Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. BC354454, Andrea K. Richey, Judge.
Law Offices of Mark McBride and Mark McBride for Plaintiff and Appellant.
Nemecek & Cole, Jonathan B. Cole, David B. Owen and Mark Schaeffer for Defendants and Respondents Harold Greenberg, Law Offices of Harold Greenberg and Hai Nguyen.
Lacey, Dunn & Do, Kevin S. Lacey and Catherine L. Hazany for Defendant and Respondent Dennis G. Harkavy.
Lewis Brisbois Bisgaard & Smith, Peter Garchie, Lisa Willhelm Cooney and Gee Wah Mok for Defendant and Respondent Richard Rome.
ARMSTRONG, J.
Darnell Johnson sued respondents Harold Greenberg, Hai Nguyen, Dennis Harkavy and Richard Rome, lawyers who had previously represented him in a real estate matter. Judgment was entered in respondents' favor after their demurrers to the second amended complaint were sustained without leave to amend. We affirm.
Facts
The complaint
The second amended complaint brought causes of action for legal malpractice, breach of contract, breach of fiduciary duty, negligent misrepresentation, and fraud. The factual allegations were:
In this review of a ruling on demurrer, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context, and treat the demurrer as admitting all material facts properly pleaded. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
Beginning in 2002, Johnson lived in a home in Pacific Palisades. Title was held first by Ivan Benavidez and Keith Heyward, then by Heyward alone. However, Johnson paid the mortgage. Johnson and Heyward had agreed that Johnson owned the property and had the right to sell and to the profits from any sale.
In the spring of 2005, Johnson realized that Heyward was attempting to sell the property. In May, he engaged Harkavy and asked him to file a lis pendens on the property. Harkavy said that he would protect Johnson's interest in the property and suggested that he engage Rome. Johnson did so. He paid Rome "a sum of money" and asked him to file a lis pendens. Rome sent a letter to Heyward, but did nothing else. Johnson complained to Harkavy, who said that he would take care of matters. He did not file a lis pendens, but merely sent a letter to Heyward. Johnson also retained Greenberg, who was told that he should move speedily to file a lis pendens. (Nguyen is alleged to have been an associate in Greenberg's practice, but is not otherwise mentioned in the complaint.) Greenberg attempted to contact Heyward, but did not file a lis pendens.
On June 27, 2005, Heyward conveyed title to Trina Ward. A deed of trust was filed by New Century Mortgage to secure a loan of $737,400 to Ward for her acquisition of the property. Heyward received about $320,000 from the sale.
In July 2005, represented by Harkavy, Johnson sued Heyward, Ward, and New Century for quiet title and other causes of action. (Hereinafter, "the quiet title action.") In April 2006, Johnson consulted another lawyer, Kevin Taylor, concerning respondents' failure to protect his interests in the property.
In May 2006, Johnson bought the property from Ward and in August, he settled the quiet title litigation.
The complaint specified the damages Johnson was alleged to have suffered from respondents' inaction: a $10,000 security deposit and rent (from July 1, 2005 to May 1, 2006) he paid to Ward; the $60,000 he paid respondents in legal fees (he alleged that he still owed Greenberg $102,000); the $51,000 he paid Taylor, who "took over" the quiet title action; the lost equity in the property, calculated by the difference between the $450,000 original loan and the $819,000 sales price; the down payment and closing costs on his purchase of property from Ward; and an unspecified sum because his new mortgage was at a higher interest rate than the earlier one on the house.
The trial court also had before it various documents which Johnson submitted in response to Harkavy's demurrer to the first amended complaint (Dodd v. Citizens Bank of Costa Mesa (1990) 222 Cal.App.3d 1624, 1627), including the complaint in the quiet title action. It alleges that Johnson lived in the house with Heyward's mother, Belinda Willis, for 15 years, during which Johnson and Heyward enjoyed a father-son relationship, that Johnson had paid all costs relating to the acquisition of the property, and had paid the taxes, insurance, and mortgage since that time, and that Ward knew of the relationship between Johnson and Heyward, and knew that Heyward was not free to convey title to anyone but Johnson.
The demurrers and trial court ruling
Defendants demurred on numerous grounds, contending, inter alia, that Johnson had not pled causation and damages. The trial court ruled that "Each of the plaintiff's claims is based on some failure on the part of these defendants to handle his case with 'skill' or diligence,' resulting in a failure to file a lis pendens, which somehow plaintiff claims caused him some unspecified damages. But each element of damages he refers to, either in his numerous amended complaints or in his brief, are damages he could have recovered in [quiet title] litigation, which he chose to settle. The only other element of damages plaintiff alleges are fees he incurred in pursuing the [quiet title] litigation -- but those fees were not a result of a failure to record a lis pendens. Even if that had been recorded, the litigation would still have gone forward. The delay in litigation is not support for a claim for damages for legal malfeasance."
Johnson finds it odd, or noteworthy, that the trial court ruled after indicating at oral argument that the demurrers were not well-taken. We find nothing exceptional. The trial court engaged in a lively colloquy with all counsel and indicated that it would rule for Johnson, but allowed supplemental briefing, saying, to respondents, "Prove me wrong." The court's final ruling was made after a review of the supplemental briefing. There is nothing odd about that procedure.
Goldberg moved for $19,168 in fees pursuant to an attorney fee clause in his retainer agreement with Johnson. The court granted the motion and awarded that amount in fees.
When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. When it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.)
1. The demurrer
Johnson first argues that a settlement settles only as much of the dispute between the parties as they agree to settle, and that a settlement operates as a defense only between the parties entering into the settlement. He cites legal authority in support of those propositions. (Holbrook v. Telesio (1964) 225 Cal.App.2d 152, 155; Arno v. Helinet Corp. (2005) 130 Cal.App.4th 1019, 1026.) We have no quarrel with the legal principles, but do not find them dispositive. The trial court did not rule as it did under the mistaken belief that Johnson had settled with respondents. Instead, the court was concerned with the effect of the settlement of the quiet title litigation on the damages in this case.
On that point, Johnson argues that when the complaint is read liberally, he has alleged that he suffered damages. He cites the legal fees for "a job not done," the cost of the purchase of the house from Ward, and fees he paid Taylor to litigate the quiet title action. We agree with the trial court that the complaint did not plead causation and damages.
The parties agree with the trial court finding that the damages issue disposed of all causes of action.
The complaint in this action is based on respondents' alleged failure to file a lis pendens. A lis pendens can only be filed by "A party to an action who asserts a real property claim." Such a party may "record a notice of pendency of action in which that real property claim is alleged." (Code Civ. Proc., § 405.20.) Read with the requisite liberality, the complaint alleges that respondents failed to timely file a lawsuit against Heyward and a lis pendens. It is under that framework that we must analyze this case, and when we do, we see no damages caused by malpractice. Indeed, we see no malpractice.
Johnson's basic theory is that a lis pendens would have prevented the sale to Ward. It would not have as a matter of law or fact. A lis pendens is nothing more than "'a recorded document giving constructive notice that an action has been filed affecting title to or right to possession of the real property described in the notice.' [Citation.]" (Kirkeby v. Superior Court of Orange County (2004) 33 Cal.4th 642, 647.) Not only did Johnson fail to plead that Ward would have been deterred from her purchase if a lis pendens had been filed, he alleged (in the quiet title litigation) that when Ward bought the house she was well aware of his claim to the property. At oral argument in the trial court, Johnson represented that he would call an expert witness to testify that if a lis pendens had been filed, the property would as a practical matter not have sold. An expert might so opine about the general public of buyers, but that is of no moment. A lis pendens would not have mattered to Ward, and the failure to timely file a lis pendens caused no damages.
What is more, nothing respondents did or failed to do compromised any claim Johnson had against Heyward or any claim he had to the house. Johnson went to respondents with a claim against Heyward concerning title to the property. He had precisely the same legal claim and same legal rights, regardless of when, or whether, a quiet title action and lis pendens were filed.
The expenses Johnson now claims as damages were not occasioned by anything respondents did or failed to do. They arise from the fact that Heyward held title, and from the fact (obvious from Heyward's actions, as pled) that he disputed Johnson's position on the ownership of the property. A quiet title action was necessary to resolve the dispute between Johnson and Heyward. Johnson is not entitled to damages for the costs of litigating the quiet title action. Indeed, he hired respondents to prosecute such an action.
Further, as the trial court observed, all the costs Johnson claims as damages concerning his purchase of the property from Ward are the costs he could have recovered in the quiet title litigation. Johnson contends that he was forced to pay Ward for the house, but if his claim of title was valid, he should have been able to recover all sums that he stipulated to pay Heyward, whether or not a lis pendens was filed prior to the sale to Ward. Perhaps he did so recover. In this area, too, the factual pleadings of the complaint are deficient. Johnson does not plead the terms of the settlement, or whether he recovered from Heyward, or whether his claims of title were in any way vindicated.
Johnson cites the trial court's observation that the settlement of the quiet title action might have been different if Ward was not a party to that action, and if the sale to her had not taken place. This theory is contingent on the notion that a lis pendens would have prevented the sale to Ward, and as we have seen, that theory fails. We also find that "might have been," is not sufficient. The mere probability that a certain event would have happened is not a basis for damages. "'Damage to be subject to a proper award must be such as follows the act complained of as a legal certainty . . . .' [Citation.]" (Thompson v. Halvonik (1995) 36 Cal.App.4th 657, 663; Barnard v. Langer (2003) 109 Cal.App.4th 1453, 1462.) Here, too, it is significant that the complaint includes only the barest allegation concerning the settlement, which is that it happened. There are no allegations about the terms of the settlement or the facts and circumstances under which it was reached. Even when read liberally, the complaint fails to allege that respondents' failure to timely file the lis pendens affected the settlement in any way.
Johnson's breach of contract claim for the fees he paid to respondents "for a job not done" suffers from an additional problem. The complaint does not specify the amounts he paid, or, except in the most general terms, the work actually done by respondents or the terms of their engagements. Without such allegations, demurrer is proper. (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 458-459.) This is, moreover, a second amended complaint, and the trial court ruling on the demurrers to the first amended complaint identified this problem, among others.
Johnson argues that he should be allowed an additional opportunity to amend his pleading, but he nowhere says how he would cure the problems with his complaint. "Where an appellant does not indicate, either in the trial court or in this court, the manner in which the complaint is proposed to be amended, an abuse of discretion is not shown." (Hilton v. Board of Supervisors (1970) 7 Cal.App.3d 708, 716.)
2. Fees
Johnson seeks to challenge the award of attorneys fees to Greenberg, but, as Greenberg argues, he did not appeal that order.
The notice of appeal in this case was filed in March of 2007. It is an appeal from the judgment of dismissal, after the order sustaining demurrer. The fees award was made in a separate order, in June of 2007. No appeal was taken from that order.
Greenberg cites the rules that "'If a judgment or order is appealable, an aggrieved party must file a timely appeal or forever lose the opportunity to obtain appellate review.' (Eisenberg, Horvitz & Wiener, Cal. Practice Guide, Civil Appeals and Writs (Rutter 1989) § 2.13, p. 2-5, (Eisenberg), citing Code Civ. Proc. § 906 and Kinoshita v. Horio (1986) 186 Cal.App.3d 959, 967, italics original.) A postjudgment order which awards or denies costs or attorney's fees is separately appealable. (Eisenberg, § 2:156, p. 2-42; Citizens Against Rent Control v. City of Berkeley (1986) 181 Cal.App.3d 213, 223; Rich v. City of Benicia (1979) 98 Cal.App.3d 428, 432; Raff v. Raff (1964) 61 Cal.2d 514, 519; Code Civ. Proc. § 904.1, subd. (b)), and if no appeal is taken from such an order, the appellate court has no jurisdiction to review it. (Hardin v. Elvitsky (1965) 232 Cal.App.2d 357, 363-364." (Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46, fn. omitted.) Johnson does not dispute those rules, but points out that after the fees award was made, he designated additional portions of the record, and argues that the necessary documents are before us, and that we should decide the fees issue.
We cannot grant the request. Because no timely appeal was taken from the fees order, we have no jurisdiction to rule on it. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 674.)
Disposition
The judgment is affirmed. Respondents to recover costs on appeal.
We concur: TURNER, P. J. MOSK, J.