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Filed 7/14/21 Mulberg v. Amster CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION ONE

FRANK MULBERG,

Plaintiff and Appellant,

v.

PATRICIA DAVIS DANEMAN 

AMSTER,

Defendant and Respondent.

 A158954

 (Marin County

 Super. Ct. No. CIV 1703628)

Plaintiff Frank Mulberg, a licensed attorney appearing in propria 

persona, appeals from a posttrial judgment the trial court entered in favor of 

defendant Patricia Amster after it rejected all six causes of action Mulberg 

alleged in his complaint.

1 The court rejected three of the causes based on its

finding that Amster paid Mulberg $62,820 for attorney fees she owed him in 

her individual capacity. We agree with Mulberg that substantial evidence 

does not support this finding, and we therefore reverse the court’s rulings on 

those three causes and remand for further proceedings. We otherwise affirm.

1 For purposes of simplicity we refer to the six claims as causes of 

action although, as we explain further below, some are more accurately 

described as “common counts.”
2

I.

BACKGROUND

The parties have spent years litigating various disputes. This one 

arose after Amster hired Mulberg from 2008 to 2012 to help her with matters 

related to an anticipated inheritance. During this time, Amster paid Mulberg 

for some, but not all, of the attorney fees incurred. 

When her mother died in 2011, Amster inherited property titled in a 

trust and, with the apparent authority to do so, she appointed Mulberg as 

trustee. It is uncontested that, as the trial court found, Mulberg used trust 

funds to pay himself the attorney fees that Amster incurred in her individual 

capacity. Specifically, Mulberg used trust assets to pay himself $35,000 in 

October 2011 and $27,819.75 in January 2012. The total amount was 

$62,819.75, which we, as do the parties, round to $62,820. After Mulberg 

made these payments to himself, he sent Amster a statement in April 2012 

notifying her that her individual attorney fees had been paid in full. 

In 2013, the parties’ relationship deteriorated, and in 2014 probate 

proceedings were initiated, with Amster petitioning to remove Mulberg as 

trustee, and Mulberg cross-petitioning to challenge Amster’s right to remove 

him and to seek approval of the estate’s accounts. A probate trial was held in 

2015, and one of the main issues was whether Mulberg had paid himself 

excessive trustee fees, which the evidence showed amounted to over

$500,000. In its ruling, the probate court removed Mulberg as trustee, 

approved a trustee fee for him of $227,897.59, representing “1% of the total 

trust corpus per annum,” and ordered him to return—in what the parties 

refer to as a “surcharge”—more than $200,000 to the estate.2

2 The exact amount Mulberg was ordered to return is immaterial for 

purposes of this appeal. The trial court found that the amount was 

$226,222.16, while Mulberg insists that it was $267,222.16. 
3

Mulberg appealed, and we affirmed the probate court’s decision. 

(Amster v. Mulberg (Nov. 18, 2016, A146374) [nonpub. opn.].) Mulberg 

thereafter reimbursed the estate the amount ordered, with interest.

3 He then

sent Amster a new bill for the $62,820, plus interest. After Amster refused to 

pay, Mulberg filed this suit. In his complaint, he asserted six causes of 

action: promissory fraud, breach of contract, account stated, open book 

account, quantum meruit, and unjust enrichment. Amster answered with a 

general denial, and she also asserted 33 affirmative defenses. 

After a bench trial, the trial court ruled against Mulberg on all his 

causes of action, and it therefore did not consider Amster’s affirmative 

defenses. The court then entered judgment in Amster’s favor. 

II.

DISCUSSION

A. The Standards of Review

We review factual determinations made after a trial for substantial 

evidence. In doing so, “[o]ur authority begins and ends with a determination 

as to whether, on the entire record, there is any substantial evidence, 

contradicted or uncontradicted, in support of the judgment.” (Howard v.

Owens Corning (1999) 72 Cal.App.4th 621, 630–631.) The testimony of a 

single witness may constitute substantial evidence in support of the 

judgment. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) “Even in cases 

where the evidence is undisputed or uncontradicted, if two or more different 

inferences can reasonably be drawn from the evidence this court is without 

power to substitute its own inferences or deductions for those of the trier of 

fact, which must resolve such conflicting inferences in the absence of a rule of 

3 Mulberg satisfied the probate judgment in March 2017. Thus, he

“had full compensation for his services (and use of the [$62,820]) for more 

than five years” before the money was returned to the estate.
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law specifying the inference to be drawn. We must accept as true all evidence 

and all reasonable inferences from the evidence tending to establish the 

correctness of the trial court’s findings and decision, resolving every conflict 

in favor of the judgment.” (Howard, at p. 631.) To the extent the trial court’s 

determinations rest on purely legal issues, our review is de novo. (Snow v.

Woodford (2005) 128 Cal.App.4th 383, 393.)

B. The Trial Court Properly Rejected Mulberg’s Cause of Action for 

Promissory Fraud.

In its ruling, the trial court rejected Mulberg’s claim of promissory 

fraud, finding “no proof of [Amster’s] fraudulent intent.” Mulberg argues that 

this ruling was erroneous because he proved all the claim’s elements. We 

perceive no error.

The elements of fraud “ ‘are (a) misrepresentation (false representation, 

concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); 

(c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and 

(e) resulting damage.’ ” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)

“ ‘Promissory fraud’ is a subspecies of the action for fraud and deceit. A 

promise to do something necessarily implies the intention to perform; hence, 

where a promise is made without such intention, there is an implied 

misrepresentation of fact that may be actionable fraud.” (Ibid.) 

The trial court found that Amster intended to fulfill her obligation to

pay her individual attorney fees to Mulberg. This finding is supported by 

substantial evidence, which includes the undisputed evidence that Amster 

had been making payments on the fees she owed and that trust assets were 

used to pay off that amount before the probate court ordered the money

returned to the estate as part of the surcharge. Although the extent of 

Amster’s acquiescence in Mulberg’s use of the trust funds to pay the 

individual fees obligation is contested, Mulberg stated that Amster approved 
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the trust payment, and no evidence was presented that Amster disapproved 

of it at the time it was made. Collectively, this evidence constitutes more 

than sufficient evidence to support the court’s finding that Amster intended 

to pay the debt. Therefore, the court properly rejected Mulberg’s promissory 

fraud cause of action.

C. No Substantial Evidence Supports the Trial Court’s Finding that 

Amster Paid Mulberg for the Individual Attorney Fees She 

Incurred.

We come to a different conclusion, however, regarding the causes of 

actions that the trial court rejected on the basis of its finding that Amster 

paid Mulberg for the individual attorney fees she incurred. We agree with 

Mulberg that there was “no substantial evidence to support the [trial] court’s 

conclusion that Amster made any unconditional payment of $62,820 to [him]

to satisfy her existing outstanding balance.” Because there was no 

substantial evidence to support the finding, the court incorrectly relied on it 

to reject Mulberg’s claims based on breach of contract, account stated, and 

open book account.

1. Breach of contract

We first consider the trial court’s ruling on the cause of action for 

breach of contract. “The elements of a cause of action for breach of contract 

are well known. A plaintiff must establish: the existence of a contract, 

plaintiff’s performance (or excuse for nonperformance), defendant’s breach, 

and resulting damages.” (Professional Collection Consultants v. Lujan (2018) 

23 Cal.App.5th 685, 690 (Lujan).) Whether a party breached a contract is a 

question of fact, which we ordinarily review for substantial evidence. (Kotler

v. PacifiCare of California (2005) 126 Cal.App.4th 950, 956.) But when the 

operative facts are not in dispute, our review is de novo. (See, e.g., 

Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.) Here, 
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most of the operative facts are undisputed, suggesting the less deferential de 

novo standard applies, but we conclude that the court’s finding that Amster 

paid the $62,820 (and therefore did not breach the contract) cannot be 

sustained under either standard.

The trial court held that although the parties had a contract requiring 

“Amster . . . to pay Mulberg for his services,” the contract was not breached. 

This holding was based on the court’s finding that “Mulberg’s own evidence 

proved that as of April 2012 he had been paid in full,” since as trustee he 

used trust assets to pay himself for the fees Amster incurred in her individual 

capacity. 

The trial court also found, however, that, while “the evidence presented 

was less than precise, it appears that part of the surcharge [ordered to be 

returned to the estate by the probate court] included fees Mulberg had paid 

himself out of [the] trust for his prior legal services to Amster.” Amster 

affirmatively acknowledges in her appellate briefing that the probate court 

“applied the surcharge to these funds.” The court did not consider it to be 

consequential that Mulberg was required to return the $62,820 to the estate

as part of the surcharge. It reasoned that “Mulberg offer[ed] no legal 

authority for the proposition that [Amster’s attorney fee] debt was somehow 

‘resurrected’ (his words) as a result of the probate action,” and it held that an 

“order of the [probate] court (affirmed on appeal) cannot be imputed to 

Amster as an act in breach of contract.” 

To the contrary, the fact that Mulberg was required to return the 

$62,820 to the estate is consequential. True enough, both parties agree that 

Amster’s individual fees obligation had been paid by the estate before the

probate court ordered Mulberg to return the money. The trial court believed 

that Mulberg’s payments to himself with estate funds meant that “Amster . . .
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in fact did . . . pay Mulberg for his work.” But the uncontested evidence is 

that it was the estate, not Amster, that paid the fees, and Mulberg was 

ordered to return this money to the estate as part of the surcharge. In turn, 

this left Amster’s individual fees obligation unsatisfied. Her contractual 

obligation to pay fees incurred in her individual capacity was not 

extinguished simply because estate assets were improperly used in a failed 

attempt to pay off the obligation. While we agree with the court that the debt 

was not “somehow ‘resurrected’ . . . as a result of the probate action,” we 

think it is accurate to say that Amster’s debt remained unsatisfied, even if 

the parties might have intended for the debt to be paid with estate assets.

Amster argues that Mulberg is collaterally estopped from denying that 

the bill was satisfied, but she is mistaken.

4 She contends that Mulberg is 

precluded from now litigating an “issue that was ‘actually litigated’ ” in the 

probate proceeding. But collateral estoppel does not apply, because the issue 

here is different, and it was not actually litigated in the probate proceeding. 

(See Lucido v. Superior Court (1990) 51 Cal.3d 335, 341 [elements required 

for application of collateral estoppel].)

The issue in the probate proceeding was whether Mulberg paid himself 

excessive trustee fees. The probate court found that he had, and we affirmed 

the court’s order requiring him to reimburse the estate the amount of the 

surcharge, which included the payments for Amster’s individual attorney 

4 At one point in her appellate brief, Amster asserts that Mulberg’s 

claim is barred because of “judicial estoppel,” but the argument she advances 

and the law she cites reveal she means to contend that the claim is barred by 

collateral estoppel because the probate court determined that Mulberg used 

trust assets to pay her individual attorney fees obligation. (See The Swahn

Group, Inc. v. Segal (2010) 183 Cal.App.4th 831, 835 [discussing difference 

between judicial and collateral estoppel].)
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fees. (Amster v. Mulberg, supra, A146374.) In doing so, we concluded that 

sufficient evidence supported the probate court’s finding that the amount was 

part of the excessive payment made “in connection with [Mulberg’s] services

as trustee.” (Ibid.) We rejected Mulberg’s theory that he should not have to 

return the $62,820 to the estate because it was “previously owed attorney 

fees earned prior to his trusteeship.”

5 (Ibid.) Here, however, the parties 

agree that the surcharge included the amount Mulberg used to pay Amster’s 

individual attorney fees, and no contrary determination was made in the 

probate proceeding.

The fact that Mulberg unsuccessfully tried as trustee to use trust 

assets to pay off Amster’s individual attorney fees obligation does not support 

the conclusion that the debt was satisfied and extinguished. Because no 

substantial evidence supported the trial court’s finding that Amster satisfied 

her contractual obligation to pay the fees she incurred in her individual 

capacity, we must reverse the court’s ruling that there was no breach of 

contract. (See Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873–874.) We 

make no determinations regarding the strength of Amster’s affirmative 

defenses, and we leave it for the trial court on remand to consider those

defenses in the first instance.

2. Account stated and open book account

Mulberg asserted claims for account stated and open book account as 

well. The trial court also rejected both of these claims based on its finding 

that Mulberg had been paid the $62,820 from the estate assets. 

Each of these claims is technically a common count, which “ ‘is not a 

specific cause of action . . . , [but] rather . . . a simplified form of pleading 

5 We are at a loss to understand why Mulberg argued that he did not 

have to return the $62,820 to the estate, in light of his unabashed admission 

that he, as the estate’s trustee, used estate assets to pay a non-estate debt. 
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normally used to aver the existence of various forms of monetary 

indebtedness.’ ” (Lujan, supra, 23 Cal.App.5th at p. 690.) A common count 

“is proper whenever the plaintiff claims a sum of money due, either as an 

indebtedness in a sum certain, or for the reasonable value of services, goods, 

etc., furnished. It makes no difference that the proof shows the original 

transaction to be an express contract, a contract implied in fact, or a quasicontract.” (4 Witkin Cal. Proc. (5th ed. 2020) Pleading, § 554.)

“ ‘A “book account” is “a detailed statement which constitutes the 

principal record of one or more transactions between a debtor and a creditor 

arising out of a contract or some fiduciary relation, and shows the debits and 

credits in connection therewith . . . .” ’ [Citation.] The creditor must keep 

these records in the regular course of its business and ‘in a reasonably 

permanent form,’ such as a book or card file. (Code Civ. Proc., § 337a.) ‘A 

book account is “open” where a balance remains due on the account.’ ” 

(Lujan, supra, 23 Cal.App.5th at pp. 690–691.) “ ‘An account stated is “an 

agreement based on prior transactions between the parties, that the items of 

an account are true and that the balance struck is due and owing.” ’ 

[Citation.] ‘When an account stated is “ ‘assented to, either expressly or 

impliedly, it becomes a new contract.’ ” . . . Accordingly, an action on an 

account stated is not based on the parties’ original transactions, but on the 

new contract under which the parties have agreed to the balance due.’ ” (Id.

at p. 691.)

Mulberg maintained that he sent invoices to Amster, and they 

established an account stated or an open book account. The trial court found 

that the “main evidentiary problem with accepting Mulberg’s invoices . . . is 

that they demonstrated he had been paid in full.” But as we have 

determined, no substantial evidence supports the finding that Amster 
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satisfied her contractual obligation to pay Mulberg for the $62,820 in 

attorney fees she incurred in her individual capacity. We therefore reverse 

the court’s rulings as to these common counts. (See Bowers v. Bernards,

supra, 150 Cal.App.3d at pp. 873–874.)

D. The Trial Court Properly Rejected Mulberg’s Equitable Claims for 

Quantum Meruit and Unjust Enrichment.

We lastly consider, and affirm, the trial court’s rulings on Mulberg’s 

equitable claims for quantum meruit and unjust enrichment.

These doctrines are interconnected. To state a claim for quantum 

meruit, a plaintiff must allege performance of certain services for the 

defendant, the reasonable value of those services, that the services were 

rendered at the special instance and request of the defendant, and that the 

services are unpaid. (Haggerty v. Warner (1953) 115 Cal.App.2d 468, 475.) 

Quantum meruit “ ‘refers to the well-established principle that “the law 

implies a promise to pay for services performed under circumstances 

disclosing that they were not gratuitously rendered.” [Citation.] To recover 

in quantum meruit, a party need not prove the existence of a contract 

[citations], but it must show the circumstances were such that “the services 

were rendered under some understanding or expectation of both parties that 

compensation therefor was to be made.” ’ ” (Unilab Corp. v. AngelesIPA (2016) 244 Cal.App.4th 622, 642.) “However, it is well settled that there 

is no equitable basis for an implied-in-law promise to pay reasonable value 

when the parties have an actual agreement covering compensation.” 

(Hedging Concepts, Inc. v. First Alliance Mortgage Co. (1996) 41 Cal.App.4th 

1410, 1419.) 

“ ‘The right to restitution or quasi-contractual recovery is based 

upon unjust enrichment. Where a person obtains a benefit that [the person]

may not justly retain, the person is unjustly enriched. The quasi-contract, or 
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contract “implied in law,” is an obligation . . . created by the law without 

regard to the intention of the parties, and is designed to restore the aggrieved 

party to [that party’s] former position by return of the thing or its equivalent 

in money.’ ” (Unilab Corp. v. Angeles-IPA, supra, 244 Cal.App.4th at p. 639.)

In rejecting Mulberg’s equitable causes, the trial court observed that 

equitable relief is generally not available when an obligation, such as 

Amster’s debt for her individual attorney fees, is founded in contract. But the 

court held that even if there had been no contract, “the evidence was 

insufficient to support a finding of unjust enrichment.” The court pointed out 

that in imposing the surcharge the probate court had found that “Mulberg’s 

liability to the trust came about in large measure because of his inadequate 

record-keeping, his breach of fiduciary duties, and his failure to abide by the 

rules applicable to trustees. The factual circumstances do not show that 

Amster was unjustly enriched here or that Mulberg was unfairly aggrieved.” 

Stated otherwise, the court found that even if there had been no contract 

Mulberg would not be entitled to equitable relief as a result of his own 

conduct and malfeasance. 

We review a trial court’s exercise of its equity powers for an abuse of 

discretion. (Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 771.) “Under 

that standard, we resolve all evidentiary conflicts in favor of the judgment 

and determine whether the court’s decision ‘ “falls within the permissible 

range of options set by the legal criteria.” ’ ” (Ibid.) Applying the abuse of 

discretion standard here, we cannot say that the court’s rationale in denying 

equitable relief to Mulberg fell outside such a range of options. Accordingly, 

we affirm its ruling rejecting his equitable claims.
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III.

DISPOSITION

The trial court’s rulings on the claims for promissory fraud, quantum 

meruit, and unjust enrichment are affirmed. The rulings on the claims for 

breach of contract, account stated, and open book account are reversed. The 

judgment is vacated, and the matter is remanded for further proceedings on 

the latter three claims, including a consideration of Amster’s affirmative 

defenses. The parties shall bear their own costs on appeal.
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_________________________

Humes, P.J.

WE CONCUR:

_________________________

Margulies, J.

_________________________

Banke, J.

Mulberg v. Amster A158954