Filed 12/27/23 Corlin v. Bry CA2/3

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

ADAM CORLIN,

Plaintiff and Appellant,

v.

RICHMAN BRY,

Defendant and Respondent.

B315560

(Los Angeles County

Super. Ct. No. SC123103)

ORDER MODIFYING OPINION

AND DENYING REQUEST FOR 

PUBLICATION AND PETITION FOR 

REHEARING

[NO CHANGE IN JUDGMENT]

BY THE COURT:

Appellant’s petition for rehearing, filed December 14, 2023,

is hereby denied. The December 15, 2023 request for publication 

of opinion filed by counsel for Appellant, Janice R. Mazur, is 

hereby denied.

It is further ordered that the opinion filed herein on 

November 29, 2023, is modified as follows:
2

On page 4 of the opinion, in the paragraph that begins, “In 

2012, through his certified public accountant, Cooper signed and 

filed the LLC’s federal 2011 tax return,” the words “signed and” 

are deleted. The word “federal” is deleted and replaced with 

“California.”

There is no change in judgment.

____________________________________________________________

EDMON, P. J. LAVIN, J. EGERTON, J.
Filed 11/29/23 Corlin v. Bry CA2/3 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 

8.1115(b). This opinion has not been certified for publication or ordered published for 

purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

ADAM CORLIN,

Plaintiff and Appellant,

v.

RICHMAN BRY,

Defendant and Respondent.

B315560

(Los Angeles County

Super. Ct. No. SC123103)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Craig D. Karlan, Judge. Affirmed.

Humphrey+Grant, James T. Grant, J. Scott Humphrey;

Mazur & Mazur and Janice R. Mazur for Plaintiff and Appellant.

Law Offices of Jonathan P. Chodos and Jonathan P. Chodos 

for Defendant and Respondent.

 ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳ ̳
2

INTRODUCTION

In 2011, plaintiff Adam Corlin and his friend Glenn Cooper 

agreed on a real estate venture to purchase and sell for profit a

residential property (the property) on Berkeley Street in Santa 

Monica. Cooper financed the venture and plaintiff managed the 

construction, for which he received $120,000; they agreed to 

share in the profit from the sale. Berkeley View, LLC (the LLC), 

created by Cooper, held title to the property. However, the 

purchase and renovation of the property was so costly that by the 

time the property was ready for a buyer, Cooper owed more than 

it was worth. Before the property was sold, Cooper passed away. 

Cooper’s widow then transferred the LLC to defendant Richman 

Bry, the lender whose loans funded the venture. In exchange, 

Bry forgave Cooper’s debts.

Plaintiff brought the present lawsuit for intentional 

interference with contractual relations against Bry, Cooper’s 

widow, and the LLC’s non-member manager. Plaintiff also 

alleged a cause of action to dissolve the LLC. Only the claims

against Bry and the LLC are at issue on appeal. The operative 

pleading alleged Bry knew plaintiff had a 50 percent membership 

interest in the LLC, unlawfully took over the LLC, interfered 

with the sale of the property to a third-party buyer, and then

encumbered and occupied the property. Following the first phase 

of a bifurcated bench trial, the trial court tentatively found 

plaintiff was a member of the LLC. Later, in issuing its 

statement of decision, the court held plaintiff was not a member 

of the LLC and entered judgment for Bry.

On appeal, plaintiff argues the court lacked authority to

change its tentative ruling. Plaintiff also asserts that as a matter 

of law, he was a member of the LLC or, alternatively, was in a 
3

partnership with the LLC. We affirm because the trial court 

acted within its inherent authority to reconsider its interim 

ruling, both the record and the law support the court’s finding 

that plaintiff was not a member of the LLC, and plaintiff failed to 

advance the partnership theory below. 

FACTUAL AND PROCEDURAL BACKGROUND

I. The Real Estate Venture

In 2011, plaintiff and Cooper orally agreed to purchase, 

renovate, and sell the property. This was their third houseflipping project.

1 As with their previous projects, plaintiff, a 

contractor, handled the design and renovation, and Cooper 

financed the project. For his work, plaintiff received a 

construction supervision fee of $120,000.2

In May 2011, through attorney Alan Carnegie, Cooper 

created the LLC to hold title to the property. Carnegie 

communicated with both Cooper and plaintiff in connection with

preparing and filing documents with the Secretary of State, 

which listed Cooper as the LLC’s managing member. The 

documents did not identify how many members were in the LLC.

In June 2011, the LLC purchased the property for 

$1,553,546. Cooper declared in an affidavit submitted to the title 

company that the LLC “was just formed and there is no 

1 For their first project, they formed an LLC. They 

conducted their second project as a partnership.

2 In December 2011 and March 2012 emails to plaintiff, 

Cooper indicated the construction supervision fee was an advance 

as against plaintiff’s share of the profits, not additional 

compensation.
4

Operating Agreement and . . . I am the only Member and 

Managing Member . . . .” For the purchase, Cooper contributed 

his own funds and borrowed $1.4 million from Bry, secured by a 

deed of trust on the property recorded in favor of Bry. The 

property was the LLC’s sole asset. Cooper also borrowed 

additional funds from Bry for the renovation.

In the summer of 2011, Cooper sought to refinance the 

property with City National Bank. In applying for the loan, he 

provided the bank with a copy of the LLC’s operating agreement,

which listed Cooper as the 100 percent member and his brotherin-law, Richard Geisman, as the non-member manager. In 

September 2011, Cooper turned down the City National Bank 

loan and opted to stay with Bry’s funding.

In 2012, through his certified public accountant, Cooper

signed and filed the LLC’s federal 2011 tax return, indicating 

Cooper was the LLC’s sole member. Cooper checked the box 

stating “This LLC is not in a partnership with any other entity.”

In April 2012, the property was listed for sale and 

marketed.

3 In late November 2012, a buyer offered $3,695,000 

for the property, but cancelled the offer in December 2012.

On January 3, 2013, Cooper passed away. On January 18, 

2013, a second potential purchaser submitted a $3.4 million offer 

to purchase the property. This offer was not accepted. Plaintiff

believed this buyer would eventually offer $3.5 million.

On January 31, 2013, Bry purchased the LLC from 

Cooper’s widow. In exchange, Bry forgave Cooper’s debts.

During negotiations for the sale, Cooper’s lawyer, Todd Grayson,

3 However, the house was incomplete and there was no 

certificate for occupancy even by January 2013.
5

gave Bry the LLC’s operating agreement, dated May 15, 2011. 

On several pages, Cooper appeared to have signed in his capacity 

as president of his corporation, G.H. Cooper Properties, Inc. 

However, the document identified Cooper (not G.H. Cooper 

Properties, Inc.) as the sole member of the LLC. Geisman also 

signed the agreement as non-member manager of the LLC.

By the time of Bry’s purchase, the real estate venture had 

cost at least $3,746,000, including interest from the loans.

II. Plaintiff’s Lawsuit 

In 2014, plaintiff filed a complaint against Cooper’s widow

and unnamed Doe defendants. In his first amended complaint, 

plaintiff added allegations against Bry and Geisman (the nonmember manager of the LLC), and sought involuntary dissolution 

and winding up of the LLC. After successive demurrers, plaintiff

filed the fourth amended complaint (4AC), the operative pleading 

at trial.

The 4AC alleged contractual interference and sought to 

dissolve the LLC. Plaintiff alleged that in mid-June 2011, he and 

Cooper signed an operating agreement for the LLC, which stated 

he and Cooper each owned 50 percent of the LLC. Plaintiff did 

not retain a copy of the executed operating agreement, but 

Cooper maintained the original in Cooper’s office. Plaintiff found 

an unsigned copy of the operating agreement in a box in his 

garage in May 2014, while preparing for this litigation. (For ease 

of discussion, we refer to this operating agreement as the “garage 

agreement,” as the parties did below.) Per the garage agreement, 

in consideration for his “sweat equity” supervising renovations at 

the property, plaintiff was to receive both a construction 

supervision fee equal to 10 percent of the total cost of 

construction (up to $150,000) and 50 percent of the net profit 
6

generated by the lease and/or sale of the property. Plaintiff 

asserted that Bry interfered with plaintiff’s rights under the 

garage agreement by preventing the sale of the property to the 

buyer who had offered $3.4 million and by purchasing the 

property for himself.

The court would later explain that the inconsistencies 

between the five iterations of plaintiff’s complaints led the court 

to doubt plaintiff’s credibility in asserting the existence of the 

garage agreement. Without explanation, plaintiff inflated his 

construction supervision fee from $125,000 in the original 

complaint to $150,000 in the 4AC. The original complaint alleged 

plaintiff “believed” the LLC was governed by a signed operating 

agreement. Yet, the 4AC asserted that plaintiff signed the 

garage agreement in Cooper’s office and that he periodically saw 

the agreement in a tan folder in Cooper’s filing cabinet.

III. The Bench Trial 

Prior to trial, plaintiff dismissed with prejudice his claims 

against Cooper’s widow and Geisman. Bry was the only 

defendant involved in the bench trial and subsequent 

proceedings.

Plaintiff and Bry stipulated to a bifurcated trial. In the 

first phase, the court would decide what kind of contractual 

relationship existed between plaintiff and Cooper regarding the 

development of the property. If successful in proving his 

membership in the LLC, plaintiff could elect to proceed with a 

bench trial on his dissolution claim, or with a jury or bench trial 

to determine Bry’s liability on the contractual interference claim.

In November 2018, the trial court heard two days of 

testimony and admitted evidence in the first phase bench trial.

Central to the dispute were three operating agreements: (1) the
7

garage agreement, (2) the signed operating agreement Cooper 

furnished City National Bank (the CNB agreement) when he 

sought to refinance, and (3) the signed operating agreement Bry 

received from Grayson when in negotiations to purchase the LLC

(the Grayson agreement).

a. Plaintiff’s Case

The Garage Agreement. Plaintiff testified that on May 

26, 2011, he and Cooper executed the garage agreement, which 

created the LLC to hold title to the property. The garage 

agreement identified plaintiff and Cooper as 50 percent members 

of the LLC. Plaintiff asserted Cooper stored the signed 

agreement in Cooper’s garage office, but Cooper’s associates

destroyed it after his death. Plaintiff testified he found an 

unsigned copy of the garage agreement in storage prior to filing 

his complaint.

Carnegie, the lawyer who prepared and filed the LLC’s 

articles of incorporation, testified he was under the impression 

that Cooper and plaintiff were both members of the LLC, but he 

did not see the operating agreement. Plaintiff had told Carnegie 

he wanted a two-member LLC. The articles filed with the 

Secretary of State did not specify the number of members but 

solely identified Cooper as the managing member.

The real estate agent Cooper used to purchase the property 

and the senior vice president of the real estate division at City 

National Bank both testified they believed plaintiff and Cooper 

were partners.

The CNB Agreement. Plaintiff testified that after the 

garage agreement was executed, Cooper had contemplated 

making it a single member LLC in order to refinance the property 

with City National Bank. Cooper created and signed the CNB 
8

agreement, which showed the LLC had only one member, and 

provided it to the bank. Plaintiff argued that conversion to a 

single member LLC was never realized because Cooper declined 

the City National Bank loan, opting to maintain Bry’s funding.

Plaintiff also presented evidence that around the time Cooper 

sought a loan from City National Bank, Cooper had drafted 

another agreement to create a partnership between the LLC and 

plaintiff. Plaintiff asserted this partnership agreement was not 

finalized because the single-member LLC was never formed 

under the CNB agreement.

The Grayson Agreement. Plaintiff contended the final 

operating agreement—the Grayson agreement—was fraudulent. 

The material difference between the Grayson agreement and the 

CNB agreement was that the Grayson agreement indicated the 

LLC’s sole member was Cooper’s corporation, not Cooper. 

Plaintiff’s theory was that Grayson (Cooper’s attorney) altered 

the single-member CNB agreement to create the forged Grayson 

agreement, which Grayson presented to Bry in negotiating the 

sale of the LLC for Cooper’s widow. In that vein, plaintiff elicited 

testimony from a handwriting expert who stated Cooper may not 

have been the one who wrote two of the three signatures in the 

Grayson agreement.

Plaintiff also examined Geisman and Grayson, both of 

whom were instrumental in preparing documents to transfer the

LLC to Bry. Neither Geisman nor Grayson was forthcoming in 

their testimony, testifying they did not recall significant events. 

The court opined they lacked credibility and appeared to have

forged the Grayson agreement to protect Cooper’s widow.
9

b. Bry’s Case

Bry testified that when he was in negotiations to purchase 

the LLC, Cooper’s attorney, Grayson, represented that plaintiff 

had no membership interest. When plaintiff told Bry he was a 50

percent member, Bry asked for documentation of plaintiff’s 

interest in the LLC, which plaintiff could not provide. Grayson 

subsequently gave Bry the May 15, 2011 operating agreement, 

which showed that either Cooper or Cooper’s corporation, G.H. 

Cooper Properties, Inc., was the LLC’s sole member. Bry 

believed he purchased the LLC clear and free of plaintiff’s 

interest based on (1) the LLC’s tax return showing it was entirely 

owned by Cooper, (2) repeated statements from the Cooper family 

that it was the 100 percent owner of the LLC, and (3) the 

operating agreement, which stated Cooper was the sole owner.

Bry elicited testimony from Cooper’s accountant, who in 

September 2012, filed the LLC’s 2011 tax returns. Those tax 

returns stated that Cooper was the sole member of the LLC, and 

that the LLC was “not in a partnership with any other entity.”

c. Tentative Decision

On May 29, 2019, the court heard closing arguments and 

issued a tentative decision, finding by a preponderance of the 

evidence that plaintiff was a 50 percent member of the LLC. The 

court did not specify which version of the operating agreement 

controlled.

IV. Stay for Valuation Proceeding

After the court issued its tentative decision, Bry served and 

filed a notice of election to buy out plaintiff’s 50 percent interest 

in the LLC pursuant to the Corporations Code. Plaintiff objected,

moved to strike Bry’s notice of election, and filed a notice of 

election to pursue his fourth cause of action to dissolve the LLC. 
10

The court denied plaintiff’s motion to strike Bry’s notice of 

election and stayed the second phase of the trial pending a

separate valuation proceeding pursuant to Corporations Code 

section 17707.03, subdivision (c)(2).4

After much dispute between the parties, the trial court 

established January 31, 2013 as the date of valuation. In midMarch 2021, the court conducted an appraisal hearing after 

reviewing valuations from the court-appointed neutral appraiser 

and the parties’ appraisers. The court adopted the findings of the 

neutral appraiser and the appraiser nominated by Bry that the 

value of plaintiff’s membership interest in the LLC as of January 

31, 2013, was either less than zero, or at best, one dollar. Those 

appraisers found the purchase and renovation costs for the 

property were at least $197,836 more than its fair market value 

as of the valuation date. The court found plaintiff’s interest did 

not have positive value and ordered Bry to prepare a judgment 

and final decree.

V. Statement of Decision

Plaintiff requested that the trial court issue a statement of 

decision addressing the basis for its decision that plaintiff was a 

member of the LLC. After reviewing the evidence, the court 

4 All subsequent statutory references are to the Corporations 

Code.

Section 17707.03 permits a court to order the dissolution of 

a limited liability company at the request of a member. Pursuant 

to subdivision (c)(2) of that section, if a member elects to 

purchase the other member’s ownership interest, the court is 

required to stay the dissolution proceedings for a determination 

of the fair market value of the membership interests.
11

concluded there was insufficient evidence to find that plaintiff 

was a member of the LLC. In April 2021, the court notified the 

parties of its decision to reverse course. Bry then submitted a 

proposed statement of decision and plaintiff filed his objections to 

it.

The court prepared its own 28-page statement of decision, 

thoroughly discussing the history of the case and its finding that 

plaintiff was not a member of the LLC. The court found that 

plaintiff had an oral agreement with Cooper to split the proceeds 

of the sale, that the money given to plaintiff at the inception of 

the project was an advance on these sale proceeds, and that 

Cooper subsequently created the LLC to hold title to the 

property. Plaintiff was neither a member of the LLC nor in a 

partnership with the LLC. Plaintiff therefore failed to prove his 

claims for intentional interference with contractual relations or 

dissolution of the LLC, because both were premised on plaintiff 

being a member of the LLC under the garage agreement.

The court meticulously explained its findings. Because the 

court’s statement of decision is the focus of plaintiff’s arguments 

on appeal, we quote the court’s decision at length: 

[T]he Court herein finds [plaintiff] has failed to 

meet his burden of proof that he is a member of 

Berkeley View, LLC. Nor was there any credible

evidence that [plaintiff] entered into a partnership or 

joint venture with the LLC. The pleadings and the 

evidence clearly show that [plaintiff] and Cooper 

entered into the Project based on an oral agreement 

between [plaintiff] and Cooper, and that “[t]he joint 

venture legal structure did not matter to [plaintiff]

because he trusted Cooper, [and] had received 

numerous writings from Cooper acknowledging the 

50/50 split of proceeds from the exploitation of the 
12

developed project.” . . . A “50/50 split of proceeds from 

the exploitation of the developed project” is precisely 

what the evidence shows and nothing further. 

Again, in reaching this conclusion, the Court 

finds that the unsigned Garage Agreement . . . does 

not reflect the terms of the agreement between 

[plaintiff] and Cooper and is therefore not the LLC 

Operating Agreement. It does not make sense that 

[plaintiff] would get paid up to $150,000 for 

supervising construction (his contractor’s license was 

suspended) and receive 50 percent of the equity in the 

Project, as per his testimony and the Garage 

Agreement. Again, [emails from Cooper to plaintiff]

directly contradict the Garage Agreement and 

[plaintiff]’s testimony to that effect. [¶] . . . [¶]

In addition, the Court finds it significant that 

there is no mention of the signed LLC Operating 

Agreement or . . . the unsigned Garage Agreement[] in 

either the original [complaint] or the First Amended 

Complaint, even though Plaintiff testified he located 

the Garage Agreement sometime in May 2014 when 

preparing for this litigation. To the contrary, in his 

[original c]omplaint, filed four months later, on 

September 10, 2014, at paragraph 30, [plaintiff] states 

“it is at this time [June 28, 2011] that [plaintiff]

believes he and [Cooper] executed an operating 

agreement for Berkeley View, LLC.” The Court is 

troubled by the failure of Plaintiff to specifically 

identify the Garage Agreement in his [original 

c]omplaint as the Operating Agreement he and Cooper 

signed, especially given his claim that he had, by that 

time, already located it in his garage. 
13

Equally problematic is the juxtaposition of the 

above statement, i.e., [plaintiff] ‘believes he and 

[Cooper] executed an operating agreement for 

Berkeley View, LLC,’ with [plaintiff]’s position in the 

[4AC], that in mid-June 2011, he “signed the Berkeley 

Operating Agreement in [Cooper’s] office and gave the 

original back to [Cooper],” and in the [third amended 

complaint] that he saw the LLC Operating Agreement 

in Cooper’s office on January 5, 2013, two days after 

Cooper [died].

Simply put, it is difficult to reconcile these 

inconsistent allegations. Nor is it clear how greater 

clarity arrived after multiple demurrers had been 

sustained. 

The Court finds [plaintiff]’s allegation in the 

[second amended complaint] to be far more likely true 

than any of the others, i.e., that “[t]he joint venture 

legal structure did not matter to [plaintiff] because he 

trusted Cooper, had received numerous writings from 

Cooper acknowledging the 50/50 split of proceeds from 

the exploitation of the developed project . . . .”

In addition, . . . the operating agreement 

presented to City National Bank as the operating 

agreement for the LLC, presents yet another hurdle 

[plaintiff] failed to surmount. According to [plaintiff], 

even though Cooper submitted this ‘alternative’

operating agreement to [City National Bank], it did 

not go into effect because Cooper ultimately chose not 

to accept the City National Bank offer. 

The Court does not condone picking and 

choosing agreements as it suits the parties. Nor does 

the Court believe in legal fictions. When the City 
14

National Bank proposal was submitted with Plaintiff’s

knowledge, to the extent there was a Garage 

Agreement, it was vitiated. 

As such, and for all the above reasons, the Court 

finds that the Garage Agreement did not control the 

relationship between Cooper and [plaintiff] at the time 

of Cooper’s death or any other time. . . . 

Pursuant to this analysis, the Court 

acknowledges that one possibility is the [CNB]

agreement was in force and effect at the time of 

Cooper’s passing. If this were the case, [plaintiff]’s 

claims necessarily fail because he is not a member of 

the LLC under that agreement. 

Far more likely, though, is there was solely an 

oral agreement between Cooper and [plaintiff]; 

wherein the two friends agreed to a “50/50 split of [the] 

proceeds from the exploitation of the developed 

project.” Unfortunately, this, too, is problematic for 

several reasons. First, in the bench trial, counsel for 

[plaintiff] expressly represented to the Court that he 

was not relying on any type of oral agreement or 

partnership agreement but was instead relying on the 

Garage Agreement. . . . 

Second, and regardless of any representation by 

counsel that no claim based on an oral agreement was 

being advanced, if Plaintiff’s only retreat is to a claim 

based on an oral agreement between him and the 

deceased, then such a claim is barred either by Code of 

Civil Procedure section 366.2 or [plaintiff]’s failure to 

bring any such claim under the applicable provisions 

of the Probate Code, let alone such a claim in this 

action.
15

This case proceeded to trial with [plaintiff]

(1) alleging in the pleadings, (2) representing to the 

Court at the inception of trial; and (3) arguing at the 

conclusion of the first phase of the trial that he was a 

50 [percent] member of Berkeley View, LLC, based on 

the Garage Agreement, an argument which the Court 

herein rejects. There is no allegation in any of the five 

iterations of the complaint, nor was any credible 

evidence presented, that [plaintiff] entered into an 

oral partnership agreement with the LLC, or that one 

was proposed. Thus, the only plausible agreement 

relating to the Project, based on the evidence 

presented at trial, is that an oral agreement was 

reached between [plaintiff] and Cooper, one which 

[plaintiff] chose not to pursue in litigation.

The trial court also held that plaintiff could not prove 

damages based on the prior valuation proceeding showing that 

plaintiff had no positive interest in the LLC. The court concluded 

that because plaintiff failed to prove he had a membership 

interest in the LLC and could not prove damages, plaintiff had no 

viable cause of action for tortious interference with contractual 

relations or for dissolution of the LLC.

On September 28, 2021, the court entered judgment in 

favor of Bry. Plaintiff timely appealed.

DISCUSSION

“In reviewing a judgment based upon a statement of 

decision following a bench trial, we review questions of law de 

novo. [Citation.] We apply a substantial evidence standard of 

review to the trial court’s findings of fact. [Citation.] Under this 

deferential standard of review, findings of fact are liberally 

construed to support the judgment and we consider the evidence 
16

in the light most favorable to the prevailing party, drawing all 

reasonable inferences in support of the findings.” (Thompson v. 

Asimos (2016) 6 Cal.App.5th 970, 981.) As the reviewing court, 

we do not reweigh evidence or assess witness credibility. (Ibid.)

The crux of this case is whether plaintiff had a membership 

interest in the LLC. Without a membership interest, he lacked

standing to litigate claims for interfering with his rights under 

the LLC’s operating agreement or for dissolution of the LLC. 

(See Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1148 [“To prevail 

on a cause of action for intentional interference with contractual 

relations, a plaintiff must plead and prove . . . the existence of a 

valid contract between the plaintiff and a third party”]; 

§ 17707.03 [manager or member may bring action for judicial 

dissolution of LLC].)

Plaintiff makes two arguments about the court’s 

membership finding. First, plaintiff asserts the trial court lacked 

authority to change its tentative decision that plaintiff was a 

member. Second, plaintiff asserts that, as a matter of law, he 

was a member of the LLC or in a partnership with the LLC. We 

address each in turn.

I. The Trial Court Had Inherent Authority to 

Reconsider Its Interim Ruling on Plaintiff’s Status as 

a Member of the LLC

Plaintiff contends that “as a matter of law, procedural due 

process and fundamental fairness, the court had no authority to 

change its phase one bifurcated trial ruling that [plaintiff] is a 

member of [the LLC] two-and-a-half years later, after [plaintiff]

made an election to dissolve [the LLC] based on the court’s 

ruling.”
17

We disagree. It is well established that the trial court 

possesses inherent authority to reconsider its own interim orders 

prior to entry of final judgment. (Le Francois v. Goel (2005) 

35 Cal.4th 1094, 1106–1108.) Further, California Rules of Court,

rule 3.1590(b) makes clear: “The tentative decision does not 

constitute a judgment and is not binding on the court. If the 

court subsequently modifies or changes its announced tentative 

decision, the clerk must serve a copy of the modification or 

change on all parties that appeared at the trial.” 

“[W]here a matter is tried to the court as here, the trial 

judge has broad discretion to reopen the matter prior to final 

judgment, even over the objection of the litigants. ‘Within 

reasonable limits, it is not only the right but the duty of a trial 

judge to clearly bring out the facts so that the important 

functions of his office may be fairly and justly performed.

[Citations.] For the same reason the trial judge is not to be 

unduly and unreasonably hampered in his control or conduct of 

the trial.’ [Citations.] . . . [T]he trial court may sometimes even 

need to vacate a prior formal order on a matter and consider 

additional new evidence in light of the applicable legal theory.” 

(Coit Drapery Cleaners, Inc. v. Sequoia Ins. Co. (1993) 14 

Cal.App.4th 1595, 1611 (Coit Drapery).)

The Supreme Court has explained that the trial court’s 

authority to reconsider interim rulings “derives from the 

judiciary’s fundamental, constitutionally mandated function to 

resolve specific controversies between parties.” (Brown, Winfield 

& Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1248

(Brown).) To preserve procedural fairness, when the trial court 

chooses to reconsider an interim ruling, the court “must provide 

the parties ‘notice that it may do so and a reasonable opportunity 
18

to litigate the question.’ ” (Ibid.) “ ‘ “All that fairness requires is 

that the new theory, which the judge decides is the correct one, be 

disclosed to the opposing party so that he may have a full 

opportunity to meet it.” ’ [Citations.] Such a procedure, while 

admittedly very unusual, does not violate the litigants’ rights 

when adequate notice is given, as here—and may, in fact, be 

required in order to reach a just result.” (Coit Drapery, supra,

14 Cal.App.4th at pp. 1611–1612.)

Here, the court informed the parties of its intention to 

modify its earlier tentative and gave the parties an opportunity 

to respond. Plaintiff filed a 32-page brief, which challenged the 

court’s newly changed findings, and submitted dozens of exhibits. 

The court then addressed plaintiff’s arguments in its final 

statement of decision. We conclude the court afforded plaintiff 

due process. (See Brown, supra, 47 Cal.4th at p. 1248.) 

In asserting the court lacked authority to change its 

tentative statement of decision, plaintiff cites Arntz Contracting 

Co. v. St. Paul Fire & Marine Ins. Co. (1996) 47 Cal.App.4th 464,

and Orange County Water Dist. v. Alcoa Global Fasteners, Inc.

(2017) 12 Cal.App.5th 252. Neither case addresses the trial 

court’s power to change its prior tentative findings of fact or 

conclusions of law, let alone holds that a trial court may not do 

so. Rather, these cases address the impact of earlier findings 

made in a bifurcated trial. (See Arntz, at p. 487, and Orange 

County Water Dist., at p. 355, fn. 52.) 

Plaintiff also argues that “the ruling became final in June 

2019 when the court required [plaintiff] to elect between his two 

pled claims.” First of all, plaintiff cites no authority to support 

his legal conclusion that a tentative from a first phase of trial 

becomes final because a party elects to proceed to the second 
19

phase of trial on a particular cause of action. To the contrary, 

California Rules of Court rule 3.1591(c) states, “A judge may 

proceed with the trial of subsequent issues before the issuance of 

a statement of decision on previously tried issues.”

Second, plaintiff mischaracterizes the record. Plaintiff was 

not forced by the court to choose whether to pursue a particular 

cause of action, nor did the court’s decision corner him into a 

particular trial strategy. Regardless of which cause of action 

plaintiff pursued, he necessarily needed to prove he was a 

member of the LLC. Notably, it was only after Bry’s election to 

buy out plaintiff’s membership interest that plaintiff sought to 

proceed on his dissolution claim.

In sum, the trial court acted well within its inherent 

authority to reconsider interim orders prior to entry of final 

judgment. By noticing its intent to reverse its tentative and 

giving plaintiff the opportunity to be heard prior to its final 

ruling, the court ensured fairness and that plaintiff was afforded 

due process.

II. The Trial Court Did Not Err in Finding Plaintiff Was 

Not a Member of the LLC

In his opening brief, plaintiff “acknowledges that at the 

Phase One trial, there was substantial evidence presented on 

both sides” of the issue of whether plaintiff was a member of the 

LLC. We agree. The evidence at trial included two signed 

agreements identifying the LLC as a single-member company, 

statements made by Cooper under penalty of perjury to the 

Internal Revenue Service and title company that he was the sole 

member, and plaintiff’s inconsistent pleadings that created doubt 

about plaintiff’s credibility.
20

Nonetheless, plaintiff asserts that as “as a matter of law” 

he is a member of the LLC. In support, plaintiff urges that the 

trial court found plaintiff “and Cooper ‘unquestionably’ agreed to 

be 50-50 partners in the real estate venture.” Plaintiff concludes 

that as partners, plaintiff and Cooper created the LLC to hold 

title to the “partnership asset,” the property. Plaintiff argues 

that once the LLC was created, plaintiff “as a matter of law had a 

legal relationship with” the LLC.

We are unpersuaded, as plaintiff mischaracterizes the 

record and the law. First, the trial court did not find plaintiff and 

Cooper were in a partnership. While the court stated plaintiff

“has unquestionably proven he and Cooper had an agreement to 

split the net ‘proceeds from the exploitation of the developed 

project,’ ” the court did not find plaintiff and Cooper entered into 

a partnership. Second, at trial, plaintiff “expressly represented to 

the Court that he was not relying on any type of oral agreement 

or partnership agreement but was instead relying on the Garage 

Agreement.” Third, the court never found that plaintiff had a 

role in creating the LLC. The court instead found that Cooper 

made a single-member LLC, independent of plaintiff.

Fourth, plaintiff jumps to the conclusion that the property 

is “partnership property.” We do not agree. Under section 16204, 

subdivision (d), “[p]roperty acquired in the name of one or more of 

the partners, without an indication in the instrument 

transferring title to the property of the person’s capacity as a 

partner or of the existence of a partnership and without use of 

partnership assets, is presumed to be separate property, even if 

used for partnership purposes.” Even if we were to assume the 

existence of a partnership, there is no evidence the property was 

a partnership asset. Nothing on the deed indicates the property 
21

is a partnership asset. Further, Cooper acquired the property in 

the name of his single-member LLC, partly by spending his own 

assets and partly by taking on a large amount of debt for which 

he was solely liable.

For all of these reasons, we reject plaintiff’s argument that 

he was a member of the LLC as a matter of law.

III. Plaintiff Cannot Now Pursue a Partnership Theory, 

Which Was Not Alleged or Argued at Trial

To the extent plaintiff contends on appeal he was in a 

partnership with the LLC, he did not plead a partnership with 

the LLC in any complaint or pursue this theory at trial. The 4AC

solely alleged that plaintiff was a member of the LLC.

At trial, plaintiff told the court that he was not relying on 

an oral agreement or a partnership agreement. The court asked 

plaintiff’s counsel: “So you’re not going to be taking an 

inconsistent position that there was a partnership?” Plaintiff’s 

counsel responded: “You are correct. You are correct. So that 

was the alternative track that didn’t happen.” Plaintiff relied 

entirely on the garage agreement to prove his membership in the 

LLC.

One of plaintiff’s PowerPoint slides presented during 

closing arguments stated: “The two competing issues to be 

decided in the First Phase Bench Trial are: (1) Were [plaintiff]

and Cooper the two individual members of [the] LLC when 

Cooper died in January 2013, as plaintiff . . . contends? or (2) Was 

[Cooper’s corporation, G.H. Cooper Properties, Inc.] the sole 

member of [the] LLC with Geisman its ‘non-member manager’ 

when Cooper died in January 2013, as defendant Bry contends? 

. . . Based on the preponderance of the evidence, the substantial 

trial evidence shows that [plaintiff] and Cooper were each 
22

individual members of [the] LLC. Conversely, the evidence does 

not show that [G.H. Cooper Properties, Inc.] was the sole member 

of [the] LLC, and that Geisman was its non-member manager.”

As the trial court summarized in its statement of decision:

There is no allegation in any of the five 

iterations of the complaint, nor was any credible 

evidence presented, that [plaintiff] entered into an 

oral partnership agreement with the LLC, or that one 

was proposed. Thus, the only plausible agreement 

relating to the Project, based on the evidence 

presented at trial, is that an oral agreement was 

reached between [plaintiff] and Cooper, one which 

[plaintiff] chose not to pursue in litigation.

It is well settled that “ ‘the theory upon which a case is 

tried must be adhered to on appeal. A party is not permitted to 

change his position and adopt a new and different theory on 

appeal. To permit him to do so would not only be unfair to the 

trial court, but manifestly unjust to the opposing litigant.’ ” 

(Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 

874.) “Despite this general rule, courts have discretion to 

consider a new theory on appeal if it involves a legal question 

based on undisputed facts.” (Vasquez v. SOLO 1 Kustoms, Inc.

(2018) 27 Cal.App.5th 84, 96.)
23

Plaintiff’s partnership argument challenges the judgment 

on a theory not advanced below, and presents not just a question 

of law, but a question of fact. Accordingly, we will not consider 

this partnership theory on appeal.5

5 Plaintiff raises many other issues on appeal that presume 

he has a membership interest in the LLC. We decline to address 

these as plaintiff is not a member of the LLC and therefore lacks 

standing to pursue them. (See Mendoza v. JPMorgan Chase 

Bank, N.A. (2016) 6 Cal.App.5th 802, 809 [“Standing is a 

threshold issue necessary to maintain a cause of action.”].) We 

also decline to address whether plaintiff’s potential claim against 

Cooper’s estate is barred by the statute of limitations because

this issue was not properly before the trial court (plaintiff had not 

filed claims against Cooper’s estate) and is therefore not ripe for 

our discussion. (See Vandermost v. Bowen (2012) 53 Cal.4th 421, 

452 [“ ‘The ripeness requirement, a branch of the doctrine of 

justiciability, prevents courts from issuing purely advisory 

opinions.’ ”].)
24

DISPOSITION

The judgment is affirmed. Defendant Richman Bry is

awarded his appellate costs.

NOT TO BE PUBLISHED IN THE OFFICIAL 

REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

EGERTON, J.