Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Los Angeles County Super. Ct. No. BC258542, Carl J. West, Judge. Affirmed.
Roger A. S. Manlin for Plaintiff and Appellant.
Baker, Keener & Nahra, Robert C. Baker, Mitchell F. Mulbarger, and James D. Hepworth for Defendants and Respondents.
KITCHING, J.
INTRODUCTION
Plaintiff Laurel A. Rosenberg appeals from a judgment entered after the trial court granted summary judgment in favor of defendants, Attorney Robert D. Hillshafer and the law firm of Schimmel, Hillshafer & Loewenthal (“Schimmel Hillshafer”), on causes of action for legal malpractice and for breach of fiduciary duty. Rosenberg also seeks review of an earlier order sustaining defendants’ demurrer to two fraud causes of action and to a cause of action for intentional infliction of emotional distress. In the appeal from the summary judgment proceeding, we conclude that Code of Civil Procedure section 437c, subdivision (f)(2) did not prohibit defendants’ summary judgment motion. We further conclude that Rosenberg has not shown error in the grant of summary judgment, and has not shown that the failure of the summary judgment motion to address all of her claims for damages requires reversal. In the appeal from the order sustaining the demurrer without leave to amend, we conclude that the allegation of damages in plaintiff’s two fraud causes of action was defective. We also conclude that plaintiff’s cause of action for intentional infliction of emotional distress does not allege “outrageous conduct” by defendants. We conclude that the trial court correctly sustained the demurrer without leave to amend. We affirm the judgment.
Unless otherwise specified, statutes in this opinion will refer to the Code of Civil Procedure.
PROCEDURAL HISTORY
In the operative complaint filed on January 18, 2002, plaintiff Laurel A. Rosenberg alleged 15 causes of action against numerous defendants. The complaint alleged 6 causes of action against the defendants involved in this appeal, Attorney Robert D. Hillshafer and Schimmel Hillshafer. The complaint alleged that Schimmel Hillshafer had represented Rosenberg in a previous action, GRD Construction v. Lindley Townhomes Homeowners Association, Inc. and related cross-complaints (“the underlying action”). The complaint alleged that the underlying action, filed in 1997, arose from various parties’ claims relating to property damage caused by the January 17, 1994, Northridge Earthquake to the Lindley Townhomes, located at 1800 Burbank Boulevard in Tarzana, California, in which Rosenberg owned unit No. 25.
The complaint alleged that in the underlying action, Schimmel Hillshafer became attorneys of record for Farmers Insurance Group of Companies (“Farmers”), which had issued an insurance policy to the Lindley Townhomes Homeowners Association (“HOA”) insuring Rosenberg for losses and damage to her condominium resulting from earthquakes, became attorneys of record for GRD Construction (“GRD”), a contractor retained to perform construction work to repair earthquake damage to Lindley Townhomes, and became attorney of record for the HOA. The complaint alleged that the HOA entered into a settlement agreement with Farmers and GRD in September 2000, settling all claims of these entities against each other in the underlying action, and alleged that Schimmel Hillshafer negotiated the settlement agreement on behalf of the HOA.
The complaint alleged that the HOA and Schimmel Hillshafer advised Rosenberg that she would not receive her share of Farmers settlement proceeds received by the HOA unless she released the HOA and Schimmel Hillshafer from all claims relating to the Farmers settlement. The complaint alleged that the HOA and Schimmel Hillshafer refused to disclose terms of the Farmers settlement to Rosenberg, and told Rosenberg that her proposed homeowner’s share of the Farmers settlement would cover any claims against the HOA which Rosenberg had regarding performance of repairs to her condominium. Schimmel Hillshafer advised Rosenberg that she had the absolute right to pursue any claim against the HOA.
The complaint alleged that sums owed to Rosenberg as her share of the equal disbursement to all HOA members of the Farmers settlement proceeds did not include disbursement proceeds for performance of work to repair her condominium, and that Schimmel Hillshafer and the HOA wrongfully withheld Rosenberg’s share of the Farmers settlement. The complaint also alleged that the HOA, Farmers, GRD, and Schimmel Hillshafer refused to provide Rosenberg with a copy of the Farmers settlement, inform Rosenberg of its terms, or to provide an accounting of receipts and disbursements of the Farmers settlement, including the amount paid to Schimmel Hillshafer from settlement proceeds. The complaint alleged that the Farmers settlement was a secret settlement, adverse to plaintiff’s interests, which provided for payment of insurance proceeds and other damages to the HOA and GRD for performance of repair work which the HOA and GRD accepted with the knowledge that the work had not been performed and that proceeds would be withheld from Rosenberg. The complaint alleged that the Farmers settlement provided for Schimmel Hillshafer to assume representation of Farmers and GRD in claims made against these entities by HOA homeowners, and that Schimmel Hillshafer did become the attorneys for Farmers and GRD in the underlying action.
As against Schimmel Hillshafer, the complaint alleged causes of action for attorney malpractice; fraud, deceit, and concealment; breach of fiduciary duty; constructive fraud; and intentional infliction of emotional distress.
On February 21, 2002, Schimmel Hillshafer filed a demurrer to the twelfth cause of action for fraud, deceit, and concealment, to the fourteenth cause of action for constructive fraud, and to the fifteenth cause of action for intentional infliction of emotional distress. On March 21, 2002, the trial court sustained the demurrer to these three causes of action without leave to amend.
The record on appeal contains only a notice of ruling regarding the order sustaining the demurrer without leave to amend, and does not contain the order itself. The defendants make no objection to the accuracy of the notice of ruling, and we deem it to be an accurate reflection of the trial court’s order.
On January 17, 2003, Schimmel Hillshafer moved for summary adjudication or in the alternative for summary judgment on the eleventh cause of action for attorney malpractice, on the thirteenth cause of action for breach of fiduciary duty, and on Rosenberg’s claim for punitive damages. The trial court denied Schimmel Hillshafer’s motion on March 3, 2003.
On November 4, 2004, Rosenberg, the HOA, and two members of the HOA Board of Directors, Fred Sherman and Alex Vasilevsky, entered into a settlement agreement. Pursuant to the settlement, the HOA paid Rosenberg $65,000, and all parties released each other of claims related to allegations in the complaint.
On October 20, 2005, Schimmel Hillshafer again moved for summary judgment, alleging that the undisputed facts showed that Rosenberg could not establish that she suffered any damage as a result of Schimmel Hillshafer’s conduct. Rosenberg opposed the summary judgment motion on the grounds that Schimmel Hillshafer’s previous summary judgment motion was identical to the present summary judgment motion, which was prohibited by section 437c, subdivision (f)(2), that Schimmel Hillshafer’s motion did not dispose of the entire complaint, and that there were triable issues of fact regarding whether Rosenberg could establish each of the damage elements raised in Schimmel Hillshafer’s summary judgment motion.
In a March 17, 2006, order, the trial court granted Schimmel Hillshafer’s summary judgment motion. The trial court found that section 437c, subdivision (f)(2) did not preclude Schimmel Hillshafer from moving for summary judgment. The trial court also found that the $65,000 settlement proceeds more than covered the costs to repair Rosenberg’s condominium, and therefore even assuming that Schimmel Hillshafer committed legal malpractice or breach of fiduciary duty, Rosenberg had suffered no legally cognizable compensatory damages as a result of Schimmel Hillshafer’s actions. The trial court also found that Schimmel Hillshafer assumed no duty to Rosenberg in which the emotional condition of Rosenberg was an object, therefore Rosenberg was impermissibly seeking emotional distress damages arising from purely economic harm, and that Rosenberg could not recover emotional distress damages. Therefore the trial court granted Schimmel Hillshafer’s summary judgment motion.
Judgment for defendants Robert D. Hillshafer and Schimmel, Hillshafer & Loewenthal was entered on May 17, 2006. Rosenberg filed a timely notice of appeal.
ISSUES
In the appeal from the judgment granting summary judgment, Rosenberg claims that:
1. The sole issue in the summary judgment motion was whether there was a triable issue of fact that Rosenberg suffered damages as a result of defendants’ acts or omissions;
2. The trial court should have denied the summary judgment motion because it was identical to a prior motion brought with respect to the same damages and was barred by section 437c, subdivision (f)(2);
3. The trial court should have denied the summary judgment motion because the motion did not address several of Rosenberg’s damage claims, including her claim of damage under the theory of “tort of another” and her claim for punitive damages;
4. Rosenberg is entitled to damages against defendants for the costs of repair and restoration of her condominium, including the cost of construction consultants and other experts and the $31,300 distribution withheld from Rosenberg;
5. Although not raised in the summary judgment motion, there is a material question of fact whether Rosenberg is entitled to costs in proceeding against GRD, Farmers, and the HOA under the “tort of another” doctrine;
6. There is a material question of fact whether Rosenberg is entitled to damages against defendants for emotional distress; and
7. There is a material question of fact whether Rosenberg is entitled to disgorgement of fees and profits received by defendants.
Rosenberg also seeks review of the order sustaining the demurrer to the twelfth, fourteenth, and fifteenth causes of action, without leave to amend. Rosenberg claims that the trial court erroneously sustained the demurrer without leave to amend because:
The sustaining of a demurrer without leave to amend is reviewable on appeal from a final judgment, i.e., from a summary judgment. (Jennings v. Marralle (1994) 8 Cal.4th 121, 128; Code Civ. Proc., § 906.)
1. The cause of action for fraud, deceit, and concealment stated facts sufficient to constitute a cause of action;
2. Each element of a constructive fraud cause of action was properly pleaded; and
3. The complaint stated a cause of action for intentional infliction of emotional distress.
DISCUSSION
I. The Appeal from the Grant of Summary Judgment as to Causes of Action for Attorney Malpractice and Breach of Fiduciary Duty
A. Standard of Review
“A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review the trial court’s decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.] In the trial court, once a moving defendant has ‘shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,’ the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff ‘may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . .’ [Citations.]” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.)
B. Facts
The following facts are undisputed. The 1994 Northridge earthquake damaged a condominium Rosenberg owned at 1800 Burbank Boulevard in Tarzana, California. Rosenberg was a member of the HOA, to which Farmers had issued an insurance policy insuring against earthquake damage.
Rosenberg alleged that in March 1998, she retained the law firm of Schimmel, Hillshafer & Loewenthal to “ ‘represent, consult with and advise plaintiff of her rights[,] causes of action and claims she had against the HOA and other[s] relating to the payment of insurance proceeds under the Farmers policy and the performance of the work to repair damages to her condominium unit resulting from the earthquake.’ ” Plaintiff requested that the Schimmel Hillshafer firm advise and prepare her for her deposition, a document production, and an inspection of her condominium in connection with an action by Farmers, GRD, and the HOA, and that the Schimmel Hillshafer law firm appear at her deposition to protect her interest. Rosenberg’s declaration stated that Robert D. Hillshafer reassured her that all her interests and claims were being pursued, protected and prosecuted on her behalf. However, the HOA’s attorneys at the time, Wolf, Rifkin & Shapiro, represented Rosenberg at her deposition.
Schimmel Hillshafer alleged that Rosenberg paid no amount to Schimmel Hillshafer for any legal services that firm rendered. Rosenberg disputed this allegation, alleging that the homeowners were subject to special assessment for the cost of litigation, and that Schimmel Hillshafer received at least $698,333.33 from settlement proceeds. After payment of common area expenses, the balance of settlement proceeds was divided equally among HOA members, including Rosenberg. Thus Rosenberg alleges that she paid a proportional share of fees received by Schimmel Hillshafer.
GRD was retained to perform repairs at the Lindley Townhomes. In 1997, GRD Construction filed the underlying action against the HOA, which cross-complained against Farmers. In June 2000, Schimmel Hillshafer became the attorneys for the HOA in the underlying action. At the time Schimmel Hillshafer was retained, the HOA had authorized a $500,000 settlement with Farmers, which the HOA’s former attorneys had advised was the best settlement that could be obtained. Within two months of the HOA’s retention of Schimmel Hillshafer, the underlying action settled for $5.1 million paid by Farmers. The settlement allowed the HOA to pay GRD all amounts the HOA owed for earthquake repairs. Had it not been for the settlement, each homeowner, including Rosenberg, would have been assessed a substantial sum to pay for the repairs. Schimmel Hillshafer received a contingent fee of $698,333.33 from that settlement.
From the amount left over from the settlement, the HOA Board of Directors determined to distribute $31,300 to each homeowner. Instead of accepting the $31,000, Rosenberg brought this action against Farmers, GRD, the HOA and Schimmel Hillshafer. The trial court granted summary judgment in favor of GRD. The trial court granted summary judgment in favor of Farmers, finding that Rosenberg was not a named insured or an additional insured under the insurance policy, was not an intended beneficiary under the policy (because she was not a member of a class for whose benefit the contract was expressly made), and that Farmers did not represent that Rosenberg had separate coverage under the HOA’s insurance policy. The trial court additionally found that the res judicata doctrine barred Rosenberg’s complaint.
Rosenberg settled her claim with the HOA for $65,000.
Plaintiff obtained two estimates of the cost to restore her condominium to its pre-earthquake condition. M&M Construction estimated $31,932 and Swann Construction estimated $29,207.
In the summary judgment motion, Schimmel Hillshafer alleged that Rosenberg alleged the following damages against Schimmel Hillshafer & Loewenthal: (1) the cost of construction consultants and other experts she was compelled to retain in an effort to obtain benefits due under the Farmers HOA policy; (2) the proportional share of the homeowner’s share of the Farmers settlement; (3) the cost of repair to her condominium, alleged to be in excess of $42,000, plus interest; (4) disgorgement of legal fees on the basis of an alleged ethical violation; and (5) emotional distress damages. In her opposition to the summary judgment motion, Rosenberg disputed this list of damages as incomplete, and alleged the following additional damages: damages under the “tort of another” for attorney fees and costs for having to bring actions against the HOA, Farmers, and GRD because of the attorneys’ wrongful conduct; damages for Rosenberg’s claims against Farmers, which Schimmel Hillshafer misrepresented to Rosenberg were being pursued and protected in the underlying action; and damages for loss of claims against GRD for breach of contract resulting from the failure to pursue Rosenberg’s claims against GRD in the underlying action.
C. Section 437c, Subdivision (f)(2) Did Not Prohibit Defendants’ Summary Judgment Motion
Rosenberg claims that because defendants’ summary judgment motion brought in 2006 is substantially identical to defendants’ earlier summary judgment motion brought in 2003, the trial court should have denied the 2006 summary judgment motion as prohibited by section 437c, subdivision (f)(2).
Section 437c, subdivision (f)(2) states, in relevant part: “[A] party may not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court, unless that party establishes to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.” A party is not permitted to file a new motion for summary judgment unless that new motion satisfies the requirements of section 437c, subdivision (f)(2). (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1109.)
To determine whether the summary judgment statute prohibited the 2006 motion, we compare the 2006 summary judgment motion with the 2003 summary judgment motion (see Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092, 1097). The 2003 motion relied on four grounds: that the attorney-client privilege prevented Schimmel Hillshafer from defending itself in this litigation; that Rosenberg could not establish causally connected damages to any alleged act or omission of Schimmel Hillshafer; that Rosenberg’s damages were too speculative; and that there was no merit to Rosenberg’s claim for punitive damages. The 2006 motion relied on the sole ground that Rosenberg could not establish that she suffered any damage as a result of the conduct of Schimmel Hillshafer. The 2003 motion relied on the fact that Rosenberg was offered $31,300, her share of the Farmers settlement, which was the same as the cost to repair her condominium, and was not entitled to recover more under California law. As of the 2003 motion, Rosenberg refused to accept the $31,300.
By the time of the 2006 motion, however, Rosenberg had settled her claim with the HOA for $65,000, and the trial court had entered judgment in favor of Farmers and against Rosenberg. Because Rosenberg’s causes of action for attorney malpractice and breach of fiduciary duty alleged defendants’ negligence, omissions, and breaches of duty with regard to Rosenberg’s rights, claims, and causes of action against Farmers and HOA, the settlement with the HOA and the judgment for Farmers constituted new facts or circumstances supporting the issue raised in the 2006 summary judgment motion, which is whether Rosenberg in fact suffered damages. There was no error in the trial court’s finding that defendants’ 2006 summary judgment motion was not precluded by section 437c, subdivision (f)(2).
After oral argument, Rosenberg submitted a letter brief asserting that a May 2, 2006, dismissal, pursuant to settlement, of Rosenberg’s appeal No. B180819 of the judgment for Farmers extinguished that Farmers judgment, citing Ebensteiner Co., Inc. v. Chadmar Group (2006) 143 Cal.App.4th 1174, 1180, and therefore the extinguished Farmers judgment could not constitute newly discovered facts or circumstances which would justify Schimmel Hillshafer’s renewed summary judgment motion under section 437c, subdivision (f)(2). The May 2, 2006, dismissal of appeal No. B180819, however, had not occurred when Schimmel Hillshafer filed its summary judgment motion on October 20, 2005, or when the trial court granted summary judgment on March 17, 2006. Ebensteiner, moreover, addressed whether a dismissal of an appeal pending before the Court of Appeal made that appeal moot, and did not address whether a dismissal of an appeal against another defendant (here, Farmers), affected the superior court’s power to hear a renewed summary judgment pursuant to section 437c, subdivision (f)(2). In any case, the trial court could also base its finding that new facts or circumstances permitted Schimmel Hillshafer’s renewed summary judgment motion on the judgment against the HOA.
D. Rosenberg Has Not Shown Error in the Grant of Summary Judgment as to Damages Addressed in the Summary Judgment Motion
Rosenberg claims that the summary judgment motion addressed only some of her claimed damages, and did not address other items of damages she claimed. As to the items of damages the summary judgment motion did address, Rosenberg claims that she was entitled to damages against Schimmel Hillshafer for costs of repair and restoration of her condominium, including the cost of construction consultants and other experts, and the $31,300 distribution withheld from her. Rosenberg alleges that she was entitled to these damages because Schimmel Hillshafer’s malpractice prevented her from collecting these amounts from Farmers and GRD.
1. Rosenberg Was Not Entitled to Recovery From Schimmel Hillshafer of Her Claims Against GRD and Farmers
Rosenberg disputes the trial court’s finding that because GRD and Farmers had successfully obtained judgments against Rosenberg, she was not entitled to recover the cost of construction consultants and experts from Schimmel Hillshafer. The trial court cited these two judgments against Rosenberg as demonstrating that Rosenberg’s claims against Farmers and GRD “did not have any merit. Accordingly, to the extent Plaintiff claims the cost of construction consultants and experts from [Schimmel Hillshafer] because such expenses ‘are recoverable against Farmers and GRD’, these claims are barred. There is otherwise nothing which indicates how [Schimmel Hillshafer] would be responsible for repairing the Plaintiff’s condominium.” (Fn. Omitted.)
Rosenberg argues that under Civil Code section 3333, attorneys who breach their professional duty to clients are liable in tort for all consequential damages the client suffers. “When a client seeks to recover damages for his attorney's negligence in the prosecution or defense of the client's claim, the client must prove causation--that ‘but for that negligence a better result could have been obtained in the underlying action.’ [Citations.]” (Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 973.) “The general rule is that a plaintiff is entitled only to be made whole: i.e., when the attorney's negligence lies in his failure to press a meritorious claim, the measure of damages is the value of the claim lost.” (Smith v. Lewis (1975) 13 Cal.3d 349, 361, disapproved on another ground, In re Marriage of Brown (1976) 15 Cal.3d 838, 851, fn. 14.)
Civil Code section 3333 states: “For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.”
“In legal malpractice, the offending attorney steps into the shoes of the original tortfeasor.” (Arciniega v. Bank of San Bernardino (1997) 52 Cal.App.4th 213, 221, italics omitted.) Because judgments on Rosenberg’s claims against GRD and Farmers were entered in favor of those defendants, Rosenberg’s claims were not meritorious. Therefore the claim allegedly lost by Schimmel Hillshafer’s negligence had no value, and Rosenberg could not sue Schimmel Hillshafer to collect that claim.
As stated in footnote 4, ante, after oral argument Rosenberg submitted a letter brief asserting that a May 2, 2006, dismissal, pursuant to settlement, of Rosenberg’s appeal No. B180819 of the judgment for Farmers extinguished that Farmers judgment, citing Ebensteiner Co., Inc. v. Chadmar Group, supra, 143 Cal.App.4th at page 1180. Rosenberg argues that the trial court relied on the judgment Farmers obtained against Rosenberg in finding that Rosenberg’s claims against Farmers had no merit, and thus suffered no damages against Schimmel Hillshafer resulting from the loss of Rosenberg’s causes of action against Farmers. Rosenberg has not provided this court with a copy of the settlement agreement with Farmers and has not disclosed its terms. It is therefore impossible to tell whether the dismissal of appeal No. B180819 and the extinguishment of the Farmers judgment, by virtue of the rule in Ebensteiner, resulted in a payment of damages to Rosenberg by Farmers. Rosenberg makes no argument, as she would have to do to obtain recovery from Schimmel Hillshafer, that but for Schimmel Hillshafer’s negligence she would have obtained a better result. If Rosenberg agreed to settle her claim against Farmers for a payment of damages by Farmers to her, that would provide an additional justification for finding of no damages against Schimmel Hillshafer.
2. Rosenberg Has Not Shown Error in the Trial Court’s Treatment of the $65,000 Settlement Payment From the HOA
Rosenberg claims that the trial court erroneously offset the $65,000 settlement payment she received from the HOA to damages claimed against Schimmel Hillshafer.
Rosenberg claims that her economic damages against the HOA included $31,000 in withheld settlement funds. A client seeking to recover damages for her attorney’s negligence in prosecuting the client’s claim must prove causation: that but for the attorney’s negligence a better result would have been obtained in the underlying action. (Piscitelli v. Friedenberg, supra, 87 Cal.App.4th at p. 973.) Schimmel Hillshafer obtained a settlement payment from Farmers which allowed a $31,300 pro rata payment to Rosenberg. Rosenberg decided not to accept the $31,300 share and chose instead to sue the HOA. She has not shown that Schimmel Hillshafer’s negligence proximately caused her to forego the $31,300 payment from Farmers. Therefore she has not shown that Schimmel Hillshafer caused her damage in this amount.
Rosenberg also disputes the trial court’s finding that she could not recover the cost to repair her condominium against Schimmel Hillshafer, because the $65,000 she received when she settled her claims with the HOA “ ‘more than covered the costs of repair.’ ”
Rosenberg settled her claim with the HOA for $65,000. Compensatory damages in a tort action restore the plaintiff as nearly as possible to her former position or its monetary equivalent. From this policy, it follows that a damage award should not place the plaintiff in a better position than the one she would have occupied had the wrong not been committed. A plaintiff is entitled to recover once for each wrong; double recovery for the same wrong is barred. (Arciniega v. Bank of San Bernardino, supra, 52 Cal.App.4th at p. 221.) In light of the $65,000 settlement payment from the HOA to Rosenberg, the trial court, supported by the evidence, found that the $65,000 settlement exceeded Rosenberg’s two estimates of $31,932 and $29,207 to repair her condominium, and also exceeded the $40,000 amount Rosenberg claimed would be needed to repair her condominium unit. Therefore, because Rosenberg was compensated for this item of damage, she cannot be compensated again by Schimmel Hillshafer.
E. Rosenberg Has Not Shown That the Failure of the Summary Judgment Motion to Address All Her Claims of Damages Requires Reversal
Rosenberg’s main claim of error concerning the grant of summary judgment is that defendants’ summary judgment motion did not address several of Rosenberg’s damage claims. Rosenberg contends that because of these outstanding, unadjudicated items of damages, summary judgment was erroneous and should be reversed.
We disagree. “The trial court may grant summary judgment on a ground not specifically tendered by the moving party, so long as the opposing party has notice of and an opportunity to respond to that ground.” (Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 860.) Because Rosenberg’s opposition raised the issue that Schimmel Hillshafer’s summary judgment motion did not address several items of her claimed damages, Rosenberg had notice of this issue. (Ibid.) The trial court could properly consider and grant summary judgment on the following items of damages.
1. Because the Summary Judgment Motion Asserted That Rosenberg Could Not Prove She Suffered Damages, It Was Unnecessary for That Motion to Address Rosenberg’s Punitive Damages Claim
Rosenberg briefly argues that because the summary judgment motion did not address the punitive damages claim in the complaint, the trial court should have denied the summary judgment motion. Defendants’ summary judgment motion, however, asserted that Rosenberg could not prove she suffered damage as a result of Schimmel Hillshafer’s acts or omissions. Thus it was unnecessary for the motion to address punitive damages, because “a court cannot award punitive damages if the plaintiff has suffered no actual damages.” (Los Angeles County Metropolitan Transportation Authority v. Superior Court (2004) 123 Cal.App.4th 261, 276.)
2. Plaintiff Has No Claim for Damages Under The “Tort of Another” Doctrine
Rosenberg claims there is a material question of fact as to whether, under the “tort of another” doctrine, Rosenberg is entitled to recover costs from Schimmel Hillshafer which Rosenberg incurred in suing Farmers, the HOA, and GRD, an action that Rosenberg claims was necessitated by Schimmel Hillshafer’s wrongful conduct.
Under the “tort of another” doctrine, “[a] person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney’s fees, and other expenditures thereby suffered or incurred.” (Prentice v. North Amer. Title Guar. Corp. (1963) 59 Cal.2d 618, 620.) This theory applies where a defendant has wrongfully made it necessary for a plaintiff to sue a third person, and the award of attorney’s fees is awarded not as “ ‘the measure and mode of compensation of attorneys’ ” in section 1021 but as damages wrongfully caused by defendant’s improper actions. (Id. at p. 621.)
a. Farmers
Rosenberg claims she was required to bring an action against Farmers as a direct result of Schimmel Hillshafer’s negligence in advising her that she did not need to pursue these claims because the HOA pursued and protected her interests, and but for this erroneous advice, she could have taken action against Farmers to protect her interests.
Under the tort of another doctrine, the plaintiff must be required to bring the action against a third party as “the natural and probable consequence” of defendant’s negligence. (Electrical Electronic Control, Inc. v. Los Angeles Unified School Dist. (2005) 126 Cal.App.4th 601, 616-617.) “Conversely, when the action against the third party is not a natural and probable consequence of the defendant’s negligence, the attorney fees are not recoverable.” (Ibid.) In opposing the summary judgment motion, Rosenberg alleged that contrary to representations made to her by Schimmel Hillshafer, in the underlying action the HOA asserted none of Rosenberg’s claims against Farmers or with respect to damage or allocation of insurance proceeds to her individual condominium. When Rosenberg later did sue Farmers, however, the trial court granted summary judgment in favor of Farmers, finding that Rosenberg was not a named insured or an additional insured under the insurance policy and was not an intended beneficiary under the policy (because she was not a member of a class for whose benefit the contract was expressly made), and that that Farmers did not represent that Rosenberg had separate coverage under the HOA’s insurance policy. Whether or not Schimmel Hillshafer correctly or incorrectly represented that the HOA was asserting Rosenberg’s claims against Farmers in the underlying action, Schimmel Hillshafer’s representations did not cause Rosenberg to have to bring her claims against Farmers, which she did not do until after Schimmel Hillshafer had ceased to represent her. The lack of causation means that Rosenberg cannot claim damages under the “tort of another” doctrine.
b. The HOA
Rosenberg claims that the tort of another doctrine entitled her to attorney fees and costs she incurred in prosecuting her claim against the HOA. She claims that Schimmel Hillshafer, while representing Rosenberg and the HOA concurrently, prepared a settlement agreement between Farmers and the HOA which released all Rosenberg’s individual claims against Farmers and provided for the HOA to indemnify Farmers against Rosenberg’s released claims. The gist of her claim is that after refusing to sign the indemnification and release agreement, Rosenberg was required to bring an action against the HOA to obtain her $31,300 share of the distribution to homeowners, and but for Schimmel Hillshafer’s self-serving and tortious conduct, she would not have had to bring that action. The question again is whether Schimmel Hillshafer made it necessary for Rosenberg to sue the HOA, i.e., whether the natural and proximate consequence of Schimmel Hillshafer’s negligence was to require Rosenberg to file an action against the HOA. (Prentice v. North Amer. Title Guar. Corp., supra, 59 Cal.2d at p. 621.) Rosenberg decided not to accept the $31,300 share, which would have covered the costs of repair of her condominium unit. She chose instead to sue the HOA. She has not shown that her suit against the HOA was the natural and proximate consequence of Schimmel Hillshafer’s negligence, and thus cannot claim damages under the tort of another doctrine.
c. The GRD
Rosenberg asserts that Schimmel Hillshafer advised her that she could bring claims against GRD for the cost to repair her condominium, but she did not need to do so because the HOA pursued and protected her in the underlying action. Rosenberg argues that she therefore did not pursue her claims against GRD at that time, and that later when she sued GRD in the underlying action, summary judgment was granted against her on the ground that the statute of limitations barred her claims.
The record on appeal contains the order granting summary judgment in favor of GRD.
Rosenberg’s fifth cause of action alleged that a construction contract between the HOA and GRD was made for the benefit of Rosenberg; that GRD’s owner, Garry Oswald, represented to Rosenberg that the contract provided for full replacement, repair, and restoration of Rosenberg’s condominium unit to its pre-earthquake condition; and that GRD breached the contract by failing to repair her condominium unit to its pre-earthquake condition. The trial court granted summary judgment in favor of GRD because California law authorized the HOA to enter into a settlement agreement with GRD on behalf of the HOA’s members, and that settlement agreement barred Rosenberg’s breach of contract cause of action; because GRD did not have to give notice to a beneficiary of the contract for the settlement to be valid, and GRD’s failure to give notice of the existence and terms of the settlement to Rosenberg did not equitably estop GRD from enforcing the contract; and because a beneficiary cannot be in a better position than the promisee (the HOA) with regard to the settlement.
The sixth cause of action alleged that Rosenberg was the equitable owner of amounts paid to GRD until that work was fully performed and Rosenberg’s condominium was repaired to its pre-earthquake condition, that GRD was paid amounts for work on Rosenberg’s condominium which it had not performed, and that GRD held all such funds it received in constructive trust for Rosenberg. The trial court found that Rosenberg cited the settlement agreement, which did not raise a triable issue of fact that GRD was not justly entitled to the property. Instead the settlement agreement established that GRD was entitled to the property at issue.
Thus the order contains no finding that the statute of limitations barred Rosenberg’s causes of action for breach of contract or to impose a constructive trust. Even if Schimmel Hillshafer advised Rosenberg that she did not need to bring claims against GRD because the HOA pursued them in the underlying action, and even if this advice caused Rosenberg not to pursue her claims against GRD at that time, the trial court did not find that the statute of limitations barred those claims. The trial court correctly found that Rosenberg had no damages against Schimmel Hillshafer under the “tort of another” doctrine arising from Rosenberg’s causes of action against GRD.
3. Rosenberg Is Not Entitled to Emotional Distress Damages
Rosenberg concedes that absent knowledge of the client’s unusual susceptibility, an attorney owes only an economic obligation to a client and assumes no obligation to protect the client’s emotional state. Therefore victims of attorney malpractice cannot recover emotional distress damages. (Friedman v. Merck & Co. (2003) 107 Cal.App.4th 454, 472-473.) Instead Rosenberg relies on the rule that “where a plaintiff sufficiently alleges intentional or affirmative misconduct by an attorney or noneconomic injury resulting from an attorney's professional negligence, recovery of emotional distress damages is permitted.” (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1040.) Rosenberg argues that the allegations in the operative complaint and plaintiff’s material facts in the summary judgment motion allege intentional and affirmative misconduct constituting professional negligence and an egregious breach of fiduciary duties that support recovery of damages for emotional distress.
Rosenberg has neither alleged nor proved “noneconomic injury resulting from an attorney’s professional negligence” (Smith v. Superior Court, supra, 10 Cal.App.4th at p. 1040). Instead Rosenberg’s injuries are exclusively economic. Rosenberg has also not alleged Schimmel Hillshafer’s “knowledge of any unusual susceptibility” of Rosenberg (Friedman v. Merck & Co., supra, 107 Cal.App.4th at p. 472).
Rosenberg’s cause of action for attorney malpractice did not allege emotional distress damages. Rosenberg’s breach of fiduciary duty cause of action did allege emotional distress damages, but Rosenberg provides no evidence that the conduct constituting Schimmel Hillshafer’s breach of fiduciary duty satisfies the requirement of “intentional or affirmative misconduct by an attorney or noneconomic injury resulting from an attorney’s professional negligence.” (Smith v. Superior Court, supra, 10 Cal.App.4th at p. 1040.) The conduct which Rosenberg alleges does not correspond to the cases, cited in Smith, in which breach of fiduciary duty gave rise to emotional distress damages. (McDaniel v. Gile (1991) 230 Cal.App.3d 363, 373 [attorney representing client in marital dissolution proceeding was aware of client’s susceptibility to emotional distress, but engaged in sexual harassment and withheld legal services when the client did not grant sexual favors]; Holliday v. Jones (1989) 215 Cal.App.3d 102, 115 [plaintiff's involuntary manslaughter conviction was reversed solely because of attorney incompetence and plaintiff was acquitted on retrial; in a later malpractice action, plaintiff recovered judgment against his former criminal defense attorney, including emotional distress damages, which necessarily result from loss of liberty due to no other reason than attorney malpractice.]; Betts v. Allstate Ins. Co. (1984) 154 Cal.App.3d 688, 717-718 [law firm retained by insurance company to defend insured breached duty to client by lack of disclosure and sound advice, working to protect insurer and manipulating client against her best interests, assisting in manufacturing a false record to protect against a bad faith lawsuit, resisting efforts of independent counsel to become informed, and discouraging the insured’s assignment of rights in exchange for personal release and influencing her instead in the direction of bankruptcy; excess judgment against 19-year-old insured was a single incident in many years of substantial emotional trauma caused by law firm’s failure to attend to insured’s interests; ethical and legal improprieties in treatment of the insured substantiated emotional distress damages].)
We conclude that no emotional distress damages were justified in this case.
4. Rosenberg Is Not Entitled to Disgorgement of Fees and Profits Received by Schimmel Hillshafer
Rosenberg claims that even though she paid no attorney fees to Schimmel Hillshafer, she was entitled to an order disgorging attorney fees which Schimmel Hillshafer received from Farmers in the settlement of the underlying action.
Rosenberg cites the rule that an attorney’s claim for fees may not be allowed if it is established that the attorney undertook representation of conflicting interests without both parties’ written consent. (Asbestos Claims Facility v. Berry & Berry (1990) 219 Cal.App.3d 9, 27.) Rosenberg also cites the rule that “where an attorney violates his or her ethical duties to the client, the attorney is not entitled to a fee for his or her services.” (Cal Pak Delivery, Inc. v. United Parcel Service, Inc. (1997) 52 Cal.App.4th 1, 14.) These rules, however, authorize a court to “prevent counsel’s recovery of fees from the client where the attorney has violated ethical rules; whether through fraud, acts incompatible with the faithful discharge of duties or wrongful abandonment of the client.” (Id. at pp. 15-16, italics added.) Rosenberg provides no authority supporting return or “disgorgement” of fees to someone other than the client who paid them. None of the cases cited by Rosenberg provide such authority. (A.I. Credit Corp. Inc. v. Aguilar & Sebastinelli (2003) 113 Cal.App.4th 1072; Cal Pak Delivery, Inc. v. United Parcel Service, Inc., supra, at pp. 14-16; Asbestos Claims Facility v. Berry & Berry, supra, at pp. 25-28; Jeffry v. Pounds (1977) 67 Cal.App.3d 6; Clark v. Millsap (1926) 197 Cal. 765, 785.)
The trial court properly relied on In re Fountain (1977) 74 Cal.App.3d 715, as holding that disgorgement of fees was only appropriate to the person who actually paid the attorney fees. In that case an attorney, employed to file an appeal on behalf of a convicted criminal defendant by his mother and paid by her, did not file a notice of appeal until too late. The attorney filed a writ of habeas corpus to relieve the defendant of the consequences of failing to file a timely notice of appeal, in which the attorney attempted to shift blame for the loss of the defendant’s appeal rights onto the defendant and his mother, and instead of advocating the defendant’s cause attempted to establish that there was no attorney-client relationship until after the time to appeal had ended. (Id. at pp. 717-719.) In re Fountain found that the attorney’s interests conflicted with those of the defendant and that because of that conflict of interest the attorney could not effectively represent the defendant on appeal. Therefore the court granted the writ, terminated the attorney as counsel for defendant, and ordered “all monies received by him by reason of that representation and his representation in this proceeding returned to the person or persons who paid it.” (Id. at p. 719, italics added.)
Rosenberg did not pay the $698,333.33 which Schimmel Hillshafer received in the HOA’s settlement with Farmers. There is no authority that these attorney fees should be awarded to Rosenberg as damages. We find no error in the trial court’s ruling.
II. The Appeal From the Order Sustaining Demurrers to Causes of Action for Fraud, Constructive Fraud, and Intentional Infliction of Emotional Distress
A. Standard of Review
A demurrer tests the legal sufficiency of factual allegations in a complaint. (Title Ins. Co. v. Comerica Bank -- California (1994) 27 Cal.App.4th 800, 807.) In reviewing the sufficiency of a complaint against a general demurrer, this court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law. This court also considers matters that may be judicially noticed. When a demurrer is sustained, this court determines whether the complaint states facts sufficient to constitute a cause of action. When a demurrer is sustained without leave to amend, this court decides whether a reasonable possibility exists that amendment may cure the defect; if it can we reverse, but if not we affirm. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The plaintiff bears the burden of proving there is a reasonable possibility of amendment, and may make this showing for the first time on appeal. (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43-44.)
A plaintiff challenging a demurrer on appeal bears the burden of demonstrating that the trial court erroneously sustained the demurrer as a matter of law. This court thus reviews the complaint de novo to determine whether it alleges facts to state a cause of action under any legal theory. Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show the complaint alleges facts sufficient to establish every element of each cause of action. If the complaint fails to plead, or if the defendant negates, any essential element of a particular cause of action, this court should affirm the sustaining of a demurrer. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879-880.)
B. Facts
As alleged in the operative complaint, the facts are as follows. Rosenberg owns condominium unit 25 at 1800 Burbank Boulevard, Tarzana, California and is a member of the HOA.
Defendant Robert D. Hillshafer is a licensed attorney and a partner, member, or principal of defendant Schimmel, Hillshafer & Loewenthal, a professional law corporation. The complaint alleged that Schimmel Hillshafer previously represented Rosenberg in GRD Construction v. Lindley Townhomes Homeowners Association, Inc. and related cross-complaints (Super. Ct. LA County, No. LC 042421, “the underlying action”). GRD was a contractor retained to perform construction work. Farmers Insurance Group of Companies and Truck Insurance Exchange (“Farmers”) issued an insurance policy to the HOA for Rosenberg’s benefit, which insured Rosenberg for losses and damages to her condominium resulting from earthquakes. The Farmers insurance policy was in effect on January 17, 1994, when the Northridge earthquake substantially damaged Rosenberg’s condominium unit.
Rosenberg promptly notified the HOA and Farmers of earthquake damage to her condominium, and timely notified Farmers of the claim for policy benefits with respect to that damage. During the months after the earthquake, the HOA, two of its directors, and Farmers assured Rosenberg that the Farmers policy fully covered damage to Rosenberg’s condominium for full replacement, repair, and reconstruction of that unit. The HOA and two of its directors also represented to Rosenberg that they and their attorneys were negotiating with Farmers for the insurance adjustment for performance of the repair work, that the HOA would obtain payment of insurance proceeds sufficient to perform that work, and that the HOA would cause that work to be fully performed.
The underlying action, filed in 1997, arose from various parties’ claims relating to property damage sustained by the Lindley Townhomes condominium complex in which Rosenberg lives, payment of insurance proceeds under the Farmers policy, and performance of work to the condominium complex to repair earthquake damage. The HOA brought the underlying action for the benefit of individual condominium unit owners, including Rosenberg.
In July 2000, without Rosenberg’s knowledge or consent, Schimmel Hillshafer became attorneys of record for Farmers and GRD in the underlying action.
In September 2000, the HOA, Farmers, and GRD entered into a settlement agreement, settling all claims of these entities against each other in the underlying action. Schimmel Hillshafer negotiated the settlement agreement on behalf of the HOA.
In December, Schimmel Hillshafer and the HOA advised Rosenberg that her share of the Farmers settlement proceeds received by the HOA would not be disbursed to her unless she released Schimmel Hillshafer and the HOA from all claims relating to the Farmers settlement, whose terms the HOA and Schimmel Hillshafer refused to disclose to Rosenberg. The HOA and Schimmel Hillshafer also told Rosenberg that the proposed distribution of her homeowner’s share of the Farmers settlement would cover any claims she had against the HOA with respect to performance of repair work on her condominium unit. Hillshafer, however, also advised Rosenberg that she had an absolute right to pursue any claim against the HOA.
The complaint alleged that sums owed to Rosenberg as her share of the Farmers settlement proceeds to homeowner HOA members did not include any proceeds for performance of repair work, and were wrongfully withheld by Schimmel Hillshafer and the HOA. The complaint alleged that Schimmel Hillshafer refused to provide Rosenberg with a copy of the Farmers settlement, to inform her of the terms of the Farmers settlement, or to provide an accounting of receipts and disbursements of the Farmers settlement, including the amount paid to Schimmel Hillshafer from settlement proceeds. Rosenberg alleged that the Farmers settlement was a secret settlement, adverse to her interests in that it provided for payment of insurance proceeds and other damages to the HOA and GRD for performance of repair work, and that the HOA and GRD accepted payment with the knowledge that the repair work had not been and would not be performed and that the proceeds would be withheld from Rosenberg. Rosenberg also alleged that the Farmers settlement provided for Schimmel Hillshafer to assume representation of Farmers and GRD with respect to claims against those entities by homeowners of the HOA, and that Schimmel Hillshafer did in fact become attorneys for Farmers and GRD in the underlying action.
The twelfth cause of action for fraud, deceit, and concealment alleged that in March 1998, Rosenberg retained and employed Schimmel Hillshafer, who accepted such employment, to represent, consult with, and advise Rosenberg of her rights, causes of action and claims against the HOA and others related to the payment of insurance proceeds under the Farmers policy and performance of work to repair earthquake damage to her condominium unit.
While representing Rosenberg, Schimmel Hillshafer sought and received confidential information, including Rosenberg’s file documenting her claims. Schimmel Hillshafer continued to represent Rosenberg until December 2000, when Rosenberg terminated that representation and demanded return of her files.
The complaint alleged that from July through December 2000, Hillshafer, Domine, and Rosenblatt denied the existence of the conflict of interest and actively sought to protect the HOA, Farmers, and GRD by negotiating and entering into a settlement of the underlying action, whose terms were intentionally concealed from Rosenberg. Rosenberg alleged that the terms of the settlement released her claims against Farmers and GRD, provided for Schimmel Hillshafer’s representation of Farmers and GRD, and provided for payment of $1.5 million to Schimmel Hillshafer from settlement proceeds. During this period Hillshafer, Domine, and Rosenblatt sought to manipulate and coerce Rosenberg to accept the terms of the settlement agreement and release the HOA and Schimmel Hillshafer from all claims.
The complaint alleged that after September 2000, Hillshafer, Domine, and Rosenblatt represented to Rosenberg that the Indemnity Agreement and Release, which Schimmel Hillshafer demanded that Rosenberg sign as a condition of receiving her proportional share of settlement proceeds, did not release her claims against the HOA, and concealed from Rosenberg that the Indemnity Agreement and Release released Rosenberg’s claims against Schimmel Hillshafer. The complaint alleged that Schimmel Hillshafer made these representations and concealed these facts willfully and for the purpose of benefiting themselves, the HOA, Farmers, and GRD to Rosenberg’s detriment and to induce Rosenberg to act adverse to her best interest. The complaint alleged that Schimmel Hillshafer abandoned Rosenberg and took no action in the underlying action to protect or assert any of Rosenberg’s claims or interests; that neither Schimmel Hillshafer nor the HOA asserted any claims against Farmers or GRD for the repair of any damages to Rosenberg’s condominium; that Schimmel Hillshafer actively worked to protect the HOA, Farmers, GRD, and themselves from Rosenberg’s claims; that settlement proceeds included only Rosenberg’s pro rata share as a homeowner of settlement proceeds and included no payment to Rosenberg to repair her condominium; and that Schimmel Hillshafer concealed that they negotiated, prepared, and entered into a settlement agreement among the HOA, Farmers, and GRD, which settlement agreement Farmers and GRD have contended released all Rosenberg’s claims against them and provided for payment of more than $1.5 million to Schimmel Hillshafer while providing no payment for damages to plaintiff’s condominium.
The complaint alleged that Rosenberg justifiably relied on Schimmel Hillshafer’s representations and as a result of their concealment of material facts, Rosenberg reasonably believed that Schimmel Hillshafer and the HOA represented and protected her interests in the underlying action and her claims against the HOA, Farmers, and GRD. The complaint alleged that Rosenberg justifiably relied on Schimmel Hillshafer’s representations, and therefore did not bring an action against GRD or Farmers to recover unrepaired damages, and relied on the HOA and Schimmel Hillshafer to assert those claims; refrained from obtaining other counsel and intervening in the underlying action; refrained from objecting to Schimmel Hillshafer’s representation of parties whose interests were adverse to plaintiff; was prevented from discovering and objecting to the terms of the settlement agreement pertaining to dismissal of the underlying action, payment of $1.5 million of settlement proceeds to Schimmel Hillshafer, and release of GRD and Farmers of Rosenberg’s claims against those entities.
The complaint alleged that Schimmel Hillshafer’s representations were not true when made, were made without reasonable grounds to believe them to be true, and that Schimmel Hillshafer knew the representations were false when they made them. The complaint alleged that Schimmel Hillshafer made these representations and concealed the facts with intent to induce Rosenberg to act as the complaint alleged. The complaint alleged that had Rosenberg known the truth, she would not have acted as she did, would have objected to Schimmel Hillshafer’s representation of adverse parties and to the settlement, and would have consulted other attorneys and taken action to protect her rights and claims. The complaint alleged that Rosenberg did not discover the facts until September 2001.
The complaint alleged that as a result of Schimmel Hillshafer’s conduct, Rosenberg suffered and would continue to suffer anxiety, worry, mental and emotional distress, other general, special, consequential and incidental damages exceeding $600,000, and sought disgorgement of fees Schimmel Hillshafer received as part of the Farmers settlement. The complaint also sought punitive damages because of Schimmel Hillshafer’s despicable, fraudulent, oppressive, and malicious conduct.
The fourteenth cause of action for constructive fraud alleged that by engaging in these acts, Schimmel Hillshafer gained an advantage for themselves and their preferred clients, the HOA, Farmers, and GRD, at Rosenberg’s expense. This conduct resulted in substantial detriment to Rosenberg and constituted a constructive fraud which resulted in the damages to Rosenberg already set forth.
This cause of action alleged that Schimmel Hillshafer breached their fiduciary duties to Rosenberg by engaging in conduct constituting a constructive fraud on Rosenberg, which violated the Code of Professional Responsibility and California law, and was despicable, fraudulent, oppressive and malicious as defined in Civil Code section 3294 in that Schimmel Hillshafer engaged in such conduct with the intention of depriving Rosenberg of her property and legal rights and subjected Rosenberg to cruel and unjust hardship so as to justify an award of punitive damages against Schimmel Hillshafer.
The fifteenth cause of action for intentional infliction of emotional distress alleged that because of the attorney-client, confidential, and fiduciary relationship existing between Rosenberg and Schimmel Hillshafer, they possess an influence and control over Rosenberg and the power to damage Rosenberg’s interests. The complaint alleged that Schimmel Hillshafer engaged in their conduct intentionally and unreasonably with the knowledge, or with a reckless disregard of the probability, that such conduct would cause Rosenberg to suffer substantial and severe emotional distress. The complaint alleged that Schimmel Hillshafer engaged in such conduct to coerce Rosenberg to execute the Indemnification and Release Agreement and accept the terms of the settlements with Farmers and with GRD, including retention by Schimmel Hillshafer of the undisclosed payment of $1.5 million from settlement proceeds. The complaint alleged that this conduct was outrageous and an egregious breach of the special, confidential, and fiduciary relationship between Rosenberg and Schimmel Hillshafer, and an extreme invasion of Rosenberg’s mental and emotional tranquility that caused Rosenberg to suffer extreme mental distress and physical pain. This cause of action alleged that Schimmel Hillshafer’s conduct was despicable, fraudulent, oppressive, and malicious as defined in Civil Code section 3294, and Rosenberg sought punitive damages.
C. The Trial Court Correctly Sustained the Demurrer to the Fraud Cause of Action Without Leave to Amend
The elements of fraud giving rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity; (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)
“To recover for fraud, the plaintiff must prove ‘ “detriment proximately caused” by the defendant’s tortious conduct. [Citation.] Deception without resulting loss is not actionable fraud. [Citation.] “Whatever form it takes, the injury or damage must not only be distinctly alleged but its causal connection with the reliance on the representations must be shown.” ’ [Citations.] ‘Damage to be subject to a proper award must be such as follows the act complained of as a legal certainty . . . . ’ [Citation.]” (Goehring v. Chapman University (2004) 121 Cal.App.4th 353, 364.)
The twelfth cause of action for fraud alleged that plaintiff had suffered anxiety, worry, mental, and emotional distress. Where, however, defendant’s tortious conduct has resulted in only economic injury, a plaintiff cannot recover emotional distress damages. (Yu v. Signet Bank/Virginia (1999) 69 Cal.App.4th 1377, 1397; Finch v. Brenda Raceway Corp. (1994) 22 Cal.App.4th 547, 554; Smith v. Superior Court, supra, 10 Cal.App.4th at p. 1040.)
The twelfth cause of action for fraud also alleged that as a proximate result of Schimmel Hillshafer’s conduct, Rosenberg was damaged in an unascertained amount which she believed to be in excess of $600,000. This allegation of damages does not satisfy the requirement that both the injury or damage, and its causal connection with reliance, be “distinctly alleged.” (Goehring v. Chapman University, supra, 121 Cal.App.4th at p. 364.)
The twelfth cause of action for fraud also sought disgorgement of fees that Schimmel Hillshafer received as part of the Farmers settlement. As we have found, ante, there is no authority supporting return or “disgorgement” of fees to someone other than the client who paid them.
The twelfth cause of action for fraud also alleged that plaintiff was required to bring this action against other defendants, which caused plaintiff to incur legal fees and other costs, which plaintiff was entitled to recover from Schimmel Hillshafer. We have rejected this “tort of another” theory of damages, ante.
The twelfth cause of action for fraud also alleged that defendants’ conduct justified an award of punitive damages. As we have found, where the complaint cannot sufficiently allege actual damages, the court cannot award punitive damages. (Los Angeles County Metropolitan Transportation Authority v. Superior Court, supra, 123 Cal.App.4th at p. 276.)
Plaintiff does not indicate how she would amend the complaint to cure the defective allegation of damages. We therefore find no abuse of discretion in the trial court’s ruling sustaining the demurrer to the twelfth cause of action for fraud without leave to amend.
D. The Trial Court Correctly Sustained the Demurrer to the Constructive Fraud Cause of Action Without Leave to Amend
The fourteenth cause of action for constructive fraud incorporated the allegations of the twelfth cause of action for fraud, deceit, and concealment, and particularly incorporated the damages allegation of that cause of action.
Constructive fraud arises on a breach of duty by one in a confidential or fiduciary relationship to another which induces justifiable reliance by the latter to his prejudice. Constructive fraud allows conduct insufficient to constitute actual fraud to be treated as such where the parties stand in a fiduciary relationship. (Estate of Gump (1991) 1 Cal.App.4th 582, 601.) Actual damages is an essential element of constructive fraud. (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239, fn. 4.) As the fourteenth cause of action for constructive fraud merely incorporates the allegations of the twelfth cause of action, it is not necessary to repeat the analysis of the defects in the allegation of damages. We find no abuse of discretion in the trial court’s ruling sustaining the demurrer to the fourteenth cause of action for constructive fraud without leave to amend.
E. The Trial Court Correctly Sustained the Demurrer to the Cause of Action for Intentional Infliction of Emotional Distress Without Leave to Amend
The fifteenth cause of action for intentional infliction of emotional distress alleged that based on the conduct alleged in the causes of action for fraud and breach of fiduciary duty, Schimmel Hillshafer had an attorney-client, confidential, and fiduciary relationship with Rosenberg, and possessed influence and control over Rosenberg and her affairs and the power to damage Rosenberg’s interests. This cause of action alleged that Schimmel Hillshafer engaged in conduct intentionally and unreasonably with the knowledge that such conduct would in all likelihood cause Rosenberg to suffer substantial and severe emotional distress, in order to coerce Rosenberg to execute the indemnification and release agreement and accept the settlements with Farmers and with GRD, including retention by Schimmel Hillshafer of $1.5 million from settlement proceeds. This cause of action alleged that Schimmel Hillshafer’s conduct caused Rosenberg to suffer extreme mental distress, suffering, and anguish.
A cause of action for intentional infliction of emotional distress requires: (1) outrageous conduct, (2) intent to cause or a reckless disregard of the possibility of causing emotional distress, (3) severe or extreme emotional distress, and (4) actual and proximate cause of the emotional distress by the outrageous conduct. (Symonds v. Mercury Savings & Loan Assn. (1990) 225 Cal.App.3d 1458, 1468.) The viability of this cause of action turns on the first element, whether the conflict was sufficiently extreme and outrageous.
“Extreme and outrageous conduct is that which goes beyond all possible bounds of decency so as to be regarded as atrocious and utterly intolerable in a civilized community.” (Gomon v. TRW, Inc. (1994) 28 Cal.App.4th 1161, 1172.) Whether a defendant’s conduct becomes “outrageous” normally presents an issue of fact, but “the court may determine in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” (Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883.) In some instances appellate courts have affirmed orders sustaining demurrers on the ground that defendant’s conduct was not sufficiently outrageous. (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.)
“In evaluating whether the defendant's conduct was outrageous, it is ‘not enough . . . that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ” (Cochran v. Cochran, supra, 65 Cal.App.4th at p. 496.)
Defendants’ conduct did not go beyond all possible bounds of decency so as to be regarded as atrocious and utterly intolerable in a civilized community. The complaint alleges that defendants engaged in their conduct toward Rosenberg to coerce her to execute the indemnification and release agreement and accept the terms of the Farmers settlement and the settlement with GRD. The Farmers settlement, had Rosenberg accepted it, would have resulted in a payment of $31,000 to Rosenberg. Defendants’ conduct does not constitute outrageous conduct. The trial court correctly sustained the demurrer to this cause of action without leave to amend.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to defendants.
We concur: CROSKEY, Acting P.J. ALDRICH, J.