Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Super. Ct. No. SC 093489
ORIGINAL PROCEEDING in mandate. Lisa Hart Cole, Judge. Petition granted with directions.
Shapero, Shapero & Hurst and Steven J. Shapero for Petitioner.
No appearance for Respondent.
ROTHSCHILD, J.
Locke Lord Bissell & Liddell, Joshua D. Wayser, Sheela H. Shah and Trezanay M. Atkins for Real Parties in Interest PCCP LB Studio City Los Angeles, LLC, PCCP Studio City Los Angeles, LLC, and PCCP Productions, LLC.
This lawsuit arises out of allegations that the defendant administrators of The Culver Studios improperly used studio funds for their own benefit. Defendant Shapero, Shapero & Hurst (Shapero) is a law firm that represented those administrators in this case. Plaintiffs’ first amended complaint alleged two claims against Shapero, and Shapero demurred on several grounds, including that both claims were barred by the prefiling requirements of Civil Code section 1714.10, subdivision (a). The trial court overruled the demurrer, and Shapero appealed, raising all of the arguments that were raised in the demurrer. The trial court’s order is appealable, however, only insofar as it disposed of Shapero’s argument under section 1714.10. We reject that argument, but we choose to treat Shapero’s premature appeal from the nonappealable portions of the trial court’s order as a petition for writ of mandate. We agree with Shapero that the trial court should have sustained the demurrer on grounds unrelated to section 1714.10, and we therefore grant the petition.
Shapero was counsel of record for the administrators as of the date the notice of appeal was filed. The trial court’s docket reflects that new counsel later substituted in, presumably as a result of the ruling that is now before us.
All subsequent statutory references are to the Civil Code.
Because we are reviewing the trial court’s ruling on a demurrer, we assume the truth of all well-pleaded factual allegations in the first amended complaint. (See, e.g., Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
Plaintiffs are three entities involved in the ownership and management of The Culver Studios. They filed suit against two entities and two individuals (the administrator defendants) involved in the ownership and administration of The Culver Studios, alleging that the administrator defendants have improperly used studio funds for their own benefit.
The plaintiffs are PCCP LB Studio City Los Angeles, LLC, PCCP Studio City Los Angeles, LLC, and PCCP Productions, LLC.
Plaintiffs’ first amended complaint also alleged causes of action for claim and delivery and money had and received against Shapero. Both causes of action were based on allegations that the administrator defendants paid Shapero $20,000 of The Culver Studios’ funds to represent them in a lawsuit to which the studio was not a party.
Shapero demurred to the claims against it on several grounds, including the following: (1) The action for claim and delivery failed as a matter of law because it did not seek recovery of tangible property; (2) the common count for money had and received was demurrable because it sought the same recovery and was based on the same facts as the action for claim and delivery, which was demurrable; and (3) both claims were in substance actions against an attorney for civil conspiracy with a client, so they were barred by section 1714.10, subdivision (a), because plaintiffs did not first obtain a court order authorizing such a pleading. Plaintiffs opposed the demurrer but also requested leave to amend if the demurrer was sustained.
The trial court overruled the demurrer. An order determining an attorney-defendant’s rights under section 1714.10, subdivision (a), is appealable as a final judgment (§ 1714.10, subd. (d)), and Shapero timely appealed.
STANDARD OF REVIEW
We review the trial court’s order de novo. (Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 822 (hereafter Berg & Berg).)
DISCUSSION
Shapero argues, as it did in the trial court, that both claims against it are barred because plaintiffs have not complied with the prefiling requirements of section 1714.10, subdivision (a). We disagree.
The prefiling requirements of section 1714.10, subdivision (a), apply only to a “cause of action against an attorney for a civil conspiracy with his or her client arising from any attempt to contest or compromise a claim or dispute, and which is based upon the attorney’s representation of the client[.]” The first amended complaint does not on its face allege a claim for civil conspiracy against Shapero, nor are the claims against Shapero in substance based upon such a theory of vicarious liability. Rather, the first amended complaint alleges two direct causes of action against Shapero, for claim and delivery and money had and received. We conclude, infra, that both of those claims fail to state facts sufficient to constitute a cause of action, so the trial court should have sustained the demurrer on that ground. But because neither claim is based on an alleged civil conspiracy, section 1714.10 does not apply.
Shapero’s arguments to the contrary are not persuasive. First, it argues that the first amended complaint does allege a civil conspiracy because it generally alleges mutual agency and employment among all defendants. The argument fails because “[i]n order to maintain an action for conspiracy, a plaintiff must allege that the defendant had knowledge of and agreed to both the objective and the course of action that resulted in the injury[.]” (Berg & Berg, supra, 131 Cal.App.4th at p. 823.) Allegations of mere agency or employment are not sufficient to meet those requirements.
Second, Shapero contends that in the absence of conspiracy allegations, “there is no claim whatsoever against [Shapero]—as [p]laintiffs know.” Assuming for the sake of argument that Shapero’s contention is true, it does not follow that section 1714.10 applies to the claims that plaintiffs have in fact alleged. Rather, all that follows is that if plaintiffs have not alleged a civil conspiracy (which we conclude they have not), then their claims against Shapero must fail as a matter of law (which we conclude they do).
Third, Shapero relies on Berg & Berg, supra, to support the conclusion that section 1714.10 applies to plaintiffs’ claims, but such reliance is misplaced. In Berg & Berg, the plaintiff expressly alleged a civil conspiracy between the defendant attorney and the co-defendant client, and all of the claims against the attorney were based on that conspiracy. (See Berg & Berg, supra, 131 Cal.App.4th at p. 821 [“[T]he factual basis of all the claims pleaded against [the law firm] is the very union of conduct between it and [the client] which constitutes the attorney-client conspiracy[.]”].) That is not the case here. The only putative allegations of conspiracy that Shapero has identified are the allegations of mutual agency and employment, and we have already explained why those do not allege a civil conspiracy.
Shapero also argues that plaintiffs must be suing Shapero for “tactical reasons” (presumably to disrupt the attorney-client relationship), because plaintiffs have not sued any of the other third-party payees to whom the administrator defendants are alleged to have wrongfully disbursed The Culver Studios’ funds. Assuming for the sake of argument that Shapero is right about plaintiffs’ alleged motive in suing Shapero, however, it does not follow that the claims plaintiffs have in fact alleged against Shapero are based on a theory of civil conspiracy. They are not.
For all of these reasons, we agree with the trial court that the claims alleged against Shapero in the first amended complaint are not barred by the prefiling requirements of section 1714.10, subdivision (a).
II. Appealability of the Remainder of the Trial Court’s Order
The trial court’s order overruling Shapero’s demurrer is appealable only insofar as it determined Shapero’s rights under section 1714.10. (§ 1714.10, subd. (d); see Evans v. Pillsbury, Madison & Sutro (1998) 65 Cal.App.4th 599, 604, fn. 4 [section 1714.10 “does not authorize review of matters apart from issues related to section 1714.10”].) The portions of the order rejecting the other arguments raised in Shapero’s demurrer are therefore not appealable.
We do have discretion, however, to treat a purported appeal from a nonappealable order as a petition for a writ of mandate. (H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1366.) Several considerations weigh in favor of treating the premature appeal from the nonappealable portions of the order in this case as a writ petition: (1) If Shapero’s contentions have merit, it would be a waste of judicial resources to hold a trial; (2) as long as the trial court’s putatively erroneous order is allowed to stand, it will disrupt the attorney-client relationship between Shapero and the administrator defendants by creating a conflict of interest; (3) the record is adequate and contains in substance all of the necessary elements for a writ proceeding; and (4) there is no indication that the trial court would be more than a nominal party to a writ proceeding. (Id. at p. 1367; see also Olson v. Cory (1983) 35 Cal.3d 390, 400-401.) Because of the unusual circumstances presented—particularly the disruption of the attorney-client relationship—we will treat Shapero’s appeal from the nonappealable portions of the trial court’s order as a petition for a writ of mandate.
III. Claim and Delivery
Shapero argues that the first amended complaint fails to allege facts sufficient to constitute a cause of action for claim and delivery because it does not seek recovery of specific tangible property. Shapero is correct. The first amended complaint seeks to recover $20,000 in studio funds that the administrator defendants allegedly paid to Shapero. Money cannot be the subject of an action for claim and delivery, however, unless it is marked or designated in some way so as to make it specifically identifiable. (Hillyer v. Eggers (1917) 32 Cal.App. 764, 766.) The first amended complaint does not allege that the money in question is specifically identifiable, so it fails to allege facts sufficient to constitute a cause of action for claim and delivery.
Plaintiffs’ arguments to the contrary are not persuasive. First, plaintiffs argue that the administrator defendants did deliver tangible personal property to Shapero, namely, a paper check drawn against studio funds in the amount of $20,000. The first amended complaint does not, however, allege that the administrator defendants paid by check, or that Shapero is still in possession of the check, or that plaintiffs now seek to get the check back. In any event, there seems to be no way that allegations of payment by check would be of use to plaintiffs. If payment was by check and the check cleared, then the check is presumably in the possession of the studio or the studio’s bank, so plaintiffs cannot seek to recover it from Shapero. And if payment was by check but the check did not clear, then Shapero never received the $20,000 in question—it just got a bad check. Either way, the (unalleged) existence of a tangible paper check cannot support plaintiffs’ action for claim and delivery against Shapero.
Second, plaintiffs assert, without explanation or citation of any support, that “the $20,000[] was specific and identifiable.” The first amended complaint alleges no such thing, however, and plaintiffs’ assertion contradicts their own contention that payment was by check. Assuming the check cleared, Shapero ultimately received the $20,000 in the form of a credit to its bank account balance in the amount of $20,000, while the studio’s checking account balance was debited in the same amount. Thus, according to plaintiffs themselves, no specifically identifiable pile of currency (e.g., a stack of 200 marked $100 bills) changed hands.
For all of these reasons, we conclude that the first amended complaint fails to allege facts sufficient to constitute a cause of action for claim and delivery.
IV. Money Had and Received
Shapero argues that because plaintiffs’ common count for money had and received is based on the same facts and seeks the same recovery as the action for claim and delivery, and because the action for claim and delivery is demurrable, the common count is demurrable as well. Plaintiffs correctly concede that the two claims stand or fall together. (See McBride v. Boughton (2004) 123 Cal.App.4th 379, 394-395.) Because we have concluded that the trial court should have sustained the demurrer to the action for claim and delivery, we likewise conclude that it should have sustained the demurrer to the common count for money had and received as well.
We express no opinion on whether there is a cause of action that plaintiffs could properly allege against Shapero without, in substance, relying on a theory of civil conspiracy. We conclude only that they have not done so in the first amended complaint.
DISPOSITION
Having treated the appeal from the nonappealable portions of the trial court’s order as a petition for a writ of mandate, we grant the petition. The trial court is directed to vacate its order overruling Shapero’s demurrer and to enter a new and different order sustaining the demurrer with leave to amend. The appeal from the appealable portions of the trial court’s order is therefore dismissed as moot. Shapero shall recover its costs on this appeal and this writ proceeding.
We concur: VOGEL, Acting P. J., JACKSON, J.
(Judge of the L. A. S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)