Mulberg v. Amster CA1/1

Filed 3/3/25 Mulberg v. Amster CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

FRANK MULBERG, Plaintiff and Appellant, A169032 v. PATRICIA AMSTER, (Marin County Super. Ct. No. CIV 1703628) Defendant and Respondent.

Plaintiff Frank Mulberg, a licensed attorney appearing in propria persona, appeals from a judgment entered in favor of defendant Patricia Amster after the court rejected his cause of action for breach of contract and his common counts for “account stated” and “open book account.” We affirm. I. BACKGROUND The parties have spent years litigating their disputes, and we restate at length some of the relevant background, which we described in an earlier appeal:1 “Amster hired Mulberg from 2008 to 2012 to help her with matters related to an anticipated inheritance. During this time, Amster paid Mulberg for some, but not all, of the attorney fees incurred.

1 We grant Mulberg’s December 26, 2024 request for judicial notice of

various filings from his previous appeals.

1

“When her mother died in 2011, Amster inherited property titled in a trust and, with the apparent authority to do so, she appointed Mulberg as trustee. It is uncontested that . . . Mulberg used trust funds to pay himself the attorney fees that Amster incurred in her individual capacity. Specifically, Mulberg used trust assets to pay himself $35,000 in October 2011 and $27,819.75 in January 2012. The total amount was $62,819.75, which we, as do the parties, round to $62,820. After Mulberg made these payments to himself, he sent Amster a statement in April 2012 notifying her that her individual attorney fees had been paid in full. “In 2013, the parties’ relationship deteriorated, and in 2014 probate proceedings were initiated, with Amster petitioning to remove Mulberg as trustee, and Mulberg cross-petitioning to challenge Amster’s right to remove him and to seek approval of the estate’s accounts. A probate trial was held in 2015, and one of the main issues was whether Mulberg had paid himself excessive trustee fees, which the evidence showed amounted to around $500,000. In its ruling, the probate court removed Mulberg as trustee, approved a trustee fee for him of $227,897.59, representing ‘1% of the total trust corpus per annum,’ and ordered him to return—in what the parties refer to as a ‘surcharge’—more than $200,000 to the estate. “Mulberg appealed, and we affirmed the probate court’s decision. (Amster v. Mulberg (Nov. 18, 2016, A146374) [nonpub. opn.].) Mulberg thereafter reimbursed the estate the amount ordered, with interest. He then sent Amster a new bill for the $62,820, plus interest. After Amster refused to pay, Mulberg filed this suit. In his complaint, he asserted six causes of action: promissory fraud, breach of contract, account stated, open book account, quantum meruit, and unjust enrichment. Amster answered with a general denial, and she also asserted 33 affirmative defenses.