Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC319029, Malcolm H. Mackey, Judge. Affirmed.
Brian Lee Corber, in pro. per., for Cross-Complainant and Appellant.
Prenovost, Normandin, Bergh & Dawe and John W. Klein for Cross-Defendant and Respondent Prenovost, Normandin, Bergh & Dawe.
Eric Norwitz for Cross-Defendants and Respondents Kandie and Matthew Abreu.
OPINION
CHAVEZ, J.
Appellant Brian Lee Corber, in propria persona, appeals from the trial court’s order sustaining a demurrer in favor of respondent Prenovost, Normandin, Bergh & Dawe (respondent) and dismissing them from the case. We affirm the judgment of the trial court.
CONTENTIONS
Appellant contends that the trial court erred in dismissing the sixth, seventh, eighth, ninth, and twelfth causes of action against respondent set forth in appellant’s first amended cross-complaint in this attorney malpractice litigation against appellant. Specifically, appellant contends that statements in respondent’s demurrer which were contrary to the allegations against respondent in appellant’s cross-complaint should have been disregarded by the trial court.
Appellant also addresses several rulings of the trial court which are not appealable at this time. First, he contests the trial court’s revocation of his in forma pauperis status. That order, which was entered on May 18, 2005, could have been challenged by timely writ of mandate (see Code Civ. Proc., § 1086), but is not properly appealed in connection with the ruling on respondent’s demurrer. Shortly after the trial court’s revocation of his in forma pauperis status, appellant served and filed a declaration against the trial court pursuant to Code of Civil Procedure section 170.3, subdivision (c)(1). The trial court struck the declaration. Appellant filed a second objection to the trial judge on October 11, 2005, which was also stricken. These two rulings are not appealable at this time. (See Code of Civ. Proc., § 170.3, subd. (d) [“The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal . . . filed and served within 10 days” of the ruling].) Appellant also contests several discovery rulings, which are also not properly appealable at this time. (See Datig v. Dove Books, Inc. (1999) 73 Cal.App.4th 964, 984 [discovery orders not appealable].) Because the issues described in this footnote are not final judgments or orders specifically made appealable by Code of Civil Procedure section 904.1, we do not address them in this opinion. (See Griset v. Fair Political Practices Comm. (2001) 25 Cal.4th 688, 696 [appellate court has jurisdiction to entertain a direct appeal of (1) an appealable order; or (2) an appealable judgment].)
We address only those facts applicable to the demurrer. Appellant’s in forma pauperis application, appellant’s declarations pursuant to Code of Civil Procedure section 170.3, and the various discovery disputes described by appellant are not relevant to this appeal.
Appellant represented Kandie and Matthew Abreu in litigation against, among others, Onyx Acceptance Corporation (Onyx), Abreu v. Onyx Acceptance Corporation, et al., Los Angeles Superior Court case No. BC269467 (Abreu/Onyx litigation). Respondent represented Onyx in that litigation. In July 2003 the Abreus decided to discontinue their attorney client relationship with appellant. Appellant filed a notice of lien for attorney fees in the Abreu/Onyx litigation. Thereafter, with new representation, the Abreus settled the Abreu/Onyx litigation. The settlement called for Onyx to pay the Abreus $16,250.00 and specified that respondent would hold the settlement funds in trust pending resolution of appellant’s lien.
On July 26, 2004, the Abreus commenced a legal malpractice action against appellant. On December 8, 2004, appellant filed a cross-complaint, naming respondent, among others, as a cross-defendant. The cross-complaint alleged causes of action for breach of contract against the Abreus, as well as breach of implied covenants of good faith and fair dealing, fraud, accounting, intentional interference with contract, and breach of fiduciary duty, among other things, against all defendants. On July 27, 2005, the trial court sustained respondent’s demurrer to the cross-complaint but allowed appellant 30 days to file an amended cross-complaint. Appellant filed his first amended cross-complaint (FACC) on September 8, 2005. Respondent again demurred, arguing that each cause of action alleged against respondent failed to state a claim. The trial court sustained the demurrer without leave to amend and dismissed respondent from the action.
Pursuant to an order of the trial court in this action entered on September 12, 2005, respondent deposited the $16,250.00 in settlement funds into the Los Angeles Superior Court trust fund pending resolution of this matter.
Respondent gave notice of the court’s dismissal of respondent from the case on December 2, 2005. Appellant filed his notice of appeal on January 26, 2006.
DISCUSSION
I. Standard of Review
“On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed ‘if any one of the several grounds of demurrer is well taken. [Citations.]’ [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) The legal sufficiency of the complaint is reviewed de novo. (Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790.)
II. The FACC Fails to State a Claim Against Respondent
Appellant’s theories of liability against respondent were based on appellant’s position that his attorney lien was violated by the Abreus, their counsel, and respondent, along with another defense firm in the Abreu/Onyx litigation. The causes of action alleged against respondent were the sixth, seventh, eighth, ninth, and twelfth. Appellant’s specific allegations against respondent, and the reasons that each cause of action fails as a matter of law, are described below.
A. The Sixth Cause of Action
The sixth cause of action for an accounting alleges that respondent received notice of appellant’s attorney lien and “breached” that lien and the “duties incurred upon notice thereof” when respondent entered into a settlement in the Abreu/Onyx litigation but failed to disclose to appellant the existence and terms of the settlement and failed to honor the lien. Appellant therefore demanded an accounting to show any compensation paid.
Appellant devotes many pages of his brief to a discussion of the reasons that Fletcher v. Davis (2004) 33 Cal.4th 61 (Fletcher) should not be applied to nullify appellant’s lien against his former clients. Appellant admits that the trial court did not cite Fletcher as the basis for its decision sustaining respondent’s demurrer. We find that we need not reach this issue as the demurrer was properly sustained whether or not Fletcher nullifies the underlying lien. Therefore, we do not address the merits of Fletcher.
In its demurrer to the FACC, respondent informed the court that “[Appellant] is well aware of the terms of the settlement [agreement].” The settlement agreement was filed with the court in the Abreu/Onyx litigation. Respondent also attached a copy of the filed settlement agreement to its request for judicial notice in support of respondent’s demurrer to the FACC. The request for judicial notice also attached a “Notice of Deposit of Funds,” informing all parties that, pursuant to the court’s order of September 12, 2005, respondent had deposited with the court all of the settlement funds, totaling $16,250.00. A copy of the check was attached.
In order to properly allege an action for accounting, appellant was required to (1) show the existence of a relationship which requires an accounting; and (2) allege that some balance is due to him. (Kritzer v. Lancaster (1950) 96 Cal.App.2d 1, 7.) In addition, appellant must show that an accounting is necessary. (Civic Western Corp. v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1, 14.) Appellant has failed to allege the required components of this cause of action.
First, appellant has failed to allege the existence of a relationship between appellant and respondent which requires an accounting. Appellant’s citation to the retainer agreement between appellant and the Abreus fails to satisfy this requirement, because respondent was never a party to that agreement. Respondent’s role as opposing counsel in the Abreu/Onyx litigation is not the type of relationship which invokes an obligation to provide an accounting under these circumstances. (See, e.g., Kritzer v. Lancaster, supra, 96 Cal.App.2d at pp. 7-8 [showing of employer-employee relationship, method of compensation, and performance of services showing some compensation to be due sufficient to state cause of action for accounting]; Fox v. Hall (1912)164 Cal. 287, 290 [existence of fiduciary relationship sufficient to compel an accounting]; Whann v. Doell (1923) 192 Cal. 680, 684 [action for accounting is only permitted where “existence of the copartnership or other relationship which requires an accounting” is stated].) There is no fiduciary relationship between opposing counsel and no presumption of a confidential or business relationship.
Further, appellant’s position that an accounting is necessary is undermined by the records of the trial court, which respondents brought to the trial court’s attention in connection with their request for judicial notice. When ruling on a demurrer, a court may take judicial notice of evidentiary matters in its own records which are inconsistent with the allegations in the complaint. (Able v. Van Der Zee (1967) 256 Cal.App.2d 728, 734.) The record shows that respondent held its client’s $16,250.00 settlement payment until the funds were deposited into the Los Angeles Superior Court trust account pursuant to the court’s September 12, 2005 order. Because respondent deposited the entire settlement amount into a court-controlled account, appellant’s claim that respondent must provide an accounting cannot survive, and the trial court properly sustained respondent’s demurrer without leave to amend. (Able v. Van Der Zee, supra, at p. 734 [a complaint is subject to demurrer when facts judicially noticed render it defective].)
The record on appeal does not contain an order granting respondents’ request for judicial notice. However, the court records were properly subject to judicial notice pursuant to Evidence Code section 452, subdivision (d). Further, it appears that appellant did not oppose the request, nor did appellant appear at the hearing on the demurrer.
Weiss v. Marcus (1975) 51 Cal.App.3d 590, cited by appellant for the proposition that his causes of action are expressly permitted, is distinguishable. In Weiss, the complaint alleged that the defendant attorneys, who had taken over representation of the plaintiff attorney’s client, had received settlement money, distributed it to the client, and converted the amount of the plaintiff’s lien to their own use. (Id. at pp. 595-596.) Fischer v. Machado (1996) 50 Cal.App.4th 1069, is similarly distinguishable. (See id. at p. 1073 [“Defendants do not dispute they were plaintiffs’ agent nor do they dispute they received the proceeds . . . and commingled the funds with their general corporate account”].)
B. The Seventh Cause of Action
The seventh cause of action for enforcement of lien sets forth allegations nearly identical to those set forth in the sixth cause of action. It further alleges that respondent had a fiduciary duty, including a duty of disclosure, to appellant with respect to the compensation to which appellant was purportedly entitled.
An attorney does not automatically have a lien for the value of his services upon a judgment partially obtained through his efforts. (Del Conte Masonry Co. v. Lewis (1971) 16 Cal.App.3d 678, 680.) Such a lien arises only out of an agreement between the attorney and client. (Ibid.) Respondent, which served only in the role of opposing counsel, was never a party to the contract for services which existed between appellant and the Abreus. For that reason, any obligation arising out of the contractual relationship between appellant and the Abreus may not be enforced against respondent. (Civ. Code, §§ 1427, 1428 [an obligation, or legal duty, arises either out of a contract between the parties or by operation of law].)
Appellant’s effort to create an obligation on the part of respondent by alleging a fiduciary duty also fails because no such duty exists between opposing counsel. There are two kinds of fiduciary duties--those imposed by law and those undertaken by agreement. (Maglica v. Maglica (1998) 66 Cal.App.4th 442, 447.) We have already discussed appellant’s failure to show such a duty by agreement. Appellant has also failed to show that respondent held a position of trust such that the law would impose a fiduciary duty. Fiduciary duties are imposed by law in certain technical, legal relationships such as those between partners and joint venturers (Sime v. Malouf (1949) 95 Cal.App.2d 82, 98), husbands and wives (Vai v. Bank of America (1961) 56 Cal.2d 329, 337), guardians and wards, trustees and beneficiaries, principals and agents, and attorneys and clients. (Barbara A. v. John G. (1983) 145 Cal.App.3d 369, 382-383.) No such relationship existed between appellant and respondent, therefore no fiduciary duty existed.
Not only does respondent lack a legal obligation to appellant, the record shows that respondent has deposited the entirety of the settlement amount against which appellant claims a lien into a court account. Respondent deposited the funds pursuant to an order of the court. These incontrovertible facts undermine appellant’s claim that respondent failed to honor his lien.
In sum, appellant’s cause of action for enforcement of lien must fail because the lien may not be enforced against respondent.
C. The Eighth Cause of Action
The eighth cause of action alleged intentional interference with prospective business advantage. Specifically, appellant alleged that respondent was served with a copy of appellant’s notice of lien in the underlying case. Therefore, respondent had notice of appellant’s relationship with the Abreus and notice of the lien. Appellant further alleged that respondent improperly deceived the court in the underlying Abreu/Onyx litigation into adjudicating the value of the lien, contrary to case law.
As set forth repeatedly above, no settlement money has been paid to the Abreus. The settlement money remains in a trust account at the superior court. This judicially noticed fact entirely undermines any claim on the part of appellant that respondent has interfered with appellant’s ability to enforce the lien.
As to appellant’s allegations that respondent deceived the trial court into adjudicating the value of appellant’s lien, we find that the demurrer was properly sustained because the allegation is prohibitively ambiguous, unintelligible, and uncertain. (See Chicago Title Ins. Co. v. Great Western Financial Corp. (1968) 69 Cal.2d 305, 327 [demurrer properly sustained where allegations are ambiguous, unintelligible, and uncertain].)
D. The Ninth Cause of Action
The ninth cause of action for breach of trust alleges that respondent “had fiduciary duties towards [appellant] by their having been given Notice of Lien AND by virtue of the trust impressed upon the funds in their possession.”
This cause of action fails as a matter of law because, as explained above, respondent had no fiduciary duty to appellant, and, as explained above, the trial court record in this action shows that respondent deposited the entirety of the settlement funds into the superior court account.
E. The Twelfth Cause of Action
The twelfth cause of action is a common count for money had and received. This cause of action also fails because it is based upon the same facts as the specific counts described above. When a common count follows a specifically pled count and is based upon the same facts, the common count is construed as alternatively pleading a right to recover and does not constitute a separate cause of action. (City of Oakland v. Oakland etc. Sch. Dist. (1956) 138 Cal.App.2d 406, 411.) If a common count is based on the same facts which are insufficient to entitle recovery on a specifically pled cause of action, it is proper to sustain a demurrer to the common count. (Zumbrun v. University of Southern California (1972) 25 Cal.App.3d 1, 14.)
Appellant also contends that the trial court violated the stay imposed by Code of Civil Procedure section 916 upon appellant’s filing of this appeal. Appellant filed his notice of appeal on January 26, 2006. However, on January 30, 2006, the trial judge heard and decided another cross-defendant’s motion for judgment on the pleadings. Appellant alleges that the January 30, 2006 hearing should have been stayed “as [it] pertained to matters embraced within the appeal.” Appellant asks that we take appropriate action to vacate the trial court’s decision resulting from the January 30, 2006 hearing. This issue is not properly appealable at this time therefore we do not address it. (See Griset v. Fair Political Practices Comm., supra, 25 Cal.4th at p. 696.)
III. Appellant’s Request Pursuant to Code of Civil Procedure Section 170.1, Subdivision (c)
Code of Civil Procedure section 170.1, subdivision (c) (section 170.1(c)) provides that, at the request of any party, the “appellate court shall consider whether in the interests of justice it should direct that further proceedings be heard before a trial judge other than the judge whose judgment or order was reviewed by the appellate court.”
Throughout his appellate briefs, appellant makes claims of bias and prejudice against him on the part of the trial judge. He requests that, in the interests of justice, we direct that the matter be assigned to a different judge. We find that appellant has failed to show any “animus inconsistent with judicial objectivity.” (People v. Gulbrandsen (1989) 209 Cal.App.3d 1547, 1562.) The power of appellate courts to disqualify judges under section 170.1(c) should be used “sparingly and only where the interests of justice require it.” (Gulbrandsen, at p. 1562.) We find that this is not a case which requires the exercise of our power under section 170.1(c).
DISPOSITION
The judgment is affirmed.
We concur:BOREN, P. J., ASHMANN-GERST, J.