Opinion
B325297
09-21-2023
JANICE CARTER, Plaintiff and Appellant, v. LISA MacCARLEY, Defendant and Respondent.
Janice Carter, pro. per., for Plaintiff and Appellant. No appearance for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. 21STCV45244, Jon R. Takasugi, Judge. Affirmed.
Janice Carter, pro. per., for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
ZUKIN, J.
INTRODUCTION
This professional negligence action arises from defendant's legal representation of plaintiff in a probate matter involving a family residence. Plaintiff, in pro. per., alleged a single cause of action for professional negligence based on defendant's settlement of the probate case without plaintiff's permission. The trial court sustained with leave to amend, demurrers to plaintiff's original complaint and her first amended complaint for failure to state a cause of action.
Plaintiff filed a second amended complaint with the same defects as the first two pleadings. The court sustained defendant's third demurrer without leave to amend and dismissed the action with prejudice. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Probate Matter and Settlement
Because this matter comes before us from a judgment of dismissal following the sustaining of a demurrer, our summary of facts is limited to those pled in the complaint and in the attached exhibits. (Barnett v. Fireman's Fund Ins. Co. (2001) 90 Cal.App.4th 500, 504-505.) To the extent there was a conflict between the complaint and an exhibit, the facts contained in the exhibit supersede any inconsistent or contrary allegations in the complaint. (Id. at p. 505.)
Plaintiff and appellant Janice Carter (Carter) engaged defendant and respondent Lisa MacCarley (MacCarley) as legal counsel. MacCarley represented Carter in a probate case in which Carter sought title to a house held in a family trust. The other interested parties were Carter's four siblings.
In December 2019, the court held a hearing in the probate case. MacCarley appeared on Carter's behalf. MacCarley informed the court the parties had reached a settlement and the house would be owned equally by Carter and her siblings. A deed was recorded reflecting equal ownership of the property by the siblings. Given the settlement, MacCarley advised the court that the case could be dismissed. The court dismissed the case and ordered MacCarley to give notice to all interested parties.
Carter alleged MacCarley did not give her notice following the hearing, nor did she obtain Carter's permission before agreeing to the settlement.
B. The Professional Negligence Action
Carter filed a complaint and first amended complaint against MacCarley alleging one cause of action for professional negligence. MacCarley's demurrers followed as to each of the first two versions of the complaint.
Carter filed a second amended complaint nearly identical to the first two versions. The gravamen of the operative complaint was that MacCarley breached the duty she owed to Carter in two ways: (1) she agreed to the settlement without first obtaining Carter's permission; and (2) she failed to provide notice of the settlement until almost a year after the December 2019 hearing. Carter alleged she "became very disturbed," "went into shock," and "became violently ill vomiting" after discovering these facts.
We note in Carter's opening brief and in her opposition to the demurrer she appears to present her complaint as including causes of action for both professional negligence and intentional infliction of emotional distress. We construe the complaint as alleging a single cause of action for professional negligence, as did the court and MacCarley. Carter alleged intentional infliction of emotional distress as part of the harm element of the professional negligence claim. Carter does not allege any elements for an intentional infliction of emotional distress claim, nor does she allege any facts to support such a claim.
Carter also alleged her "[a]ctual loss or 'damage' resulting from the attorney's negligence" was intentional infliction of emotional distress. She then listed "headaches," "anxiety," "panic attacks," "mental anguish," and "trouble sleeping."
MacCarley filed a demurrer, based on Carter's failure to allege facts sufficient to state a claim for professional negligence, including failure to adequately plead the damages element of the claim. The court sustained the demurrer without leave to amend and dismissed the case with prejudice. The court found Carter did not add "new facts to show harm despite being provided leave to do so, and given . . . [Carter's] own facts suggest there was no harm, the Court sees no reason to believe this deficiency can be resolved through additional leave."
DISCUSSION
Carter contends the trial court erred in sustaining the demurrer to the complaint without leave to amend.
MacCarley did not file a respondent's brief.
A. Standards of Review and Governing Principles
A demurrer tests the legal sufficiency of the challenged pleading. (Milligan v. Golden Gate Bridge Highway &Transportation Dist. (2004) 120 Cal.App.4th 1, 5.) When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action on any theory. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank).) We review de novo a trial court's ruling on a demurrer. (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 51 (Allen).)
The plaintiff bears the burden of demonstrating the demurrer was sustained erroneously. (Allen, supra, 234 Cal.App.4th at p. 52.) As in all appeals, it is the responsibility of the appellant to support claims of error with meaningful argument and citation to authority. (Allen, at p. 52; see Cal. Rules of Court, rule 8.204(a)(1)(B).) "When legal argument with citation to authority is not furnished on a particular point, we may treat the point as forfeited and pass it without consideration. [Citations.] In addition, citing cases without any discussion of their application to the present case results in forfeiture. [Citations.] We are not required to examine undeveloped claims or to supply arguments for the litigants." (Allen, at p. 52; Paterno v. State of California (1999) 74 Cal.App.4th 68, 104.) Self-represented litigants are subject to the same rules as litigants who are represented by legal counsel. (Burkes v. Robertson (2018) 26 Cal.App.5th 334, 344-345; Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)
When a trial court sustains a demurrer without leave to amend, "we decide whether there is a reasonable possibility that the defect can be cured by amendment." (Blank, supra, 39 Cal.3d at p. 318.) If we find an amendment could cure the defect, we conclude the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred. (Ibid.) The plaintiff has the burden of proving that an amendment would cure the defect. (Ibid.; see Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
B. Professional Negligence
Carter contends the trial court erred in finding she failed to allege harm resulting from MacCarley's negligence. Carter asserts she was harmed because MacCarley caused her to suffer "extreme emotional distress." However, emotional distress is not the type of harm that can be alleged to state a professional negligence claim in this context.
A party must satisfy the following elements to state a cause of action for professional negligence: "'(1) the duty of the professional to use such skill, prudence, and diligence as other members of [her] profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.' [Citations.]'" (Osornio v. Weingarten (2004) 124 Cal.App.4th 304, 319, italics added.)
Courts have consistently held a plaintiff suing an attorney for professional negligence cannot recover emotional distress damages where the lawyer represented plaintiff in a civil matter involving only economic interests. (Merenda v. Superior Court (1992) 3 Cal.App.4th 1, 5 (Merenda), disapproved of on other grounds by Ferguson v. Lieff, Cabraser, Helmann &Bernstein (2003) 30 Cal.4th 1037; Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1037-1041 [plaintiff could not recover emotional distress damages in professional negligence action where attorney represented plaintiff in divorce proceedings involving her interest in community property assets]; Camenisch v. Superior Court (1996) 44 Cal.App.4th 1689, 1697-1698 [plaintiff could not recover emotional distress damages where alleged negligence was based on attorney's estate planning advice]; compare, Holliday v. Jones (1989) 215 Cal.App.3d 102, 114-115 [plaintiff could recover emotional distress damages in professional negligence action involving legal representation in a criminal case where alleged malpractice caused criminal conviction and imprisonment].)
In Merenda, supra, 3 Cal.App.4th 1, the court explained the reasoning for this general rule: "The duty to avoid negligence in the practice of law is imposed to protect a client from the legal consequences of a miscarriage of justice. . . . Where the interest of the client is economic, serious emotional distress is not an inevitable consequence of the loss of money and, as noted, the precedents run strongly against recovery." (Merenda, supra, 3 Cal.App.4th. at p. 10.)
Here, MacCarley's legal representation of Carter implicated purely economic interests, namely a probate case involving ownership rights to real property. MacCarley communicated to the court the parties had resolved the matter, resulting in Carter's siblings agreeing to record a deed transferring title of the property to each sibling, including Carter. Though Carter does not allege any loss resulting from the settlement, the only foreseeable loss that could arise from that representation was economic (i.e., property rights). Carter therefore cannot recover emotional distress damages resulting from MacCarley's purported negligence. Because emotional distress is the only type of harm alleged, we agree with the court's ruling that Carter failed to state a cause of action for professional negligence by not satisfying the element requiring "actual loss or damage" from the purported negligence.
C. Leave to Amend
Regarding the trial court's order denying leave to amend, Carter does not attempt to show that any amendment could cure the defects alleged in the complaint. Therefore, we conclude the trial court did not abuse its discretion in sustaining the demurrer without leave to amend. (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43-44; Blank, supra, 39 Cal.3d at p. 318.)
We also note, as discussed above, the court gave Carter two chances to cure the defects in her complaint when it sustained MacCarley's first two demurrers with leave to amend. Yet Carter still failed to cure the defects via her second amended complaint, which was her third pleading attempt.
DISPOSITION
The judgment is affirmed. As no respondent's brief was filed, no costs are awarded on appeal to either party. (Cal. Rules of Court, rule 8.278(a)(5).)
WE CONCUR: COLLINS, Acting P.J., MORI, J.