted the Christensen Firm’s motion for summary judgment on thе ground that Shapiro acted outside the scope of his authority as a partner of the Christensen Firm when he participated in the removal and use of cash from Laing’s residence. The trial court erred in doing so. Based on the evidence presented, a “reasonable trier of fact’ (Aguilar, supra, 25 Cal.4th at p. 856) could find that Shapiro acted in his capacity as a member of the Christensen Firm and at a client’s request to protect the funds from which the client’s bail and the Christensen Firm’s legal fees would be paid. Helping a client arrange bail and ensuring the payment of his firm’s fees is within the scope of a law partner’s authority.
*391
A law partnership, as any partnership, is vicariously liable “for loss or injury caused to a person, or for a penalty incurred, as a result of a wrongful act or omission, or other actionable conduct, of a partner acting in the ordinary course of business of the partnership or with authority of the partnership.” (Corp. Code, § 16305, subd. (a); see
Blackmon
v.
Hale
(1970)
“There is no requirement that an employee’s act benefit an employer for respondeat superior to apply. In fact, an employer can be liable for his employee’s unauthorized
intentional
torts committed within the scope of employment despite lack of benefit to the employer.”
(Perez v. Van Groningen & Sons, Inc.
(1986)
The tortious conduct “must be ‘a generally foreseeable consequence of the [employer’s] activity.’ In this usage, . . . foreseeability ‘merely means that in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include thе loss resulting from it among other costs of the employer’s business.’ [Citations.]”
(Lisa M. v. Henry Mayo Newhall Memorial Hospital
(1995)
Shapiro declared that he represented Laing in his “private” capacity; that his activities on behalf of Laing were part of Shapiro’s criminal law practice that was separate from his practice in the Christensen Firm; and that the monies he received were payable to him and deposited in his .personal bank accounts. On the other hand, there is evidence suggesting a different relationship between Shapiro and the Christensen Firm in connection with this matter. The Christensen Firm’s Web site promotes Shapiro as the “head of,the firm’s white-collar criminal defense section.” His name is in the firm name. There is. a retainer аgreement dated April 30, 1997, between Laing and the Christensen Firm relating to the federal criminal charges against Laing. That agreement provides, “We are pleased that you have decided to retain Christensen, Miller, Fink, Jacobs, Glaser, Weil and Shapiro, LLP (the ‘Firm’) as your counsel. The Firm is committed to providing efficient and responsive service to our clients.” The retainer agreement is signed by Shapiro. 6 The *393 retainer agreement also specifies an hourly rate for Attorney Sara Caplan, who, documents indicate, is “of counsel” to the Christensen Firm. The Christensen Firm repeatedly billed Laing for over $23,000 in costs that were due. Shapiro used the Christensen Firm’s letterhead in corresponding about Laing’s case with the Assistant United States Attorney prosecuting Laing, and the Assistant United States Attorney addressed correspondence regarding Laing’s case to Shapiro at the Christensen Firm. Shapiro identified his affiliation with the Christensen Firm on the record in at least three hearings in Laing’s case, including one in the Central District of California and two in the Southern District of New York. Shapiro wаs asked at his deposition whether he represented to the court at the first báil hearing for Laing that he was with the Christensen Firm. He answered, “Yes. Yes, I always do.” Thus, there is a triable issue of fact with regard to Shapiro’s capacity in his representation of Laing. 7
The summary judgment record also raises a triable issue of fact regarding whether Shapiro’s participation in removing the cash from Laing’s residence was a “foreseeable consequence”
(Lisa M. v. Henry Mayo Newhall Memorial Hospital, supra,
At Laing’s initial bail hearing on April 4, 1997, the prosecutor indicated that Laing’s bank accounts could be frozen by the end of that day. The only real prоperty Laing owned was a condominium that he inherited from his father worth approximately $250,000. Nevertheless, Shapiro represented to the court at the bail hearing that Laing would be able to post a cash bail of $500,000 that afternoon, if time permitted. The court set Laing’s bail at $500,000. Shapiro testified that after the bail hearing and at his client’s request, he met with those associated with Laing and told them that Laing wanted them to “secure” property from Laing’s residence, which Shapiro *394 knew to include over $1 million in cash. At that time, neither Shapiro nor the Christensen Firm had been paid a retainer. One of Laing’s associates testified that $500,000 of the cash taken from Laing’s residence was to be used as collateral for Laing’s appearance bond. Of that money, $250,000 was ultimately used to pay Shapiro’s fees.
Based on this evidence, a reasonable jury could conclude that Shapiro participated in removing the money from Laing’s residence in an effort to help a client of the Christensen Firm post bail and to ensure that the Christensen Firm’s fees were paid or at least indirectly to serve the interests of the Christensen Firm. Both are activities “typical of or broadly incidental” to the practice of a white-collar criminal defensé lawyer
(Torres
v.
Parkhouse Tire Service, Inc., supra,
Moreover, any separate practice by Shapiro while he also was a partner in thе Christensen Firm would not necessarily immunize the Christensen Firm from liability. “ ‘ “[WJhere the employee is combining his own business with that of his employer, or attending to both at substantially the same time, no nice inquiry will be made as to which business he was actually engaged in at the time of injury, unless it clearly appears that neither directly nor indirectly could he have been serving his employer.” ’ ”
(Farmers Ins. Group v. County of Santa Clara
(1995)
C. Plaintiffs Failed to Raise Triable Issues of Fact on Their Claims for Conversion and Breach of Fiduciary Duty
Because this is an appeal from a final judgment, we have jurisdiction to review the trial court’s prior grant of summary adjudication on plaintiffs’ claims for conversion and breach of fiduciary duty. (Code Civ. Proc., § 906;
Jennings
v.
Marralle
(1994)
*395 1. Conversion Claim
The trial court granted summary adjudication against plaintiffs on their conversion claim on the ground that plaintiffs, in effect, failed to identify a “definite sum” of money recеived by the Christensen Firm. Plaintiffs argue that the “definite sum” of money consists of the money that was removed from Laing’s residence that has not been recovered, the precise amount of which “is properly for a jury to determine.” We reject that contention.
“A cause of action for conversion requires allegations of plaintiff’s ownership or right to possession of property; defendant’s wrongful act toward or disposition of the property, interfering with plaintiff’s possession; and damage to plaintiff. [Citation.] Money сannot be the subject of a cause of action for conversion unless there is a specific, identifiable sum involved, such as where an agent accepts a sum of money to be paid to another and fails to make the payment. [Citation.]”
(McKell
v.
Washington Mutual, Inc.
(2006)
The tort of conversion is derived from the common láw action of trover. The gravamen of the tort is the defendant’s hostile act of dominion or control over a specific chattel to which the plaintiff has the right of immediate possession. (See generally, Rest.2d Torts, § 222A, com. a, p. 431; 1 Dobbs, The Law of Torts (2001), § 59, pp. 121-122.) That is why money can only be treated as specific property subject to being converted when it is “identified as a specific thing.”
(Baxter v. King
(1927)
*396
The California Supreme Court stated, “While it is true that money cannot be the subject of an action for conversion unless a specific sum capable of identification is involved [citation], it is not necessary that each coin or bill be earmarked.”
(Haigler v. Donnelly, supra,
California cases permitting an action for conversion of money typically involve, those who have misappropriated, commingled, or misapplied specific funds held for the benefit of others. (See, e.g.,
Haigler
v.
Donnelly, supra,
In contrast, actions for the conversion of money have not been permitted when the amount of money involved is not a definite sum.
(Vu v. California Commerce Club, Inc., supra,
In this case, plaintiffs may have stated a cause of action for conversion by alleging, in effect, an amount of cash “capablе of identification.”
(Haigler
v.
Donnelly, supra,
The evidence of the sum removed from Laing’s residence reflects amounts varying by millions of dollars. The uncertainty regarding the sum plaintiffs seek is exemplified by a statement of decision in a prior civil case, brought by plaintiffs against one of Laing’s associates, in which the trial judge found that Laing’s associates removed “at least 8” bags, each containing $450,000, for a sum of “at least $3.6 million.” That decision was submitted as evidence in this case. In this case, however, plaintiffs submitted a declaration of the receiver in opposition to the summary adjudication motion claiming that Laing’s associates removed “about $6.3 million, in cash, . . . which is consistent with the testimony that the bags held $500,000 each and there were about 12 bags.” Thus, plaintiffs could only estimate the amount of cash. The record is not sufficient to fulfill the requirement that if money is the subject of the conversion action, a specific sum be identified. The trial court properly granted summary adjudication on plaintiffs’ conversion claim.
2. Fiduciary Duty Claim
The trial court granted summary adjudication agаinst plaintiffs on their claim for breach of fiduciary duty on the ground that plaintiffs failed to prove that the Christensen Firm owed plaintiffs a fiduciary duty. We disagree with plaintiffs’ contention that the Christensen Firm would owe such a fiduciary duty if it or Shapiro received money from Laing’s residence that belonged to plaintiffs.
Plaintiffs rely on
Johnstone
v.
State Bar
(1966)
Plaintiffs argue, in essence, that Shapiro (and thus the Christensen Firm) stood in a fiduciary relationship with plaintiffs because plaintiffs are entitled to impose a сonstructive trust over the money received by Shapiro. (Civil Code, §§ 2223, 2224.) A constructive trust, however, is an equitable
remedy,
not a substantive claim for relief. “A constructive trust is an involuntary equitable trust created by operation of law as a remedy to compel the transfer of property from the person wrongfully holding it to the rightful owner. [Citations.] The essence of the theory of constructive trust is to prevent unjust enrichment and to prevent a person from taking advantage of his or her own wrongdoing. [Citations.]”
(Communist Party v. 522 Valencia, Inc.
(1995)
*399 DISPOSITION
The summary judgment in favor of the Christensen Firm is reversed. The summary adjudications against plaintiffs on their causes of actiоn for conversion and breach of fiduciary duty are affirmed. No costs are awarded.
Turner, P. J., and Armstrong, J., concurred.
Notes
We state the facts consistent with the rules that “we view the evidence in the light most favorable to plaintiffs" and “liberally construe plaintiffs’ evidentiary submissions and strictly scrutinize defendants’ own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiffs’ favor.”
(Wiener v. Southcoast Childcare Centers, Inc.
(2004)
In a viatical settlement, a beneficiary of a life insurance policy, the viator, assigns thе death benefits to the investor in exchange for cash equal to a discount of the value of the death benefit payable under the policy arid designates the investor as the irrevocable beneficiary under the policy. (See Black’s Law Dict. (8th ed. 2004) p. 1405, cols. 1-2.)
The Christensen Firm is a limited liability partnership. (Corp. Code, § 16101, subd. (8)(A)(iii)(I); see State Bar Limited Liability Partnership Rules and Regulations.) The individual partners in a registered limited liability partnership generally are not vicariously liable for partnership obligations that do not arise from the partner’s personal misconduct or guarantees. (Corp. Code, § 16306, subd. (c).)
We refer to Shapiro as a partner, whatever the nature of his relationship with the law firm. (See Rest.Sd Law Governing Lawyers, § 9, com. e, p. 90 [“Under some firm agreements, certain classifications of ‘partner’ (sometimes referred to as nonequity partners) may have no managerial power or participation in firm profits and thus be similar in some respects to senior employees”].) In some cases, the particular label plaсed upon the attorney may have legal ramifications (see
Chambers v. Kay
(2002)
There were suggestions of a possible settlement. We allowed the parties a period to present to us such a settlement. We have not received it.
The document, although unsigned by the client, presumably was prepared by the Christensen Firm and signed by Shapiro. Its relevance is to the relationship between Shapiro and the Christensen Firm in this representation.
See
Dow v. Jones
(D.Md. 2004)
Plaintiffs also assert that Laing’s associates delivered a bag containing $1 million to Shapiro in his office. The record does not support that claim.