Sorge v. Gaasterland

Decision Date12 January 2011
Docket NumberNo. D056682,No. 37-2008-00098063-CU-FR-CTL,D056682,37-2008-00098063-CU-FR-CTL
PartiesJOSEPH SORGE, Plaintiff and Appellant, v. THERESA GAASTERLAND, Defendant and Respondent.
CourtCalifornia Court of Appeals Court of Appeals


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

APPEAL from a judgment of the Superior Court of San Diego County, Joan M. Lewis, Judge. Affirmed.

This is an appeal from a summary judgment against plaintiff Joseph Sorge and in favor of defendant Theresa Gaasterland. After their personal relationship ended, Sorge sued Gaasterland on theories of money had and received, money lent, and fraud, to recover $80,000 his company had transferred to her several years earlier. The trial court ruled the first two claims were time-barred and Sorge had no evidence to support the third. We affirm.


Because this appeal is taken from the trial court's grant of summary judgment in favor of Gaasterland and against Sorge, we take the facts from the record before the trial court when it granted the motion, liberally construing the declarations and other evidence in favor of Sorge and resolving any doubts in his favor. (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64 (Johnson); Superior Dispatch, Inc. v. Insurance Corp. of New York (2010) 181 Cal.App.4th 175, 186; Kurokawa v. Blum (1988) 199 Cal.App.3d 976, 990 (Kurokawa).) So viewed, the record reveals the following facts.

Sorge and Gaasterland met in early 2000 and carried on a "romantic" or "personal" relationship at various times until 2005 or 2006. In 2002, when Gaasterland moved from New York City to San Diego to start a new job as a professor at the University of California, San Diego (UCSD), the parties began a professional business relationship as well.

In connection with her professional relocation, Gaasterland decided to buy a house in Del Mar. On September 19, 2002, Sorge wired $80,000 from an account of an investment company he owned (Biosense Management, LLC; hereafter, Biosense) to Gaasterland's savings account to be used as part of the purchase price. According to Sorge, Gaasterland agreed the $80,000 either would give Biosense a 10 percent ownership interest in the Del Mar property or would be converted into a loan at a later date; Sorge agreed to postpone documentation of the transaction until they decided between these two options; Gaasterland assured him she would document the transaction when the decision was made; and throughout 2003 Gaasterland led Sorge to believe thatshe would obtain financing from UCSD and repay Biosense.1 The money transfer, however, was never documented.

In December 2003 the parties' personal relationship encountered serious problems. Despite joint counseling and other efforts throughout 2004, the parties were unable to repair their relationship, which ended at some point in 2005 or 2006. The business relationship survived for a longer period, however, as Gaasterland continued to consult for one of Sorge's companies.

In January 2007 the parties met at a scientific meeting held at a ski resort in Colorado. According to Sorge, they discussed "resolution" of what to do about the $80,000 Biosense had given Gaasterland to purchase the Del Mar property. Sorge contends Gaasterland then agreed they could "convert" Biosense's 10 percent ownership interest in the property into a promissory note, secured by a second deed of trust on the property, payable over a period of up to 10 years.

The next month, Sorge tried to contact Gaasterland regarding execution of a second deed of trust on the Del Mar property, but she refused to provide necessarydocumentation and refused to return his telephone calls. In June and July 2007, lawyers for both parties exchanged correspondence regarding the loan, but Gaasterland still refused to sign the deed of trust or to repay the $80,000. A year later, Biosense's lawyer sent Gaasterland a letter demanding repayment of the $80,000, with interest. Gaasterland's lawyer responded with a letter stating the demand had no merit.

Sorge subsequently obtained an assignment of Biosense's claims against Gaasterland and sued her on December 15, 2008. In his complaint, Sorge sought to recover the $80,000, plus interest from September 19, 2002, under three theories: money had and received, money lent, and fraud.

Gaasterland filed an answer in which she generally denied the allegations of Sorge's complaint and asserted several affirmative defenses, including the statute of limitations and the statute of frauds. She later moved for summary judgment, or in the alternative for summary adjudication, on the grounds that Sorge's claims were barred by the statute of limitations or the statute of frauds and that Sorge could not establish essential elements of the claims. The trial court granted the motion and entered judgment against Sorge.


On appeal from a summary judgment, we independently review the record before the trial court to determine whether there is any triable issue of material fact. (Code Civ. Proc., § 437c, subd. (c); Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767 (Saelzler).) When, as in this case, the defendant moves for summary judgment, the defendant bears the initial burden to show that the plaintiff cannot establish an essentialelement of the claim or that the defendant has a complete defense to the claim. (Code Civ. Proc., § 437c, subds. (a), (o), (p)(2); Saelzler, at p. 768; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-850 (Aguilar)) Once the defendant has met this burden, the burden shifts to the plaintiff to "set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto." (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at pp. 849-850.) The evidentiary materials must be viewed in the light most favorable to the party opposing summary judgment, and any doubts are resolved in that party's favor. (Johnson, supra, 43 Cal.4th at p. 64; Saelzler, at p. 768.) Applying these rules, we conclude that the trial court properly granted Gaasterland's motion for summary judgment because the record shows there was no triable issue of material fact regarding any of Sorge's three claims and Gaasterland was entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107 ["A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail."].)

A. Sorge's Cause of Action for Money Had and Received Is Time-Barred

Sorge contends his claim for money had and received was timely because he filed his complaint less than two years after the parties "fully" agreed to a " 'loan' arrangement." We disagree.

As a threshold matter, Sorge cannot predicate his claim for money had and received on a loan arrangement with Gaasterland. To prevail on a common count for money had and received, the plaintiff must prove that the defendant is indebted to theplaintiff for money the defendant received for the use and benefit of the plaintiff. (Pike v. Zadig (1915) 171 Cal. 273, 276; Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460; Schultz v. Harney (1994) 27 Cal.App.4th 1611, 1622.) Sorge alleged that in exchange for the $80,000 that Biosense wired to Gaasterland's savings account, Gaasterland agreed to give Biosense a 10 percent ownership interest in the Del Mar property "or, alternatively, treat the funds as a personal loan." The purchase of an ownership interest in the Del Mar property with the $80,000 would be for Biosense's use and benefit and would support a claim for money had and received if Gaasterland did not so use the money. But if the $80,000 were used to fund a personal loan to Gaasterland, the money would be for her use and benefit and would not support such a claim. (See Jones v. Re-Mine Oil Co. (1941) 47 Cal.App.2d 832, 843 ["proof of a loan of money will not support a count for money had and received"].) We therefore disregard Sorge's allegations concerning a " 'loan' arrangement" and consider only those pertaining to a purchase of an ownership interest in the Del Mar property in determining whether his claim was timely.

So considered, the claim was not timely filed. A claim for money had and received is subject to a two-year limitations period. (Code Civ. Proc., § 339; Orloff v. Metropolitan Trust Co. (1941) 17 Cal.2d 484, 489; Bowden v. Robinson (1977) 67 Cal.App.3d 705, 718.) The period commences when the defendant receives the money. (Orloff at p. 489; Fall v. Lincoln Mortgage Co. (1931) 115 Cal.App. 651, 654; Whittle v. Whittle (1907) 5 Cal.App. 696, 699.) The parties agree Gaasterland received the $80,000 no later than September 20, 2002. Sorge thus had until September 20, 2004, to sue Gaasterland (Code Civ. Proc., § 339), but he did not do so until December 15, 2008. His claim for money had and received was therefore barred by the statute limitations and susceptible to summary adjudication on that ground. (See Code Civ. Proc., § 437c, subd. (o)(2) [claim has no merit if defendant has affirmative defense thereto]; Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 395-396 (Norgart) [statute of limitations "operates in an action as an affirmative defense," and "a cause of action brought by a plaintiff outside such period is barred"]; Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112 (Jolly) [when undisputed facts show claim is untimely, "summary judgment is proper"].)2

B. The Cause of Action for Money Lent Is Time-Barred

Sorge also contends his claim for money lent was timely because he filed his complaint less than two years...

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