Frith-Smith v. Cornell CA2/8

Filed 7/30/21 Frith-Smith v. Cornell CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

DAVID FRITH-SMITH, B308083

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BC686569) v.

FRANK CORNELL,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County, Richard J. Burdge, Judge. Affirmed.

Mark H. Boykin for Plaintiff and Appellant.

Kilpatrick Townsend & Stockton and Emil W. Herich for Defendant and Respondent.

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Appellant David Frith-Smith appeals the grant of summary judgment against him. We affirm. On appeal, Frith-Smith has failed to discuss, let along acknowledge or present to us, the evidence upon which the trial court relied in entering judgment against him. As a result we are unable to conduct a de novo review and rely on the presumption of correctness to affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND Appellant David Frith-Smith is a limited partner holding a 7.63 percent interest in California Investors I, a California limited partnership. Respondent is a general partner as well as a limited partner in California Investors I. Frith-Smith filed a complaint against respondent alleging three causes of action which sought: 1) removal of respondent as the general partner for breach of fiduciary duty and failure to provide an accounting; 2) termination and dissolution of the limited partnership; and 3) an award of compensatory and punitive damages for breach of fiduciary duty. Respondent moved for summary judgment, contending the limited partnership agreement precluded each cause of action. The trial court issued a multi-page tentative ruling which became the order of the court after oral argument. It granted summary judgment on the ground that the limited partnership agreement supported respondent’s defenses to each of the three causes of action and appellant had failed to present any evidence, let alone admissible evidence, which raised a triable issue of material fact as to the alleged misconduct. In the first cause of action, appellant asked the court to remove respondent as general partner because he failed to provide an accounting to the limited partners. In moving for