Marriage of Luu and Avritch CA1/1

Filed 2/28/22 Marriage of Luu and Avritch CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re the Marriage of TESSA LUU and PETER AVRITCH

TESSA LUU, A162792

Appellant, (San Francisco City & County v. Super. Ct. No. FDI-17-787511) PETER AVRITCH, Respondent.

MEMORANDUM OPINION1 This is the second appeal we have considered in this matter. The following facts are derived from our nonpublished opinion in the first appeal, In re Marriage of Luu & Avritch (Jun. 29, 2021, A161935) (Luu I): Tessa Luu and Peter Avritch entered into a marital settlement agreement (MSA) in 2017. As part of the parties’ judgment of dissolution (judgment), Luu was awarded an online business run by the parties, which was operating on certain servers (the R510 and R410 servers) claimed by Avritch as his separate property. On December 17, 2019, Avritch informed Luu he planned

We conclude this matter is proper for disposition by memorandum 1

opinion in accordance with the California Standards of Judicial Administration, section 8.1.

to reclaim the R510 and R410 servers for his own personal purposes. He advised Luu to either arrange for an alternative server setup or offered an option for her to purchase the servers. Avritch ultimately took control of the R510 and R410 servers in mid-January 2020. Luu filed two ex parte motions alleging Avritch breached the terms of the MSA, which caused the online business’s websites to fail. While the trial court provided certain interim relief, the court ultimately rejected Luu’s position. The trial court concluded, in relevant part, that Avritch substantially complied with all provisions of the judgment and the two servers at issue were Avritch’s separate property. We affirmed the trial court’s order, apart from an issue regarding sanctions against Luu. (Luu I, supra, A161935.) On or around January 15, 2021, Luu filed another request for order (RFO), in which she asked the trial court to set aside the MSA due to constructive fraud, deceit, and misrepresentation.2 Avritch opposed the RFO and requested it be dismissed. The trial court denied Luu’s RFO. The court concluded fraud must be plead with specificity, and Luu’s allegations of fraud failed to do so with respect to Avritch’s breach of his fiduciary duty and damage caused by that breach. Luu timely appealed. “[I]f a judgment is correct on any theory, the appellate court will affirm it regardless of the trial court’s reasoning.” (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) Here, Avritch asserts in part