Preview
Superior Court of California
County of Kern
Bakersfield Department 17
Date: 09/28/2020 Time: 8:00 AM - 5:00 PM
BCV-16-101459
MCCULLAGH VS KIOSEF ET AL
Courtroom Staff
Honorable: Thomas S. Clark Clerk: Betsy Cardona
NATURE OF PROCEEDINGS: RULING
RULING ON CROSS-MOTIONS FOR SUMMARY ADJUDICATION
By way of background, this case was originally filed by Plaintiff Robin McCullagh on 06/27/16
against Defendant Chris Kiosef and Chris Kiosef dba King Bee Apiarys (“the Main Action”)
with causes of action for:
(1) Breach of express contract,
(2) Breach of implied contract,
(3) Claim for quantum meruit / unjust enrichment,
(4) For breach of oral agreement for joint venture,
(5) Partition, and
(6) Declaratory relief.
A stipulation by the parties, through counsel, and order of the Court signed on October 10, 2017,
set the case for trial bifurcating the issues of liability and damages. The stipulation read in full as
follows:
“The parties to this action, by and through their respective attorneys of record,
stipulate and agree as follows:
The issue of whether a contract exists in this matter will be vigorously contested
at trial. Both parties wish to avoid incurring the significant additional expense of
hiring economist and property appraisal experts and the cost of damages
discovery unless absolutely necessary. The parties therefore respectfully request
that the Court allow them to wait to conduct additional damages discovery,
including designation of experts, unless they know how the breach of contract
issue has been adjudicated.
Therefore, the parties stipulate to an Order bifurcating the issues of breach of
contract and damages, such that the existence of a contract issue will first be fully
MINUTES
Page 1 of 10
MCCULLAGH VS KIOSEF ET AL BCV-16-101459
MINUTES FINALIZED BY: Betsy Cardona ON: 9/28/2020
resolved through trial or to a jury. Once the breach of contract issue is final, the
parties agree to a ninety-day discovery period for supplemental interrogatories
and document demands, designation of experts, and depositions related to damage
and property evaluations. After conclusion of this supplemental damages
discovery period, the parties stipulate to an Order that the damages and breach of
contract issues will be tried to a new jury.”
This stipulation itself leaves room for interpretation.
The case progressed through a phase 1 jury trial at which time Plaintiff Robin McCullagh’s
06/27/16 Complaint was the operative pleading. Of the causes of action originally pleaded, three
causes of action were sent to the jury, as follows: (1) Breach of implied contract, (2) Breach of
oral agreement to enter into a joint venture, and (3) Quantum meruit. The Court’s minute order
of 12/11/18, reflects the motion of Plaintiff’s counsel to dismiss the breach of express contract
claim and the declaratory relief claim, although the court file does not yet contain a signed order
of dismissal. The 12/11/18 minute order further states that “Cou[n]t 4 – Deferred”. Notably, the
caption of the Complaint listed two fourth causes of action, one of which was the partition claim,
which in reality was the fifth cause of action as correctly identified in the body of the Complaint.
Therefore, “Cou[n]t 4 – Deferred” appears to refer to the fifth cause of action for partition. The
Court was unable to locate any record of dismissal of Plaintiff’s partition cause of action,
wherefore this claim survives.
As a result of the phase 1 trial, the jury made findings via a special verdict form dated December
13, 2018. The special verdict form reads as follows:
“We answer the following questions submitted to us as follows:
1. Did Plaintiff Robin McCullagh and Defendant Chris Kiosef enter into an implied
contract?
[Yes].
If you answer question Number 1 “yes”, then answer Question Number 2.
If you answer question Number 1 “no”, then skip to Question Number 4.
2. Did Plaintiff Robin McCullagh do all, or substantially all, of the significant things that
the contract required her to do”
[Yes]
If you answer question Number 2 “yes”, then answer Question Number 3.
If you answer question Number 2 “no”, then skip to Question Number 4.
3. Did Defendant Chris Kiosef do something the contract prohibited him from doing?
[No.]
Please proceed to Question Number 4.
4. Did Plaintiff Robin McCullagh and Defendant Chris Kiosef enter into an oral
MINUTES
Page 2 of 10
MCCULLAGH VS KIOSEF ET AL BCV-16-101459
MINUTES FINALIZED BY: Betsy Cardona ON: 9/28/2020
agreement for a joint venture?
[No.]
If you answer question Number 4 “yes”, then answer Question Number 5.
If you answer question Number 4 “no”, then skip to Question Number 7.
5. Did Plaintiff Robin McCullagh do all, or substantially all, of the significant things that
the oral agreement required her to do?
[No response]
If you answer question Number 5 “yes”, then answer Question Number 6.
If you answer question Number 5 “no”, then skip to Question Number 7.
6. Did Defendant Chris Kiosef do something the oral agreement prohibited him from
doing?
[No response]
Please proceed to Question Number 7.
7. Did Defendant Chris Kiosef request, by words or conduct, that Plaintiff Robin
McCullagh perform services for the benefit [of] Defendant Chris Kiosef?
[Yes.]
If you answer [Q]uestion Number 7 “yes”, then answer Question Number 8.
If you answer Question Number 7 “no”, then skip to Question Number 10.
8. Did Plaintiff Robin McCullagh perform the services as requested?
[Yes.]
If you answer [Q]uestion Number 8 “yes”, then answer Question Number 9.
If you answer Question Number 8 “no”, then skip to Question Number 10.
9. Did Defendant Chris Kiosef pay Plaintiff Robin McCullagh for all the services she
provided?
[No.]
10. Did Robin McCullagh permanently leave Chris Kiosef and the bee business before
June 27, 2014?
[No.]
Please have the presiding juror sign and date this form and return it to the bailiff.
[signature and date]”
Following the phase 1 jury trial, the parties disagreed as to the interpretation and meaning of the
jury’s findings. On 05/30/19, Robin McCullagh filed a new Complaint (“the Partnership
Action”) against Chris Kiosef and Chris Kiosef dba King Bee Apiarys alleging causes of action
for:
MINUTES
Page 3 of 10
MCCULLAGH VS KIOSEF ET AL BCV-16-101459
MINUTES FINALIZED BY: Betsy Cardona ON: 9/28/2020
(1) Partnership dissolution;
(2) Accounting;
(3) Declaratory relief; and
(4) Appointment of receiver or injunctive relief.
This Complaint was twice amended with the Second Amended Complaint filed on 12/16/19
being the operative pleading for the Partnership Action.
The declaratory relief claim in the Partnership Action alleges that Plaintiff and Defendant have
an ongoing partnership relationship, that Defendant does not agree to the existence of the
partnership and Plaintiff therefore seeks declaratory relief declaring the rights and obligations of
all parties relating to King Bee Apiarys.
The Main Action and the Partnership Action have been consolidated with the Main Action
designated as the lead case.
Via cross-motions for summary adjudication, the parties now seek rulings from this Court
interpreting the jury’s special verdict findings for purposes of moving on to the phase 2 trial.
In her originally filed motion papers, Plaintiff Robin McCullagh moved for summary
adjudication against Chris Kiosef and Chris Kiosef dba King Bee Apiarys on the Third Cause of
Action (Declaratory Relief) of the Second Amended Complaint in the Partnership Action. The
moving memorandum argued that (1) the jury found there was a contract to enter into a bee
business, (2) Robin McCullagh and Chris Kiosef each have a fifty percent share of the
partnership, and (3) the partnership still continues as an entity.
Defendant Chris Kiosef moved for summary adjudication against Plaintiff Robin McCullagh on
the seeking the following rulings:
1. The consolidated causes of action filed by Plaintiff for a partnership dissolution or a
partnership accounting are barred by the applicable statute of limitations.
2. There was no finding of a partnership by the jury in Kern County Superior Court case
no. BCV-16-101459 as set forth on the jury’s response to question number one on the
“Special Verdict Phase #1”, which was signed by the jury and entered by the Court on
December 13, 2018.
3. Alternatively, regardless of what kind of implied contract was formed in response to
question number one on the “Special Verdict Phase #1”, there are no damages on the
implied contract claim because the jury determined there was no breach by Mr.
Kiosef, as set forth on the jury’s response to question number three on the “Special
Verdict Phase #1”.
Chris Kiosef’s notice of motion stated that the motion was also made pursuant to CCP section
437c(t), that the parties have previously met and conferred and stipulated the Court shall hear
this motion and the issues presented by both parties in their respective motions.
MINUTES
Page 4 of 10
MCCULLAGH VS KIOSEF ET AL BCV-16-101459
MINUTES FINALIZED BY: Betsy Cardona ON: 9/28/2020
This prompted the Court to request a written stipulation from the parties setting forth the issues
to be decided and to continue the first hearing on July 9, 2020 to August 11, 2020. The cross-
motions for summary judgment/summary adjudication originally came on for hearing at 8:30
a.m. on July 9, 2020. At the July 9 hearing, the Court asked counsel to submit a joint written
stipulation in compliance with CCP section 437c(t) expressly setting forth the issues on which a
ruling is desired. The hearing was continued to August 11, 2020 in Dept. 17 of the above-entitled
Court.
Prior to the August 11, 2020 hearing, the parties filed a stipulation pursuant to CCP section
437c(t) on 07/20/20 specifically identifying the issues upon which they now seek rulings. On
August 11, 2020, the Court discussed some tentative thoughts, and requested each party’s oral
argument. After oral argument, the Court took the matter under submission. Attorney Thomas
Brill appeared for Plaintiff Robin McCullagh at both hearings. Attorney Jeffrey Travis appeared
for Defendants Chris Kiosef and Christ Kiosef dba King Bee Apiarys at both hearing. At a
subsequent status conference on 08/28/20, the Court asked the parties to submit supplemental
briefing on one of the issues on which they desired a ruling, namely, the issue of whether the
causes of action alleged in the Partnership Action are barred by any applicable statute of
limitations?
Now having given further consideration to the briefing by both sides, having reviewed the
contents of the Court file and the record, including, but not limited to, the pleadings, Court
minute orders, jury instructions, closing arguments of counsel, the jury instructions conference
between Court and counsel at which the language of the jury instructions was finalized and
agreed upon, the Court rules as follows:
Pursuant to CCP section 624, the Court draws its conclusions of law from the jury’s findings. If a
verdict is not “hopelessly ambiguous”, the Court interprets the verdict from its language, the
pleadings, evidence and jury instructions. (Zagami, Inc. v. James A. Crone, Inc. (2008) 160
Cal.App.4th 1083, 1092) “If the jury has been discharged and the verdict is ‘hopelessly
ambiguous’ the judgment must be reversed.” (Id.) “A special verdict is inconsistent if there is no
possibility of reconciling its findings with each other. [Citation.] If a verdict appears inconsistent,
a party adversely affected should request clarification, and the court should send the jury out
again to resolve the inconsistency. [Citations.] If no party requests clarification or an
inconsistency remains after the jury returns, the trialcourt must interpret the verdict in light of
the jury instructions and the evidence and attempt to resolve any inconsistency.” (Markow v.
Rosner (2016) 3 Cal.App.5th 1027, 1048)
Here, the special verdict form was jointly agreed upon by counsel for both parties. After the jury
returned its verdict, neither counsel requested clarification of the verdict. Therefore, this Court
now interprets the verdict and attempts to resolve any inconsistency.
ISSUE NO. 1: A determination as to the nature of the implied-in-fact contract the jury found
existed in response to the first question on the Special Verdict.
MINUTES
Page 5 of 10
MCCULLAGH VS KIOSEF ET AL BCV-16-101459
MINUTES FINALIZED BY: Betsy Cardona ON: 9/28/2020
ANSWER: The jury found that the parties entered into an implied partnership contract to jointly
own the business.
Plaintiff Robin McCullagh alleged that she had entered into a partnership agreement with
Defendant Chris Kiosef that was implied in fact. She presented testimony and evidence in
support of her allegations. The jury was instructed as to the requirements of an offer and
acceptance (CACI 302, 307 and 309), the necessary elements to conclude that a contract had
been formed by implication (CACI 302 and 305), factors that they might consider in deciding
whether there was an implied contract (Special Instruction Number 3), and Plaintiff’s contention
that the parties agreed to form a partnership (CACI 300).
After both sides presented evidence and rested, and after the jury had been instructed on
applicable legal principles, both counsel presented their arguments to the jury with respect to the
issues the jury was to decide. Plaintiff’s counsel argued to the jury in part:
“[ ] Ms. McCullagh claims they entered into a contract to become
partners in a bee business. So that is kind of the heart of our claim and it’s
this implied contract.” (12/12/18 RT closing, pg. 20:17-20, emphasis added)
“So you have to think that it’s more likely to be true than not true that by their conduct,
these two parties had an implied contract to run the business together.
Ms. McCullagh testified over and over and over again that Chris would talk about it
privately with her as our business [emphasis added] and as the family business. That’s
not how he was talking when he was here in Court. He had a very very different attitude
about a lot of things, so if you find that it’s more likely true than not true that they had
this implied agreement. And based on all of the evidence, I submit to you that you will
find that.
Then here is what is called a verdict form. You’re going to have this in the room with
you when you go back there and it has some questions on it. And I’m just going to show
you how we are requesting that you answer these questions.
So, first, did Plaintiff Robin McCullagh and Defendant Chris Kiosef enter into an implied
contract? The answer that we are requesting is yes.” (12-12-18 RT 28:8-28)
Although Defendant Kiosef testified to the contrary and his counsel argued to the contrary, the
jury answered the question on the verdict form “yes” and found that the parties had entered into
an implied agreement to own the business jointly and equally (i.e. as a partnership, or joint
venture).
ISSUE NO. 2: Whether Plaintiff properly raised the issue in the firsttrial that the implied-in-
fact contract was one to form a partnership.
ANSWER: Yes.
In her Second Cause of Action for Breach of Implied Contract (as well as other portions of her
MINUTES
Page 6 of 10
MCCULLAGH VS KIOSEF ET AL BCV-16-101459
MINUTES FINALIZED BY: Betsy Cardona ON: 9/28/2020
Complaint incorporated into her Second Cause of Action) Plaintiff alleged in part:
1. Kiosef assented as part of the “implied understanding or agreement” (paras. 15, 16)
that he would accept her skills, efforts, labor and earnings as “joint property” (para.
17).
2. As part of the implied agreement both parties had a “mutual understanding” that “all
skills, labor and earnings that each party had performed, expended, or contributed,
and all property acquired therewith, were to be treated as their joint property
[emphasis added] and that they agreed “further to divide all their property equally
[emphasis added]…even if [they]ended their relationship.” (para.19)
3. “…KIOSEF…agreed that the business…would belong to the two of them.”
(para.7C)
Plaintiff testified on several occasions, without objection, that the agreement, intent and
understanding of the parties was to own and operate the business equally.
Defendant testified otherwise and his counsel argued otherwise. The jury, however, found in
favor of Plaintiff on this issue.
ISSUE NO. 3: If the jury found that the implied-in-fact contract in response to the first question
on the Special Verdict refers to a partnership, whether that partnership is a general partnership
pursuant to section 16401(b) of the California Corporations Code.
ANSWER: Yes.
The partnership found by the jury is a general partnership because there was absolutely no
evidence or finding that it was a limited partnership or a limited liability partnership.
ISSUE NO. 4: Whether the partnership terminated when the parties permanently separated. If it
did not whether it is still an active partnership. If not, the date on which the partnership
terminated.
ANSWER: There is no evidence or finding that the partnership has terminated.
The Court is aware of no finding by the jury of termination or dissolution of the business
partnership.
Plaintiff alleged (although allegations are not evidence) that the agreement of the parties would
continue “even if McCULLAGH and KIOSEF ended their relationship.” (Main Action
Complaint, paras. 19, 21). Plaintiff testified consistently with her allegations. Defendant denied
even the existence of the partnership. The jury rejected the testimony of the Defendant in this
regard.
No one (not even Defendant) presented any evidence that the partnership terminated when the
personal romantic relationship of the parties terminated. No one (not even Defendant) presented
any evidence of any date of termination of the partnership found by the jury. Neither Plaintiff nor
MINUTES
Page 7 of 10
MCCULLAGH VS KIOSEF ET AL BCV-16-101459
MINUTES FINALIZED BY: Betsy Cardona ON: 9/28/2020
Defendant presented any evidence that the partnership has terminated.
While is it is undisputed as part of these cross-motions for summary adjudication that the parties’
romantic relationship terminated before May 2015 (see Kiosef separate statement UMF 1, to
which Plaintiff’s opposition responded “Admit”), the Court is not prepared to find that the date
of termination of the parties’ romantic relationship equates to the date of termination of their
general partnership in the business.
“[A] partnership is terminated when the winding up of its business is completed.” (Corp. Code, §
16802) There is no evidence that the partnership business has been wound up.
Accordingly, the partnership remains an active or existing partnership.
ISSUE NO. 5: Whether the causes of action alleged in the Partnership Action are barred by
any applicable statute of limitations.
ANSWER: The Court cannot find at this time that any causes of action in the Partnership
Action are barred by any applicable statutes of limitation.
The “Partnership Action” alleges causes of action for Partnership Dissolution, Accounting,
Declaratory Relief, Appointment of a Receiver or Injunctive Relief as set forth above.
Even if Ms. McCullagh was “unable to work in the business” or was “prevented from working in
the business” after the parties romantically separated as alleged by her in the Main Action (see
Main Action Complaing, ¶¶ 8, 10), Mr. Kiosef never made the required buyout of Ms.
McCullagh’s partnership interest. (Corp. Code section 16701).
It appears to the Court that Robin McCullagh remains a partner in an active business, who has
the right to seek dissolution of the partnership, seek an accounting and ask for a judicial
declaration of the rights and obligations of the parties and to seek appropriate injunctive relief to
preserve partnership assets. (See e.g. Corp. Code section 16403) Furthermore, even former
partners have the right to accountings under Corp. Code section 16403(b).
The Court is not persuaded at this time that the pre-RUPA case of Manok v. Fishman (1973) 31
Cal.App.3d 208 applies to bar the claims alleged in Plaintiff’s Partnership Action. Furthermore,
the partition cause of action set forth in the Main Action survives as set forth above.
ISSUE NO. 6: In view of the jury’s verdict in response to question number three on the Special
Verdict, the effect, if any, of the finding of no-breach by the jury on the Special Verdict, on
Plaintiff’s damage claims.
ANSWER: The finding of no breach eliminates further proceedings to determine damages for
Ms. McCullagh’s breach of contract claim in the Main Action, i.e. breach of the implied contract
for general partnership.
MINUTES
Page 8 of 10
MCCULLAGH VS KIOSEF ET AL BCV-16-101459
MINUTES FINALIZED BY: Betsy Cardona ON: 9/28/2020
However, the partnership is still in existence, the assets still belong to the partnership and the
partners retain all of their partnership rights (including but not limited to accounting, partition,
etc.) The jury’s finding of no breach does not affect Ms. McCullagh’s claims in the Partnership
Action.
Notably, while the jury also found that Plaintiff Ms. McCullagh has not been paid for all the
services she provided, in addition to her share of the partnership Plaintiff is not entitled to
remuneration for her services performed for the partnership under her quantum meruit claim,
except for any services performed in winding up the business. Corp. Code section 16401(h)
provides: “A partner is not entitled to remuneration for services performed for the partnership,
except for reasonable compensation for services rendered in winding up the business of the
partnership.” (Corp. Code, § 16401)
It is undisputed that the jury found no oral agreement for a joint venture, wherefore that cause of
action does not proceed to any damages determination.
The partition cause of action from the Main Action also survives as set forth above.
This Court finds that the jury’s verdict is not hopelessly ambiguous and can be consistently
interpreted as set forth above.
Copy of minutes mailed to all parties as stated on the attached Certificate of Mailing.
Future Hearings:
September 30, 2020 8:15 AM Case Status Conference
Clark, Thomas S.
Bakersfield Department 17
Sheriff, Deputy
MINUTES
Page 9 of 10
MCCULLAGH VS KIOSEF ET AL BCV-16-101459
MINUTES FINALIZED BY: Betsy Cardona ON: 9/28/2020
MCCULLAGH VS KIOSEF ET AL
BCV-16-101459
CERTIFICATE OF MAILING
The undersigned, of said Kern County, certify: That I am a Deputy Clerk of the Superior Court of the State of California,
in and for the County of Kern, that I am a citizen of the United States, over 18 years of age, I reside in or am employed in
the County of Kern, and not a party to the within action, that I served the Minutes dated September 28, 2020 attached
hereto on all interested parties and any respective counsel of record in the within action by depositing true copies thereof,
enclosed in a sealed envelope(s) with postage fully prepaid and placed for collection and mailing on this date, following
standard Court practices, in the United States mail at BAKERSFIELD California addressed as indicated on the attached
mailing list.
Date of Mailing: September 28, 2020
Place of Mailing: BAKERSFIELD, CA
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Tamarah Harber-Pickens
CLERK OF THE SUPERIOR COURT
Date: September 28, 2020
By: Betsy Cardona
Betsy Cardona, Deputy Clerk
MAILING LIST
JEFFREY A TRAVIS THOMAS A BRILL
LAW OFFICE OF EDWARD J THOMAS LAW OFC YOUNG WOOLDRIDGE
5201 CALIFORNIA AVENUE STE 400 1800 30TH ST 4FL
BAKERSFIELD CA 93309 BAKERSFIELD CA 93301
jeff@edthomas.com tbrill@youngwooldridge.com
Certificate of Mailing
Page 10 of 10
Preview
Superior Court of California County of Kern Bakersfield Department 17 Date: 09/28/2020 Time: 8:00 AM - 5:00 PM BCV-16-101459 MCCULLAGH VS KIOSEF ET AL Courtroom Staff Honorable: Thomas S. Clark Clerk: Betsy Cardona NATURE OF PROCEEDINGS: RULING RULING ON CROSS-MOTIONS FOR SUMMARY ADJUDICATION By way of background, this case was originally filed by Plaintiff Robin McCullagh on 06/27/16 against Defendant Chris Kiosef and Chris Kiosef dba King Bee Apiarys (“the Main Action”) with causes of action for: (1) Breach of express contract, (2) Breach of implied contract, (3) Claim for quantum meruit / unjust enrichment, (4) For breach of oral agreement for joint venture, (5) Partition, and (6) Declaratory relief. A stipulation by the parties, through counsel, and order of the Court signed on October 10, 2017, set the case for trial bifurcating the issues of liability and damages. The stipulation read in full as follows: “The parties to this action, by and through their respective attorneys of record, stipulate and agree as follows: The issue of whether a contract exists in this matter will be vigorously contested at trial. Both parties wish to avoid incurring the significant additional expense of hiring economist and property appraisal experts and the cost of damages discovery unless absolutely necessary. The parties therefore respectfully request that the Court allow them to wait to conduct additional damages discovery, including designation of experts, unless they know how the breach of contract issue has been adjudicated. Therefore, the parties stipulate to an Order bifurcating the issues of breach of contract and damages, such that the existence of a contract issue will first be fully MINUTES Page 1 of 10 MCCULLAGH VS KIOSEF ET AL BCV-16-101459 MINUTES FINALIZED BY: Betsy Cardona ON: 9/28/2020 resolved through trial or to a jury. Once the breach of contract issue is final, the parties agree to a ninety-day discovery period for supplemental interrogatories and document demands, designation of experts, and depositions related to damage and property evaluations. After conclusion of this supplemental damages discovery period, the parties stipulate to an Order that the damages and breach of contract issues will be tried to a new jury.” This stipulation itself leaves room for interpretation. The case progressed through a phase 1 jury trial at which time Plaintiff Robin McCullagh’s 06/27/16 Complaint was the operative pleading. Of the causes of action originally pleaded, three causes of action were sent to the jury, as follows: (1) Breach of implied contract, (2) Breach of oral agreement to enter into a joint venture, and (3) Quantum meruit. The Court’s minute order of 12/11/18, reflects the motion of Plaintiff’s counsel to dismiss the breach of express contract claim and the declaratory relief claim, although the court file does not yet contain a signed order of dismissal. The 12/11/18 minute order further states that “Cou[n]t 4 – Deferred”. Notably, the caption of the Complaint listed two fourth causes of action, one of which was the partition claim, which in reality was the fifth cause of action as correctly identified in the body of the Complaint. Therefore, “Cou[n]t 4 – Deferred” appears to refer to the fifth cause of action for partition. The Court was unable to locate any record of dismissal of Plaintiff’s partition cause of action, wherefore this claim survives. As a result of the phase 1 trial, the jury made findings via a special verdict form dated December 13, 2018. The special verdict form reads as follows: “We answer the following questions submitted to us as follows: 1. Did Plaintiff Robin McCullagh and Defendant Chris Kiosef enter into an implied contract? [Yes]. If you answer question Number 1 “yes”, then answer Question Number 2. If you answer question Number 1 “no”, then skip to Question Number 4. 2. Did Plaintiff Robin McCullagh do all, or substantially all, of the significant things that the contract required her to do” [Yes] If you answer question Number 2 “yes”, then answer Question Number 3. If you answer question Number 2 “no”, then skip to Question Number 4. 3. Did Defendant Chris Kiosef do something the contract prohibited him from doing? [No.] Please proceed to Question Number 4. 4. Did Plaintiff Robin McCullagh and Defendant Chris Kiosef enter into an oral MINUTES Page 2 of 10 MCCULLAGH VS KIOSEF ET AL BCV-16-101459 MINUTES FINALIZED BY: Betsy Cardona ON: 9/28/2020 agreement for a joint venture? [No.] If you answer question Number 4 “yes”, then answer Question Number 5. If you answer question Number 4 “no”, then skip to Question Number 7. 5. Did Plaintiff Robin McCullagh do all, or substantially all, of the significant things that the oral agreement required her to do? [No response] If you answer question Number 5 “yes”, then answer Question Number 6. If you answer question Number 5 “no”, then skip to Question Number 7. 6. Did Defendant Chris Kiosef do something the oral agreement prohibited him from doing? [No response] Please proceed to Question Number 7. 7. Did Defendant Chris Kiosef request, by words or conduct, that Plaintiff Robin McCullagh perform services for the benefit [of] Defendant Chris Kiosef? [Yes.] If you answer [Q]uestion Number 7 “yes”, then answer Question Number 8. If you answer Question Number 7 “no”, then skip to Question Number 10. 8. Did Plaintiff Robin McCullagh perform the services as requested? [Yes.] If you answer [Q]uestion Number 8 “yes”, then answer Question Number 9. If you answer Question Number 8 “no”, then skip to Question Number 10. 9. Did Defendant Chris Kiosef pay Plaintiff Robin McCullagh for all the services she provided? [No.] 10. Did Robin McCullagh permanently leave Chris Kiosef and the bee business before June 27, 2014? [No.] Please have the presiding juror sign and date this form and return it to the bailiff. [signature and date]” Following the phase 1 jury trial, the parties disagreed as to the interpretation and meaning of the jury’s findings. On 05/30/19, Robin McCullagh filed a new Complaint (“the Partnership Action”) against Chris Kiosef and Chris Kiosef dba King Bee Apiarys alleging causes of action for: MINUTES Page 3 of 10 MCCULLAGH VS KIOSEF ET AL BCV-16-101459 MINUTES FINALIZED BY: Betsy Cardona ON: 9/28/2020 (1) Partnership dissolution; (2) Accounting; (3) Declaratory relief; and (4) Appointment of receiver or injunctive relief. This Complaint was twice amended with the Second Amended Complaint filed on 12/16/19 being the operative pleading for the Partnership Action. The declaratory relief claim in the Partnership Action alleges that Plaintiff and Defendant have an ongoing partnership relationship, that Defendant does not agree to the existence of the partnership and Plaintiff therefore seeks declaratory relief declaring the rights and obligations of all parties relating to King Bee Apiarys. The Main Action and the Partnership Action have been consolidated with the Main Action designated as the lead case. Via cross-motions for summary adjudication, the parties now seek rulings from this Court interpreting the jury’s special verdict findings for purposes of moving on to the phase 2 trial. In her originally filed motion papers, Plaintiff Robin McCullagh moved for summary adjudication against Chris Kiosef and Chris Kiosef dba King Bee Apiarys on the Third Cause of Action (Declaratory Relief) of the Second Amended Complaint in the Partnership Action. The moving memorandum argued that (1) the jury found there was a contract to enter into a bee business, (2) Robin McCullagh and Chris Kiosef each have a fifty percent share of the partnership, and (3) the partnership still continues as an entity. Defendant Chris Kiosef moved for summary adjudication against Plaintiff Robin McCullagh on the seeking the following rulings: 1. The consolidated causes of action filed by Plaintiff for a partnership dissolution or a partnership accounting are barred by the applicable statute of limitations. 2. There was no finding of a partnership by the jury in Kern County Superior Court case no. BCV-16-101459 as set forth on the jury’s response to question number one on the “Special Verdict Phase #1”, which was signed by the jury and entered by the Court on December 13, 2018. 3. Alternatively, regardless of what kind of implied contract was formed in response to question number one on the “Special Verdict Phase #1”, there are no damages on the implied contract claim because the jury determined there was no breach by Mr. Kiosef, as set forth on the jury’s response to question number three on the “Special Verdict Phase #1”. Chris Kiosef’s notice of motion stated that the motion was also made pursuant to CCP section 437c(t), that the parties have previously met and conferred and stipulated the Court shall hear this motion and the issues presented by both parties in their respective motions. MINUTES Page 4 of 10 MCCULLAGH VS KIOSEF ET AL BCV-16-101459 MINUTES FINALIZED BY: Betsy Cardona ON: 9/28/2020 This prompted the Court to request a written stipulation from the parties setting forth the issues to be decided and to continue the first hearing on July 9, 2020 to August 11, 2020. The cross- motions for summary judgment/summary adjudication originally came on for hearing at 8:30 a.m. on July 9, 2020. At the July 9 hearing, the Court asked counsel to submit a joint written stipulation in compliance with CCP section 437c(t) expressly setting forth the issues on which a ruling is desired. The hearing was continued to August 11, 2020 in Dept. 17 of the above-entitled Court. Prior to the August 11, 2020 hearing, the parties filed a stipulation pursuant to CCP section 437c(t) on 07/20/20 specifically identifying the issues upon which they now seek rulings. On August 11, 2020, the Court discussed some tentative thoughts, and requested each party’s oral argument. After oral argument, the Court took the matter under submission. Attorney Thomas Brill appeared for Plaintiff Robin McCullagh at both hearings. Attorney Jeffrey Travis appeared for Defendants Chris Kiosef and Christ Kiosef dba King Bee Apiarys at both hearing. At a subsequent status conference on 08/28/20, the Court asked the parties to submit supplemental briefing on one of the issues on which they desired a ruling, namely, the issue of whether the causes of action alleged in the Partnership Action are barred by any applicable statute of limitations? Now having given further consideration to the briefing by both sides, having reviewed the contents of the Court file and the record, including, but not limited to, the pleadings, Court minute orders, jury instructions, closing arguments of counsel, the jury instructions conference between Court and counsel at which the language of the jury instructions was finalized and agreed upon, the Court rules as follows: Pursuant to CCP section 624, the Court draws its conclusions of law from the jury’s findings. If a verdict is not “hopelessly ambiguous”, the Court interprets the verdict from its language, the pleadings, evidence and jury instructions. (Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1092) “If the jury has been discharged and the verdict is ‘hopelessly ambiguous’ the judgment must be reversed.” (Id.) “A special verdict is inconsistent if there is no possibility of reconciling its findings with each other. [Citation.] If a verdict appears inconsistent, a party adversely affected should request clarification, and the court should send the jury out again to resolve the inconsistency. [Citations.] If no party requests clarification or an inconsistency remains after the jury returns, the trialcourt must interpret the verdict in light of the jury instructions and the evidence and attempt to resolve any inconsistency.” (Markow v. Rosner (2016) 3 Cal.App.5th 1027, 1048) Here, the special verdict form was jointly agreed upon by counsel for both parties. After the jury returned its verdict, neither counsel requested clarification of the verdict. Therefore, this Court now interprets the verdict and attempts to resolve any inconsistency. ISSUE NO. 1: A determination as to the nature of the implied-in-fact contract the jury found existed in response to the first question on the Special Verdict. MINUTES Page 5 of 10 MCCULLAGH VS KIOSEF ET AL BCV-16-101459 MINUTES FINALIZED BY: Betsy Cardona ON: 9/28/2020 ANSWER: The jury found that the parties entered into an implied partnership contract to jointly own the business. Plaintiff Robin McCullagh alleged that she had entered into a partnership agreement with Defendant Chris Kiosef that was implied in fact. She presented testimony and evidence in support of her allegations. The jury was instructed as to the requirements of an offer and acceptance (CACI 302, 307 and 309), the necessary elements to conclude that a contract had been formed by implication (CACI 302 and 305), factors that they might consider in deciding whether there was an implied contract (Special Instruction Number 3), and Plaintiff’s contention that the parties agreed to form a partnership (CACI 300). After both sides presented evidence and rested, and after the jury had been instructed on applicable legal principles, both counsel presented their arguments to the jury with respect to the issues the jury was to decide. Plaintiff’s counsel argued to the jury in part: “[ ] Ms. McCullagh claims they entered into a contract to become partners in a bee business. So that is kind of the heart of our claim and it’s this implied contract.” (12/12/18 RT closing, pg. 20:17-20, emphasis added) “So you have to think that it’s more likely to be true than not true that by their conduct, these two parties had an implied contract to run the business together. Ms. McCullagh testified over and over and over again that Chris would talk about it privately with her as our business [emphasis added] and as the family business. That’s not how he was talking when he was here in Court. He had a very very different attitude about a lot of things, so if you find that it’s more likely true than not true that they had this implied agreement. And based on all of the evidence, I submit to you that you will find that. Then here is what is called a verdict form. You’re going to have this in the room with you when you go back there and it has some questions on it. And I’m just going to show you how we are requesting that you answer these questions. So, first, did Plaintiff Robin McCullagh and Defendant Chris Kiosef enter into an implied contract? The answer that we are requesting is yes.” (12-12-18 RT 28:8-28) Although Defendant Kiosef testified to the contrary and his counsel argued to the contrary, the jury answered the question on the verdict form “yes” and found that the parties had entered into an implied agreement to own the business jointly and equally (i.e. as a partnership, or joint venture). ISSUE NO. 2: Whether Plaintiff properly raised the issue in the firsttrial that the implied-in- fact contract was one to form a partnership. ANSWER: Yes. In her Second Cause of Action for Breach of Implied Contract (as well as other portions of her MINUTES Page 6 of 10 MCCULLAGH VS KIOSEF ET AL BCV-16-101459 MINUTES FINALIZED BY: Betsy Cardona ON: 9/28/2020 Complaint incorporated into her Second Cause of Action) Plaintiff alleged in part: 1. Kiosef assented as part of the “implied understanding or agreement” (paras. 15, 16) that he would accept her skills, efforts, labor and earnings as “joint property” (para. 17). 2. As part of the implied agreement both parties had a “mutual understanding” that “all skills, labor and earnings that each party had performed, expended, or contributed, and all property acquired therewith, were to be treated as their joint property [emphasis added] and that they agreed “further to divide all their property equally [emphasis added]…even if [they]ended their relationship.” (para.19) 3. “…KIOSEF…agreed that the business…would belong to the two of them.” (para.7C) Plaintiff testified on several occasions, without objection, that the agreement, intent and understanding of the parties was to own and operate the business equally. Defendant testified otherwise and his counsel argued otherwise. The jury, however, found in favor of Plaintiff on this issue. ISSUE NO. 3: If the jury found that the implied-in-fact contract in response to the first question on the Special Verdict refers to a partnership, whether that partnership is a general partnership pursuant to section 16401(b) of the California Corporations Code. ANSWER: Yes. The partnership found by the jury is a general partnership because there was absolutely no evidence or finding that it was a limited partnership or a limited liability partnership. ISSUE NO. 4: Whether the partnership terminated when the parties permanently separated. If it did not whether it is still an active partnership. If not, the date on which the partnership terminated. ANSWER: There is no evidence or finding that the partnership has terminated. The Court is aware of no finding by the jury of termination or dissolution of the business partnership. Plaintiff alleged (although allegations are not evidence) that the agreement of the parties would continue “even if McCULLAGH and KIOSEF ended their relationship.” (Main Action Complaint, paras. 19, 21). Plaintiff testified consistently with her allegations. Defendant denied even the existence of the partnership. The jury rejected the testimony of the Defendant in this regard. No one (not even Defendant) presented any evidence that the partnership terminated when the personal romantic relationship of the parties terminated. No one (not even Defendant) presented any evidence of any date of termination of the partnership found by the jury. Neither Plaintiff nor MINUTES Page 7 of 10 MCCULLAGH VS KIOSEF ET AL BCV-16-101459 MINUTES FINALIZED BY: Betsy Cardona ON: 9/28/2020 Defendant presented any evidence that the partnership has terminated. While is it is undisputed as part of these cross-motions for summary adjudication that the parties’ romantic relationship terminated before May 2015 (see Kiosef separate statement UMF 1, to which Plaintiff’s opposition responded “Admit”), the Court is not prepared to find that the date of termination of the parties’ romantic relationship equates to the date of termination of their general partnership in the business. “[A] partnership is terminated when the winding up of its business is completed.” (Corp. Code, § 16802) There is no evidence that the partnership business has been wound up. Accordingly, the partnership remains an active or existing partnership. ISSUE NO. 5: Whether the causes of action alleged in the Partnership Action are barred by any applicable statute of limitations. ANSWER: The Court cannot find at this time that any causes of action in the Partnership Action are barred by any applicable statutes of limitation. The “Partnership Action” alleges causes of action for Partnership Dissolution, Accounting, Declaratory Relief, Appointment of a Receiver or Injunctive Relief as set forth above. Even if Ms. McCullagh was “unable to work in the business” or was “prevented from working in the business” after the parties romantically separated as alleged by her in the Main Action (see Main Action Complaing, ¶¶ 8, 10), Mr. Kiosef never made the required buyout of Ms. McCullagh’s partnership interest. (Corp. Code section 16701). It appears to the Court that Robin McCullagh remains a partner in an active business, who has the right to seek dissolution of the partnership, seek an accounting and ask for a judicial declaration of the rights and obligations of the parties and to seek appropriate injunctive relief to preserve partnership assets. (See e.g. Corp. Code section 16403) Furthermore, even former partners have the right to accountings under Corp. Code section 16403(b). The Court is not persuaded at this time that the pre-RUPA case of Manok v. Fishman (1973) 31 Cal.App.3d 208 applies to bar the claims alleged in Plaintiff’s Partnership Action. Furthermore, the partition cause of action set forth in the Main Action survives as set forth above. ISSUE NO. 6: In view of the jury’s verdict in response to question number three on the Special Verdict, the effect, if any, of the finding of no-breach by the jury on the Special Verdict, on Plaintiff’s damage claims. ANSWER: The finding of no breach eliminates further proceedings to determine damages for Ms. McCullagh’s breach of contract claim in the Main Action, i.e. breach of the implied contract for general partnership. MINUTES Page 8 of 10 MCCULLAGH VS KIOSEF ET AL BCV-16-101459 MINUTES FINALIZED BY: Betsy Cardona ON: 9/28/2020 However, the partnership is still in existence, the assets still belong to the partnership and the partners retain all of their partnership rights (including but not limited to accounting, partition, etc.) The jury’s finding of no breach does not affect Ms. McCullagh’s claims in the Partnership Action. Notably, while the jury also found that Plaintiff Ms. McCullagh has not been paid for all the services she provided, in addition to her share of the partnership Plaintiff is not entitled to remuneration for her services performed for the partnership under her quantum meruit claim, except for any services performed in winding up the business. Corp. Code section 16401(h) provides: “A partner is not entitled to remuneration for services performed for the partnership, except for reasonable compensation for services rendered in winding up the business of the partnership.” (Corp. Code, § 16401) It is undisputed that the jury found no oral agreement for a joint venture, wherefore that cause of action does not proceed to any damages determination. The partition cause of action from the Main Action also survives as set forth above. This Court finds that the jury’s verdict is not hopelessly ambiguous and can be consistently interpreted as set forth above. Copy of minutes mailed to all parties as stated on the attached Certificate of Mailing. Future Hearings: September 30, 2020 8:15 AM Case Status Conference Clark, Thomas S. Bakersfield Department 17 Sheriff, Deputy MINUTES Page 9 of 10 MCCULLAGH VS KIOSEF ET AL BCV-16-101459 MINUTES FINALIZED BY: Betsy Cardona ON: 9/28/2020 MCCULLAGH VS KIOSEF ET AL BCV-16-101459 CERTIFICATE OF MAILING The undersigned, of said Kern County, certify: That I am a Deputy Clerk of the Superior Court of the State of California, in and for the County of Kern, that I am a citizen of the United States, over 18 years of age, I reside in or am employed in the County of Kern, and not a party to the within action, that I served the Minutes dated September 28, 2020 attached hereto on all interested parties and any respective counsel of record in the within action by depositing true copies thereof, enclosed in a sealed envelope(s) with postage fully prepaid and placed for collection and mailing on this date, following standard Court practices, in the United States mail at BAKERSFIELD California addressed as indicated on the attached mailing list. Date of Mailing: September 28, 2020 Place of Mailing: BAKERSFIELD, CA I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Tamarah Harber-Pickens CLERK OF THE SUPERIOR COURT Date: September 28, 2020 By: Betsy Cardona Betsy Cardona, Deputy Clerk MAILING LIST JEFFREY A TRAVIS THOMAS A BRILL LAW OFFICE OF EDWARD J THOMAS LAW OFC YOUNG WOOLDRIDGE 5201 CALIFORNIA AVENUE STE 400 1800 30TH ST 4FL BAKERSFIELD CA 93309 BAKERSFIELD CA 93301 jeff@edthomas.com tbrill@youngwooldridge.com Certificate of Mailing Page 10 of 10