Western Union Financial Services v. Alejo CA2/8

Filed 6/1/15 Western Union Financial Services v. Alejo CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

WESTERN UNION FINANCIAL B255421 SERVICES, INC., (Los Angeles County Plaintiff and Respondent, Super. Ct. No. BC489998)

v.

JOHN ALEJO,

Defendant and Appellant.

APPEAL from the judgment of the Superior Court of Los Angeles County. Robert L. Hess, Judge. Affirmed.

Dominguez Alejo, Aimee E. Dominguez and Gabriela Vanca for Defendant and Appellant.

Michelman & Robinson, Steven K. Camhi, Kevin Warren, and Robin James for Plaintiff and Respondent.

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Defendant and appellant John Alejo was a corporate officer, director and shareholder in a family-run business known as Liborio Market. He personally guaranteed an agency agreement between Liborio Market and plaintiff and respondent Western Union Financial Services, Inc., doing business as Western Union North America and Integrated Payment Systems, Inc. (Western Union). When Liborio Market failed to remit all funds owed to Western Union under the agency agreement, Western Union pursued its remedies against defendant individually. The trial court granted summary adjudication in favor of Western Union on its contract causes of action against defendant arising from the personal guaranty agreement. After a bench trial on the remaining tort causes of action, the court found in favor of defendant on the breach of fiduciary duty claim, and in favor of Western Union on the conversion claim. Judgment was entered in Western Union’s favor and against defendant in the amount of $1,051,977.51, plus prejudgment interest and costs. Defendant appeals, conceding his liability on the contract claims in light of his personal guaranty, but challenging the entry of judgment on the conversion claim. Defendant argues the trial court applied an incorrect rule of law, and even assuming the court properly applied the law, there is no substantial evidence he committed an affirmative act on which to base his personal liability in tort. We affirm. FACTUAL AND PROCEDURAL BACKGROUND Defendant and several members of his family, including his father, Enrique J. Alejo,1 operated a chain of grocery stores catering to Hispanic markets, under the name Liborio Market. Defendant was a shareholder, director and corporate officer in the California corporation, Liborio Market, Inc. (hereafter Liborio or “the corporation”). In November 2006, Liborio entered into an agency agreement with Western Union whereby Liborio agreed to offer Western Union’s financial products (money orders and