Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YC054427, Ramona G. See, Judge.
Stanley D. Bowman, in pro. per., for Defendant, Cross-complainant, and Appellant.
John J. Schimmenti for Plaintiff, Cross-defendant, and Respondent Dori Mosich.
No appearance for Plaintiff and Respondent Bankers Realty Inc.
SUZUKAWA, J.
This is an appeal from a judgment entered in a legal malpractice action. Respondents Dori Mosich and Bankers Realty Inc. (BRI) filed separate malpractice lawsuits against Attorney Stanley Bowman (case Nos. YC054427 and BC368730 respectively). The actions were consolidated and a court trial was held in July 2008 (collectively referred to as the malpractice action). Judgment was entered in favor of BRI in its action against Bowman. We reverse that portion of the judgment, and affirm in all other respects.
Bowman filed cross-complaints in each case. The court ruled in favor of Bowman on Mosich’s complaint, and in favor of Mosich and BRI on Bowman’s cross-complaints. Those findings are not contested in this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
The malpractice action arose from Bowman’s representation of Mosich and BRI in a lawsuit filed against Alice Shiotsugu (the real estate action). The plaintiffs in the real estate action were Mosich and an entity named Bankers Realty. A key fact in the resolution of this appeal is the distinction between the unincorporated entity Bankers Realty and a subsequently formed corporation, BRI.
The underlying dispute in the real estate action began when Shiotsugu decided to sell her Rancho Palos Verdes home. She discussed it with an acquaintance, Dori Mosich, who was an unlicensed real estate broker. Mosich was employed by an individual named Peter Mota, doing business as Bankers Realty. In 2004, Mosich induced Shiotsugu to sign a listing agreement, but the agreement listed only Mosich as the broker. When Shiotsugu ultimately decided not to sell, she attempted to cancel the listing but was unable to reach Mosich or Mota. Mosich and Bankers Realty alleged that Mosich presented Shiotsugu with a full price offer for the home and Shiotsugu failed to respond. When the listing expired, Mosich and Bankers Realty sued Shiotsugu for breach of contract.
Bankers Realty and Mosich hired Bowman to represent them, and he filed a complaint against Shiotsugu naming Bankers Realty and Dori Mosich as plaintiffs. Shiotsugu filed an answer and a cross-complaint naming “[BRI, ] a California corporation, ” Mosich, Mota, and Patrick Caraco (a broker-officer of BRI) as cross-defendants. Bowman filed an answer to Shiotsugu’s cross-complaint on behalf of Bankers Realty and Mosich, but not BRI.
The real estate action proceeded to a jury trial in October 2005. The jury found in favor of Shiotsugu and against Mosich in the amount of $48,450. The jury’s verdict also read as follows: “We, the Jury, find in favor of Alice Shiotsugu as to her Cross Complaint against Bankers Realty and assess her damages in the sum of $71,000” and “We, the Jury, find in favor of Defendant Alice Shiotsugu and against Bankers Realty and Bankers Realty shall take nothing by its Complaint.” The judgment signed by the court reads as follows: “Now, therefore, it is hereby ordered, adjudged, and decreed that judgment be entered, in favor of Alice Shiotsugu and [¶] (a) Against Bankers Realty on the Complaint, Defendants and Cross-Complainants; [¶] (b) Against Bankers Realty on the Cross-Complaint in the principal sum of $71,000, with interest thereon....” The notice of entry of judgment form prepared by Shiotsugu’s attorney states, however, that the judgment was entered against “plaintiffs and cross-defendants Bankers Realty, Inc. (hereinafter, ‘Bankers Realty’) and Dorianne Mosich.”
We gleaned from the record that at some time thereafter, Shiotsugu was awarded $75,000 in attorney fees. As the order is not part of the record, we do not know if BRI was ordered to pay those fees.
An appeal was filed on behalf of BRI and Mosich, who were no longer represented by Bowman, each having retained separate counsel (case No. B190143). One of the issues raised in the reply brief was the distinction between BRI and Bankers Realty. BRI contended that Bankers Realty was the broker of record, and was not merged into the corporation of BRI until several years later. The Court of Appeal deemed the matter waived since it had not been raised in the opening briefs. The court’s opinion, however, recognized that the judgment was awarded against Bankers Realty and not BRI. The court also noted in a footnote that “[a]ny ambiguity in the judgment is not before us, and would be a matter for the trial court to resolve in the first instance, when Shiotsugu seeks to enforce the judgment.” (Bankers Realty, Inc. v. Shiotsugu, supra, B190143 [at pp. 8-9, fn. 2].)
The opinion stated, “In its reply brief, Bankers Realty contends, for the first time, that Bankers Realty Inc. (the corporate entity) was not the broker of record or Mosich’s employer, and that the evidence showed only that Mosich worked as an agent for Peter Mota, an individual doing business as Bankers Realty (which Bankers now claims was not merged into the corporate entity until several years later). Bankers Realty did not raise this issue in its opening brief, and the same is true of its contention that the verdict must be overturned because of the disparity in damage awards assessed against it ($71,000) and against Mosich ($48,450). [Fn. omitted.] Because Bankers did not raise these issues in its opening brief, the points have been waived. [Citation.]” (Bankers Realty, Inc. v. Shiotsugu (Jan. 8, 2008, B190143) [nonpub. opn., at pp. 8-9].)
Mosich and BRI sued Bowman for malpractice. BRI contended that Bowman had failed to recognize that the cross-complaint was filed against BRI, not Bankers Realty. It claimed that Bowman committed malpractice by allowing the case to go forward against a nonparty, as BRI had not been involved in the attempted sale of Shiotsugu’s home. The court issued a tentative ruling on August 27, 2008, and judgment was entered on November 6, 2008. It awarded BRI $146,000 against Bowman on its complaint for negligence.
DISCUSSION
Bowman correctly points out that one of the elements of an action for legal malpractice is loss or damage resulting from the attorney’s negligence. (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199.) “Actual injury occurs when the client suffers any loss or injury legally cognizable as damages in a legal malpractice action based on the asserted errors or omissions.” (Jordache Enterprises Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 743.) Bowman alleges there is no evidence that BRI suffered any loss as a result of any of his actions. He is correct.
In its tentative ruling, the trial court erroneously concluded that “a verdict and subsequent judgment were entered in the amount of $71,000.00... against Bankers Realty Inc.” As we have discussed, the jury awarded damages in favor of Shiotsugu against Bankers Realty and the judgment accurately reflects that finding. Put simply, there is no judgment against BRI.
The error in this case occurred when Shiotsugu’s attorney inaccurately stated in her notice of entry of judgment that judgment had been entered against BRI, not Bankers Realty. BRI did not explain to the trial court how that error caused it damage. “A final judgment terminates the litigation between the parties and leaves nothing in the nature of judicial action to be done other than questions of enforcement or compliance.” (Ramon v. Aerospace Corp. (1996) 50 Cal.App.4th 1233, 1237.) It is the judgment that is enforceable. (See Code Civ. Proc., § 681.010 [provisions for enforcement of judgments].) Generally, the notice of entry of judgment is relevant in that it triggers the time during which a party may appeal. (Cal. Rules of Court, rule 8.104.) The notice has no other effect relevant to this case.
BRI did not file a respondent’s brief.
There is no evidence that Shiotsugu has attempted to collect the judgment from BRI. More to the point, there is nothing in the record showing that BRI paid any money to Shiotsugu because it mistakenly believed that it was obligated to do so pursuant to the judgment. Thus, assuming the trial court correctly concluded that Bowman was negligent in representing BRI, there is no evidence that BRI suffered any loss as a result. Accordingly, judgment in BRI’s favor on its malpractice complaint must be reversed.
DISPOSITION
The award of $146,000 in damages to BRI is reversed. As no appeal was taken from the portion of the judgment in favor of Bowman on Mosich’s complaint and in favor of Mosich and BRI on Bowman’s cross-complaints, those findings are affirmed. The parties are to bear their own costs on appeal.
We concur: EPSTEIN, P.J.MANELLA, J.