Filed 5/29/13 Lanning v. Kramer CA2/7 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

NANSEE LANNING et al.,
Plaintiffs and Appellants,

v.
ANDREW KRAMER et al.,
Defendants and Respondents. B227686
(Los Angeles County Super. Ct. No. SC099461)

ANDREW KRAMER,
Plaintiff and Appellant,

v.
GEORGE LANNING et al.,
Defendants and Respondents. B231249
(Los Angeles County Super. Ct. No. SC107434)

APPEALS from judgments of the Superior Court of Los Angeles County, Norman P. Tarle, Judge. Affirmed in part; reversed in part.2 Silverman Sclar Shin & Byrn e; Silverman, Shin, Byrne & Gilchrest and Robert M. Gilchrest for Nansee Lanning, Justin Lann ing, George Lanning and The George and Nansee Lanning Revocable Trust. Ferguson Case Orr Paters on, Wendy C. Lascher and Jo hn A. Hribar for Andrew Kramer, Matthew Kramer, Rosalinda Kr amer, West Hollywood Center for Compassionate Healing, Inc. doing business as The Sunset Shop, Inc.

_____________ ______________

INTRODUCTION

We consider together two appeals from judgments in two trial court cases which share a common factual background and involve some of the same parties. The first, No. B227686, is from a 2010 judgment in Lanning v. Kramer , Los Angeles County Superior Court, No. SC099461. The plaintiffs are George Lanning (George L.), his wife Nansee Lanning (Nansee L.), th eir son Justin Lanning (J ustin L.), collectively the Lannings, and The George and Nansee Lanning Revocable Trus t, for which the trustees were George L. and Nansee L. The defe ndants are Andrew Kramer (Andrew K.), his mother Rosalinda Kramer (Rosalinda K .), his son Matthew Kramer (Matthew K.), collectively the Kramers, and his business, West Hollywood Center for Compassionate Healing, Inc. (WHCCH), doing busi ness as The Sunset Shop, Inc. The second appeal, No. B231249, is from a 2010 judgment in Kramer v. Lanning , Los Angeles County Superior Court, No. SC1 07434. The plaintiff is Andrew K. The defendants are George L., Nansee L., Th e Lanning Family Trust, George L. and Nansee L. as trustees, and Th e George and Nansee Lanning Re vocable Trust, George L.
and Nansee L. as trustees. 1

1 The Lanning Family Trust was in effect at the time the even ts leading to this litigation began, and it was terminated durin g the course of the litigation between the3 FACTUAL BACKGROUND 2

The Lanning Trust owned the commercia l building and other real property commonly known as the Sunset Building, at 8 919-89231⁄2 West Sunset Boulevard in West Hollywood. The building has commercial and residential units. In September 2006, George L. and Nansee L ., as Trustees of the Lanning Tr ust, entered into a written lease with Andrew K. for a portion of the Sunset Building, specifically 8921, 8923 and 89231⁄2 West Sunset Boulevard (Premises) 3 for a medical marijuana dispensary known as The Sunset Shop (Dispensary). In January 2007, Andrew K. and the Trus t entered into an es crow agreement for Andrew K. to purchase the Sunset Building fro m the Lanning Trust. Andrew K. paid the Trust a $1 million deposit to be returned if the purchase did not clos e by a specified date. The Lanning Trust gave Andrew K. two promissory notes, one for $600,000 and another for $400,000, to secure repa yment of the deposit to Andrew K. The purchase did not close, and the parties cancelled the agreement. In September 2007, George L. sent Andr ew K. a letter offering to purchase the Dispensary for a purchase price of $1,450,000 plus $300,000 for inventory. In November or December, Andrew K. and Ge orge L. with Nansee L. ex ecuted a term sheet entitled Deal Points as of 11/7 (Deal Points Memo). The Deal Po ints Memo incl uded various

parties. The George and Na nsee Lanning Revocable Trust was formed and remained in effect at the time the judgments at issue here in were entered. For convenience, we refer to the trusts as the Lann ing Trust or the Trust.

2 Additional factual background appears in the discussion, post , in conjunction with the issue on appeal to whic h the background relates.

3 Andrew K. subsequently surrendered possession of the unit at 8923 West Sunset Boulevard in December 2007, when George L. took over the unit to serve as his residence.4 dollar amounts, descriptive phrases and dates, but no sentences or paragraphs tying them together. In late December 2007, George L., Nansee L. and Justin L. took over operation of the Dispensary. They received all revenues from its operation. Andrew K. remained involved, and the Lannings paid him a consu lting fee. On July 15 , 2008, the Lannings
met with Andrew K. and informed him th e consulting arrangement was terminated. On July 17, 2008, before the Lannings arrived to open the Dispensary for business,
Andrew K. had the locks on the Premises changed, took ove r the Premises and had his mother, Rosalinda K., his son, Matthew K., and security personnel come to the Premises. The Lannings were not allowed to enter the Premises; they were confronted and warned to leave by members of the Kramer group. Justin L. called law enforcement for
assistance. When the sheriff’s deputies arrived, Rosalinda K. told the deputies that the Kramers had the right to be on the Premises and showed them a copy of the Lease. The deputies declined to take further action on th e basis that the dispute was a civil matter. Members of the Kramer group entered the resi dence of George L. and took property the Lannings used in oper ating the Dispensary. The Lannings initiated litigation against the Kramers as more fully explained below. The Kramers subsequently initiate d action against them. As a result of a judgment of possession entered in favor of the Lannings in one of the actions, on June 8, 2009, the Lannings regained possession of th e Premises and the Kramers and related
business entities vacated the Premises.

PROCEDURAL BACKGROUND

The Lannings filed their complaint in Lanning v. Kramer (Super. Ct. L.A. County, 2010, No. SC099461) on August 19, 2008 (Main Actio n). On September 2, 2008, George L., as trustee for the Lanning Trust, filed an unla wful detainer action against5 Andrew K. ( Lanning v. Kramer (Super. Ct. L.A. County, 2009, No. 08U02832)) (UD Action). The Lannings filed their Second Ame nded Complaint (SAC) in the Main Action on September 4, 2009. Three causes of action related to the Kramers’ conduct in retaking and retaining possession of the Premises from Ju ly 18, 2008 to June 8, 2009: forcible entry and forcible detainer of the Premises (second), trespass (third), and intentional infliction of emotional distress (fourth). Fi ve of the causes of action arose from the alleged agreement by Andrew K. to sell the Dispensary and its inventory to the Lannings (Sale Agreement). The causes of action allege d Andrew K.’s breach of the agreement to sell the Dispensary to the La nnings (first) and, for the pe riod of forcible detainer,
“intentional interference with contractual rela tions with the Sunset Shop’s customers” (fifth), “conversion of the Sunset shop and all its inventory and business equipment” (sixth), “an accounting of the Sunset Shop’s drug revenue” (seventh), and “a constructive trust of the Lannings’ estimate of the profits of the marijuana dispen sary” (eighth). The Lannings also alleged, for the duration of the detainer period, breach of an implied-in-fact lease agreement against Andrew K. for rent and damage to the Premises (ninth), and unjust enrichment from Andrew K.’s Dispensary operation during the forcible detainer period (tenth). The Lannings requested relief as follo ws: a sum in excess of $13,500,000 in general damages, including, inter alia, reve nues the Lannings lost from the sale of medical marijuana as the result of Andrew K.’s forcible detainer and revenues Andrew K.
collected from the sales durin g forcible detainer, punitive damages for the intentional torts, and attorney’s fees and costs. In the UD Action, the tria l court issued a judgment of possession to George L., as trustee of the Lanning Trust, in April 2009. The judgment was enforced and, on June 8, 2009, the Lannings took possession of the Premises from the Kramers.6 In January 2010, Andrew K. filed a mo tion for summary judg ment in the Main Action seeking dismissal of the SAC. The trial court granted the motion for summary judgment as to the first, fifth, sixth, seventh, and eighth causes of action. 4 The trial court found that the alleged Sa le Agreement was void, in that the terms were too uncertain and vague to be enforceab le. The court continued that, even if the agreement were sufficiently certain, it woul d be unenforceable, in that it would be
unlawful under the federal Controlled Substances Act (21 U.S.C. §§ 812, 841(a)(1), 844). The court found that the “p erformance of this agreem ent to buy/sell a marijuana dispensary and $300,000 worth of inventory . . . would require the transfer of possession of marijuana, a controlled substance . . . with the intent to distribute that” marijuana. The court noted that marijuana is identified as a “c ontrolled substance” subject to the Act. (21 U.S.C. §§ 802(6), (16) & 812(c), Schedule I, (c)(10).) The court stated that California’s “Proposition 215 does not conflict with the C ontrolled Substances Act because in passing Proposition 215, California has merely exercise d its state powers not to punish certain marijuana offenses under state law when a doctor has recommended its use to treat a medical condition.” If the dispensary sale transaction were legal under California law, according to the court, that “does not chan ge the fact [that] under federal law, any person’s knowing and intentional acts ‘to manuf acture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance’ [such as marijuana] are unlawful. 21 USC § 841( a)(1); see also 21 USC [§] 844(a).” The Lannings then filed a third amende d complaint (TAC) pursuant to the trial court’s grant of leave to amend, to add the Lanning Trust as a named plaintiff and remove the former first, fifth, sixth, seventh an d eighth causes of action. The Lannings’ remaining causes of action were for forcible entry and detainer (firs t), trespass (second),

4 The parties refer to the trial court’ s ruling as a partial summary judgment. Technically, it was a summary adj udication of the specified causes of action. (Code Civ. Proc., § 437c, subd. (f)(1).) We nonetheless refer to the “summa ry judgment” for purposes of this appeal.7 intentional infliction of emotional distress (third ), breach of implied in fact contract (lease agreement) (fourth) and unjust enrichment (fifth). In paragraph 74, the Lannings expanded the list of ways Andrew K. had been unjustly enriched to include (a) money they paid Andrew K. prior to December 26, 2007, (b) money they paid to Andrew K. between December 26, 20 07 and July 17, 2008, the peri od the Lannings operated the Dispensary, and (c) the benefits Andrew K. obtained while operating the Dispensary during the forcible detainer period.
Andrew K. moved to strike newly added portions of th e TAC, except the addition of the Trust as a named plaintiff. After a h earing on the motion to strike, the trial court granted the motion to strike as to certai n additions, including but not limited to, the sources listed as unjustly enriching Andrew K. in paragraph 74, items (a), (b) and (c) insofar as (c) sought net profits from Andr ew K.’s operating the Di spensary during the forcible detainer period. At the hearing, th e court also ruled on the Lannings’ motion for leave to amend to add the new portions to the TAC. The requested amendments sought, inter alia, restitution of purchas e money paid to Andrew K. pursuant to the alleged Sale Agreement as well as restitu tion of any benefits, includi ng net profits, obtained by Andrew K. from operating the Di spensary during the forcible detainer period. The trial
court denied leave to amend “i nsofar as any claim is added which essentially revives any part of the contract claims which the court pr eviously stated it woul d not enforce. That includes the claims for rescission of the agre ement to purchase the di spensary, claims for damages arising from operation of the dispensary , and legal fees to resolve disputes with the City of West Holly wood over the operations of the dispensary.” In April 2010, Andrew K. filed suit ag ainst the Lannings, alleging they had not repaid in full the two promissory notes the Lannings gave as securi ty for the $1 million deposit he paid them in seeking to pu rchase the Sunset Building in 2007 ( Andrew Kramer v. George Lanning et al. , 2010, L.A. Super. Ct. case No. SC107434) (Note Action). Andrew K. alleged the Lannings still ow ed him $408,000 on the second note.8 The Main Action was tried be fore a jury in J une 2010. In a prior proceeding, the
court had found that Andrew K. committed a fo rcible entry and forcible detainer of the Premises, beginning on July 18 , 2008. The jury rendered its verdict on June 23, 2010, finding that Rosalinda K., Michael K. and the remaining Kramer defendants committed a forcible entry and forcible deta iner. On this cause of action, the jury awarded damages of $236,613.68 against Andrew K. and $600 each against the other defendants. The jury
found the Kramer defendants committed a tr espass and awarded damages of $23,286.75 against Andrew K. and $75.88 each agains t the other defendants. The jury found
Andrew K. was liable for intentional inflicti on of emotional distress, with damages of $25,000 to George L. and damages of $10,000 each to Nansee L. and Justin L. It also
found Rosalinda K. and Matthew K. liable for intentional infliction of emotional distress and assessed damages against Rosalinda K. and Matthew K. each for $1,000 for each of the three Lannings. The jury also found Andr ew K. was entitled to a set off in the amount of his security deposit, $23,210.87. The jury found by clear and convi ncing evidence that Andrew K., WHCCH, and The Su nset Shop, Inc. acted with malice, oppression, or fraud, and accordingly, the La nnings were entitled to punitive dama ges. However, the jury did not assess any such damages. The Lannings filed a motion for a new tr ial on damages only. The Kramers filed a motion for judgment notw ithstanding the verdict. The tria l court denied both motions. Judgment and notice of entry of judgment we re issued in the Main Action on July 16,
2010. In the Note Action, the trial court sust ained the Lannings’ demurrer without leave to amend. On December 29, 20 10, the trial court entered a ju dgment of dismissal of the
Note Action.9 DISCUSSION

I
MAIN ACTION

A. The Lannings’ Contentions 1. Summary Judgment as to the Causes of Action Related to the Alleged Sale Agreement The Lannings contend that the trial court erred in granting Andrew K.’s motion for summary judgment as to their causes of action for breach of the alleged Sale Agreement,
intentional interference with contractua l relations, conversion, accounting and a constructive trust. Specifically, the Lannings claim the trial court er red in ruling that the alleged Sale Agreement was unlawful pursuant to the federal Controlled Substances Act (21 U.S.C. §§ 812, 841(a)(1), 844), that by law, an illegal contract/transaction may not be the basis of an action and, therefore, each of the causes of action was subject to summary judgment, given that existence of a valid sale agreement was an esse ntial element of each
of them. We review a trial court’s grant of a summary judgment motion de novo. ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 .) Code of Civil Procedure section 437c, subdivision (c), provides that a “motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitle d to a judgment as a matter of law.” Initially, a moving defendant has the “burden of showing that a cause of action has no merit,” such as by showing “that one or mo re elements of the causes of action . . . cannot be established,” or that there is a comp lete defense to the cause of action. (Code Civ. Proc., § 437c, subds. (o), (p)(2); Aguilar v. Atlan tic Richfield Co.
, supra , 25 Cal.4th at p. 854.) If the defendant meets that burden, “the burden shifts to the plaintiff . . . to
show that a triable issue of one or more material facts exists as to that cause of action” or10 as to the defense proffered by the defendant. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar
, supra , at p. 849.) We review the validity of the trial court’s ruling and not the reasons given for it by the trial court. ( Byars v. SCME Mort gage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1146.) At the March 9, 2010 h earing on Andrew K.’s motion for summary judgment, counsel for the Lannings bega n argument by addressing the issu e of the illegality of the alleged Sale Agreement under federal law. The court then invited argument on its tentative conclusion that the agreement was void and unenforceab le because of its vagueness and uncertainty as to the parties’ actual agreement. The court found the alleged Sale Agre ement, the Deal Points Memo, “was incomprehensible . . . . It might be a cont ract, but, at the same time, it might be a shopping list.” There followe d brief argument by counsel that the agreement had been partially performed and its terms could be determined from the performance shown by
records submitted as exhibits to their supporting declarations. The court found that there remained questions about the authenticity of the documents purported to be records of payments under the agreement. Ultimately, the trial court adopted its tentative decision
as its final written decision. It found that “t he contract at issue here, it is ‘so vaguely expressed as to be wholly unascertainable’ an d is therefore void. Civ[il] Code [section]
1598.” It then went on to address the illegality issue, finding that, in any event, the agreement was illegal and unenforceable. On appeal, the Lannings do not challenge the trial court’s determination that the alleged Sale Agreement was void for uncertain ty and vagueness. The record reveals this was not an inadvertent oversight, but rather the Lannings chose to challenge only the court’s determination of the agreement’s illega lity. In their reply brief, for example, they assert that the determination the agreemen t was void for uncertainty and vagueness “is inconsequential” to their appeal. Where an appellant does not co ntend the trial court erred in making a determination, the appe llant forfeits any claims concerning that determination. ( Quinn v. U.S. Bank NA (2011) 196 Cal.Ap p.4th 168, 189-190; Benach v.11 County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [“When an appellant fails to raise a point . . . we treat the point as [forfe ited].”].) The Lannings therefore forfeited any claim of error with respect to the trial c ourt’s determination that the alleged Sale Agreement was void for uncertainty and vagueness.
Andrew K. maintains that the trial court properly determined that the alleged Sale Agreement was void for uncertain ty and vaguenesss, and that was a sufficient basis for the court to grant his motion for summary judgment. We agree. When the material facts are undisputed, as in this case, whether a contract exists is a question of law which we indepe ndently review on appeal. ( Bustamante v. Intuit, Inc. (2006) 141 Cal. App. 4th 199, 208.) According to Civil Code section 1550, the essential elements of a contract are: “1. Parties capa ble of contracting; [¶ ] 2. Their consent; [¶] 3. A lawful object; and, [¶] 4. A sufficient cause or consideration.” “‘Under California law, a contract will be enforced if it is sufficiently definite (and this is a question of law) for the court to ascertain the parties’ ob ligations and to determine whether those obligations have been performed or breached.’ [Citation.]” ( Bustamante , supra , at p. 209.) “The material factors to be ascer tained from the written co ntract are the seller, the buyer, the price to be paid, the time and manner of payment, and the property to be transferred, describing it so it ma y be identified [Citations.]” ( King v. Stanley (1948) 32 Cal.2d 584, 589, disappro ved on another ground in Patel v. Liebermensch (2008) 45 Cal.4th 344, 351, fn. 4.) Civ il Code section 1598 provides: “Where a contract has but a single object, and such object is unlawful, whether in whole or in part, or wholly impossible of performance, or so vaguely expr essed as to be wholly unascertainable, the
entire contract is void.” “‘[T]he modern trend of the law favors ca rrying out the parties’ intentions through
the enforcement of contracts and disfavor s holding them unenforceable because of uncertainty. [Citations.]’ [Citation.]” ( Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1192.) To th at end, a “contract will be enforced if it is possible to reach a fair and just result even if, in the process, the cour t is required to fill in some12 gaps.” ( Ersa Grae Corp. v. Fluor Corp. (1991) 1 Cal.App.4th 613, 623.) Nevertheless, “[w]here a contract is so un certain and indefinite that th e intention of the parties in material particulars cannot be ascertained, th e contract is void and unenforceable . . . . Unless the court has ascertainable provisions of agreement before it, there is no contract on which the court may act.” ( Cal. Lettuce Growers v. Union Sugar Co. (1955) 45 Cal.2d 474, 481.) “To be enforc eable, a promise must be definite enough that a court can determine the scope of the duty and the lim its of performance mu st be sufficiently defined to provide a rational basis fo r the assessment of damages.” ( Ladas v. California
State Auto. Assn. (1993) 19 Cal.App.4th 761, 770.) It is undisputed that the parties never reduced the alleged Sale Agreement to the customary form of a written contract. George L. sent Andrew K. a letter entitled “‘Offer To Purchase’ the Dispensary . . . for a ‘Purchase Price’ totaling $1,450,000 and for $300,000 for ‘Inventory.’” There is no signe d acceptance of the offer by Andrew K. The parties acknowledge that part of their agr eement was the two-page Deal Points Memo. Their separate statements of undisputed fact s reveals that the par ties did not even agree on what the object was of the Deal Points Me mo. According to the Lannings, Andrew K. agreed to sell them the Dispen sary. According to Andrew K ., he agreed to grant them a license to operate the Dispensary, contin gent upon their satisfaction of certain
conditions. 5
The Deal Points Memo was not in the form of a written contract and was virtually devoid of complete sentence s. There were dates, dollar amounts and cryptic phrases alongside the amounts, but no indication rega rding, for example, who was required to pay or entitled to receive the dollar amounts, wh en payment was to be made or what the payment entitled the recipient to do or own. The memo states “300,000.00 owed for

5 In their separate statements of undisput ed facts, Andrew K. stated that the Deal Points Memo was a “term-sheet . . . outlin ing the circumstances under which [the Lannings] would operate the Disp ensary.” The Lannings stated that it “outlined the terms of the sale of the Dispensary to the Lannings.”13 remainder,” with no identification of wh at “remainder” is intended or the person responsible for payment or entitled to receive payment. There are references to “Loan taken over” and “Loan Payment, ” but no identification of the loan or its purpose. The memo states “1,850,000.00 Tota l Sale for home,” but includes no description, legal or by address, of the “home” or iden tity of the buyer or the selle r. There is a handwritten note under the heading “Payment Schedule” which states “$10,000/wk salary until <business> paid in full,” but no named recipient or even what “business” must be “paid in full.” According to the Lannings, other terms of the parties’ alleged Sale Agreement were implied from the conduct of the parties af ter they executed the Deal Points Memo. As evidence of the conduct, the Lannings provided sets of handwritten documents described as ledgers, which pu rportedly were evidence of their payments and debts to Andrew K. under the alleged Sale Agreemen t. However, the handwritten ledgers were also so vague as to be inco mprehensible as evidence of the terms and conditions of the alleged Sale Agreement. Each ledger set forth a brief caption, a column of dates (many with no year designation), a corresponding column of dollar amounts and, in most cases,
another column of dollar amounts which some times was marked as the balance column. 6 In some cases, there were add itional columns, such as initials or what appeared to be a name of a particular type of medical marijuana. The alleged Sale Agreement lacks clarity a nd is so vague as to render indiscernible the elements necessary to formation of a cont ract, that is, the persons contracting, the object of the contract, price or other consider ation, time payment is due, or consent by all parties to any such terms and conditions necessa ry for the enforcement of the agreement. (Civ. Code, § 1550; King v. Stanley
, supra , 32 Cal.2d at p. 589.) The trial court properly determined that, as a matter of law, the a lleged Sale Agreement was “so uncertain and indefinite that the intention of the parties in material particulars cannot be ascertained”

6 The captions on the handwritten ledgers were “Cash for Invent ory,” “Checks Recd Inventory,” “Inventory Fronted,” “Purchas es,” “Drew Purchases,” “Cash Recd for Business,” “Business [unintelligible],” and “Loan.”14 and, as a result the agreement was void and unenforceable. ( Cal. Lettuce Growers v. Union Sugar Co. , supra , 45 Cal.2d at p. 481.) The existence of the alleged Sale Agre ement was an essen tial element to the Lannings’ first, fifth, sixth, seventh and eigh th causes of action in the SAC. Andrew K. met his burden of showing that the Lannings c ould not establish the e ssential element, in that the Lannings did not posse ss, and could not reasonably obtain, evidence needed to prove the existence of the alleged Sale Agreem ent. (Code Civ. Proc., § 437c, subds. (o), (p)(2); Aguilar v. Atlantic Richfield Co.
, supra , 25 Cal.4th at pp. 854-855.) The Lannings
have failed to meet their burden to show a triable issue of mate rial fact exists with regard to the enforceability of the alleged Sale Agreement. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar
, supra , at p. 849.) For these reasons, as a matter of law, Kramer was entitled to the grant of his motion for summary judgment as to the first, fifth, sixth, seventh and eighth causes of action. (Code Civ. Proc., § 437c, subd. (c); Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003.) Inasmuch as the alleged Sale Agreemen t was in any event void for vagueness and uncertainty, we need not reach the Lannings ’ contention that the trial court erred in finding the alleged agreemen t was void for illegality. The result would be the same.

2. Preclusion of Restitut ion Damages for Considerat ion Paid for Dispensary As part of the changes to the TAC, th e Lannings amended their unjust enrichment cause of action (fifth) to seek restitution of the consideration they pa id Andrew K. for the Dispensary as well as disgorgement of Andr ew K.’s profits from th e Dispensary during the forcible detainer period. As we noted pr eviously, in paragraph 74 in the fifth cause of action, the Lannings expanded the list of ways Andrew K. had been unjustly enriched to include (a) money they paid Andrew K. prior to December 26, 2007, (b) money they paid
Andrew K. between December 26, 2007 and July 17, 2008, the period the Lannings operated the Dispensary, and (c) the benef its Andrew K. obtaine d while operating the Dispensary during the forc ible detainer period.15 The Lannings contend that the trial court erred in granting Andrew K.’s motion to strike the additions. The Lannings argue that the court’s comment that restitution damages were not recoverable, in that dete rmination of them required reference to the void Sale Agreement, was not supported by th e law of unjust enrichment. They cite cases in which some part of a contract wa s void as illegal, prec luding damages based on breach of contract, but the plaintiff was deemed entitled to equitable relief, i.e., restitution, “for any amounts he may have expended in [the] performance of the agreement.” ( Dunkin v. Boskey (2000) 82 Cal.App.4th 171, 197; see also Hernandez v. Lopez (2009) 180 Cal.App.4th 932, 938-939 [allegations in plea ding showed benefit paid
to the defendant as considera tion for the contract and were sufficient to permit restitution to the plaintiff].) The equitable doctrine of unjust enrichment “applies where the plaintiffs, while having no enforceable cont ract, nonetheless have conferred a benefit on
the defendant which the defendant has kn owingly accepted under circumstances that make it inequitable for the defendant to retain the benefit without paying for its value. [Citation.]” ( Hernandez
, supra , at p. 938.) We turn our focus, howe ver, to the court’s initial statement that, in prior proceedings on cross-motions fo r summary judgment, the court gave the Lannings “leave to amend the complaint as to the causes of action for forcible de tainer, trespass, and unjust enrichment . . . to name the [T]rust as a plaintiff. The Lannings filed a [TAC] . . . in which the Lannings have do ne so. However, . . . the Lanni ngs did not stop there, and have added various words and phr ases throughout the TAC. . . . [M]ost of the changes . . . are changes concomitant with the additio n of a named plaintiff and update the TAC with developments in this case since the SAC was filed . . . . Such amendments are permissible because they merely respond to the court’s reason for granting leave to amend. . . . The Lannings have not sought, and the court did not previously grant, leave for the Lannings to add any ne w claims for damages in the co mplaint . . . .” The court noted that, for that reason, it was inclined to strike “[e]ve rything in the TAC ¶74 . . . except the language ‘Kramer, WHCCH and SSI have been unjustly enri ched as a result of16 the conduct alleged above by faili ng to pay rent to the Trust fro m July 18, 2008 to June 8, 2009. In addition, Kramer, WHCCH and SSI caused over $75,000 in damage[s] to the units in which the Sunset Shop operated wh ile they forcibly de tained the same.” We agree that the Lannings’ additional claims for unjust enrichment went far beyond the limited scope of the leave to ame nd to add the Trust as a named plaintiff. (See Patrick v. Alacer Corp. (2008)167 Cal.App.4th 995, 1015 [plaintiff’s amendment adding a new cause of action was permissible, in that it was within th e specified scope of the trial court’s grant of leave to amend]; People ex rel. Dept. of Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785 [plaintiff ma y amend to name new parties where trial court expressly grants leave to do so; plain tiff may not add new parties, however, where, after a demurrer is sustained, plaintiff has been granted leave to amend to state a cause of action].) The Lannings had not obtained le ave to amend through a noticed motion for leave to amend before filing the TAC with the added materi al, as required pursuant to Code of Civil Procedure section 473, subdivision (a)(1). ( Lee v. Bank of America (1994) 27 Cal.App.4th 197, 217 and fn. 15.) Rather they sought leave to amend as a way to oppose Andrew K.’s motion to strike. The general policy of liberality in gran ting leave to amend do es not apply where
the cause of action or the issues involved in it are “radically changed,” or the amendment would “operate to the disadvantage or prejudice of the adverse party.” ( Price v. MasonMcDuffie Co. (1942) 50 Cal.App.2d 3 20, 325-326.) An amendment should not require a defendant “to answer a wholly different lega l liability or obligation from that originally stated.” ( Klopstock v. Superior Court (1941) 17 Cal.2d 13, 20.) The trial court did not abuse its discretion in refusing to grant leave to amend with regard to the cause of action (fifth) for unjust enrichment.17 3. Use of Andrew K.’s Special Verdict Form; Joint and Severable Liability
for Intentional Torts The Lannings contend that the trial court erred in submitting Andrew K.’s special verdict form, which required the jury to spec ify the amount of damages attributable to each Kramer defendant if the jury found them liable, to the ju ry and in rejecting all their objections. They claim that, by law, all of th e Kramer defendants must be held jointly and separately liable for the total amount of damages assessed by the jury for the intentional torts. According to the Lannings, allowing su ch apportionment abrogated the principle of joint and several liability of all of the tortfeasors who conspire to commit the

same tort. The Lannings cite Hughey v. Candoli (1958) 159 Cal.App.2d 231 as support for their contention, but that case also supports th e use of a special verd ict form allowing the jury to state the amount of damages caused by each defendant, as Andrew K.’s form did.
The Hughey court stated that, generally, “‘“[w]he re several persons act in concert and damages result from their joint tort, each person is held for the entire damages . . . ,”’” and the same result applies even if persons ar e not acting in concert, but “‘“the results produced by their acts are indivi sible,”’” such as “‘“[d]eath, burning of a building or the sinking of a boat . . . .”’” ( Id. at p. 240.) The court also stated, however, that if “‘“segregation as to causation can be establishe d,”’” each tortfeasor bears “‘the burden of establishing that his own wrong did not contribute to the damage s, or the extent to which it did so.’” ( Ibid. ) In the instant case, the jury apparently deci ded that each Kramer defendant met that burden and specified the da mages against each defendant accordingly. The facts do not support the Lannings’ cl aim that the torts produced indivisible results requiring that defendants be held jointl y and severally liable for all damages. (See Hughey v. Candoli
, supra , 159 Cal.App.2d at p. 240.) The torts were not single discrete events, but rather they continued over a long period of time. For the duration of the forcible entry and forcible detainer, Andrew K. was present virtually every day, but
Rosalinda K. and Matthew K. were not.18 As Andrew K. points out, the jury was instructed as to the indivisibility of damages caused by defendants if they acted as members of a conspiracy in carrying out the tortious conduct. At the Lannings’ reques t, the trial court instru cted the jury on the elements required to find a co nspiracy (CACI No. 3600), as well as the indivisibility of the damages caused by a conspiracy (CACI No. 3601, also D-9). The court stated: “If you decide that defendants jo in the conspiracy to commit th e torts . . . , then they are responsible for all acts done as part of the conspiracy, whether they occurred before or after they join the conspiracy.” The Lannings’ special verdict form di d not request a specific finding as to conspiracy. The form only had one line for en try of damages. The court rejected the Lannings’ form, reasoning that the form did not allow for the possi bility of the jury finding that the Kramer defendants did not act in a conspiracy and needing spaces for specification of the amount of damages as to each defendant. As the Lannings observed in their opening brief, “[b]ecause the apportionments [in the fi nal verdict] were different [for each Kramer defendant], the only conclusion that rec onciles the apportionment is that the jury concluded that there was no conspiracy amongst defendants.” The trial court did not err in permitting use of Andrew K.’s special verdict form.

4. “Tort of Another” Attorney’s Fees In the TAC, the Lannings amended their pr ayer for attorney’s fe es to include fees authorized by “the ‘tort of another’ doctrine.” The jury found that Andrew K., Rosalinda K., and Matthew K. had committed the tort of forcible entry a nd forcible detainer of the Premises. Among other things, the evidence showed that, on the day of their forcible entry, Rosalinda K. and Matthew K. spoke to the sheriff’s deputies who responded to the Lannings’ telephone call for help, and Rosali nda K. showed them a copy of the Lease between the Lannings and Andrew K. Upon seeing the Lease, a deputy said that the situation appeared to be a civil matter, and the deputies left. Thereafter, the Lannings filed the UD Action against Andrew K. to regain possession of the Premises. The19 Lannings sought to recover the attorney’s fees they expended in the UD Action from
Rosalinda K. and Matthew K. as damages in the Main Action under the “tort of another”
doctrine. The trial court ruled that the doctrine did not apply. On appeal, the Lannings claim the court erred, and the doctrine did apply. The gist of the Lannings’ argument is that, but fo r the wrongful conduct of Rosalinda K. and Matthew K. in representing to the sheriff’s deputies that they and Andrew K. had a legal right to be in possession of the Premises unde r the Lease, the Lannings would not have had to file and prosecute the UD Action. Therefore, the Lannings assert, they are entitled to recover their attorney’s fees and co sts in the UD Action from Rosalind K. and Matthew K. as damages for their wrongful co nduct under the “tort of another” doctrine. The general rule in tort ac tions is that the party who employs the attorney pays the attorney’s fees, in the abse nce of some special agreement, statutory provision, or exceptional circumstances. (Code Civ. Proc., § 1021; Prentice v. North Amer. Title Guar. Corp. (1963) 59 Cal.2d 61 8, 620.) The “tort of anot her” doctrine arises in the exceptional circumstances when a “person wh o through the tort of another has been required to act in the protection of his intere sts by bringing or defend ing an action against a third person.” ( Prentice , supra , at p. 620.) In such ci rcumstances, the person “is entitled to recover compensation for the reas onably necessary loss of time, attorney’s fees, and other expenditures . . . suffered or incurred” in the action against the third person. ( Ibid. ) Under the “tort of another” doctrine, atto rney’s fees are awarded as one element of damages suffered by the plaintiff who was requi red to sue a third person to protect his rights as “the natural and proximate conseq uence” of the torts committed against the plaintiff by the defendant; th e attorney’s fees are not “‘the measure and mode of compensation of attorneys’” governed by C ode of Civil Procedure section 1021. ( Prentice v. North Amer . Title Guar. Corp.
, supra , 59 Cal.2d at p. 621; see also Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 505, 507 [a plaintiff may recover attorney’s fees “if he is required to empl oy counsel to prosecute or defend an action20 against a third party because of the tort of defendant”]; Behniwal v. Mix (2005) 133 Cal.App.4th 1027, 1043.) “‘Unless the parties stipulate otherwise, a claim for attorney
fees under the “tort of another” doctrine . . . must be pleaded and proved to the trier of fact. [Citations.]’” ( Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 79.) Because the attorney’s fees awarded unde r the “tort of another” doctrine are “in fact an element of tort damages, nearly a ll of the cases which ha ve applied the doctrine
involve a clear violation of a traditional tort duty between the tortfeasor who is required to pay the attorney fees and the person seeking compensation fo r those fees. [Citations.]” ( Sooy v. Peter (1990) 220 Cal.App.3d 1305, 1310.) The “tort of another” doctrine does not apply, however, “to the s ituation where a plaintiff ha s been damaged by the joint negligence of codefendants.” ( Gorman v. Tassajara Development Corp.
, supra , 178 Cal.App.4th at p. 80.) The doctrine, as set forth in Prentice v. North Amer. Title Guar. Corp. , supra , 59 Cal.2d at pages 620 and 621, “‘ was not intended to apply to one of several joint tortfeasors in order to justify ad ditional attorney fee dama ges. If that were the rule there is no reason why it could not be applied in every multiple tortfeasor case with the plaintiff simply choosing the one with the deepest pocket as the “ Prentice target.” Such a result would be a total emasculation of Code of Civil Procedure section 1021 in tort cases.’” ( Gorman , supra , at p. 80.) The trial court properly ruled that the La nnings were not entitled to attorney’s fees as “tort of another” damages against Rosalin da K. and/or Matthew K. The TAC alleges that “[b]ecause of the forcible entry and de tainer of the Premises by Matthew Kramer, Rosalinda Kramer and their security person nel, the Lannings were forced to retain
counsel and cause the Trust to commence a la wsuit [as] an unlawful detainer action against Andrew Kramer to reclaim possession of the Premises.” The Lannings did not plead any “tort of another” damages ag ainst Rosalinda K. and Matthew K. ( Gorman v. Tassajara Development Corp.
, supra , 178 Cal.App.4th at p. 79.) The TAC alleges that all three—Rosalinda K., Matthew K. and Andrew K.—were joint tortfeasors. ( Id. at21 p. 80.) The Lannings did not institute the unlawful detain er action against only Andrew K. solely as “the natural and proximate cons equence” of the torts of Rosalinda K. and Matthew K. ( Prentice v. North Amer. Title Guar. Corp.
, supra , 59 Cal.2d at p. 621.) Thus, the “tort of another” doctrin e could not, and did not, apply.

5. The Lannings’ Motion for Retrial on Damages Only The Lannings contend the tr ial court erred in denying their motion for a new trial on damages only. The Lannings do not challenge any of th e jury’s findings on liability. When the court denies a new trial, we “conduct an independent examination of the proceedings to determine whether a mi scarriage of justice occurred.” ( People v. Ault (2004) 33 Cal.4th 1250, 12 61-1262, fn. omitted; Cal. Const., art. 6, § 13.) First the Lannings contend that, as thei r foregoing claims show, the manner in which the jury answered the special verdict questions on damages is unclear and may be the result of error. As we previo usly concluded, there was no error. The Lannings also clai m that retrial on the amount of punitive damages is warranted, in that Andrew K. failed to pr ovide sufficient inform ation to allow the Lannings’ financial expert to offer evidence of Kramer’s curre nt net worth for the jury’s consideration in determining the amount of punitive damages to award. The expert was Scott Mowrey, a certified public accountant. He testified that he had received the 2006 and 2007 tax returns for Andrew K., toge ther with some supporting documents and partial statements from brokerage accounts. Mowrey stated the dollar amount, in his opinion, of Andrew K.’s net worth. During the hearing on punitive damages, c ounsel for the Lannings never raised an objection, or even mentioned, that the fina ncial information made available to Mowrey was insufficient for the purpose of assessing An drew K.’s net worth. Counsel was not caught by surprise, however; he had the opp ortunity to become aware of the alleged insufficiency prior to the h earing. According to his de claration, the court permitted counsel for the Lannings to meet with Mowrey and review the financial information22 provided by Andrew K. during a break prior to the start of the hearing. By failing to make a timely objection, the Lannings forfe ited any error with respect to the punitive damages procedure, including any failure by Andrew K. to provide sufficient financial
information for the determination of his net worth. (See, e.g., City of El Monte v. Superior Court (1994) 29 Cal.Ap p.4th 272, 280 [plaintiff fo rfeited objection to punitive damages procedure by failing to obj ect before jury was discharged].) In any event, substantial evidence woul d support a finding that the information was sufficient. When a plain tiff attacks the suffici ency of the eviden ce to support the trier of fact’s finding, our power on appeal “‘be gins and ends with the determination as to whether there is any substantial evidence contradicted or uncon tradicted which will support the finding of fact.’ [Citations.]” ( Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881, italics omitted.) The Lannings’ financial expert identified the evidence provided to him and stated the specific dollar amount that, in his opinion, constituted
Andrew K.’s net worth. He never mentioned that the information pr ovided to him was, or even appeared to be , insufficient to allow him to rende r an opinion on Andrew K.’s net worth and counsel for Lanning never questioned him on the issue. Th at is sufficient for
us to determine that there was substantial evidence to support the expert’s net worth opinion used by the jury in making its finding. ( Ibid. )

B. Andrew K.’s Contentions
1. Res Judicata Effect of the Ju dgment of Possession in the UD Action Andrew K. contends that the jury verdic t for $236,613.68 agai nst him in the Main Action must be reversed, in that the judgm ent in the UD Action was res judicata on the issues of forcible entry and forcible detain er and barred trial on the issues in the Main Action. We disagree.
In both the Main Action and the UD Ac tion, the Lannings stated causes of action against Andrew K. for forcible entry and forc ible detainer. The sole remedy obtained in23 the UD Action was a judgment of possession . The judgment of possession in the UD
Action did not bar the trial and award on monetary damages in the Main Action. The primary purpose of an unlawful detain er action (Code Civ. Proc., § 1174) is “‘“the recovery of the possession of the property. The recovery of rent is a mere incident to the main object.”’” ( Balassy v. Superior Court (1986) 181 Cal.App.3d 1148, 1152.) The landlord may leave recove ry of monetary damages to subsequent litigation. (See Northrop Corp. v. Chaparral Energy, Inc. (1985) 168 Cal.App.3d 725, 729.) The cause of action may be the same in two lawsuits, but remedies sought may be different, “‘one not being determinative of the other.’” ( Crowley v. Katleman (1994) 8 Cal.4th 666, 682.) In the UD action, judgment was rendered in th e forcible entry and fo rcible detainer cause of action only as to the remedy of the right of possession; the issue of damages was not litigated. A judgment operates as res judicata or collateral estoppel in a subsequent action only as to those issues actually litigated. ( Clark v. Lesher (1956) 46 Cal.2d 874, 880; 7 Witkin, Cal. Proc. (4th ed. 1997) Judgment, § 313, p. 86 4, § 354, p. 915.) Hence, the judgment in the UD Action did not bar the trial on the issue of damages for forcible detainer in the Main Action. ( Northrop Corp. v. Chaparral Energy, Inc.
, supra , 168 Cal.App.3d at p. 729.)

2. Emotional Distress Verdict as to Justin L. The jury awarded damages of $10,0 00 against Andrew K., $1,000 against Rosalinda K. and $1,000 against Matthew K. for intentional infliction of emotional distress as to Justin L. Andrew K. appeals from the trial court’s denial of his motion for judgment notwithstanding verdict on the cause of action. He contends the verdict must be reversed, in that the law does not au thorize a cause of action for second-hand emotional distress, i.e., Justin L.’s distress due to watching the toll that the litigation took on his parents.24 At the close of direct examination, couns el for the Lannings asked Justin L. to briefly tell why he was asking the jury to award him damage s for emotional distress. Justin stated: “Primarily, be cause to see the rapid aging of my parents throughout this entire litigation process—it’s be yond drained my family em otionally, financially, and physically. I’ve had the burden of helping to support my fa mily through this. And it’s been extremely difficult. Also , our quality of life has dimini shed considerably as a result
of the horrific acts and . . . the malicious intent by the defendants.” Prior to that brief statement, Justin ha d testified that, on July 18, 2008, when he discovered that none of his keys fit the lock to the gate to the Premises, two men who had been hired by Andrew K. as se curity personnel were standing near him. He asked them what was going on. One of them, who was abou t six feet four inches in height, said to Justin in an unfriendly manner that “we’re no t going to play this guessing game.” Justin testified that, at that time, he “felt fea rful,” “felt a big presence over me” and “felt physically scared.” He called his father, Geor ge L., “frantic, statin g that our building had
been taken over.” When Geor ge arrived, Rosalinda K. a nd Matthew K. approached, and George and Rosalinda got into a heated argume nt. Four security personnel were present and two were videotaping the scene. Justin said that Rosalinda directed one of the security personnel to “‘remove George L. from this Premises immediately.’” Justin felt a physical confrontation was abou t to break out. He was conc erned for George because he had bladder cancer and had recently had heart surgery. Justin observed that his small 61- year-old mother, Nansee L., wa s very nervous and was phys ically shaking. Justin
testified that he “felt scared” and “uncomfortable .” Justin said that he “felt that we were being bullied,” “there was a menacing pres ence” and he was “overwhelmed by the number of people that were against us.” Just in stated that he “was not sure whether or not there was weapons or whatever,” due to the “large security presence and all the people wearing baggy clothing.” When the Lannings first en tered the Premises after the judgment of possession had been entered in th e UD Action, Justin testified that he was “personally disgusted” and “felt horrifi ed” at the condition of the Premises.25 The trial court’s “power to grant a judgment notwithsta nding the verdict is identical to [its] power to gr ant a directed verdict.” ( Hauter v. Zogarts (1975) 14 Cal.3d 104, 110.) The trial court “cannot weigh the ev idence [citation], or judge the credibility of witnesses. [Citation.] If th e evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notw ithstanding the verdict should be denied. [Citations.]” ( Ibid. ) The trial court may properly grant a motion for judgment notwithstanding the verdict “‘only if it appe ars from the evid ence, viewed in the light most favorable to the party securing the verdic t, that there is no su bstantial evidence to support the verdict. If there is any substan tial evidence, or reasona ble inferences to be drawn therefrom, in support of the verdict, the motion should be denied.’ [Citation.]” ( Ibid. ) A plaintiff may recover damages for inten tional infliction of emotional distress if the distress is severe, whether or not the plaintiff suffered any physical injury. ( Hailey v. California Physicians’ Service (2007) 158 Cal.App.4th 452, 476.) Emotional distress is
severe if it is “‘of such s ubstantial quantity or enduring qu ality that no reasonable man in a civilized society should be expected to endure it,’” including “‘any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry.’” ( Ibid. ) However, “[l]iability fo r intentional infliction of
emotional distress ‘“does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. ” [Citation.]’ [Citations.]” ( Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.) “A cause of action for intentional infliction of emotional distress must allege facts showing out rageous conduct which is inte ntional or reckless[,] . . . ‘exceeding all bounds usually tole rated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very seriou s kind.’ [Citations.] . . . Further, although the law appears to be moving toward allowing recovery where
mental distress is caused when plaintiff witnesses conduct dir ected toward a third person, ‘thus far recovery is clearly limited to the most extreme ca ses of violent attack, where there is some especial likelihood of fright or shock.’ [Citation.]” ( Ochoa v. Superior26 Court (1985) 39 Cal.3d 159, 165, fn. 5, italics omitted; accord, Christensen v. Superior
Court (1991) 54 Cal.3d 868, 904-90 5.) Liability for intentio nal infliction of emotional distress requires “that the defendant’s conduc t be directed primarily at the plaintiff [which] is a factor which distinguishes inte ntional infliction of emotional distress from the negligent infliction of su ch injury,” when the defendant’s conduct is directed primarily at a third person, such as the plaintiff’s child. ( Christensen
, supra , at p. 904.) We agree with Andrew K. that the emo tional distress described by Justin L. is
insufficient to constitute the severe emotiona l distress required as a matter of law for liability for intentional infliction of em otional distress. Andrew K. cites Hughes v. Pair
, supra , 46 Cal.4th 1035, in which the court a ffirmed a lower court’s ruling that the
defendant was not liable for in tentional infliction of emotio nal distress to the plaintiff
based on her claim that she “suffered discomfo rt, worry, anxiety, up set stomach, concern, and agitation as the result of [the] defendant’ s [sexually explicit] comments to her” in a telephone call and a brief encoun ter with him at a museum. ( Id. at pp. 1040, 1051.) In the other case Andrew K. cites, Wong v. Jing (2010) 189 Cal.App.4t h 1354, the plaintiff alleged a cause of action for intentional inf liction of emotional distress arising from the defendants’ disparaging posting about her on the Internet. ( Id. at p. 1361.) The plaintiff submitted a declaration stating that the Inte rnet posting “‘was very emotionally upsetting to me, and has caused me to lose sleep, have stomach upset and generalized anxiety.’” ( Id. at p. 1377.) The court concluded that the stated conditions were insufficient to
constitute intentional inflicti on of emotional distress. ( Ibid. ) Viewing the evidence in the light most favorable to Justin L., he and his parents were in the immediate presence of persons whom he feared were about to physically harm himself and/or his parents and appeared to have the ability to inflict harm. They were telling Justin and his parents in a threat ening manner to stay off the Premises and forcibly keeping them off pr operty that the Lannings owne d by blocking access. The conduct Justin L. described may have gone beyond “‘“mere insu lts, . . . threats, . . . petty oppressions, or other trivialities.”’” ( Hughes v. Pair
, supra , 46 Cal.4th at p. 1051.) The27 conduct may have been “‘very emotionally upsetting’” to Ju stin L. and caused him to have “‘generalized anxiety.’” ( Wong v. Jing , supra , 189 Cal.App.4th at p. 1377.) Defendants’ conduct falls short, however, of being “‘of such substantial quantity or enduring quality that no reasonable man in a civilized society shou ld be expected to endure it.’” ( Hailey v. California Physicians’ Service
, supra , 158 Cal.App.4th at p. 476.) Defendants’ conduct was intentional, but it wa s not so outrageous as to “‘exceed[] all bounds usually tolerated by decent society.’” ( Christensen v. Superior Court
, supra , 54 Cal.3d at pp. 904-905.) Justin L. may have been justifiably concer ned for the well-being of his parents. The evidence does not show that defendants engaged in an “‘“extreme case[] of violent attack [on Justin’s parents] , where there [was] some especial likelihood of fright or shock.”’” ( Id. at p. 905.) In the absence of such extreme egregious conduct toward his parents, Justin L. cannot recover for intentional in fliction of emotional distress based upon any distress, worry or concern arising from defe ndants’ conduct toward his parents. ( Ibid. ) We conclude that the verdict is not supported by substantial evidence
and reasonable inferences drawn from it. Th e trial court erred in denying Andrew K.’s motion for judgment notwithst anding verdict on Justin L.’s intentional infliction of emotional distress claim. ( Hauter v. Zogarts , supra , 14 Cal.3d at p. 110.) The judgment in Justin L.’s favor based up on liability for intentional inf liction of emotional distress on
him must be reversed and the associated da mages awards against Andrew K., Rosalinda
K. and Matthew K. must be vacated.

II
NOTE ACTION

Andrew K. filed the Note Action, alleging the Lannings defaulted on the promissory note securing the $1 million deposit he paid them toward the purchase of the Sunset Building while the Main Action was still in progress. The complaint alleged causes of action for breach of the promi ssory note and money had and received.28 After the jury verdict in the Main Action, the Lannin gs filed a demurrer in the Note Action. The grounds for the demurrer we re that Andrew K.’s claims were required to be pleaded as a compulsory cross-compla int in the Main Acti on, and because they were not so pleaded, then pursuant to Code of Civil Procedure section 426.30, subdivision (a), Andrew K. was barred from raisi ng them in a subsequent action. On that basis, the trial court sustained the demurre r without leave to amend and subsequently entered a judgment of dismissal. “On review from an order sustaining a demurrer, ‘we examine the complaint de
novo to determine whether it a lleges facts sufficient to stat e a cause of action under any legal theory, such facts being assumed true for this purpose. [Citations.]’ [Citation.]” ( Committee for Green Foothills v. Sant a Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.) When a demurrer is sustai ned without leave to amend, “we decide whether there is a reasonable po ssibility that the defect can be cured by amendment: if it can be, the trial court has abused its discreti on and we reverse; if not, there has been no
abuse of discretion and we affi rm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]” ( Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “On appeal from dismissal following a sustained demurrer, we take as true all well-pleaded factual allegations of the complaint. [Citation.]” ( Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 495-496.) In his complaint in the Note Action, A ndrew K. alleged that in September 2006,
he entered into a lease with the Lannings for his use of a portion of the Sunset Building for the Dispensary. In Janua ry 2007, he proposed to pur chase the Sunset Building from the Lannings and entered into an escrow agreement with them. As the agreement required, he deposited $600,000 with the Lannings, to be return ed to him if he could not close escrow by August 7, 2007. In return, the Lannings executed a promissory note to him as security for the return of his deposit (First Note). Thereafter, the parties entered into a written agreement to increase the de posit to $1 million, amend the First Note29 accordingly, and extend the date for close of escrow to October 31, 2007. Andrew K. paid the Lannings the a dditional deposit amount.
Andrew K. was unable to close escrow by the agreed upon date. The Lannings began repaying the First Note. As of Apr il 19, 2008, the balance due and payable to Andrew K. was $408,000. Th e Lannings made no payment on the debt after that date. When the term of the First Note expire d, Andrew K. demanded payment from the Lannings. Rather than paying him, the Lannings gave him a promissory note for $408,000, “due and payable by February 28, 2 009,” plus a two and a half percent penalty (Second Note). The Lannings never made a payment to Andrew K. under the Second Note. On April 1, 2010, Andrew K. filed the Note Action to recover under the Second
Note. Andrew K. contends on appeal that his causes of action based upon the promissory
note debt are not related to the transacti ons being litigated in the Main Action and, therefore, the trial court erred in determining that he was required to raise the causes of action in a compulsory cross-co mplaint in the Main Action. He maintains that the failed Sunset Building purchase giving rise to the promissory note debt is entirely separate from, and unrelated to, the dispensary busine ss and lease transactions which are the basis for the causes of action in the Main Action. We disagree.
Under Code of Civil Procedure section 426.30, subdivision (a), a defendant must allege “any related cause of action which (a t the time of serving his answer to the complaint) he has against the plaintiff” in a cross-complaint and may not subsequently
assert the related cause of action in another la wsuit. A “‘[r]elated cause of action’” is “a
cause of action which arises out of the same transaction, occurrence, or series of
transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.” ( Id ., § 426.10, subd. (c).) At any time during the proceedings on the complaint, a defendant who initially fails to fi le such a cross-compla int may request leave to file the cross-complaint, and the court must grant the request if the defendant “acted in good faith” in failing to file earlier. ( Id. , § 426.50.) With regard to the compulsory cross-30 complaint statutes ( id. , §§ 426.10-426.50), the California Supreme Court explained, “The law abhors a multiplicity of actions, and the o bvious intent of the Le gislature in enacting the . . . statutes [citation] was to provide fo r the settlement, in a single action, of all conflicting claims between the parties arising out of the same transaction. [Citation.] Thus, a party cannot by negligence or de sign withhold issues and litigate them in successive actions; he may not split his demands or defenses; he may not submit his case in piecemeal fashion. [Citation.]” ( Flickinger v. Swedlow Engineering Co. (1955) 45 Cal.2d 388, 393.)
The record reveals that Andrew K. rec ognized that the causes of action in the
Main Action were related to those in the No te Action. In support of his motion for summary judgment in the Main Action, Andr ew K. submitted a separate statement of undisputed facts. Undisputed facts numbe red 12 through 18 were the same facts he alleged in the Note Action. At the summary judgment hearing, Andrew K. argued that the Lannings did not need to recoup any cons ideration they paid un der the Deal Points Memo, because the Lannings al ready had received money fro m Andrew K. as his deposit on the failed purchase of the Sunset Building, and they had not returned it to Andrew K. 7 Andrew K. asserted the promissory note de bt as a defense in the Main Action. In his answers to both the SAC and the TAC, he asserted the promissory note debt as an affirmative defense to “offset” to any liab ility assessed against him in the Main Action. 8 In addition, in a hearing in the Main Action, Andrew K. asserted the Note Action as the

7 At the summary judgment hearing, Andrew K.’s counsel also orally requested the court to grant leave for “the opportunity to file a cross- complaint on the basis of the promissory note that has recently matured.” The court said that wo uld have to be made as a written motion.

8 Andrew K.’s answers to both the SAC and the TAC asserted as an affirmative defense: “To the extent that any sums ar e determined to be due and owing to [the Lannings], and any of them, by . . . Andrew Kramer, . . . Andrew Kramer is entitled to an offset in an amount equal to all sums due and owing to [him] by [the Lannings].”31 basis for his request for a stay of enforcement of the monetary award in favor of the Trust
in the Main Action. Andrew K. was aware of the possible need to file a cross-co mplaint in the Main Action. In the same hearing at which he asserted the Note Action as reason to stay enforcement in the Main Action, the Lannings’ counsel asserted that Andrew K.’s claims
in the Note Action were related to the Main Action and should be brought as compulsory
cross-claims in the Main Action. That Andr ew K. had considered, but rejected, the crosscomplaint procedure is indicated by the res ponse of his counsel that Andrew K. had “elected to pursue those claims separately.” The court denied the requested stay and said that the judgment in the Main Action could po ssibly provide the basis for issue preclusion or res judicata in the Note Action.
Cases that Andrew K. discusses do not support his contentions. Rather they support the applicability of the compulsory cross-complaint in the instant litigation. All
of the cases involve transacti ons which the court determined were sufficiently related that the compulsory cross-comp laint statute would bar a second lawsuit. (E.g., Hulsey v.
Koehler (1990) 218 Cal.App.3d 1150, 1154-1156 [first action on escrow instructions and a deposit receipt and second action on a pr omissory note for the purchase of a motorhome]; Ranchers Bank v. Pressman (1971) 19 Cal.App. 3d 612, 615, 621 [automobile agency purchase in volving a promissory note to an individual in the first action and a financing agreement w ith a bank in a second action]; Sylvester v. Soulsburg (1967) 252 Cal.App.2d 185, 186-1 88, 193 [a real estate purch ase contract and a chattel mortgage as security, with th e first action for foreclosure of the chattel mortgage where the defendant buyers answered by alleging fraud and trespass against the sellers and the second action by the buyers agai nst the sellers for trespass]. As support for his claim that no com pulsory cross-complaint was required, Andrew K. quotes from Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949 that, “‘[a]t the heart of the [logical relationship] approach’” to determining whether a crosscomplaint is compulsory “‘is the question of duplication of time and effort; i.e., are any32 factual or legal issues relevant to bot h claims? [Citation.]’ [Citation.]” ( Id. at p. 960.) Andrew K. contends that “[t] here is no overlap of releva nt facts” and “no claim or defense relevant to the promissory note [which is at issue in the second action] arises from the parties’ landlord-tenant relationship, nor from their relationship with respect to operation of the business [which are at issue in the first action].” Andrew K.’s contention lacks merit, as shown by his use of the promissory note
debt in his claims and defenses in the Main Action. As the Align Technology court also stated, “Because of the liberal construction given to the [compulsory cross-complaint] statute to accomplish its purpose of avoidi ng a multiplicity of actions, ‘transaction’ is construed broadly; it is ‘not confined to a si ngle, isolated act or occurrence . . . but may embrace a series of acts or occurrences logi cally interrelated [cita tions].’ [Citation.]” ( Align Technology, Inc. v. Tran
, supra , 179 Cal.App.4th at p. 960

. ) The Note Action clearly is barred by Code of Ci vil Procedure sections 426.10, subdivision (c), and 426.30, subdivision (a). For that reason, Andrew K.’s complaint failed to state a cause of action under any legal theory and the trial court prope rly sustained the Lannings’ demurrer. ( Committee for Green Foothills v. Santa Cl ara County Bd. of Supervisors
, supra , 48 Cal.4th at p. 42.) In view of the statutory bar, there is no reason able possibility that the defect can be cured by amendment and, therefore, the trial court di d not abuse its discretion in sustaining the
demurrer without leave to amend the complaint in the Note Action. ( Blank v. Kirwan
, supra , 39 Cal.3d at p. 318.)

DISPOSITION

In Lanning v. Kramer , No. B227686, the judgment is reversed with respect to the judgment in favor of Justin L. on intentional infliction of em otional distress. In all other respects, the judgment is affirm ed and the parties shall bear their own costs on appeal. In33 Kramer v. Lanning , No. B231249, the judgment is affi rmed and defendants shall recover their costs on appeal.

JACKSON, J.

We concur:

WOODS, Acting P. J.

ZELON, J.