Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Linda K. Lefkowitz, Judge. Los Angeles County Super. Ct. No. SC094133
Cheong, Denove, Rowell & Bennett, Wilkie Cheong and Mary M. Bennett, for Cross-Complainant and Appellant Realwealth Corporation.
Sedgwick, Detert, Moran & Arnold, Lori S. Blitstien and Hall R. Marston for Cross-Defendants and Respondents S. Syd Rahe and Law Offices of S. Syd Rahe.
ZELON, J.
Realwealth Corporation appeals judgment dismissing its cross-complaint for professional negligence, breach of fiduciary duty, accounting and declaratory relief against cross-defendants S. Syd Rahe and the Law Offices of S. Syd Rahe arising out of the collection of a judgment and cross-defendants’ alleged failure to properly renew the judgment. The trial court sustained cross-defendants’ demurrer on the grounds that the statute of limitations of Code of Civil Procedure section 340.6 had run on Realwealth’s claims. We reverse as to Realwealth’s professional negligence and accounting claims, and affirm as to the breach of fiduciary duty and declaratory relief claims.
All statutory references herein, unless otherwise noted, are to the Code of Civil Procedure.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Sherman Mazur, a client of the law firm of Jones, Day, Reavis & Pogue (Jones, Day) failed to pay his legal fees, and in 1994, cross-defendant Bruce Altschuld, on behalf of Jones, Day obtained a judgment against him in the amount of $2.6 million. In 2004, after a series of assignments, Altschuld renewed the judgment in the name of the current assignee. In May 2006, Mazur brought the first of several motions to vacate the renewal of the judgment on the grounds the renewal was improper because the assignee had failed to record an assignment of the judgment in compliance with sections 673 and 681.020; ultimately, on July 24, 2006, the trial court ruled Realwealth did not have the right to enforce the judgment because it had not filed a proper assignment.
A. The Pleadings.
1. Bruce Altschuld’s Complaint.
Altschuld’s complaint, filed June 5, 2007, against his former client Realwealth and its principal, William G. Wilson, sought unpaid fees and other relief arising out of Altschuld’s collection efforts against Jones, Day’s former client Mazur. The complaint alleged that from the late 1980s through the early 1990s, Jones, Day had represented Mazur, who was a “high-profile white collar criminal” who pleaded guilty to tax evasion and concealing assets from a bankruptcy estate. After Mazur failed to pay his legal bills to Jones Day, the firm brought a collection action against him. Jones, Day assigned the account for collection purposes to Christopher Page, an-in-house accountant with the firm. In March 1993, Jones, Day retained Altschuld, and agreed to pay him 33.33 percent of all funds collected.
Realwealth is a Nevada corporation whose sole asset is the right to receive payment on the Mazur account. Altschuld’s claims and liabilities are not the subject of this appeal.
Altschuld had acted as the trial attorney in the matter of Page v. Tatco Investments, Inc., et al., LASC Case No. BC 058756 (Page Action). In July 1994, Altschuld obtained a $2.6 million judgment against the defendants (who included Mazur) in the Page Action. Prior to the Page Action, Mazur’s creditors had placed him in involuntary bankruptcy proceedings. Altschuld filed an action in Mazur’s bankruptcy proceedings to determine the nondischargeability of Mazur’s debt to Jones, Day, and obtained a determination in the bankruptcy court that it was a nondischargeable debt.
On November 30, 1994, Jones Day assigned the $2.6 million judgment against Mazur in the Page Action to Mazur’s bankruptcy trustee, Duke Salisbury. In 2002, Salisbury assigned the judgment to Realwealth. Realwealth and Salisbury agreed that Salisbury would receive 40 percent of any monies collected on the judgment.
In June 2003, Altschuld, on behalf of Realwealth, filed an action (Realwealth v. Khat, LASC No. 077690) alleging that Mazur’s attorney, Reid Breitman, was holding real property located at 1801 San Vicente Boulevard for the benefit of Mazur (the 1801 Litigation). Realwealth obtained a judgment in the 1801 Litigation declaring that $2.4 million of equity in the San Vicente Property was an asset of Mazur.
2. Realwealth’s Cross-Complaint.
On July 23, 2007, Realwealth filed the cross-complaint at issue in this appeal against Altschuld, S. Syd Rahe, and their respective professional corporations for professional negligence, breach of fiduciary duty, accounting, and declaratory relief.
Realwealth alleged that on February 28, 2002, Altschuld, while “of counsel” at the Rahe firm, and using the stationery of cross-defendant the Rahe firm, entered into an agreement pursuant to which Realwealth and Salisbury agreed to split the proceeds of the Mazur judgment 40 percent to Salisbury and 60 percent to Realwealth and pursuant to which Salisbury and Realwealth “switched roles,” with Salisbury taking the lead on the collection efforts. The letter also required Altschuld to renew the judgment.
On July 12, 2004, the 10-year anniversary of the judgment in the Page Action, Altschuld, acting for the Rahe firm, filed an application for renewal of the judgment, although at the time Salisbury had not yet filed an assignment of the judgment as required under sections 673 and 681.020. Furthermore, Altschuld failed to file with the court a proof of service of the notice of renewal of judgment.
Section 673 provides at subdivision (a), “An assignee of a right represented by a judgment may become an assignee of record by filing with the clerk of the court which entered the judgment an acknowledgment of assignment of judgment.” Section 681.020 provides, “An assignee of a judgment is not entitled to enforce the judgment under this title unless an acknowledgment of assignment of judgment to that assignee has been filed under Section 673 or the assignee has otherwise become an assignee of record.”
Realwealth further alleged that on November 23, 2005, Altschuld filed another action entitled Realwealth v. Gateway Investments (Gateway Action) to enforce the judgment in the Page Action and to recover fraudulent transfers. On January 20, 2006 Altschuld filed an action on behalf of Realwealth against Breitman (the Malibu Lots Action) to enforce the judgment in the 1801 Litigation and to recover fraudulent transfers. Realwealth recorded a lis pendens in this action.
On May 18, 2006, in the Page Action, Mazur filed a motion to vacate the renewal of the judgment and to quash proceedings to enforce the judgment on the grounds the acknowledgment of assignment of the judgment had not been properly or timely filed. The court granted the motion to quash on the grounds that Realwealth’s failure to file an acknowledgment of assignment precluded it from enforcing the judgment. The court denied the motion to vacate the renewal of the judgment as untimely. Mazur appealed the trial court’s denial of his motion to vacate on September 21, 2006.
On January 14, 2008, subsequent to the appeal in this case, Division 4 of this court reversed the trial court’s order denying Mazur’s motion to vacate the renewal of the judgment on the grounds substantial evidence did not support the finding Mazur’s motion was untimely. (Realwealth Corporation v. Sherman Mazur (Jan. 14, 2008) [nonpub. opn.].)
For its professional negligence claim, Realwealth alleged that as a result of Altschuld’s conduct in the Page Action, enforcement proceedings on that judgment were nullified; the Gateway Action was dismissed, the Malibu Lots Action was subject to dismissal on the same grounds; and the appellants in the 1801 Litigation were seeking dismissal on the same basis. Furthermore, as Mazur could potentially prevail on his appeal of his motion to vacate, the judgment in the Page Action could be vacated completely. Realwealth also found itself in the position of being sued by the defendants in the Malibu Lots Action for the wrongful recordation of a lis pendens.
For its breach of fiduciary duty claim, Realwealth alleged that in 2005, Altschuld represented another client, Harry Lebowitz, in an action against Mazur, thereby diverting funds that could have been available to Realwealth. Realwealth also sought an accounting of fees paid and funds received and disbursed in the Page Action and related matters, and declaratory relief that it owed no fees to Altschuld or Rahe, and that Altschuld was not entitled to assert an attorneys’ lien in the Page Action.
B. Rahe’s Demurrer to the Cross-Complaint.
1. The Demurrer.
Rahe and his professional corporation demurred to the cross-complaint on the grounds that the professional negligence claim and breach of fiduciary duty claim were time-barred; the breach of fiduciary duty claim did not allege any conflict of interest on the part of the Rahe defendants; the accounting claim did not assert any facts against the Rahe defendants; and the declaratory relief claim failed because it did not allege a contract or other agreement with the Rahe defendants.
Rahe argued the matter was time-barred because Realwealth knew of any alleged malpractice as of May 18, 2006, when Mazur brought the motion to vacate the renewal of judgment, and the cross-complaint, filed July 23, 2007, more than one year later, was untimely under section 340.6. Rahe also argued that the “continuous representation” theory of tolling of the statute of limitations did not apply to him or his firm because Altschuld had left the Rahe firm in 2004. In support, Rahe attached a May 21, 2004 substitution of attorney form in the 1801 Litigation in which Altschuld and his firm substituted themselves in as attorneys for Realwealth in place of the Rahe firm as attorneys of record. Further, Rahe argued that because in the breach of fiduciary duty claim, Realwealth did not allege that Rahe had any connection with Altschuld or Lebowitz in 2005, that claim was barred.
Rahe did not formally request judicial notice of the substitution form.
2. Realwealth’s Opposition and Request for Judicial Notice.
Realwealth contended that the assignment of the Page Action on February 28, 2002 was prepared on Rahe stationery, and executed by Altschuld as “of counsel” for the firm, and on June 19, 2003, while at the Rahe firm, Altschuld filed the 1801 Litigation. Realwealth alleged it was during this time period that the acknowledgment of assignment should have been filed, but was not.
Realwealth requested judicial notice of an October 12, 2007 lawsuit Altschuld filed against the Rahe firm, alleging breach of a March 13, 2001 employment agreement between them. In that complaint, Altschuld sought compensation based upon a March 13, 2001 letter agreement, and alleged that he occupied an office at Rahe’s practice from approximately March or April of 2004 pursuant to an agreement to pay $4,000 per month for the office and secretarial and other support services, and that he remained at Rahe’s offices pursuant to that agreement until June 30, 2007.
Realwealth also requested judicial notice of the July 12, 2004, Application for Renewal of Judgment Altschuld filed on behalf of Realwealth as “Assignee of Record,” prepared on March 8, 2004 and filed on July 12, 2004, and its opposition to Mazur’s motion to vacate the judgment, filed July 7, 2006. Neither document indicated that Altschuld was of counsel to Rahe at the time of preparation or filing.
3. Rahe’s Reply.
In reply, Rahe argued the action was time barred because Realwealth first had notice of problems in May 2006 when Mazur sought to quash enforcement of the judgment. Further, Altschuld’s complaint alleged Altschuld kept ownership of the Realwealth account at all times, even while “of counsel” at the Rahe firm, and thus the claim did not belong to the Rahe firm; he asserted that there were no grounds for tolling because Altschuld left the Rahe firm in 2004, taking the account with him, as indicated by the signed substitution of attorney on May 17, 2004. Rahe argued that under Beal Bank v. Arter & Hadden, LLP (2007) 42 Cal.4th 503 (Beal Bank) tolling for continuous representation ends where the attorney leaves the firm with the client. Finally, Rahe pointed out that Realwealth did not oppose Rahe’s demurrer on the second cause of action for breach of fiduciary duty.
4. Trial Court Ruling.
The trial court sustained the demurrer without leave to amend. The court found that the cross-complaint was not filed within the statutory period and no tolling provisions applied. Specifically, the court found that Realwealth could not allege “continuous representation” by the Rahe firm because Realwealth signed the substitution of attorney form in May 2004 that substituted in Altschuld; furthermore, “actual injury” occurred in May 2006 when Realwealth incurred defense costs in connection with Mazur’s motion to quash. The court found that Realwealth did not oppose the demurrer to the breach of fiduciary duty claim.
DISCUSSION
Realwealth contends judgment on its malpractice claim must be reversed because the statute of limitations of section 340.6 was tolled under both the “actual injury” and “continuing representation” provisions of section 340.6, subdivisions (a)(1) and (a)(2). Realwealth further contends its accounting claim must be revived because Rahe and the Rahe firm owed a duty independent of any malpractice to account for funds received on behalf of Realwealth, and its declaratory relief action must be revived because Altschuld improperly seeks an attorneys’ lien in the Page Action and such lien must be resolved in a separate action.
I. STANDARD OF REVIEW.
In reviewing the sufficiency of a complaint against a general demurrer, we assume the truth of all facts properly pleaded and review the complaint de novo to determine whether it states facts sufficient to state a cause of action. (Breneric Associates v. City of Del Mar (1998) 69 Cal.App.4th 166, 180.) We accept as true the properly pleaded material factual allegations, together with facts that may be properly judicially noticed, and will reverse if the complaint alleges facts showing entitlement to relief under any possible legal theory. (Platt v. Coldwell Banker Residential Real Estate Services (1990) 217 Cal.App.3d 1439, 1444.) Where the demurrer is sustained without leave to amend, we give the complaint a reasonable interpretation, assuming to be true all material facts that have been properly pleaded; if there is a reasonable possibility that the plaintiff could allege facts that would cure the defect, we must reverse. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
II. THE PLEADINGS DO NOT ESTABLISH THAT THE STATUTE OF LIMITATIONS HAS RUN ON REALWEALTH’S MALPRACTICE CLAIM.
A. “Actual Injury.”
1. Section 340.6, Subdivision (a)(1).
The limitations period set forth in Code of Civil Procedure section 340.6 commences with the attorney’s wrongful act or omission, or with the plaintiff’s actual or constructive knowledge of the attorney’s error. Section 340.6, subdivision (a)(1) provides tolling when the plaintiff has not sustained “actual injury.” For purposes of the statute, “actual injury” occurs when the client suffers any loss or injury legally cognizable as damages in a legal malpractice action based upon such asserted errors or omissions. (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 743 (Jordache).)
Section 340.6 provides in relevant part: “(a) 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. . . .”
There is no bright-line rule to determine when actual injury occurs within the meaning of section 340.6. (Adams v. Paul (1995) 11 Cal.4th 583, 588.) “Instead, actual injury issues require examination of the particular facts of each case in light of the alleged wrongful act or omission.” (Jordache, supra, 18 Cal.4th at p. 761, fn. 9.) The Supreme Court addressed the question of what constitutes actual injury for the purposes of section 340.6 in Jordache, explaining that the actual injury tolling provision contained in section 340.6, subdivision (a)(1) derived from Budd v. Nixen (1971) 6 Cal.3d 195 (Budd). Budd noted that “[i]f the allegedly negligent conduct does not cause damage, it generates no cause of action in tort. [Citation]. The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm – not yet realized – does not suffice to create a cause of action for negligence. [Citations]. Hence, until the client suffers appreciable harm as a consequence of [the] attorney’s negligence, the client cannot establish a cause of action for malpractice. [Citation.]” (Budd, supra, 6 Cal.3d at p. 200.)
Thus, until the client can plead the existence of damages necessary to establish a cause of action for legal malpractice, the limitations period under section 340.6 is tolled. (Jordache, supra, 18 Cal.4th at p. 743.) The amount need not be ascertained. “‘[W]hen malpractice results in the loss of a right, remedy, or interest, or in the imposition of a liability, there has been actual injury regardless of whether future events may affect the permanency of the injury or the amount of monetary damages eventually incurred.’” (Id. at p. 750, quoting Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 227.) In Adams v. Paul, supra, 11 Cal.4th 583, the Supreme Court reaffirmed “the well-settled principle that in legal malpractice actions statute of limitations issues, including injury, are at base factual inquiries.” (Id. at p. 588.) However, if the facts are undisputed, the court can resolve the question of actual injury as a matter of law. (Adams, supra, 11 Cal.4th at p. 592.)
2. Renewal and Enforcement of Judgments.
An enforceable judgment may be renewed for a period of 10 years if the renewal is filed before expiration of the judgment. (§ 683.120, subd. (b) [extends enforceability of judgment for 10 years from date of application for renewal]; (§ 683.130, subd. (a) [application for renewal must be filed before expiration of 10-year period].) Filing of the renewal application automatically renews the judgment. (Code of Civ. Proc., § 683.150, subd. (a).) Alternatively, the judgment creditor may file a new lawsuit to enforce the judgment and reduce any recovery in the second action to judgment. (§ 683.050; Goldman v. Simpson (2008) 160 Cal.App.4th 255, 261.)
Section 683.150 provides at subdivision (a) that “Upon the filing of the application [for renewal], the court clerk shall enter the renewal of the judgment in the court records.”
A judgment creditor may assign its rights in the judgment to a third person. (Civ. Code, § 954.) The execution and delivery of a written assignment perfects the transfer as to third persons; however, the assignee must file or record the assignment, or otherwise become the “assignee of record” before he or she can obtain a writ of execution or otherwise enforce the judgment. (§681.020; Fjaeran v. Board of Supervisors (1989) 210 Cal.App.3d 434, 440.)
Section 681.020 provides, “An assignee of a judgment is not entitled to enforce the judgment under this title unless an acknowledgment of assignment of judgment to that assignee has been filed under Section 673 or the assignee has otherwise become an assignee of record.”
The renewal of a judgment may be vacated on any ground that would be a defense to an action on the judgment. (§ 683.170, subd. (a).) Because an assignee may not enforce a judgment without an assignee of record, an application to renew to a judgment, may be later attacked on the grounds the assignee lacked the power to file the renewal due to his or her failure to become assignee of record prior to renewal.
The record does not indicate that cross-defendants attempted any other method to become assignee of record; thus, we only address the alleged failure to file the acknowledgment of assignment.
3. The Statute of Limitations Started to Run at the Latest in May 2006, When Realwealth Discovered that the Judgment Could be Subject to Attack on the Basis the Acknowledgment of Assignment Had Not Been Filed and Thus The Validity of Renewal Was in Question.
Realwealth argues that when the Rahe firm, through Altschuld, filed the 1801 Litigation without having also filed a proper acknowledgment of assignment, the Rahe firm’s conduct only created the potential for future harm. Furthermore, Mazur’s motion to quash, filed in May 2006, similarly did not cause an injury because the outcome of the motion was uncertain due to issues of waiver, estoppel, and other factual and procedural issues. Therefore, until Realwealth’s opposition to Mazur’s motion to quash was heard on July 24, 2006, no actual injury occurred. We disagree. Actual injury occurred when Realwealth was on notice that the renewal of the judgment was subject to attack because it may have expired, and was in fact attacked, in May 2006. The cross-complaint, filed more than one year after that date, was untimely on that basis.
B. Continuing Representation.
Section 340.6, subdivision (a)(2) tolls professional malpractice claims where “[t]he attorney continues to represent the [client] regarding the specific subject matter in which the alleged wrongful act or omission occurred.” In Beal Bank, supra, 42 Cal.4th 503, the Supreme Court held that section 340.6, subdivision (a)(2) does not toll claims that may exist against a different, unaffiliated attorney or firm; thus, when an attorney leaves a firm, taking a client with him or her, the statute begins to run against the firm under section 340.6, subdivision (a)(2). (Id. at p. 509.) Beal Bank reasoned that the continuous representation exception was designed to avoid the disruption to the attorney-client relationship from a lawsuit and permit the attorney to correct or minimize any errors, while at the same time preventing the attorney from defeating a malpractice claim by continuing to represent the client until the statutory period expired. (Id. at p. 511.) “There is no risk the firm will attempt to run out the clock on the statute of limitations by offering reassurances and blandishments about the state of the case. Conversely, the firm loses all ability to mitigate any damage to the client.” (Id. at pp. 511-512.)
Realwealth argues that Rahe supports its claim that its firm ceased to represent Realwealth more than one year before July 2007 by relying on a substitution of attorney form filed in the separate 1801 San Vicente Litigation on May 21, 2004. Realwealth contends this substitution says nothing about Rahe’s representation of it in the Page Action, nor does it mean the employer-employee relationship was terminated as of that date. Indeed, Realwealth argues that Rahe was still its attorney of record when Altschuld filed the application for renewal of judgment on July 12, 2004, in the Page Action, contending that the employment agreement between the Rahe firm and Altschuld lasted until June 30, 2007, when Altschuld vacated Rahe’s premises.
Here, the cross-complaint pleads that Altschuld remained Realwealth’s attorney of record in the Page Action until April 19, 2007. The documents contained in Realworth’s request for judicial notice, however, suggest that the “of counsel” relationship between Rahe and Altschuld had ceased to exist more than one year prior to the filing of the cross-complaint. Counsel asserted at oral argument that it could allege a continuing relationship; as a result, although the demurrer was properly sustained, we remand to permit an amended pleading to be filed.
Realwealth’s breach of fiduciary duty claim seeks damage based upon Altschuld’s 2005 representation of Harry Lebowitz, the principal of Logistical Support Systems, Inc. (LSS). During the course of representing LSS, Altschuld sought to recover sums from Mazur on behalf of LSS; Realwealth alleged funds that could have been recovered on its behalf from Mazur were instead diverted to LSS. Further, Realwealth alleged that Altschuld, Rahe, and the Rahe firm never disclosed how funds recovered from Mazur were allocated or processed through Altschuld, Rahe, and the Rahe firm. Realwealth in its brief acknowledges it did not oppose Rahe’s demurrer to the breach of fiduciary claim, and we therefore affirm the trial court’s ruling in favor of Rahe on that claim.
III. DECLARATORY RELIEF AND ACCOUNTING CLAIMS.
A. Accounting.
An underlying fiduciary relationship and its breach will support a claim for an accounting. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 593; see also Smith v. Blodget (1921) 187 Cal. 235, 242 [fiduciary relationship supports accounting].) Here, Realwealth seeks an accounting of collections, receipts, expenses, costs, fees, payments, reimbursements and disbursements regarding cross-defendants’ representation of Realwealth in the Page Action, its collection efforts, and related legal matters. Because Realwealth alleged an attorney client relationship and a breach of that relationship (representation below the standard of care), the facts pleaded are sufficient to state a claim for an accounting against Rahe and the Rahe firm.
B. Declaratory Relief.
Realwealth also seeks a declaration that cross-defendants are not entitled to any fees and that Altschuld is not entitled to a fee lien in connection with the Page Action.
The grounds for obtaining declaratory relief are set forth in section 1060, which provides: “Any person interested under a . . . contract . . . who desires a declaration of his or her rights or duties with respect to another, . . . may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action . . . for a declaration of his or her rights and duties . . . including a determination of any question of construction or validity arising under the . . . contract.” Section 1060 is broadly construed, and a complaint is legally sufficient under the statute if it (1) alleges the existence of an actual controversy related to the parties’ legal rights and duties under a contract or statute, and (2) requests the adjudication of the rights and duties by the court. (Maguire v. Hibernia S. & L. Soc. (1944) 23 Cal.2d 719, 728; AICCO, Inc. v. Insurance Co. of North America (2001) 90 Cal.App.4th 579, 590.) Under the section, an “actual controversy” is one “ripe” for adjudication. Such a controversy is “one which admits of definitive and conclusive relief by judgment within the field of judicial administration, as distinguished from an advisory opinion upon a particular or hypothetical state of facts.” (Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 117; see also Newland v. Kizer (1989) 209 Cal.App.3d 647, 657 [party seeking declaratory relief must plead specific facts showing “an actual controversy, not simply an abstract or academic dispute”].) “‘A controversy is “ripe” when it has reached, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made.’” (Pacific Legal Foundation v. California Coastal Commission (1982) 33 Cal.3d 158, 170.) If an actual controversy has not been pled and the action is one “where its declaration or determination is not necessary or proper at the time under all the circumstances,” the trial court may refuse to entertain an action for declaratory relief. (Code Civ. Proc., § 1061.)
Here, although the trial court sustained the demurrer to this cause of action without setting forth its reasoning, its ruling was correct. Realwealth has not alleged any facts, other than the alleged malpractice, supporting the existence of a controversy over Rahe’s entitlement to fees. Further, the cross-complaint alleged that Altschuld had filed a fee lien in the Page Action, but makes no such allegation against Rahe or the Rahe firm. Therefore, the declaratory relief claim against Rahe fails.
DISPOSITION
The judgment of the superior court is reversed. The matter is remanded to permit further proceedings consistent with this opinion on Realwealth’s first and third causes of action of the cross-complaint. The demurrers were properly sustained as to the second and fourth causes of action. Appellants are to recover their costs on appeal.
We concur: PERLUSS, P. J. JACKSON, J.