Opinion
E041502. E042337.
2-27-2009
JOHN FALLON et al., Plaintiffs and Appellants, v. LAW OFFICES OF DALE GRIBOW et al., Defendants and Respondents.
Zuber & Taillieu and Olivier A. Taillieu for Plaintiffs and Appellants. Reback, McAndrews & Kjar, Patrick E. Stockalper and Nicoli Z. Richardson for Defendants and Respondents Law Offices of Dale Gribow and Dale Gribow. Cotkin & Collins, James P. Collins, Jr., Ellen M. Tipping, and Terry L. Kesinger for Defendants and Respondents Patrick A. Carreon, Jon Mower, and Mower, Carreon & Desai, LLP. Lobb Cliff & Lester, Mark S. Lester, Robert J. Mitchell, and Michael S. Orr for Defendants and Respondents Glen R. Robinson and Don Burns.
Not to be Published in Official Reports
Waxler Carner Weinreb Brodsky and Marnin Weinreb for Defendants and Respondents Keith Koeller, Koeller, Nebecker, Carlson & Haluck, LLP, and Mower, Koeller, Nebecker, Carlson & Haluck, LLP.
Law Office of Thomas A. Vesey and Thomas A. Vesey for Defendants and Respondents Novell & Associates, Raymond A. Novell, and Jennifer Novell-Miller.
I. INTRODUCTION
After the underlying medical malpractice action of plaintiffs Stephen A. Campitelli, Valerie L. Campitelli, and John Fallon (also identified in the record as John R. Conturso, Jr.,) was dismissed, plaintiffs sued the individual attorneys and law firms that had represented them at various times in the underlying action. The trial court sustained defendants demurrers to the second amended complaint (SAC) of Stephen and Valerie without leave to amend on the grounds of statutes of limitations, failure to properly plead fraud with specificity, and failure to allege facts sufficient to show causation. The trial court also sustained defendants demurrers to the third amended complaint (TAC) of John on the ground of failure to plead causation.
For clarity and ease of reference, we will use first names to refer to individuals who share a surname. In doing so, we intend no disrespect. (See In re Marriage of Olsen (1994) 24 Cal.App.4th 1702, 1704, fn. 1.)
John allegedly has Down syndrome, and Valerie is the conservator of Johns estate.
Plaintiffs further argue that the trial court erred in sustaining the defendants demurrers to the TAC against John on the ground of the statutes of limitations because John was at all times legally insane under Code of Civil Procedure section 352, subdivision (a). Inasmuch as the dismissal of the TAC was not based on the statute of limitations, we need not address that issue.
On appeal from the ensuing judgment of dismissal, plaintiffs contend their claims related back to a timely-filed original complaint; their claims were timely filed based on late discovery of their causes of action; and they pleaded sufficient facts to allege viable causes of action. We find no error with respect to the trial courts rulings as to Stephen and Valerie, and we affirm the judgment of dismissal as to them. However, we conclude the trial court erred in sustaining the demurrers of certain defendants as to Johns causes of action for legal malpractice, breach of fiduciary duty, and breach of contract, and we therefore reverse in part.
II. FACTS AND PROCEDURAL BACKGROUND
We set forth the facts consistent with the standard of review applicable to an appeal from judgment of dismissal following the trial courts sustaining of a demurrer without leave to amend. Thus, we accept as true the facts properly pleaded in the complaints, as well as the facts of which judicial notice was properly taken. (See City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865; Leko v. Cornerstone Bldg. Inspection Service (2001) 86 Cal.App.4th 1109, 1114.)
A. The Underlying Medical Malpractice Action
Acting in propria persona, plaintiffs filed the underlying action in September 1999 against numerous doctors, a home nursing agency, and hospitals which had provided medical treatment for their mother, Joan Anne Fallon. In the underlying action, plaintiffs alleged causes of action for medical negligence, elder abuse, wrongful death, intentional infliction of emotional distress, and negligent infliction of emotional distress.
In December 1999, plaintiffs retained Novell & Associates, Raymond Novell and Jennifer Novell-Miller (referred to collectively as the Novell defendants) to represent plaintiffs in the underlying action. By way of a motion to be relieved, the Novell defendants withdrew from representation of plaintiffs on February 16, 2001.
On February 23, 2001, plaintiffs retained Mower, Koeller, Nebecker, Carlson & Haluck, LLP to represent them in the underlying action. In September 2001, that firm split into two firms: Mower & Carreon and Koeller, Nebecker, Carolson & Haluck, LLP. Thereafter, the Carreon/Mower defendants took over representation of plaintiffs in the underlying action. The Carreon/Mower defendants withdrew by motion on June 26, 2002, as to Stephen and Valerie, and on July 22, 2002, as to John.
Patrick A. Carreon, Jon Mower, and Mower, Carreon & Desai, LLP are referred to collectively as the Carreon/Mower defendants.
Keith Koeller, Koeller, Nebecker, Carlson & Haluck, LLP and Mower, Koeller, Nebecker, Carlson & Haluck, LLP are referred to collectively as the Koeller defendants.
Our grouping of defendants differs from that plaintiffs used in their pleadings and continue to use on appeal. For ease of reference, we have grouped the defendants by their common representation on appeal.
Plaintiffs alleged that on July 23, 2002, they retained the Law Offices of Dale Gribow to represent them in the underlying action. In September 2002, the Law Offices of Don C. Burns substituted in as plaintiffs counsel of record. By way of motions to be relieved, the Burns defendants withdrew in March 2003 as to Stephen, in April 2003 as to Valerie, and on June 30, 2004, as to John.
The Law Offices of Dale Gribow and Dale Gribow are referred to collectively as the Gribow defendants
Don C. Burns, the Law Offices of Don C. Burns, Glen R. Robinson, and the Law Offices of Glen Robinson are referred to collectively as the Burns defendants.
The Gribow defendants contend they were never counsel of record for plaintiffs, but that Dale Gribow, whose law offices were located at the same address as those of the Burns defendants, occasionally made appearances for the Burns defendants on plaintiffs behalf. Those contentions (unsupported by citations to the record) might more properly be raised in a motion for summary judgment. On review of the trial courts ruling on a demurrer, our focus is on the allegations of the plaintiffs pleadings.
The underlying action came up for trial in July 2004, and on July 23, the trial court granted defense motions to preclude expert testimony and then dismissed the underlying action "due to plaintiffs inability to offer expert witness testimony at trial . . . ." The trial courts order was filed on August 30, 2004. The trial courts order reflects that Stephen and Valerie appeared at the hearing on the motion in propria persona with John purportedly appearing through his guardian ad litem, Valerie.
On September 10, 2004, the trial court vacated its order of dismissal and instead entered judgment for all defendants based on their previously filed motions for summary judgment. Plaintiffs alleged the new order was never served on them.
The September 10 minute order stated, "Set aside defendant dismissal on the 3rd Amended complaint of Stephen Campitelli as to [12 listed defendants]. [¶] . . . [¶] Judgment for [the same 12 listed defendants]. [¶] . . . [¶] The plaintiff shall take nothing and the defendants (as stated) are awarded judgment in their favor including cost of the suit to be determined by a timely-filed memorandum of cost." The minute order does not state the reason the order was entered.
B. The Current Legal Malpractice Action
On July 22, 2005, plaintiffs, acting in propria persona, filed a judicial council form complaint (the original complaint) naming the current 15 defendants, including the individual attorneys and law firms that had allegedly represented or appeared for plaintiffs at various times in the underlying action. Plaintiffs checked the box under paragraph 10 claiming general negligence and wrote in "legal malpractice"; however, plaintiffs failed to attach any cause of action as required by paragraph 10 of the form complaint, which states, "The following causes of action are attached and the statements above apply to each (each complaint must have one or more causes of action attached)."
Valerie signed the complaint individually and "as conservator of the estate of John R. Conturso, Jr."
On December 16, 2005, plaintiffs, then represented by their current counsel, filed a first amended complaint (FAC) alleging causes of action for legal malpractice, breach of fiduciary duty, concealment, intentional misrepresentation, negligent misrepresentation, and violation of the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.).
Defendants filed demurrers to the FAC on the grounds, among others, that the applicable statutes of limitations had run, and the new causes of action alleged in the FAC did not relate back to the original complaint because the original complaint did not allege any causes of action. Defendants also argued that certain claims were uncertain, and the FAC did not show causation. The trial court sustained defendants demurrers and granted plaintiffs 30 days to amend their complaint.
Plaintiffs filed their SAC on April 5, 2006. In the SAC, plaintiffs added causes of action for breach of contract and breach of the covenant of good faith and fair dealing and added allegations that the statutes of limitations had not run because of late discovery. To support their claim of late discovery, plaintiffs alleged in the SAC that there had been "no actual dismissal [of the underlying action] in July of 2004. Although the Court ruled that it would dismiss the case at that time, one of the parties was asked to draft a proposed order and submit such for objections and approval by the court." Plaintiffs alleged they had filed objections to the order of dismissal on August 2, 2004. Plaintiffs alleged the trial court had issued an order of dismissal as to all parties on August 30, 2004, but that no signed order was ever served on plaintiffs.
Plaintiffs alleged that on September 10, 2004, the trial court vacated its order of dismissal and instead entered judgment for all defendants based on their previously filed motions for summary judgment. Plaintiffs alleged the new order was never served on them. Plaintiffs alleged that certain defendants in the underlying action were likewise not aware of the judgment of dismissal because those defendants had requested the court on December 17, 2004, to enter judgment in their favor.
Plaintiffs further alleged they were not aware of any malpractice until May 2005 because all defendants had concealed from plaintiffs "the facts necessary to determine that legal malpractice had occurred" and had never turned over the files from the underlying case. Plaintiffs alleged they had actual notice in May 2005 that their case had been dismissed and that malpractice had occurred when plaintiffs "became aware of the imaging function on the courts website" and then "retrac[ed] the steps of their former lawyers through the courts files . . . ."
Plaintiffs added allegations in the SAC that various defendants had concealed certain conduct from plaintiffs. Additionally, in the SAC plaintiffs grouped the Koeller defendants with the Carreon/Mower defendants with respect to certain claims. The SAC did not otherwise differ materially from the FAC.
Defendants demurred to the SAC on the grounds that the applicable statutes of limitations had run, the SAC failed to plead fraud with specificity, and the SAC failed to plead facts that would show causation. The trial court sustained defendants demurrers to the SAC without leave to amend as to Stephen and Valerie. The trial court held that each cause of action was barred by the applicable statute of limitations; certain causes of action were uncertain and failed to state a cause of action; and plaintiffs failed to allege any misconduct against defendants that had caused plaintiffs injury or damage. The trial court also sustained defendants demurrers to the SAC as to John, but granted him 30 days to amend the complaint.
The TAC was filed on August 24, 2006. Virtually the only substantive change in the TAC was the addition of a paragraph alleging that John had been insane throughout the proceedings, and the statutes of limitations had therefore been tolled as to his claims.
Defendants filed demurrers to the TAC on the grounds that the statutes of limitations had run, and certain causes of action were uncertain. The trial court sustained the demurrers without leave to amend on the ground of lack of causation, and judgments of dismissal were thereafter entered.
Other facts are set forth in the discussion of the issues to which they pertain.
III. DISCUSSION
A. Standard of Review
When the trial court sustains a demurrer without leave to amend, on appeal, "[w]e give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] Further, we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law. [Citations.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it 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. [Citation.]" (City of Dinuba v. County of Tulare, supra, 41 Cal.4th at p. 865.) In filing an amended complaint after a demurrer has been sustained, the plaintiff may not avoid the defects of the earlier pleadings by omitting facts that made the earlier pleadings defective or alleging new facts inconsistent with the allegations of the earlier pleadings. (Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 383-384 [when a plaintiff pleads inconsistent facts without explaining the inconsistency, the court reads into the amended complaint the facts alleged in the superseded complaint].) In addition, when the court may properly take judicial notice of affidavits or exhibits the plaintiff has filed, the court may consider those facts in assessing whether to sustain a demurrer. (Dwan v. Dixon (1963) 216 Cal.App.2d 260, 264-265 [an allegation of a complaint that contradicted the plaintiffs affidavit in the action could be disregarded]; see also Freeman v. San Diego Assn. of Realtors (1999) 77 Cal.App.4th 171, 178.) "`[W]e may affirm a trial court judgment on any basis presented by the record whether or not relied upon by the trial court. [Citation.]" (Blumhorst v. Jewish Family Services of Los Angeles (2005) 126 Cal.App.4th 993, 999.)
B. Sustaining of Demurrer to SAC Based on Statutes of Limitations
Stephen and Valerie contend the trial court erred in sustaining defendants demurrers to the SAC on the ground the applicable statutes of limitations had lapsed. They contend their claims related back to the filing of their original complaint on July 22, 2005, and at that time, their claims had been timely. Stephen and Valerie contend, in the alternative, that they did not discover their claims against defendants until May 2005, and the applicable statutes of limitations did not begin to run until the claims were discovered.
Under Code of Civil Procedure section 352, "(a) If a person entitled to bring an action . . . is, at the time the cause of action accrued either under the age of majority or insane, the time of the disability is not part of the time limited for the commencement of the action." For purposes of Code of Civil Procedure section 352, the term "insane" means the person is "incapable of caring for his property or transacting business, or understanding the nature or effects of his acts. [Citations.]" (Hsu v. Mt. Zion Hospital (1968) 259 Cal.App.2d 562, 571.)
Defendants do not appear to dispute that John, who allegedly has Down Syndrome, is insane under the statutory definition. Thus, as noted above, as to John the trial court sustained defendants demurrers without leave to amend on the ground of lack of causation rather than on the ground the statutes of limitations had run.
1. Applicable Statutes of Limitations
The statute of limitations for legal malpractice actions is set forth in Code of Civil Procedure section 340.6, subdivision (a), which provides in part: "An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first. In no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist: [¶] (1) The plaintiff has not sustained actual injury. [¶] (2) The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred."
The statute of limitations for fraud claims is set forth in Code of Civil Procedure section 338: "Within three years: [¶] . . . [¶] (d) An action for relief on the ground of fraud or mistake. The cause of action in that case is not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake."
2. Application to Plaintiffs Claims
"`"To determine the statute of limitations which applies to a cause of action it is necessary to identify the nature of the cause of action, i.e., the `gravamen of the cause of action. . . . `[T]he nature of the right sued upon and not the form of action nor the relief demanded determines the applicability of the statute of limitations under our code.. . ." [Citations.] `What is significant for statute of limitations purposes is the primary interest invaded by defendants wrongful conduct. [Citation.]" (Hydro-Mill Co., Inc. v. Hayward, Tilton & Rolapp Ins. Associates, Inc. (2004) 115 Cal.App.4th 1145, 1153 (Hydro-Mill ).) Applying these principles, courts have held that the one-year statute of limitations under section 340.6, subdivision (a) governs claims for breach of fiduciary duty, negligent misrepresentation (Quintilliani v. Mannerino (1998) 62 Cal.App.4th 54, 68, 69), and breach of contact (Curtis v. Kellogg & Andelson (1999) 73 Cal.App.4th 492, 503; Leasequip, Inc. v. Dapeer (2002) 103 Cal.App.4th 394, 401) when those claims arise from the provision of legal services.
Thus, the one-year statute of limitations under Code of Civil Procedure applied to all nonfraud claims based on the provision of legal services, regardless of the titles plaintiffs attached to the claims. Those claims included Stephen and Valeries first, sixth and eleventh causes of action for legal malpractice; their second, seventh, and twelfth causes of action for breach of fiduciary duty, their fifth, tenth, and fifteenth causes of action for negligent misrepresentation, their seventeenth cause of action for breach of contract, and their eighteenth cause of action for breach of the covenant of good faith and fair dealing.
The trial court entered an order of dismissal in the underlying action on August 30, 2004. That order was vacated, and a new judgment of dismissal was entered on September 10, 2004. On that date, at the latest, Stephen and Valerie suffered actual harm, and the statutes of limitation began running. (Code Civ. Proc., § 340.6, subd. (a); Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739 751.) The FAC, filed in December 2005, was therefore untimely as to the legal malpractice claims.
We discuss separately below plaintiffs claims of tolling of the statutes of limitations based on delayed discovery.
The three-year statute of limitations applicable to fraud claims (Code Civ. Proc., § 338, subdivision (d)) governed plaintiffs third, eighth, and thirteenth causes of action for concealment and their fourth, ninth, and fourteenth causes of action for intentional misrepresentation. However, as we discuss below, the trial court correctly determined that plaintiffs failed to plead their fraud claims with the required specificity and sustained defendants demurrers on that basis. We need not, therefore, determine whether the statute of limitations provided an additional and independent basis for sustaining the demurrers to the fraud claims.
3. Relation Back
Stephen and Valerie contend their claims related back to July 22, 2005, when they filed their original complaint, and their FAC was therefore timely.
When an amended complaint "rests on the same general set of facts and refers to the same `offending instrumentalities, accident and injuries as the original complaint," the "amended complaint relates back to a timely filed original complaint, and thus avoids the bar of the statute of limitations, . . ." (Davaloo v. State Farm Ins. Co. (2005) 135 Cal.App.4th 409, 415.) However, when an original complaint is devoid of any factual allegations, a subsequent amended complaint does not relate back to the filing of the original complaint. "[A] plaintiff who files a complaint containing no operative facts at all cannot subsequently amend the pleading to allege facts and a theory of recovery for the first time and claim the amended complaint should be deemed filed as of the date of the original, wholly defective complaint . . . ." (Id. at pp. 415-416.)
In People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1484, the court stated, "The Judicial Council pleading forms have simplified the art of pleading, and have made the task of drafting much easier. Nevertheless, in some cases more is required than merely placing an `X in a box. [Citation.] `Adoption of Official Forms for the most common civil actions has not changed the statutory requirement that the complaint contain "facts constituting the cause of action." [Citation.] Thus, in order to be demurrer-proof, a form `complaint must contain whatever ultimate facts are essential to state a cause of action under existing statutes or case law. [Citation.]"
In their original complaint, plaintiffs merely identified the parties, checked the box next to "negligence" and wrote in "legal malpractice." Plaintiffs essentially argue on appeal that merely stating the name of a cause of action is sufficient to satisfy the minimal factual pleading requirements of Code of Civil Procedure section 425.10, subdivision (a)(1) (a complaint must contain "[a] statement of the facts constituting the cause of action, in ordinary and concise language"). We disagree. Ordinarily, the ultimate facts that must be alleged are contained within cause of action forms attached to the complaint. (See Cal. Rules of Court, rule 1.45(b) ["[a]ny approved cause of action form may be attached to any approved form of complaint or cross-complaint"].) Here, plaintiffs failed to attach any of the approved cause of action forms to the original complaint. Thus, plaintiffs original complaint failed to state any cause of action. Because the original complaint did not contain any factual allegations, the trial court correctly determined the subsequent complaints did not relate back to the date the original complaint was filed.
4. Late Discovery
Stephen and Valerie next contend they did not discover their claims against defendants until May 2005, and the statutes of limitations did not begin to run until the claims were discovered.
A cause of action based on legal malpractice accrues when the plaintiff suffers actual loss or damage resulting from the allegedly negligent actions (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison, supra, 18 Cal.4th at p. 751), and the limitations period under section 340.6, subdivision (a) "commences when the plaintiff actually or constructively discovers the facts of the wrongful act or omission, . . ." (Ibid.) "[A] plaintiff who actually or constructively discovered the attorneys error, but who has suffered no damage to support a legal malpractice cause of action, need not file suit prematurely. Rather, that plaintiff still has one year after sustaining actionable injury to assess whether, and how, to pursue a remedy against the attorney." (Id. at p. 757.)
In order to rely on the discovery rule for delayed accrual of a cause of action, "[a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence." (McKelvey v. Boeing North American, Inc. (1999) 74 Cal.App.4th 151, 160, superseded by statute on another ground as stated in Grisham v. Philip Morris U.S.A., Inc. (2007) 40 Cal.4th 623, 637, fn. 8.) The plaintiff must show diligence, and "conclusory allegations will not withstand demurrer." (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808 (Fox).) The court in Fox further explained, "[U]nder the delayed discovery rule, a cause of action accrues and the statute of limitations begins to run when the plaintiff has reason to suspect an injury and some wrongful cause, unless the plaintiff pleads and proves that a reasonable investigation at that time would not have revealed a factual basis for that particular cause of action." (Id. at p. 803; italics added.)
In McGee v. Weinberg (1979) 97 Cal.App.3d 798, 801-802, the trial court sustained the defendants demurrer to the plaintiffs complaint for legal malpractice on the ground the statute of limitations had run. The plaintiff contended on appeal the statute of limitations had not begun to run until she spoke to a lawyer and learned she had a right to sue for legal malpractice based on her failure to recover life insurance benefits upon her husbands death. The court rejected that argument, explaining: "If the contentions advanced by appellant were accepted, the practical effect would be to nullify the statutes of limitations. Any plaintiff could allege ignorance of his or her legal rights against a particular defendant. . . . However, facts and events which inform a person that something is wrong, or should be looked into, are usually recognized by the ordinary person. . . . It is the occurrence of some cognizable event rather than knowledge of its legal significance that starts the running of the statute of limitations." (Id. at pp. 803-804.)
Here, the underlying action went to trial in July 2004. Plaintiffs had failed to designate expert witnesses, and the trial court granted the defendants motions to exclude expert testimony and then indicated it would dismiss the action. Plaintiffs appeared at the hearing on the motions in propria persona. In the SAC and TAC, plaintiffs alleged "There was . . . no actual dismissal in July of 2004. Although the [c]ourt ruled that it would dismiss the case at that time, one of the parties was asked to draft a proposed order and submit such for objections and approval by the court. This `proposed dismissal was based on the alleged lack of expert evidence resulting from motions in limine." However, on July 29, 2004, defendants in the underlying action filed a notice of ruling, which was served directly on plaintiffs in propria persona, stating that at on July 23, 2004, "[t]he court further ruled that because plaintiffs are precluded from offering expert witness testimony at trial, and therefore cannot prevail in their action against defendants, defendants request that the action be dismissed is granted."
On August 2, 2004, Stephen and Valerie, acting in propria persona, filed "Objections to Notice of Ruling; Order of Dismissal; Judgment After Dismissal." (Among their objections were their assertions that the notice of ruling falsely stated the hearing had occurred at 8:30 a.m., "when in actuality the hearing occurred well after 10:30 a.m., rendering the entire Notice of Ruling invalid.") The trial court issued an order of dismissal as to all parties on August 30, 2004. However, plaintiffs alleged they never received any signed copy of an order of dismissal and therefore had no proper notice of the entry of the order. On September 10, 2004, the trial court vacated its order of dismissal but re-entered judgment for the defendants in the underlying action. Plaintiffs alleged the new order was never served on them.
We conclude the facts plaintiffs have alleged and the documents of which the trial court properly took judicial notice establish as a matter of law that plaintiffs were on notice as early as July 2004 that dismissal of the underlying action was impending, even if the order of dismissal was not entered until August 30, 2004, or September 10, 2004. The facts of which plaintiffs were aware in July 2004 would have led a reasonable person to investigate; however, plaintiffs failed to allege any facts that would show reasonable diligence on their part in investigating their claims. (Fox, supra, 35 Cal.4th at pp. 803, 808). Instead, plaintiffs merely alleged they discovered the trial courts Web site in May 2005.
Plaintiffs alleged they learned about the imaging function on the trial court Web site in May 2005; however, they requested the trial court to take judicial notice of a copy of an email message from the courts Web master stating that images from civil cases had been available to the public on the courts Web site in January 2005.
Moreover, plaintiffs conclusionary allegations that until May 2005 they did not discover the facts on which their claims are based are contradicted by other allegations of their complaint. For example, with respect to the Carreon/Mower defendants, plaintiffs alleged in the SAC that "[u]pon learning of Mr. Carreons unexpected and unannounced, but clearly planned, intention to withdraw, [plaintiffs] turned to the Internet for possible explanations for the horrible record of performance of these supposedly experienced, veteran attorneys in this particular case." Plaintiffs further alleged they learned of a supposed conflict of interest in the Carreon/Mower defendants representation of insurers for several of the defendants in the underlying action. And plaintiffs alleged that Patrick Carreon had admitted he had been at fault for not timely obtaining an expert witness, as a result of which the trial court granted defense motions for summary judgment in March 2001. Plaintiffs alleged they then had no choice but to hire their own forensic pathologist to get the case reinstated. These allegations establish that plaintiffs had actual knowledge of actions of the Carreon/Mower defendants on which plaintiffs now base their claims, before those defendants representation of plaintiffs ended in June and July 2002.
We conclude the trial court properly sustained defendants demurrers to Stephens and Valeries legal malpractice-related claims in the SAC on the ground the statute of limitations had run.
As noted above, those claims included Stephen and Valeries first, sixth and eleventh causes of action for legal malpractice; their second, seventh, and twelfth causes of action for breach of fiduciary duty; their fifth, tenth, and fifteenth causes of action for negligent misrepresentation, their seventeenth cause of action for breach of contract, and their eighteenth cause of action for breach of the covenant of good faith and fair dealing.
C. Sustaining Demurrers Based on Failure to Plead Fraud Claims with Specificity
The trial court sustained defendants demurrers to the fraud-based claims in the SAC on the ground plaintiffs had failed to allege fraud with the required specificity. Our discussion in this section applies equally to the trial courts rulings with respect to the Stephen and Valeries claims in the SAC and Johns claims in the TAC.
The California Supreme Court has not yet decided whether negligent misrepresentation claims, outside the context of shareholder actions, must be pleaded with specificity. (See Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) With respect to Stephen and Valerie, the issue is immaterial—as noted above, the negligent misrepresentation claims were essentially claims for legal malpractice, and as such, were subject to the one-year statute of limitations. We will discuss the issue separately below with respect to Johns claims.
1. Pleading Requirements for Fraud Claims
"The elements which must be pleaded to plead a fraud claim are `(a) misrepresentation (false representation, concealment or nondisclosure); (b) knowledge of falsity (or "scienter"); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. [Citation.]" (Agricultural Ins. Co. v. Superior Court (1999) 70 Cal.App.4th 385, 402.) Claims for fraud must be pleaded with specificity; the purpose of the specific pleading requirement is to give notice to the defendant and to furnish him or her with definite charges. (Committee on Childrens Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216, superseded by statute on other grounds as stated in Californians for Disability Rights v. Mervyns, LLC (2006) 39 Cal.4th 223, 227.)
Pleading the legal conclusion of fraud is insufficient; rather, "[e]very element of the cause of action for fraud must be alleged in the proper manner (i.e. factually and specifically), and the policy of liberal construction of the pleadings . . . will not ordinarily be invoked to sustain a pleading defective in any material respect." (Committee on Childrens Television, Inc. v. General Foods Corp., supra, 35 Cal.3d at p. 216) "`"This particularity requirement necessitates pleading facts which `show how, when, where, to whom, and by what means the representations were tendered." [Citation.]" (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 993.) Similarly, "the mere assertion of `reliance is insufficient. The plaintiff must allege the specifics of his or her reliance on the misrepresentation to show a bona fide claim of actual reliance. [Citation.]" (Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519.)
2. Plaintiffs Allegations of Fraud
In the SAC and TAC, plaintiffs alleged, in their third cause of action for concealment, that the Novell defendants concealed from plaintiffs that the Novell defendants had, among other things, failed to plead or pray for damages for intentional infliction of emotional distress in the second amended complaint in the underlying action; failed to name a certain doctor as a defendant; failed to plead a cause of action for battery; failed to plead negligence or unfair and deceptive business practices; dropped the claim for intentional infliction of emotional distress in the third amended complaint; filed a notice of nonopposition to a defense motion to strike punitive damages allegations in the underlying action; failed to respond to discovery and had monetary sanctions levied against them; failed to request entry of default against six defendants in the underlying action; and forged plaintiffs signatures to verified discovery responses. Plaintiffs alleged they were unaware the Novell defendants were concealing information from them; that the Novell defendants intended to deceive plaintiffs by concealing information from plaintiffs; that plaintiffs reasonably relied on the Novell defendants deception; and that plaintiffs were damaged as a result of the deception.
In the SAC and TAC, plaintiffs alleged, in their fourth cause of action for intentional misrepresentation, that the Novell defendants had represented that the Novell defendants had the financial ability to advance costs and had experience in medical malpractice. Plaintiffs alleged the Novell defendants knew those representations were false when made and intended plaintiffs to rely on those representations. Plaintiffs alleged they relied on those representations, and "as a result, the NOVELL DEFENDANTS continued representation of the PLAINTIFFS for many months." Finally, plaintiffs alleged they were damaged as a result of their reliance on the Novell defendants false representations.
In the SAC and TAC, plaintiffs alleged, in their eighth cause of action for concealment, that the Carreon/Mower defendants and the Koeller defendants failed to disclose they had represented some of the insurance carriers for defendants in the underlying action and concealed from plaintiffs "how and why they lost the [Civil Code section] 425.13 motion to allow punitive damages to be pled in the complaint." Plaintiffs alleged the Carreon/Mower defendants and Koeller defendants intended to deceive plaintiffs, plaintiffs reasonably relied on the deception, and plaintiffs were damaged as a result of the deception.
In the SAC and TAC, plaintiffs alleged, in their ninth cause of action for intentional misrepresentation, that Patrick Carreon told plaintiffs his new firm would have ample funds to continue to advance costs, that the Carreon/Mower defendants and Koeller defendants represented that "they maintained medical experts who would be able to render opinions for the case," that the court had contacted those defendants for new substitution of attorney forms, and that they lied to cover up how and why they lost a motion for punitive damages. Plaintiffs alleged those representations were not true; the Carreon/Mower defendants and Koeller defendants knew the representations were not true when made and intended plaintiffs to rely on the representations "in order to continue representation of PLAINTIFFS," plaintiffs reasonably relied on the representations, and plaintiffs suffered damages as a result.
In the SAC and TAC, plaintiffs alleged, in their thirteenth cause of action for concealment, that the Gribow defendants and the Burns defendants failed to disclose that, although plaintiffs signed a retainer agreement with Gribow, Gribow turned the case over to Burns, who did not work for him, and failed to disclose that a recent California Supreme Court case had held that Civil Code section 425.13 did not apply to elder abuse cases. Plaintiffs alleged they were unaware of the deceptions; the Gribow defendants and the Burns defendants intended to deceive plaintiffs; plaintiffs reasonably relied on the deceptions; and plaintiffs were damaged as a result of the deceptions.
In the SAC and TAC, plaintiffs alleged, in their fourteenth cause of action for intentional misrepresentation, that the Gribow defendants and the Burns defendants told plaintiffs that "evidentiary sanctions helped the case due to what they termed `the best evidence rule; Burns was "the third-most experienced trial attorney in California"; and Burns "was an exemplary soldier." Plaintiffs alleged those representations were not true; the Gribow defendants and the Burns defendants knew the representations were not true when made and intended plaintiffs to rely on the representations "in order to continue representation of PLAINTIFF[S]"; plaintiffs reasonably relied on the representations; and plaintiffs suffered damages as a result.
3. Analysis
With respect to all plaintiffs causes of action for concealment and intentional misrepresentation, as set forth above, plaintiffs described the acts and omissions that constituted the alleged concealments and misrepresentations. However, the SAC and TAC utterly failed to plead "`"facts which `show how, when, where, to whom, and by what means the representations were tendered." [Citation.]" (Robinson Helicopter Co., Inc. v. Dana Corp., supra, 34 Cal.4th at p. 993.) Similarly, plaintiffs merely asserted the conclusion of "reliance" without pleading any specific facts "to show a bona fide claim of actual reliance." (Cadlo v. Owens-Illinois, Inc., supra, 125 Cal.App.4th at p. 519.) And plaintiffs asserted the conclusion of causation without pleading any specific facts that showed how the alleged misrepresentations and concealments led to actual damage. We therefore conclude plaintiffs have failed to plead their fraud causes of action with the requisite specificity, and the trial court properly sustained defendants demurrers to all the causes of action for intentional misrepresentation and concealment.
As noted above, those claims included plaintiffs third, eighth, and thirteenth causes of action for concealment and their fourth, ninth, and fourteenth causes of action for intentional misrepresentation.
D. Johns Causes of Action for Legal Malpractice
As discussed above, the trial court properly sustained defendants demurrers to Stephens and Valeries legal malpractice-based claims on the ground the statute of limitations had run. However, because of Johns legal incompetence, the statutes of limitations were tolled as to his claims. (Code Civ. Proc., § 352.) The trial court therefore sustained defendants demurrers to the TAC on the ground of lack of causation. On appeal, plaintiffs contend that ruling was erroneous.
1. Elements of Cause of Action for Legal Malpractice
To state a claim for malpractice, the plaintiff must allege duty, breach, a causal connection between the negligent conduct and the resulting injury, and damages. (Budd v. Nixen (1971) 6 Cal.3d 195, 200, superseded by statute on other grounds as stated in Laird v. Blacker (1991) 235 Cal.App.3d 1795, 1802.) To establish causation in a legal malpractice action, the plaintiff must show that but for some error on the part of the defendant attorney, the plaintiff would have obtained a more favorable result. (Viner v. Sweet (2003) 30 Cal.4th 1232, 1241.)
2. Analysis
a. Novell defendants
The first cause of action of the TAC alleged legal malpractice against the Novell defendants. Plaintiffs alleged the Novell defendants had breached their duties as attorneys for plaintiffs in the underlying action by, among other things, failing to plead certain meritorious causes of action, failing to respond to discovery requests, failing to conduct adequate discovery, and lacking sufficient legal learning or skill. The TAC further alleged the Novell defendants representation of plaintiffs ended on February 16, 2001, and plaintiffs signed a retainer agreement with new counsel on February 23, 2001.
It is indisputable from the face of plaintiffs complaints and from court records in the underlying action of which judicial notice may properly be taken that any harm that accrued to plaintiffs was based on the dismissal of the underlying action. That dismissal was based on the failure to timely designate expert witnesses in June 2004 and/or on inadequate opposition to defense motions for summary judgment. Thus, even if the alleged acts and omissions of the Novell defendants constituted legal malpractice, plaintiffs have failed to allege any causal connection between those acts and omissions and the dismissal of plaintiffs action in August or September 2004. In other words, the allegations of the TAC fail to establish that, but for some error on the part of the Novell defendants, John would have obtained a more favorable result. (Viner v. Sweet, supra, 30 Cal.4th at p. 1241.) We therefore conclude the trial court properly sustained the demurrer of the Novell defendants to the legal malpractice cause of action in the TAC on the ground the complaint failed to allege causation.
b. Carreon/Mower defendants and Koeller defendants
The TAC alleged that the Carreon/Mower defendants and the Koeller defendants had breached their duties as attorneys for plaintiffs in the underlying action by, among other things, failing to oppose defense motions, failing to conduct adequate discovery, and failing to locate expert witnesses. The TAC further alleged the Carreon/Mower defendants and Koeller defendants representation of Stephen and Valerie ended on June 26, 2002, and their representation of John ended on July 22, 2002.
In the TAC, plaintiffs grouped the Carreon/Mower defendants and Koeller defendants and alleged the same claims against all of those defendants.
As with the Novell defendants, the allegations of the complaint and documents in the record of the underlying action establish that any harm that accrued to plaintiffs was a result of the dismissal of the underlying action in August or September 2004, more than two years after the Carreon/Mower defendants and Koeller defendants withdrew. Plaintiffs have thus failed to allege any causal connection between the Carreon/Mower defendants and Koeller defendants acts and omissions and the dismissal of the underlying action. We conclude the trial court properly sustained the demurrer of the Carreon/Mower defendants and Koeller defendants on the ground the complaint failed to allege causation.
c. Gribow defendants and Burns defendants
Plaintiffs alleged in the TAC that expert designations were due on June 11 and June 14, 2004, and the Gribow defendants and Burns defendants withdrew from representation of plaintiffs in the underlying action on June 30, 2004, without having responded to the demands for expert exchange. However, documents in the record of the underlying action, of which the trial court properly took judicial notice, establish that the Burns defendants withdrew from representation of Stephen in March 2003 and of Valerie in April 2003, and after those dates, Stephen and Valerie represented themselves in propria persona. Thus, the Burns defendants and Gribow defendants alleged failure to designate expert witnesses could not have been the cause of harm to Stephen or Valerie, who had been representing themselves for over a year when the expert witness exchange was due.
In the TAC, plaintiffs grouped the Gribow defendants and Burns defendants and alleged the same claims against all of those defendants.
The situation is different with respect to John. The Burns defendants were his counsel of record when the expert witness exchange was allegedly due on June 11 and June 14, 2004, and the TAC alleges that the Gribow defendants were also representing him pursuant to a retainer agreement.
The TAC alleged plaintiffs were never provided copies of signed substitution of attorney forms to conceal the fact that Mr. Burns had been associated into the case rather than Mr. Gribow, and Mr. Burns did not work for Mr. Gribow. The TAC alleged that due to defective papers the Gribow/Burns defendants filed in opposition to a motion for summary adjudication by a defendant in the underlying action, the plaintiffs lost two causes of action against that defendant, including an elder abuse cause of action.
The TAC alleged that due to defective papers the Gribow/Burns defendants filed in opposition to a motion for summary judgment by another defendant in the underlying action, plaintiffs lost causes of action for medical malpractice and negligent infliction of emotional distress against that defendant. The TAC alleged that the specific defect in the opposition papers was the failure "to argue and provide expert testimony as to causation . . . ."
The TAC alleged that due to defective papers the Gribow/Burns defendants filed in opposition to a motion for summary judgment by a third defendant in the underlying action, plaintiffs lost all their claims against that third defendant. The TAC alleged the specific defect in the opposition papers was that the "`opposing statement of facts contained a single response: a general reference to a particular declaration." The TAC alleged that the Gribow/Burns defendants failed to conduct adequate discovery and failed to respond to discovery requests. The TAC alleged, "The GRIBOW/BURNS Defendants responded to 13 motions for summary judgment with one-sentence oppositions, citing outdated declarations."
The TAC further alleged:
"117. Most crucially, [the Gribow defendants and Burns defendants] failed to designate experts in due time, thereby resulting in the loss of all remaining causes of action. The expert designations were due on June 11 and June 14, 2004. The attorneys withdrew on June 30, 2004, having failed to respond to the demands for expert exchange.
"118. The failure to designate experts had nothing to do with the availability of experts willing to offer favorable testimony at trial. As alleged above, there was plenty of expert testimony to support the CAMPITELLIS[] case."
In their general allegations, plaintiffs alleged that "According to all of the evidence available, the underlying case was meritorious, and but for the various acts of malpractice listed below, the CAMPITELLIS would have recovered significant damages."
Plaintiffs further alleged:
"279. As a result of the malfeasance and nonfeasance by the GRIBOW DEFENDANTS in the management and prosecution of the PLAINTIFFS case, as well as the GRIBOW DEFENDANTS lack of learning and skill in medical malpractice, PLAINTIFFS lost the ability to prosecute several causes of action central to their malpractice claim.
"280. Ultimately, the PLAINTIFFS case was dismissed and the PLAINTIFF[S] recovered nothing.
"281. Upon information and belief, but for the GRIBOW DEFENDANTS mismanagement of the PLAINTIFFS case, a reasonable jury would have found for the PLAINTIFFS in the face of overwhelming evidence favoring the PLAINTIFFS position.
"282. As a legal and proximate cause of the GRIBOW DEFENDANTS[] malfeasance and nonfeasance, PLAINTIFFS were damages in an amount to be proven at trial."
In sum, plaintiffs alleged the underlying action was dismissed because of the Burns defendants and Gribow defendants mismanagement of the case; John would have recovered in the underlying action; and John suffered damage as a result of the dismissal. We conclude the allegations were adequate to survive demurrer as to the eleventh cause of action for legal malpractice against the Burns defendants and the Gribow defendants. (Budd v. Nixen, supra, 6 Cal.3d at p. 200; Viner v. Sweet, supra, 30 Cal.4th at p. 1241.)
E. Johns Causes of Action for Negligent Misrepresentation
As noted above, the California Supreme Court has not yet determined whether a claim for negligent misrepresentation must be pleaded with specificity outside the context of a shareholders action. (See Small v. Fritz Companies, Inc., supra, 30 Cal.4th at p. 184). We likewise need not determine that issue. If the specific pleading requirement applies, we conclude the allegations of the complaint were inadequate because, as with the other fraud-based claims, plaintiffs allegations of reliance and causation were mere conclusions, devoid of any factual content. If ordinary pleading requirements apply, we conclude the complaint fails to show causation, as we discuss below.
1. Elements of Cause of Action for Negligent Misrepresentation
The elements of a cause of action for negligent misrepresentation are "(1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce anothers reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage. [Citation.]" (Apollo Capital Fund LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 243)
2. Allegations of TAC
a. Novell defendants
In the TAC, plaintiffs alleged, in the fifth cause of action for negligent misrepresentation, that the Novell defendants had represented that the Novell defendants had the financial ability to advance costs and had experience in medical malpractice. Plaintiffs alleged that the Novell defendants had no reasonable grounds for believing their representations were true. Plaintiffs alleged they relied on those representations, and "as a result, the NOVELL DEFENDANTS continued representation of the PLAINTIFFS for many months," and plaintiffs alleged they were damaged as a result of their reliance on the false representations.
John has failed to state a cause of action against the Novell defendants for negligent misrepresentation because, as with his legal malpractice cause of action, other allegations of the complaint and records of which judicial notice may be taken establish that the Novell defendants acts or omissions could not have been the cause of harm to John.
b. Carreon/Mower defendants and Koeller defendants
In the TAC, plaintiffs alleged, in the tenth cause of action for negligent misrepresentation, that Patrick Carreon told plaintiffs his new firm would have ample funds to continue to advance costs; that the Carreon/Mower and Koeller defendants represented that "they maintained medical experts who would be able to render opinions for the case"; that the court had contacted those defendants for new substitution of attorney forms; and that those defendants lied to cover up how and why they lost a motion for punitive damages. Plaintiffs alleged those representations were not true; the Carreon/Mower defendants and Koeller defendants had no reasonable grounds for believing their representations to be true and intended plaintiffs to rely on the representations "in order to continue representation of PLAINTIFFS"; plaintiffs reasonably relied on the representations; and John suffered damages as a result.
John has failed to state a cause of action against the Carreon/Mower defendants and Koeller defendants for negligent misrepresentation because, as with his legal malpractice cause of action, other allegations of the complaint and records of which judicial notice may be taken establish that those defendants acts or omissions could not have been the cause of harm to John.
c. Gribow defendants and Burns defendants
Plaintiffs alleged, in the fifteenth cause of action for negligent misrepresentation in the TAC, that the Gribow defendants and the Burns defendants told plaintiffs that "evidentiary sanctions improved the case due to what they termed `the best evidence rule." Plaintiffs alleged those representations were not true; the Gribow defendants, and the Burns defendants had no reasonable grounds for believing the representations were not true when made and intended plaintiffs to rely on the representations "in order to continue representation of PLAINTIFF[S]"; plaintiffs reasonably relied on the representations; and John suffered damages as a result.
John has failed to state a cause of action against the Gribow defendants and Burns defendants for negligent misrepresentation. Other allegations of the complaint and records of which judicial notice may be taken establish that the cause of harm to John was the dismissal of the underlying action, whether based on the failure to designate expert witnesses or the granting of defense motions for summary judgment. Any misrepresentations about the supposed beneficial effect of discovery sanctions therefore could not have been the cause of harm to John.
F. Johns Cause of Action for Breach of Fiduciary Duty
1. Elements of Cause of Action for Breach of Fiduciary Duty
"The elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary relationship, its breach, and damage proximately caused by that breach. [Citation.]" (Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1599.)
2. Allegations of TAC
a. Novell defendants
The TAC alleged in the second cause of action for breach of fiduciary duty that the Novell defendants had a fiduciary relationship to John. The TAC alleged that the Novell defendants breached that duty by failing to keep plaintiffs reasonably informed about significant developments in the relationship relating to the Novell defendants representations of plaintiff, and as a result of the breach, plaintiffs were damaged.
John has failed to state a cause of action against the Novell defendants for breach of fiduciary duty because, as with his legal malpractice cause of action, other allegations of the complaint and records of which judicial notice may be taken establish that the Novell defendants acts or omissions could not have been the cause of harm to John.
b. Carreon/Mower defendants and Koeller defendants
The TAC alleged in the seventh cause of action for breach of fiduciary duty that the Carreon/Mower defendants and Koeller defendants had a fiduciary relationship to John. The TAC alleged that the Carreon/Mower defendants and Koeller defendants breached that duty by having conflicts of interest and by failing to disclose those conflicts. The TAC further alleged that Patrick Carreon had financial interests in two law firms that were adverse to his representation of plaintiffs, and he refused to take action against his partners over funding of the underlying action. The TAC alleged that as a result of the Carreon/Mower defendants and Koeller defendants breach of fiduciary duty, plaintiffs were damaged.
John has failed to state a cause of action against the Carreon/Mower defendants and Koeller defendants for breach of fiduciary duty because, as with his legal malpractice cause of action, other allegations of the complaint and records of which judicial notice may be taken establish that those defendants acts or omissions could not have been the cause of harm to John.
c. Gribow defendants and Burns defendants
The TAC alleged in the twelfth cause of action for breach of fiduciary duty, that the Gribow defendants and Burns defendants were in a fiduciary relationship with plaintiffs, those defendants breached their fiduciary duty to plaintiffs by, among other things, failing to keep plaintiffs reasonably informed about significant developments in the case and failing to return, on request, all papers and property related to those defendants representation of plaintiff. Plaintiffs alleged they were damaged as a result of those actions.
We conclude the TAC adequately stated a cause of action for breach of fiduciary duty against the Gribow defendants and Burns defendants. The complaint alleged the required elements of the existence of a fiduciary relationship, its breach by failure to return documents, and damage resulting to John from that breach. (Amtower v. Photon Dynamics, Inc., supra, 158 Cal.App.4th at p. 1599.)
G. Johns Cause of Action for Violation of the Elder Abuse and Dependent Adult Civil Protection Act
1. Elements of a Cause of Action for Violation of the Elder Abuse and Dependent Adult Civil Protection Act
Under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq. (the Act)), abuse of a dependent adult is defined as either "(a) Physical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering. [¶] (b) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering." (Welf. & Inst. Code, § 15610.07.) Financial abuse for purposes of the Act occurs "when a person or entity does any of the following:
"(1) Takes, secretes, appropriates, or retains real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or both.
"(2) Assists in taking, secreting, appropriating, or retaining real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or both." (Welf. & Inst. Code, § 15610.30, subd. (a).)
Finally, mental suffering is defined as "fear, agitation, confusion, severe depression, or other forms of serious emotional distress that is brought about by forms of intimidating behavior, threats, harassment, or by deceptive acts performed or false or misleading statements made with malicious intent to agitate, confuse, frighten, or cause severe depression or serious emotional distress of the elder or dependent adult." (Welf. & Inst. Code, § 15610.53.)
2. Allegations of the TAC
In the sixteenth cause of action in the TAC, plaintiffs alleged John is a dependent adult as defined in the Act, and that the Gribow defendants and Burns defendants have retained Johns personal property for a fraudulent and wrongful use, despite numerous requests that the property be returned to him.
3. Analysis
The TAC alleged financial abuse (Welf. & Inst. Code, § 15610.30, subd. (a)), in that the TAC alleged the Gribow defendants and Burns defendants had retained real property of a dependent adult. We therefore conclude the trial court erred in sustaining defendants demurrers to the sixteenth cause of action.
H. Johns Causes of Action for Breach of Contract
1. Elements of Causes of Action for Breach of Contract
"A cause of action for breach of contract requires proof of the following elements: (1) existence of the contract; (2) plaintiffs performance or excuse for nonperformance; (3) defendants breach; and (4) damages to plaintiff as a result of the breach. [Citation.]" (CDF Firefighters v. Maldonado (2008) 158 Cal.App.4th 1226, 1239.)
2. Allegations of the TAC
The seventeenth cause of action in the TAC alleged breach of contract. The complaint alleged that "all of the DEFENDANTS undertook to perform their duties pursuant to a written contract with the CAMPITELLIS. The NOVELL contract stated that `Attorney will use its best efforts to obtain compensation for Clients. The KOELLER/MOWER/CARREON contract stated that `[t]he Client hereby retains and employs Attorney to represent the Client in the prosecution of any claims. The GRIBOW DEFENDANTS contract states that the CAMPITELLIS `retain THE LAW OFFICE OF DALE S. GRIBOW, P.C., . . . to render such professional services . . . in connection with the handling of Clients claims." The TAC alleged that plaintiffs performed their duties under the respective contracts or were excused from performance as a result of defendants breach, and defendants "failed to exercise their duties under the contract by failing to exercise the requisite skill and care . . . ." Plaintiffs alleged the breach caused damage to them.
3. Analysis
a. The Novell defendants, Carreon/Mower defendants, and Koeller defendants
John has failed to state a cause of action against the Novell defendants, Carreon/Mower defendants, or Koeller defendants for breach of contract because, as with his legal malpractice cause of action, other allegations of the complaint and records of which judicial notice may be taken establish that those defendants acts or omissions could not have been the ultimate cause of harm to John.
b. The Gribow defendants
The Gribow defendants argue their demurrer to the cause of action for breach of contract was properly sustained because the allegations of that claim were duplicative of the plaintiffs causes of action for legal malpractice. However, Code of Civil Procedure section 430.10, which sets forth the grounds for demurrer, does not provide that duplication of claims is the basis for demurring. Courts have regularly recognized that plaintiffs may allege different causes of action, even if duplicative. (See, e.g., Charnay v. Cobert (2006) 145 Cal.App.4th 170, 186; Hydro-Mill, supra, 115 Cal.App.4th at p. 1153.)
The Gribow defendants also argue they never had a contract with plaintiffs. However, for purposes of reviewing the trial courts ruling on a demurrer, we accept as true the allegations of the complaint. Plaintiffs alleged they "signed a retainer agreement with the Law Offices of Dale S. Gribow on July 23, 2002."
We conclude the TAC adequately alleged a cause of action for breach of contract against the Gribow defendants.
c. The Burns defendants
In the seventeenth cause of action in the TAC, John alleged the written contract with the Gribow defendants stated that plaintiffs "`retain THE LAW OFFICE OF DALE S. GRIBOW, P.C., . . . to render such professional services . . . in connection with the handling of Clients claims." However, the TAC failed to allege that plaintiffs entered into any contract with the Burns defendants. Thus, we conclude the trial court properly sustained the demurrer of the Burns defendants as to the seventeenth cause of action.
I. Johns Cause of Action for Breach of the Implied Covenant of Good Faith and Fair Dealing
1. Elements of Cause of Action for Breach of the Implied Covenant of Good Faith and Fair Dealing
"[E]very contract contains an implied covenant of good faith and fair dealing that `"neither party will do anything which will injure the right of the other to receive the benefits of the agreement." [Citations.]" (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1120 (Wolf).) To establish a claim for breach of the implied covenant, the plaintiff must show that the defendant "lacked subjective good faith in the validity of its act" or that "the act was intended to and did frustrate the common purpose" of the underlying contract. (Id. at p. 1123.)
2. Allegations of the TAC
The eighteenth cause of action in the TAC alleged breach of the implied covenant of good faith and fair dealing. The TAC alleged that defendants had undertaken to perform duties to plaintiffs under a written contract, defendants were in a fiduciary relationship to plaintiffs, and defendants breached the implied covenant of good faith and fair dealing "by injuring the right of [plaintiffs] from receiving the benefit of their agreement."
3. Analysis
John has failed to state a cause of action against any of the defendants for breach of the implied covenant of good faith and fair dealing because he failed to allege subjective bad faith or that defendants actions or omissions were intended to and did frustrate the purpose of any underlying contract. (Wolf, supra, 162 Cal.App.4th at p. 1123.)
J. Viability of Johns Claims in the Underlying Action
The Burns defendants argue that Johns medical malpractice claim in the underlying action remains valid because John was not represented by counsel when the underlying action was dismissed. At that time, Valerie, acting in propria persona, purported to represent him as his guardian ad litem; however, a guardian ad litem may not represent an incompetent person in a legal proceeding. (J.W. v. Superior Court (1993) 17 Cal.App.4th 958, 962.) In that case, the court held that "a nonattorney who represents another person in court proceedings violates the prohibition against unauthorized practice of law." (Ibid.) The Burns defendants argue, citing Abbott v. Industrial Acc. Com. (1936) 12 Cal.App.2d 478, 480, that the dismissal of the underlying action as to John was therefore either void or voidable, and in either instance, the claim may be revived. In that case, however, the court held that an application to vacate or reopen the underlying judgment "must be made with due diligence and within a reasonable time . . . after a guardian is appointed to represent him." (Ibid. )
The trial court did not reach the issue whether the underlying complaint could be reopened under this standard, and we likewise decline to do so; the issue involves questions of fact not suitable for resolution in a demurrer.
K. Request for Opportunity to Amend
Plaintiffs request that if we conclude the demurrers were properly sustained, we nonetheless remand to allow them the opportunity to amend their complaint.
The trial court has discretion to allow amendments to pleadings, but when the trial court has denied the opportunity to amend, we uphold that ruling on appeal unless a "manifest or gross abuse of discretion is shown." (Sullivan v. City of Sacramento (1987) 190 Cal.App.3d 1070, 1081.) "`[T]he plaintiff . . . bear[s] the burden of proving there is a reasonable possibility the defect in the pleading can be cured by amendment. [Citation.] "`. . . Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading. . . ."" (Everett v. State Farm General Ins. Co. (2008) 162 Cal.App.4th 649, 655-656.)
Here, defendants demurrers to the FAC, SAC, and TAC pointed out in detail the deficiencies in plaintiffs pleading, but plaintiffs failed to amend their allegations accordingly. (See Furia v. Helm (2003) 111 Cal.App.4th 945, 959 [holding that a demurrer was properly sustained without leave to amend when the plaintiff, having had two opportunities to amend his complaint, failed to do so].) Plaintiffs have made no attempt to show they have the ability to correct the pleading deficiencies; they merely requested that they be allowed to amend the TAC "to cure any perceived deficiencies," "[i]n the unlikely event" this court finds the TAC insufficient. In the absence of an adequate showing of the manner in which the defects in the complaint could be cured, we decline plaintiffs request for yet another opportunity to amend. (Lazy Acres Market, Inc. v. Tseng (2007) 152 Cal.App.4th 1431, 1438.)
IV. DISPOSITION
The judgments are affirmed as to the Novell defendants, Koeller defendants, and Mower/Carreon defendants. We also affirm the trial courts rulings sustaining the demurrers of the Burns defendants and Gribow defendants to the thirteenth through fifteenth causes of action in the TAC. However, we reverse the trial courts ruling sustaining the demurrers of the Burns defendants and the Gribow defendants as to Johns causes of action in the TAC for legal malpractice, breach of fiduciary duty, breach of contract, and violation of the Elder Abuse and Dependent Adult Civil Protection Act. Parties to bear their own costs.
We concur:
RICHLI, J.
KING, J.