Filed 8/20/24 Burrill v. Roundy CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

BELINDA BURRILL, as Trustee, etc.,

Plaintiff and Appellant,

v.

GARY ROUNDY,

Defendant and Respondent.

 D082334

 (Super. Ct. No. 37-2020-

00006336-CU-BC-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, 

Eddie C. Sturgeon, Judge. Affirmed.

De Castro, Audie J. De Castro, Jonathan Elia; Law Offices of 

Mary A. Lehman and Mary A. Lehman for Plaintiff and Appellant. 

Seltzer Caplan McMahon Vitek, Andrea N. Myers, and Sarah M. 

Shekhter for Defendant and Respondent.

Plaintiff Belinda Burrill (Trustee), as Trustee of the Survivor’s Trust 

created under the Roundy Family Trust, and as Attorney-In-Fact for 

Elizabeth J. Roundy (Elizabeth), appeals from a judgment in favor of 

Elizabeth’s stepson, defendant Gary Roundy (Gary). The Trustee contends 

that Gary was contractually obligated to provide a “replacement” deed of 
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trust to Elizabeth as part of his purchase of the family businesses, and that 

the trial court erred in finding that Gary satisfied that obligation. The 

Trustee also argues that Gary’s breach entitles her to accelerated payment of 

a promissory note Gary executed in connection with the purchase. 

We conclude that because the Trustee failed to allege in her complaint 

that Gary was obligated to provide a replacement deed of trust, her claim on 

that theory is not within the scope of the pleadings. We further conclude that 

even if the Trustee had pled and proven that Gary’s provision of a 

replacement deed of trust constituted a breach, such a breach would not give 

rise to a right to accelerate payment of the promissory note secured by the

deed of trust. Because acceleration is the only form of relief the Trustee 

raises on appeal, we do not address whether she would be entitled to any 

other damages stemming from Gary’s purported failure to provide an 

adequate replacement deed of trust, assuming it had been properly alleged. 

Accordingly, we affirm. We need not and do not address other arguments 

asserted by the parties. 

FACTUAL AND PROCEDURAL BACKGROUND

A. 2015 Transaction

Elizabeth and her husband Darrow owned two businesses: a motorcycle 

dealership and KV Resources, LLC (KVR), a commercial real estate entity. 

Gary, Elizabeth’s stepson, worked in the family businesses for decades. In 

2015 after Darrow passed away, Elizabeth agreed to sell Gary all of her 

interest in the businesses. Elizabeth’s intent for the transaction was to 

provide herself with a source of monthly income and to bequeath the 

businesses to Gary upon her death. 

The transaction was documented in an Equity Purchase Agreement 

(EPA), a promissory note to Elizabeth in the amount of $4.8 million (KVR 
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Note), and other related instruments. Section 2.3 of the EPA provides that 

the KVR Note shall be secured by: “(a) a first lien security interest in all of 

the membership interest of KVR owned by [Gary] pursuant to a Pledge 

Agreement . . . and (b) a second lien security interest in [KVR’s] Real Estate, 

pursuant to a Deed of Trust, substantially in the form attached . . . .” No 

form deed of trust was attached to the EPA. 

Section 3.2.2 of the EPA required Gary to execute and deliver “the Deed 

of Trust” described in section 2.3 to Elizabeth at closing, and section 7.4 

provides that the Deed of Trust “shall be filed and recorded” within six 

months of the date of the EPA.

Section 9.5 of the EPA states that the parties “agree to do any act and 

to execute any other or further documents necessary or convenient to the 

carrying out of the provisions of this Agreement.” 

The KVR Note “refer[s] and relate[s]” to the EPA and defines what 

constitutes a default for Gary as “Borrower” triggering Elizabeth’s right to 

accelerate payment after notice and an opportunity to cure. Section 3.1, 

subdivision (f) of the KVR Note provides in relevant part:

“In the event of Default (as defined below), Borrower shall 

be given thirty (30) days to cure the Default . . . . For 

purposes of this Note, Default means that (i) Borrower is 

thirty (30) days or more past due on any payment required 

to be made under the terms of this Note (ii) Borrower is in 

breach of any of the Security Documents; (iii) Borrower has 

made a general arrangement or assignment for the benefit 

of creditors; (iv) any liquidation, reorganization, 

receivership, bankruptcy, assignment for the benefit of 

creditors or other debtor-relief proceeding by or against 

Borrower or any property acting as collateral under any 

Security Document has been commenced; (v) Borrower is 

deemed to be insolvent; or (vi) the levying of any 

attachment, execution or other process against any of the 
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property, or portion thereof, acting as collateral under any 

Security Document.” 

The KVR Note defines “Security Documents” as the pledge agreement and 

deed of trust described in section 2.3 of the EPA. The note’s acceleration 

clause also provides that upon default by Gary, Elizabeth as the lender may 

elect to accelerate payment and “declare the entire outstanding balance of 

principal and interest thereon due and immediately payable, together with 

all costs of collection, including attorney’s fees.” Gary consistently made 

monthly payments to Elizabeth, as required under the KVR Note, from 2015 

through the time of trial. 

In 2017, Elizabeth assigned approximately 12.6 percent of her interest 

in the KVR Note to a “Survivor’s Trust” of which she is the beneficiary, and

she assigned the remainder of her interest in the note to a “Bypass Trust,” of 

which Gary is the sole heir and successor trustee. 

Later that year, Elizabeth appointed the Trustee to serve as her 

attorney-in-fact in the event of her death or incapacity, authorizing the 

Trustee to act on her behalf. Elizabeth was declared legally incapacitated in 

2018 after being diagnosed with dementia, and the Trustee accepted her 

appointment as trustee of the Survivor’s Trust. 

The Trustee’s counsel sent Gary a letter in 2019 alleging several 

defaults under the KVR Note and another promissory note issued in 

connection with the EPA. The Trustee asserted, among other things, that 

Gary defaulted because he “failed to record the Deed of Trust under the 

EPA.” The Trustee also alleged in a subsequent letter that Gary failed to 

deliver a deed of trust at closing, and her counsel requested that Gary 

execute and deliver a recordable deed of trust pursuant to section 9.5 of the 

EPA. When Gary did not deliver a deed of trust within 30 days, the Trustee 
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sent Gary written notice that she was exercising her right to acceleration of 

payment under the KVR Note. 

B. Underlying Litigation

The Trustee sued Gary in 2020, and the operative complaint alleges 

causes of action for breach of contract, declaratory relief, account stated, 

specific performance, and breach of implied covenant of good faith and fair 

dealing. The complaint cites sections of the EPA relating to the succession of 

promissory notes (section 2.4), obtaining required approvals (section 7.1), 

extinguishing guarantees (section 7.2), executing, delivering, and recording 

the deed of trust (section 7.4), and survival clauses (sections 8.4 and 9.8). 

The complaint also cites portions of the promissory notes, including the KVR 

Note, defining “Default” (section 3.1, subdivision (f)). The complaint contains 

no reference, however, to section 9.5 of the EPA, or Gary’s alleged duty to 

provide a “replacement” deed of trust.1

In a bench trial, Gary testified that he signed a deed of trust when the 

transaction closed in 2015, and that he left a paper copy at Elizabeth’s 

attorney’s office. However, the parties never located an executed deed of 

trust from closing. Shortly before trial began in 2023, Gary signed a new 

deed of trust and delivered it to the Trustee. The new deed of trust lists as 

beneficiaries the Trustee and Gary, as trustee of the Bypass Trust, to reflect 

Elizabeth’s assignment of her interest in the KVR Note. The Trustee 

objected to the deed of trust and refused to record it because, among other 

reasons, it did not list Elizabeth as the beneficiary. 

1 We do not address the theories of liability the Trustee asserted in the 

trial court, but has abandoned on appeal. (Los Angeles Equestrian Center, 

Inc. v. City of Los Angeles (1993) 17 Cal.App.4th 432, 444 [“appellant’s failure 

to discuss a theory of liability on appeal constitutes abandonment of that 

theory”].)
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After a three-day trial, the trial court adopted the statement of decision 

proposed by Gary’s counsel and ruled against the Trustee on all claims. The 

court first found that because the Trustee was bound by the allegations in the 

operative complaint and she did not move to amend the pleadings to conform 

to the proof at trial, any unpled allegations were not properly before the court 

and the Trustee could not recover from them. The court credited Gary’s 

testimony that he executed and delivered a deed of trust at closing in 2015 as 

required by the EPA. The court also found that the EPA did not obligate 

Gary to record the deed of trust. The court ruled that the 2023 deed of trust 

Gary signed shortly before trial is valid and effective, that it adequately 

secures the KVR Note, and that any delay in its delivery was not prejudicial.

The court further found that a breach of the EPA, even if proven, would not

constitute a “default” capable of triggering acceleration under the KVR Note, 

and that the Trustee failed to prove any actual damages. For these and other 

reasons, the court held that the Trustee was not entitled to acceleration. 

DISCUSSION

The Trustee does not contest any of the trial court’s factual findings on 

appeal. Rather, her limited argument on appeal is that: (1) the court should 

have found Gary breached his duty to deliver a replacement deed of trust

under section 9.5 of the EPA; (2) she is entitled to acceleration of the KVR 

Note because of that breach; and (3) there are no statutory or non-statutory 

bars to her claim. In deciding these issues, we apply a de novo standard of 

review. (City of Oakland v. Department of Finance (2022) 79 Cal.App.5th 

431, 444 [de novo standard applies where issue is one of statutory 

construction or contract interpretation and the evidence is not in dispute].)

We conclude that the Trustee is not entitled to recover on her theory

that Gary breached a duty to deliver a replacement deed of trust because she 
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failed to allege the theory in her complaint. The complaint defines the issues 

to be tried and establishes the scope of an action. (Simmons v. Ware (2013) 

213 Cal.App.4th 1035, 1048; Emerald Bay Community Assn. v. Golden Eagle 

Ins. Corp. (2005) 130 Cal.App.4th 1078, 1091 (Emerald Bay).) Facts alleging 

a breach must be pled with specificity, and general averments that a 

defendant breached a contract are insufficient. (Levy v. State Farm Mutual 

Automobile Ins. Co. (2007) 150 Cal.App.4th 1, 5–6; see Bentley v. Mountain

(1942) 51 Cal.App.2d 95, 98 [pleader must allege facts demonstrating breach

of contract].) 

Here, the Trustee’s complaint alleges that Gary was obligated to sign, 

deliver, and record a “Deed of Trust” at the 2015 closing under section 7.4 of 

the EPA. But the complaint makes no mention of any post-closing obligation 

to provide a replacement deed of trust, under section 9.5 or otherwise. As the 

trial court noted, the complaint also makes no mention of Civil Code section 

3415,2 which the Trustee claims is also a basis for requesting a replacement 

deed of trust. The complaint thus lacked any specific factual allegations to 

support a theory that Gary breached section 9.5 of the EPA by failing to 

deliver a replacement deed of trust. (See Baldwin v. AAA Northern 

California, Nevada & Utah Ins. Exchange (2016) 1 Cal.App.5th 545, 551 

[affirming judgment sustaining demurrer where general breach allegation 

was “unsupported by any specific factual allegations”].) Because the trial 

court found that Gary had no duty to record the deed of trust and that he met 

2 Civil Code section 3415 provides, in relevant part, that “[a]n action may 

be maintained by any person interested in any private document or 

instrument in writing, which has been lost or destroyed, to prove or establish 

the document or instrument or to compel the issuance, execution, and 

acknowledgment of a duplicate of the document or instrument.” (Civ. Code, 

§ 3415, subd. (a).)
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his original obligation to deliver one at closing in 2015, and because the 

Trustee does not dispute the court’s factual findings, those findings resolve 

the only properly pled issues relating to the deed of trust’s delivery. The 

Trustee does not dispute that she did not seek to amend her complaint to 

conform to the proof at trial, despite having the opportunity to do so. (See 

Emerald Bay, supra, 130 Cal.App.4th at p. 1092 [after plaintiff declined

opportunity to amend complaint to allege its standing to assert claims 

against defendant by way of assignment, trial court did not err in rejecting

plaintiff’s theory of recovery as not properly pled].) We therefore conclude 

that any claim for relief under section 9.5 of the EPA is outside the scope of 

the Trustee’s pleadings and not properly before us.3 

However, even if the Trustee had pled and proven that Gary’s delivery

of a replacement deed of trust fell short of his contractual obligations under 

section 9.5 of the EPA, such a breach would not give rise to a right to 

accelerate payment of the KVR Note under the note’s express terms. As 

relevant here, the KVR note only authorizes acceleration based on a breach of 

one of the “Security Documents,” which do not include the EPA. Thus, the 

plain language of the KVR Note does not authorize acceleration solely for a 

breach of the EPA.

3 For similar reasons, we also reject the Trustee’s argument that she 

should be deemed the prevailing party on her specific performance claim 

because the trial court found the 2023 deed of trust was proper. For her 

specific performance cause of action, the complaint only sought an order 

requiring Gary to record the original deed of trust, and the trial court 

expressly found that Gary was not obligated to record any deed of trust. The 

Trustee was therefore not the prevailing party on her specific performance 

claim as pled, and she failed to properly allege that she was entitled to a 

replacement deed of trust under section 9.5 of the EPA.
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Although documents relating to the same transaction should be 

construed together (see Huckell v. Matranga (1979) 99 Cal.App.3d 471, 481 

[“a note, mortgage and agreement of sale constitute one contract where they 

are a part of the same transaction”]), we must also interpret a contract’s 

individual provisions to give them meaning and effect (City of Atascadero v. 

Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 473

(Merrill Lynch) [“[a]ny contract must be construed as a whole, with the 

various individual provisions interpreted together so as to give effect to all, if 

reasonably possible or practicable.”]; see Civ. Code, § 1641). Construing 

multiple agreements together does not mean that “ ‘for all purposes they 

constitute one contract.’ [Citation.]” (Mountain Air Enterprises, LLC v. 

Sundowner Towers, LLC (2017) 3 Cal.5th 744, 759.) Ultimately, “ ‘[i]f 

contractual language is clear and explicit, it governs.’ [Citation.]” (State of 

California v. Continental Ins. Co. (2012) 55 Cal.4th 186, 195 (Continental).)

The Trustee argues she is entitled to acceleration either because

breaching the EPA automatically constitutes a breach of the KVR Note, or 

because the EPA is a “Security Document” as defined by the KVR Note and 

breaching the EPA triggers default under the KVR Note. The KVR Note’s 

terms make clear, however, that acceleration is only available when one of 

the enumerated default conditions occurs, and the EPA does not itself include 

acceleration as a remedy for breach of its own provisions. (Cf. First-Trust 

Joint Stock Land Bank v. Meredith (1936) 5 Cal.2d 214, 218 [acceleration of 

note payment available “where the mortgage provides that upon 

default . . . the balance of the principal and interest may be declared 

immediately due and payable”].) We decline to construe the EPA and KVR 

Note together in a way that contradicts—or does not give effect to—each 

agreement’s individual provisions, especially in the context of a harsh remedy 
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like acceleration. (See Brown v. Avemco Inv. Corp. (9th Cir. 1979) 603 F.2d 

1367, 1376 [recognizing acceleration is a “harsh remedy”].) 

The KVR Note explicitly defines “Security Documents” to include only 

the pledge agreement and the deed of trust described in the EPA, not the 

EPA itself. The parties are free to define the words and phrases used in a 

contract, and if their agreed definitions are clear and unambiguous, the 

contract will be enforced according to its plain language. (Morrison v. Wilson 

(1866) 30 Cal. 344, 347–348; see also Mirpad, LLC v. California Ins. 

Guarantee Assn. (2005) 132 Cal.App.4th 1058, 1069 [meaning of words in 

contract must be determined from their context and usage in the contract 

itself].) The mere fact that the “Security Documents” relate to the EPA does 

not mean the EPA is grafted into the definition of “Security Documents” 

where it is absent from the KVR Note’s plain language. Again, in reaching 

this conclusion we construe the EPA and KVR Note together in a way that 

gives their individual provisions meaning without doing violence to each 

instrument’s clear and explicit language. (See Continental, supra, 55 Cal.4th 

at p. 195; Merrill Lynch, supra, 68 Cal.App.4th at p. 473.)

For these reasons, we conclude that even if the Trustee had properly 

pled and proven that Gary failed to meet his obligations under section 9.5 of 

the EPA to provide a replacement deed of trust, that breach would not entitle

her to acceleration of the KVR Note. Because acceleration is the only relief 

the Trustee raises on appeal, we do not address whether she would have been 

entitled to any other damages stemming from Gary’s purported failure to 

provide an adequate replacement deed of trust if she had pled that theory. 

(Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 684

[arguments not raised and developed on appeal are considered waived].)
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DISPOSITION

The judgment is affirmed. Respondent shall recover his costs on 

appeal. 

BUCHANAN, Acting P. J.

WE CONCUR:

KELETY, J.

RUBIN, J.