Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BC375374 Aurelio Munoz, Judge.
Barbara K. Strickland for Plaintiff and Appellant.
Law Office of Larry Smith, Larry Smith; Law Office of Gregory J. Pedrick and Gregory J. Pedrick for Defendants and Respondents.
MANELLA, J.
The instant lawsuit, filed by appellant Luis Lazcano-Gutierrez, stemmed from respondents’ representation of him in federal immigration matters. The trial court sustained respondents’ demurrer to appellant’s first amended complaint with leave to amend. Appellant did not amend and his suit was dismissed. He appeals from the order of dismissal. We conclude that appellant has not stated a viable cause of action. The trial court correctly dismissed the lawsuit, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The trial court sustained a demurrer to appellant’s complaint, finding it lacked specific facts. Appellant then filed a first amended complaint (FAC).
1. FAC
In his FAC, Lazcano-Gutierrez alleged causes of action for professional negligence, breach of fiduciary duty, intentional infliction of emotional distress, breach of contract, and rescission against attorneys Robert G. Berke, Larry W. Smith, Michael J. Selph, Shan D. Potts, and their law firm, Mundispano Legal.
Appellant alleged the following: In April 2004, he sought legal assistance “with respect to his immigration status in the United States.” Berke told appellant that appellant could obtain legal status through the labor certification process, and as a result, appellant entered a contract with Mundispano for legal services. At the time they entered into the contract, appellant alleged respondents should have known that appellant would not be able to obtain legal status as a result of the labor certification process. Appellant also alleged that respondents failed to inform him of a potential conflict of interest with his employer, but did not identify the alleged conflict of interest.
Appellant attached the contract for labor certification process and incorporated it by reference into the FAC. The contract provides in part: “The client has admitted being in the U.S. illegally and has been informed that an extension of 245(i), which will allow him to adjust his status to permanent legal residency, has not been approved so far, and if 245(i) is not extended, the client will not qualify under this remedy. However, the client wishes to initiate the process anyway to protect his rights and to obtain an early priority date in case 245(i) is approved. The client understands that if 245(i) is not extended there will be no refund of the amount paid on this case.”
We take the term 245(i) to be in reference to the Immigration and Naturalization Act section 245(i), which allowed for adjustment of status of certain aliens physically present in the United States, including through the labor certification process.
The FAC went on to allege that in December, appellant was detained by immigration officials and placed in removal proceedings, also known as deportation proceedings. Appellant entered a second contract pursuant to which he hired respondents to file an application for cancellation of removal, but alleged that respondents should have known appellant was not eligible for cancellation of removal. Appellant also hired respondents to appeal the denial of his application for cancellation of removal, the subject of a third contract, and respondents allegedly thereafter caused a frivolous appeal to be filed with the Board of Immigration Appeals. Appellant entered a fourth contract with respondents when they recommended he file a motion to reopen his removal proceedings, but that motion, like the other pleadings, appellant alleged was frivolous. Respondents recommended filing a petition to reopen before the Ninth Circuit Court of Appeals, and appellant entered a fifth contract with them. According to the FAC, that petition too was frivolous. Appellant alleged that he was damaged because he spent unnecessary funds and did not request deferred status. The FAC did not identify any benefit that would have resulted from requesting deferred status.
The FAC states “December 2005,” but in light of the dates identified throughout the FAC, it appears appellant intended to refer to December 2004.
2. Trial Court Findings
The trial court sustained respondents’ demurrer to the operative pleading with leave to amend. The court found no allegations identified what conduct of respondents fell below the standard of care. With respect to the breach of fiduciary duty cause of action, the court found no allegations indicating specific misrepresentations. The court found no allegations of extreme and outrageous conduct necessary for an intentional infliction of emotional distress lawsuit. The trial court further concluded that the contract cause of action was deficient, and there was no showing why equitable relief was necessary.
Appellant chose not to file an amended complaint and instead appealed from the order dismissing the case.
The dismissal order following an order sustaining a demurrer is appealable. (Etheridge v. Reins Internat. California, Inc. (2009) 172 Cal.App.4th 908, 913.)
DISCUSSION
“Our standard of review of an order of dismissal following the sustaining of a demurrer is well established. We treat the demurrer as admitting all material facts properly pleaded and matters subject to judicial notice, but not deductions, contentions, or conclusions of law or fact. [Citation.] We also consider matters that may be judicially noticed. [Citation.] We give the complaint a reasonable interpretation, reading the complaint as a whole and its parts in context. [Citation.] When a demurrer is sustained with leave to amend but the plaintiff elects not to do so, we presume the complaint states as strong a case as the plaintiff can muster. [Citations.] We will affirm if the trial court’s decision to sustain the demurrer was correct on any theory. [Citations.]” (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538-539; see also Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 373.)
Because the trial court granted appellant leave to amend and he chose not to amend the complaint, “‘strict construction of the complaint is required and it must be presumed that the plaintiff has stated as strong a case as he can.’” (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1091.) We consider only whether he stated a cause of action not whether he might be able to do so. (See Chicago Title Ins. Co. v. Great Western Financial Corp. (1968) 69 Cal.2d 305, 312 [where appellant represented no further facts could be alleged, court constrained to determine only whether appellant stated cause of action, not whether it was possible to state a cause of action].)
We first consider the alleged intentional torts: legal malpractice, breach of fiduciary duty, and intentional infliction of emotional distress. We then consider appellant’s alleged causes of action based on contract -- breach of contract and rescission. As we explain, no cause of action withstands respondents’ demurer.
1. Intentional Torts
Reduced to their essence, the tort causes of action were based on allegations that (1) respondents misrepresented to appellant that he would be able to obtain legal status through the labor certification process, (2) respondents failed to inform appellant of an alleged conflict of interest with his employer, (3) respondents knew or should have known that he was not eligible for cancellation of removal, and (4) respondents caused several frivolous pleadings to be filed. None of these allegations supports any of the alleged intentional torts.
a. Labor Certification Process
Appellant’s allegation that he was informed he could obtain legal status through the labor certification process is contradicted by the contract, incorporated by reference in the FAC. The contract contains an express acknowledgment that, absent a legislative amendment, appellant was not eligible for legal status through the labor certification process. Even appellant states that the provision in the contract he signed shows respondents knew “that he was not eligible for the exception under Section 245(i)....”
Generally on demurrer a court may not take judicial notice of the proper interpretation of a contract where that interpretation is disputed. (Freemont Indemnity Co. v. Freemont General Corp. (2007) 148 Cal.App.4th 97, 113-115.) That principle, however, does not apply to this case because here the interpretation of the contract was not disputed. Also inapplicable is the general proposition that “[w]here an ambiguous contract is attached and incorporated into the complaint, the party pleading is only required to allege in a complaint the meaning which the party ascribes to the contract.” (Southern Pacific Land Co. v. Westlake Farms, Inc. (1987) 188 Cal.App.3d 807, 817.) Appellant alleged no construction of the contract. Thus, the contractual provision, pursuant to which appellant and respondents acknowledged that appellant was ineligible to obtain legal status through the labor certification process negates his allegation that respondents told him he was eligible for legal status through the labor certification process.
“[T]o the extent the factual allegations conflict with the content of the exhibits to the complaint, we rely on and accept as true the contents of the exhibits and treat as surplus age the pleader’s allegations as to the legal effect of the exhibits.” (Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505.) “If the facts appearing in the attached exhibit contradict those expressly pleaded, those in the exhibit are given precedence.” (Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561, 567-568.) Here, the facts appearing in the attached contract differ from those alleged in the FAC, and the contract is given precedence. Therefore, appellant’s allegation that he was told he could obtain legal status through the labor certification process does not support any cause of action. (Cf. Able v. Van Der Zee (1967) 256 Cal.App.2d 728, 734 [affirming judgment of dismissal where facts alleged in complaint conflicted with plaintiff’s affidavit filed voluntarily in opposition to demurrer].)
Appellant’s argument that the contractual provision was unconscionable lacks merit. No allegation identifies conditions surrounding the execution of the contract, and as a result, his claim of unconsconability fails as a matter of law. (Crippen v. Central Valley RV Outlet (2004) 124 Cal.App.4th 1159, 1165 [no evidence of procedural unconscionability where no evidence of conditions surrounding execution of contract].) Appellant also fails to allege substantive unconscionabilty, the second element of an unconscionability claim. (Armendariz v. Foundational Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114 [prevailing view is that both procedural and substantive unconscionability must be present but they need not be present in the same degree].) Because, appellant was given leave to amend and chose not to amend, we presume that the FAC states as strong a case as appellant can muster. (Reynolds v. Bement, supra, 36 Cal.4th at p. 1091.) In short, appellant states no viable cause of action based on the alleged misrepresentation that he could obtain legal status through the labor certification process.
Appellant also alleges that Berke informed him he would be able to obtain legal status for his family through the labor certification process. The operative pleading, however, contains no allegations that respondents agreed to seek legal status for appellant’s family members, who are not identified in the FAC.
b. Alleged Conflict of Interest
Appellant alleged that respondents failed to inform him of a potential conflict of interest with his employer. No facts identify any purported conflict of interest between appellant and his employer. Appellant’s conclusive allegation is insufficient to support a cause of action. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126 [on demurrer we do not assume the truth of contentions, deductions or conclusions of law]; Maystruck v. Infinity Ins. Co. (2009) 175 Cal.App.4th 881, 888, 889 [alleging conclusions without factual support is “fatal to the complaint”].)
c. Alleged Ineligibility for Cancellation of Removal
Appellant alleged that respondents “knew or should have known that he (Plaintiff) was not eligible for ‘cancellation of removal’ and that such application would be frivolous.” Appellant’s allegation that respondents knew or should have known that he was not eligible for cancellation of removal lacks sufficient specificity to withstand demurrer. He alleged neither the basis for his ineligibility nor any supporting facts. (See Dey v. Continental Central Credit (2008) 170 Cal.App.4th 721, 730 [allegation that conduct violated 15 U.S.C. §§ 1692e(2)(A) & e(2)(B) insufficient to withstand demurrer absent supporting facts]; Casey v. U.S. Bank Nat. Assn. (2005) 127 Cal.App.4th 1138, 1153 [conclusive allegation fails to state a cause of action for aiding and abetting breach of fiduciary duty]; Ankeny v. Lockheed Missiles & Space Co. (1979) 88 Cal.App.3d 531, 537 [court properly sustained demurrer to complaint that alleged conclusions of law such as “‘tortiously caused’” and failed to allege material facts].)
Appellant has provided more specific statements in his reply brief on appeal. However, because appellant chose not to amend his complaint, “‘it is presumed that the complaint states as strong a case as is possible....” (Holcomb v. Wells Fargo Bank, N.A. (2007) 155 Cal.App.4th 490, 495.)
d. Alleged Filing of Frivolous Pleadings
Appellant alleged that (1) the application for cancellation of removal, (2) the appeal from the denial of the application for cancellation of removal, (3) the motion to reopen, and (4) the petition for review with the Ninth Circuit Court of Appeals were frivolous. Once again, his allegations constitute bare conclusions devoid of any supporting facts. (See Faulkner v. California Toll Bridge Authority (1953) 40 Cal.2d 317, 329 [“[a]llegations that the acts of a commission or board were ‘arbitrary, capricious, fraudulent, wrongful and unlawful,’ like other adjectival descriptions of such proceedings, constitute mere conclusions of law which are not to be deemed admitted by a demurrer”]; Timperley v. Chase Collection Service (1969) 272 Cal.App.2d 697, 701 [“bare allegation that respondents’ acts were ‘willful, deliberate and malicious,’ without a recitation of facts tending to show such malice, is merely conclusive and thus is insufficient to support the complaint”]; Wheeler v. Oppenheimer (1956) 140 Cal.App.2d 497, 501 [allegation of “bad faith” without supporting facts is insufficient to withstand demurrer].) Because the FAC contains only conclusive allegations that the pleadings filed by respondents were frivolous, it does not support any of his intentional tort causes of action. (Stonehouse Homes LLC v. City of Sierra Madre, supra, 167 Cal.App.4th at p. 539 [conclusive allegations do not withstand demurrer].)
2. Causes of Action Based on Contact
We now turn to appellant’s causes of action for breach of contract and rescission. Appellant alleged that respondents breached the covenant of good faith and fair dealing by failing to disclose that the labor certification contract would not benefit him and would create a conflict of interest with his employer, and by placing their interest in receiving fees “above [p]laintiff’s interests and rights.” He also alleged that each contract was unlawful and contrary to the public interest.
a. Breach of Contract
Because appellant identified no contractual promise respondents failed to perform, the FAC lacks an essential element of a cause of action for breach of contract. (4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 515, p. 648 [elements of breach of contract are contract, breach, plaintiff’s performance or excuse for nonperformance; and damage to plaintiff]; McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489 [same].) Appellant’s claim of breach of the covenant of good faith and fair dealing lacks merit because he alleged no conduct by respondents that injured his rights to receive the benefits due under the terms of the contract, i.e., the legal services promised under the contract. The covenant of good faith and fair dealing requires that neither party do anything that would injure the right of the other to receive the benefits of the contract. (Cates Construction, Inc. v. Talbot Partners (1999) 21 Cal.4th 28, 43.) By failing to allege any such conduct, appellant fails to allege a breach of the convent, his sole basis for his breach of contract cause of action.
b. Rescission
Appellant contends that the contracts should be rescinded because they were unlawful and against the public interest, allegedly because they violated the rules of professional conduct and section 6148 of the Business and Professions Code. A contract may be rescinded if it is unlawful “for causes which do not appear in its terms or conditions, and the parties are not equally at fault” or if “the public interest will be prejudiced by permitting the contract to stand.” (Civ. Code, § 1689, subd. (a)(5) & (6).) However, appellant’s conclusive statements are insufficient to state a cause of action. As explained above, a bare allegation that conduct violates a specific statute is insufficient to withstand demurrer. (See Dey v. Continental Central Credit, supra, 170 Cal.App.4th at p. 730 [allegation that conduct violated 15 U.S.C. §§ 1692e(2)(A) & e(2)(B) insufficient to withstand demurrer absent supporting facts].) Appellant alleges no facts supporting his allegations either that respondents violated the rules of professional conduct or that the contracts for legal services were unlawful and against the public interest. (Jones v. Oxnard School Dist. (1969) 270 Cal.App.2d 587, 593 [allegation that conduct unlawful insufficient to withstand demurrer].) We do not treat the demurrer as admitting conclusions of law or fact, and appellant alleges no other facts in support of his cause of action for rescission. (Stonehouse Homes LLC v. City of Sierra Madre, supra, 167 Cal.App.4th at p. 539.)
Business and Professions Code section 6148 provides in part: “(a) In any case not coming within Section 6147 in which it is reasonably foreseeable that total expense to a client, including attorney fees, will exceed one thousand dollars ($1,000), the contract for services in the case shall be in writing. At the time the contract is entered into, the attorney shall provide a duplicate copy of the contract signed by both the attorney and the client, or the client’s guardian or representative, to the client or to the client’s guardian or representative. The written contract shall contain all of the following:
Civil Code section 1689 identifies the grounds for rescission. It provides in part: “(b) A party to a contract may rescind the contract in the following cases: [¶]... [¶] (5) If the contract is unlawful for causes which do not appear in its terms or conditions, and the parties are not equally at fault. [¶] (6) If the public interest will be prejudiced by permitting the contract to stand.”
DISPOSITION
The order of dismissal is affirmed. The parties shall bear their own costs on appeal.
We concur: EPSTEIN, P. J. SUZUKAWA, J.
“(1) Any basis of compensation including, but not limited to, hourly rates, statutory fees or flat fees, and other standard rates, fees, and charges applicable to the case.
“(2) The general nature of the legal services to be provided to the client.
“(3) The respective responsibilities of the attorney and the client as to the performance of the contract.
“(b) All bills rendered by an attorney to a client shall clearly state the basis thereof. Bills for the fee portion of the bill shall include the amount, rate, basis for calculation, or other method of determination of the attorney’s fees and costs. Bills for the cost and expense portion of the bill shall clearly identify the costs and expenses incurred and the amount of the costs and expenses. Upon request by the client, the attorney shall provide a bill to the client no later than 10 days following the request unless the attorney has provided a bill to the client within 31 days prior to the request, in which case the attorney may provide a bill to the client no later than 31 days following the date the most recent bill was provided. The client is entitled to make similar requests at intervals of no less than 30 days following the initial request. In providing responses to client requests for billing information, the attorney may use billing data that is currently effective on the date of the request, or, if any fees or costs to that date cannot be accurately determined, they shall be described and estimated.
“(c) Failure to comply with any provision of this section renders the agreement voidable at the option of the client, and the attorney shall, upon the agreement being voided, be entitled to collect a reasonable fee.”