Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County Super. Ct. No. 05CC08191, Sheila Fell, Judge.
Simone & Roos, Martin Simone and Helen Wong for Plaintiffs and Appellants.
Silverstein & Huston, Steven A. Silverstein, Mark W. Huston and Robert I. Cohen for Defendant and Respondent.
OPINION
FYBEL, J.
INTRODUCTION
Naill Azzu retained Wilfred Brooks as his attorney to handle Azzu’s visa petitions. Brooks filed all the necessary paperwork for Azzu, but did not file necessary paperwork for Azzu’s wife, Faieza Gorges. Gorges’s visa as the spouse of a nonimmigrant worker expired, and her current status is that of an illegal alien. Azzu and Gorges sued Brooks for legal malpractice, breach of fiduciary duty, and negligent infliction of emotional distress. After Brooks filed a motion for summary judgment, Azzu requested and was given leave to file an amended complaint alleging a cause of action for loss of consortium.
Brooks then filed a demurrer to the two causes of action asserted by Azzu in the first amended complaint – legal malpractice and loss of consortium. The trial court sustained the demurrer without leave to amend, and Azzu appealed.
The parties spend a significant portion of their appellate briefs discussing whether the trial court properly granted summary judgment on the first three causes of action by Azzu against Brooks. However, the trial court did not rule on Brooks’s motion for summary judgment against Azzu – it concluded the motion was mooted by the filing of Azzu’s first amended complaint.
For the reasons we set forth post, the trial court did not err in sustaining Brooks’s demurrer to the cause of action for loss of consortium without leave to amend. The first amended complaint did not state sufficient facts to state a cause of action for loss of consortium, and Azzu failed to show what different or additional facts he could allege that would make the cause of action sufficient. As also explained post, Azzu has waived any claim that the trial court erred in sustaining Brooks’s demurrer to the cause of action for legal malpractice. We therefore affirm.
We draw this statement of facts from Azzu’s first amended complaint, as well as those documents of which the trial court could take judicial notice. (Evid. Code, §§ 452, subd. (d), 453; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [in ruling on a demurrer, trial court may take judicial notice of documents such as declarations and answers to interrogatories containing statements by the plaintiff or his or her agent that are inconsistent with the allegations of the complaint].)
Brooks is an attorney licensed to practice in the State of California. Azzu and Gorges are citizens of Iraq, currently living in San Bernardino County.
On December 17, 1998, Brooks was retained by Azzu’s sister to petition for an H-1B visa for Azzu. Azzu’s H-1B visa was approved on September 28, 1999, and issued on October 13, 1999. Gorges obtained an H-4 visa as the spouse of a nonimmigrant worker. Brooks did not represent Gorges in connection with her H-4 visa petition. Azzu and Gorges were admitted to the United States on November 6, 1999. Both Azzu’s H-1B visa and Gorges’s H-4 visa had expiration dates of March 31, 2002.
The United States may grant a work visa to “an alien who is coming temporarily to the United States to perform services in . . . a specialty occupation.” (8 U.S.C. § 1101(a)(15)(H)(i)(b).)
The United States may grant a visa to the “alien spouse and minor children of any such alien specified in this paragraph if accompanying him or following to join him.” (8 U.S.C. § 1101(a)(15)(H)(iv).)
After Azzu changed employers, he retained Brooks to petition for a change to his H-1B visa. This petition was approved on June 5, 2000; Azzu’s visa continued to be valid through March 31, 2002.
On January 22, 2002, Azzu retained Brooks to petition for an extension of his H-1B visa; the petition was filed on March 26, 2002. Azzu’s visa extension was approved on August 5, 2003, and was valid from April 1, 2002 through March 31, 2005.
In September 2000, Azzu retained Brooks to file a petition for labor certification in order to establish Azzu’s eligibility for permanent residency in the United States. Azzu’s labor certification petition was granted on July 16, 2004.
When Azzu called Brooks on July 20, 2004, to make an appointment regarding a petition for permanent residency, he learned that Gorges had not been included in Azzu’s visa extension. Thus, as of April 1, 2002, Gorges’s status had become that of an illegal alien, subject to deportation and a 10-year ban on reentry, and she could not be included in the petition for permanent residency. Azzu alleged that between November 6, 1999 and July 22, 2004, he had several telephone conversations with Brooks in which he told Brooks he was married and his wife should be included in his various petitions. Azzu also alleged that after learning of her status as an illegal alien, Gorges became “unable to assist in maintaining the house as efficiently as before and . . . has lost the freedom and/or confidence to participate in the family, recreational or social activities with Plaintiff Azzu.” Azzu also alleged that, “[t]he loss of her legal status has caused Plaintiff Gorges severe psychological strains and her ability to provide Plaintiff Azzu with love, companionship, affection, society, moral support and solace has been impaired and diminished.”
PROCEDURAL HISTORY
On July 13, 2005, Azzu and Gorges sued Brooks for legal malpractice, breach of fiduciary duty, and negligent infliction of emotional distress. In the original complaint, all three causes of action were asserted by both plaintiffs against Brooks.
On March 23, 2006, Brooks filed a motion for summary judgment or, in the alternative, summary adjudication of issues. Before the hearing on Brooks’s motion, the trial court apparently issued a tentative decision to grant the motion with respect to Azzu’s claims. (The tentative decision is not included in the appellate record.) At the hearing on June 6, Azzu requested the opportunity to assert a new cause of action against Brooks for loss of consortium. The trial court permitted Azzu to do so. On August 14, the trial court issued an order explaining its rulings on Brooks’s motion for summary judgment; with respect to Azzu’s claims, the trial court wrote: “[T]he motion is moot in light of the fact that the motion is directed at the original Complaint and Plaintiff Azzu amended his Complaint with leave of this Court.”
On June 13, 2006, Azzu and Gorges filed a first amended complaint, which included four causes of action against Brooks: (1) legal malpractice, alleged by Azzu; (2) breach of fiduciary duty, alleged by Gorges; (3) negligent infliction of emotional distress, alleged by Gorges; and (4) loss of consortium, alleged by Azzu. Brooks filed a demurrer to the first and fourth causes of action in the first amended complaint. The trial court sustained the demurrer without leave to amend. Judgment was entered against Azzu on November 3, 2006, and Azzu timely appealed from the judgment.
On our own motion, we augment the record on appeal with the order on Brooks’s demurrer and motion to strike the first amended complaint, filed September 22, 2006 in Azzu v. Brooks, Orange County Superior Court, 1996, No. 05CC08191. (Cal. Rules of Court, rule 8.155(a)(1)(A).)
DISCUSSION
I.
DID THE TRIAL COURT ERR BY SUSTAINING THE DEMURRER WITHOUT LEAVE TO AMEND?
A.
Standard of Review
We review de novo an order sustaining a demurrer without leave to amend. (Bardin v. DaimlerChrysler Corp. (2006) 136 Cal.App.4th 1255, 1264.) “‘“We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.” [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.]’” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)
B.
Loss of Consortium
A claim for loss of consortium has four elements: “(1) a valid and lawful marriage between the plaintiff and the person injured at the time of the injury; (2) a tortious injury to the plaintiff’s spouse; (3) loss of consortium suffered by the plaintiff; and (4) the loss was proximately caused by the defendant’s act.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 746, fn. 2.) The third element is in dispute in this case.
The tort of loss of consortium was officially recognized by the California Supreme Court in Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 385-386, in which the plaintiff’s husband was struck on the head by a 600 pound pipe, resulting in total paralysis below his chest, and partial paralysis in one of his arms. The Supreme Court overruled its earlier precedent barring such a claim, and declared “that in California each spouse has a cause of action for loss of consortium, as defined herein, caused by a negligent or intentional injury to the other spouse by a third party.” (Id. at p. 408.) In Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 932-933, our Supreme Court held a plaintiff could state a claim for loss of consortium based on psychological, as opposed to physical injuries to his or her spouse.
What must be pled for one’s claim for loss of consortium to survive demurrer? To state a claim for loss of consortium, the “emotional disquiet [alleged must] rise[] to the level of a ‘neurosis, psychosis, chronic depression, or phobia’ sufficient to substantially disturb the marital relationship on more than a temporary basis. [Citations.]” (Anderson v. Northrop Corp. (1988) 203 Cal.App.3d 772, 780 [allegations that husband became “mentally upset, distressed and aggravated” due to termination of his employment was insufficient to support wife’s claim for loss of consortium].) “[L]oss of consortium . . . means a complete loss of consortium for a definite period of time or a nondeterminable length of time and is not to be confused with the inevitable physical, mental, and emotional damage normally or usually suffered by one spouse when the other has been wrongfully injured.” (Park v. Standard Chem Way Co. (1976) 60 Cal.App.3d 47, 50-51.) In that case, the appellate court concluded the demurrer to the wife’s claim for loss of consortium was properly sustained where the wife alleged she had “‘great mental and emotional pain and suffering’” and suffered “‘grief, humiliation and embarrassment’” caused by physical injuries to her husband. (Id. at p. 49.)
The first amended complaint in this case alleges “Gorges has been unable to assist in maintaining the house as efficiently as before and . . . has lost the freedom and/or confidence to participate in the family, recreational or social activities with Plaintiff Azzu,” and “[t]he loss of her legal status has caused Plaintiff Gorges severe psychological strains and her ability to provide Plaintiff Azzu with love, companionship, affection, society, moral support and solace has been impaired and diminished.” (Italics added.) The facts alleged show Azzu’s consortium with Gorges has been impaired and diminished, but not lost. Assuming for purposes of this discussion that Gorges has been injured due to some act or omission by Brooks, Azzu has not alleged facts that show more than “the inevitable physical, mental, and emotional damage normally or usually suffered by one spouse when the other has been wrongfully injured.” (Park v. Standard Chem Way Co., supra, 60 Cal.App.3d at pp. 50-51.) The allegations of the first amended complaint therefore do not state a cause of action for loss of consortium, and the demurrer was properly sustained on this ground.
Azzu relies on the Supreme Court’s opinion in Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d 916 in arguing he alleged sufficient facts to survive the demurrer. In that case, the court stated: “Whether the degree of harm suffered by the plaintiff’s spouse is sufficiently severe to give rise to a cause of action for loss of consortium is a matter of proof. When the injury is emotional rather than physical, the plaintiff may have a more difficult task in proving negligence, causation, and the requisite degree of harm; but these are questions for the jury, as in all litigation for loss of consortium. In Rodriguez [v. Bethlehem Steel Corp., supra, 12 Cal.3d 382] we acknowledged that the loss is ‘principally a form of mental suffering’ [citation], but nevertheless declared our faith in the ability of the jury to exercise sound judgment in fixing compensation. [Citation.]” (Molien v. Kaiser Foundation Hospitals, supra, at p. 933.) In Molien, the court made clear that emotional and psychological injuries could form the basis for a loss of consortium claim to the same extent as physical injuries. We do not read Molien as making loss of consortium claims demurrer-proof. A plaintiff still must allege sufficient facts to state a cause of action; only if he or she does so is a jury entitled to decide whether the injuries are severe enough to award damages.
(For purposes of this appeal, we assume for purposes of argument only that a plaintiff may state a claim for loss of consortium based on the effects of the legal malpractice committed against his or her spouse. The parties have not cited us to, and our independent research has not revealed, any case permitting the recovery of damages for loss of consortium occasioned by an act of legal malpractice.)
When a demurrer is sustained without leave to amend, “we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Azzu does not argue the trial court should have granted him further leave to amend, and he does not otherwise argue there is a reasonable possibility the defects in his pleading could be cured by amendment. We therefore conclude the trial court did not abuse its discretion by sustaining Brooks’s demurrer without leave to amend.
C.
Legal Malpractice
In his opening appellate brief, Azzu argues the trial court erred by summarily adjudicating his cause of action for legal malpractice in favor of Brooks. But the trial court did not summarily adjudicate any of Azzu’s causes of action. The trial court clearly and repeatedly ruled that the motion for summary judgment vis-à-vis Azzu’s claims was mooted by the filing of the first amended complaint. For his part, Brooks makes the same error in his respondent’s brief on appeal – in fact, Brooks cites the court’s order determining the motion for summary judgment is moot as to Azzu as support for the factual proposition that the court granted the motion.
In an attempt to reconcile the parties’ arguments on appeal with the reality of the trial court and appellate records, we asked the parties to submit letter briefs explaining this apparent contradiction. Brooks acknowledged his mistake, and agreed that the motion for summary judgment had been mooted by the filing of the first amended complaint, and the first and fourth causes of action in the first amended complaint had been resolved on demurrer. Azzu, however, continues to assert, without any citation to the record, that the trial court granted the motion for summary judgment as to Azzu. We reject this assertion, and conclude that the arguments relating to the motion for summary judgment are irrelevant.
Nowhere in his appellate briefs does Azzu address the trial court’s order sustaining the demurrer to the cause of action for legal malpractice. He has therefore waived the issue on appeal. (Katelaris v. County of Orange (2001) 92 Cal.App.4th 1211, 1216, fn. 4.)
D.
Other Causes of Action
The parties also argue about whether the trial court properly granted the motion for summary judgment with regard to Azzu’s causes of action for breach of fiduciary duty and negligent infliction of emotional distress. As explained ante, the trial court determined that the motion was moot with respect to Azzu’s claims. In the first amended complaint, the second and third causes of action are not asserted by Azzu. There is no issue for us to review on appeal.
Azzu argues in a supplemental letter brief that he did not abandon or waive the causes of action for breach of fiduciary duty and negligent infliction of emotional distress, despite the first amended complaint’s clear statements that those causes of action are asserted only by Gorges against Brooks. Azzu cites several cases for the proposition that the nature and character of a pleading is determined by the facts alleged, not by the name given to a cause of action. (See Ananda Church of Self-Realization v. Massachusetts Bay Ins. Co. (2002) 95 Cal.App.4th 1273, 1281; Lovejoy v. AT&T Corp. (2001) 92 Cal.App.4th 85, 98; Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 833.) None of these cases, however, addresses the issue of whether, when a complaint filed by two separate plaintiffs specifies that a cause of action is asserted by only one of those plaintiffs, it should be deemed to be asserted by both. No case we have found so holds.
At the hearing on Brooks’s motion for summary judgment, Azzu’s counsel as much as conceded Azzu could not prevail on the claims he had asserted. In requesting leave to amend, Azzu’s counsel stated, “in this case the only theory that I would have would be Mr. Azzu’s loss of consortium. And, so, I would ask the court for leave to amend to do that at that time.” The original complaint had asserted three causes of action by both plaintiffs against Brooks; in contrast, the first amended complaint made clear the causes of action for malpractice and loss of consortium were asserted by Azzu, and the claims for breach of fiduciary duty and infliction of emotional distress were asserted by Gorges. In reliance on the absence of an attempt by Azzu to assert the second and third causes of action against him, Brooks demurred only to the first and fourth causes of action in the first amended complaint.
II.
GORGES IS NOT A PARTY TO THIS APPEAL.
As part of his appeal, Azzu argues the trial court erred by summarily adjudicating Gorges’s lost wages claim. This issue is not properly before us. An order granting summary adjudication or partial summary judgment is not an appealable order. (Fisherman’s Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 319.) Gorges could have sought relief by a petition for a writ of mandate to challenge the court’s ruling on her claim for lost wages before judgment. She did not do so.
DISPOSITION
The judgment is affirmed. Respondent to recover costs on appeal.
WE CONCUR: SILLS, P. J., ARONSON, J.