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John Omahen v. Vincent Servidio

October 30, 2012

JOHN OMAHEN, PLAINTIFF AND RESPONDENT,
v.
VINCENT SERVIDIO, DEFENDANT AND APPELLANT.



(Super. Ct. No. CV35822)

The opinion of the court was delivered by: Robie , J.

Omahen v. Servidio CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 this partnership case, the trial court awarded plaintiff John Omahen over $70,000 in damages for defendant Vincent Servidio's breach of his fiduciary duties to Omahen. On appeal, Servidio contends the action was time barred because the limitations period for breach of fiduciary duty is two years when the underlying partnership agreement is oral. He also contends the amount of damages the court awarded was twice what it should have been because the court found there was a partnership.

Servidio is wrong on both points. The limitations period for breach of fiduciary duty in this circumstance was four years, not two. And as for the amount of damages, the trial court's calculation showed that the court took the existence of the partnership into account in reaching the figure it did. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 2006, Omahen and Servidio orally established a partnership involving the purchase of real property. After one deal in which Omahen "'didn't make a dime,'" Servidio proposed the purchase of a house on Kingston Avenue in Napa that was subject to foreclosure and was being sold in probate. Omahen ended up paying all of the expenses of purchasing the property, and Servidio paid nothing.

At some point, Servidio told Omahen that he had a friend named Ray who could sell the Kingston Avenue property, and he said Ray needed $12,500 for office space. Omahen paid that amount to Servidio as an inducement for Ray to find a buyer for the property, but Omahen was never introduced to Ray, the property was never sold, and "evidence was presented to prove that the money was not received by Ray." Servidio did not account to Omahen for the dispersal of this money.

Following the Kingston Avenue matter, the parties got involved with a residence on Littlejohn Road in Copperopolis. Servidio claimed he could purchase the property for $410,000 and sell it for $500,000. Servidio failed to disclose to Omahen that he had been trying to purchase the property himself.

Omahen paid $17,000 to stop foreclosure proceedings on the Littlejohn Road property. Servidio promised to reimburse Omahen after they sold the property. When Servidio could not pay his half of the down payment, Omahen paid $33,126.89 to complete the purchase.

Pending resale of the property, Servidio was to rent the property out, manage the rental, and pay the rental payments to Omahen. Servidio failed to make any payments to Omahen, failed to account for and share the tenant's security deposit and first month's rent, and failed to supervise the tenant. When Omahen sought to evict the tenant for nonpayment, the property was "'like a garbage dump'" and required a great deal of clean up.

When escrow closed on the purchase of the Littlejohn Road property in November 2006, Omahen learned that the seller had executed a promissory note to Servidio for $100,000. Apparently, the note was paid off from the proceeds of the sale. Servidio told Omahen that he paid the seller a finder's fee of $6,000 and each of her two children $1,000, plus additional unidentified expenses.

After the close of escrow, the parties agreed to meet in Napa to "'settle up.'" At the meeting, Servidio offered Omahen his Corvette and other unspecified settlement. Servidio finally tendered a check in the sum of $16,000 but ...


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