NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

KANE, J.

Plaintiff Eugene Forte sued his former attorney, Larry Lichtenegger, and the law firm of Lichtenegger & Lee (collectively defendants)1 in Monterey County Superior Court for (1) breach of contract, (2) professional negligence, and (3) "Breach of Fiduciary Duty and Fraud."2 A demurrer was sustained by the trial court to the entire second amended complaint without leave to amend. In plaintiff's prior appeal, the Sixth District Court of Appeal affirmed the trial court's order disposing of the first and third causes of action, but held that the second cause of action adequately stated a claim for professional negligence. (Forte v. Lichtenegger (Aug. 30, 2004, H026208) [nonpub. opn.].) On remand, plaintiff filed a third amended complaint that alleged causes of action for professional negligence and fraud. Except for a new label, the so-called fraud cause of action was identical to the earlier third cause of action that had been rejected by the trial court and the Court of Appeal. In motions in limine, defendants challenged the validity of the fraud cause of action on the ground that it was precluded by the Court of Appeal decision (i.e., law of the case). Defendants also challenged the professional negligence cause of action because plaintiff had no expert witness to substantiate the alleged attorney malpractice. Finally, defendants argued that the professional negligence claim against Lichtenegger & Lee was barred due to expiration of the statute of limitation. The trial court granted judgment on the pleadings in defendants' favor on all the grounds raised and the entire action was dismissed. Plaintiff appealed, and his appeal was subsequently transferred to this court. We will affirm.

FACTS AND PROCEDURAL HISTORY

In March of 2000, plaintiff retained defendant Larry Lichtenegger as attorney at law to represent him in an action (Forte v. Powell) for specific performance of a real estate contract. Defendant's3 legal representation of plaintiff later expanded to include other, related litigation. Plaintiff was unsuccessful in the matters in which defendant represented him, and plaintiff thereafter filed a lawsuit alleging professional negligence and other wrongdoing. After a series of demurrers that were sustained with leave to amend, plaintiff filed a second amended complaint against defendants that contained a first cause of action for breach of contract, a second cause of action for professional negligence and a third cause of action entitled "Breach of Fiduciary Duty and Fraud." The trial court sustained defendants' demurrer once again, only this time without leave to amend. As noted, on appeal to the Sixth District Court of Appeal, the trial court's judgment was reversed because plaintiff had adequately stated a cause of action for professional negligence. However, in so holding, the Court of Appeal concluded the trial court correctly sustained the demurrer without leave to amend as to the other causes of action alleged in the second amended complaint.

On November 18, 2004, plaintiff filed a third amended complaint against defendants. The record on appeal reflects that this pleading is a duplicate copy of the second amended complaint with a few minor, handwritten changes. The word "SECOND" is crossed-out in the caption (where it said "SECOND AMENDED COMPLAINT") and the word "THIRD" is inserted in its place; and a few other words or phrases are crossed out, such as the term "Breach of Fiduciary Duty." Thus, the cause of action that was previously entitled "Breach of Fiduciary Duty and Fraud" is entitled "Fraud" in the third amended complaint. The substantive allegations are otherwise the same in all material respects as those of the second amended complaint.

Defendants interposed pretrial motions that were, in substance, motions for judgment on the pleadings and/or for nonsuit. The trial court granted defendants' motions and entered a judgment of dismissal. Plaintiff appeals, contending the trial court erred in granting judgment on the pleadings and/or dismissal with respect to the causes of action (i.e., fraud and professional negligence) that were alleged against defendants in the third amended complaint.

DISCUSSION

I. Standard of Review

As noted, defendants made motions in limine attacking the validity of plaintiff's causes of action prior to trial. These motions were framed as follows: a motion to exclude any evidence in support of the fraud cause of action in light of the prior Court of Appeal ruling; a motion to exclude any evidence that Lichtenegger & Lee committed professional negligence because that claim was time-barred under the statute of limitation; and, a motion to dismiss the professional negligence cause of action on the ground that plaintiff had no expert witness to support the claim that defendant violated the standard of care for an attorney. The trial court exercised its discretion to construe the requested relief as motions for judgment on the pleadings, and it granted the motions.4 (Coshow v. City of Escondido (2005) 132 Cal.App.4th 687, 701-702 [trial court may construe such requests as motions for judgment on pleadings]; K.C. Multimedia v. Bank of America Technology & Operations, Inc. (2009) 171 Cal.App.4th 939, 951-952 (K.C. Multimedia) [objection to all evidence based on failure to state cause of action treated as functional equivalent of demurrer or a motion for judgment on pleadings].) We therefore review the trial court's order granting judgment on the pleadings.

"A defendant's motion for judgment on the pleadings is equivalent to a belated general demurrer to a plaintiff's complaint and is governed by the same standard of appellate review that applies to such a demurrer. [Citation.] On a plaintiff's appeal from a judgment on the pleadings (as is the case here), the appellate court thus accepts as true all properly pleaded factual allegations (but not contentions, deductions or conclusions of fact or law) in the challenged complaint and gives them a liberal construction. [Citations.]" (Sprague v. County of San Diego (2003) 106 Cal.App.4th 119, 127.) A trial court's order granting a defendant's motion for judgment on the pleadings "resolves a mixed question of law and fact that is predominantly one of law, viz., whether or not the factual allegations that the plaintiff makes are sufficient to constitute a cause of action. [Citation.]" (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515.) Accordingly, in evaluating the propriety of a grant of judgment on the pleadings, our review is de novo, and we independently determine whether the complaint stated facts sufficient to constitute a cause of action. (Ibid.)5

II. Fraud Cause of Action

In granting judgment on the pleadings with respect to plaintiff's fraud cause of action in the third amended complaint, the trial court found that the Court of Appeal had already disposed of that same cause of action (formerly entitled "Breach of Fiduciary Duty and Fraud") in the second amended complaint. The trial court explained: "It is clear the Court of Appeal affirmed that the demurrer to the cause of action for breach of fiduciary duty and fraud was properly sustained. It is also clear that the fraud cause of action in the Third Amended Complaint is the duplicate of the cause of action for breach of fiduciary duty and fraud in the Second Amended Complaint." As an additional ground for granting the motion, the trial court found the elements of fraud had not been pled with adequate specificity to state a cause of action. We agree with the trial court on both of these points.6

Preliminarily, we summarize what the Court of Appeal decided in plaintiff's prior appeal. We do so in light of the issues that were essential to the appellate court's resolution of the appeal. Essential to any review by an appellate court of a ruling sustaining a demurrer without leave to amend are two fundamental issues: (i) whether the substantive allegations state a cause of action, and (ii) if not, whether there is a reasonable possibility that the defect may be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Further, the plaintiff has the burden to show the reasonable possibility of a curative amendment. (Ibid.) In the prior appeal, the Court of Appeal explicitly acknowledged these principles in setting forth the standard of review. Consequently, when the Court of Appeal held that the trial court correctly sustained the demurrer to the subject cause of action without leave to amend, it necessarily concluded that the allegations thereof failed to state a cause of action and that plaintiff failed to meet his burden of showing a basis for amendment.

Plaintiff's contention that the Court of Appeal only narrowly decided that no breach of fiduciary duty was pled, and that it overlooked or left open plaintiff's related claim for fraud on substantially the same facts, is without merit. On this point we reiterate the appellate court's essential task in such matters: "If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer. `[W]e are not limited to [the] plaintiffs' theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory. The courts of this state have ... long since departed from holding a plaintiff strictly to the "form of action" he has pleaded and instead have adopted the more flexible approach of examining the facts alleged to determine if a demurrer should be sustained.' [Citations.]" (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38-39.) In short, a general demurrer may be upheld "only if the complaint fails to state a cause of action under any possible legal theory." (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998, italics added.)

In the prior appeal, the Court of Appeal plainly followed this approach. It undertook a careful review of the various and sundry factual allegations and determined that the trial court had correctly sustained the demurrer to the subject cause of action without leave to amend. Although in analyzing whether a cause of action was stated, the opinion of the Court of Appeal focused on whether the allegations indicated a possible breach of a fiduciary duty, that is readily explained by the heading under which the claim was set forth in the second amended complaint and the obvious lack of any factual basis giving rise to a fraud claim against defendants. In any event, the opinion also stressed that "it is not the label the plaintiff gives to his allegations that determines whether he has stated a cause of action but rather whether the allegations state a claim under any theory." (Forte v. Lichtenegger, supra, H026208, italics added.) Clearly, the Court of Appeal did not lose sight of the essential question before it of whether any cause of action was stated, and when it upheld the trial court's order sustaining the demurrer without leave to amend, it did not somehow leave open the possibility of a fraud claim premised on the identical allegations.

For all of these reasons, we conclude the Court of Appeal (in plaintiff's prior appeal in this case) decided that (i) the substantive allegations failed to state facts constituting a potential cause of action (whether characterized as a breach of fiduciary duty or fraud), and (ii) no reasonable basis for amendment existed.7 Accordingly, plaintiff's attempt to reassert the rejected cause of action by merely striking out the words "Breach of Fiduciary Duty" from the heading above the same substantive allegations cannot withstand scrutiny. The Court of Appeal's previous determination of the insufficiency of the allegations to state a cause of action was and is binding on plaintiff as the law of the case, as we now explain.

The doctrine of "law of the case" deals with the effect of a first appellate decision on a subsequent retrial or appeal in the same case: "`[T]he decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.' [Citation.]" (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 301; Hanna v. City of Los Angeles (1989) 212 Cal.App.3d 363, 376.) "`"The doctrine of the law of the case is this: That where, upon an appeal, the [reviewing] court, in deciding the appeal, states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout its subsequent progress, both in the lower court and upon subsequent appeal, and, as here assumed, in any subsequent suit for the same cause of action, and this although in its subsequent consideration this court may be clearly of the opinion that the former decision is erroneous in that particular."'" (People v. Stanley (1995) 10 Cal.4th 764, 786.) The doctrine is founded upon the concepts of judicial economy and finality of court rulings. (Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1064.)8 It is applicable where, as here, the prior decision of the appellate court concerned the sufficiency or insufficiency of a pleading. (People v. Shuey (1975) 13 Cal.3d 835, 842 [cases listed]; 9 Witkin, supra, Appeal, § 467, p. 524 ["The determination that a pleading is sufficient or insufficient is clearly one of law, and is governing in the retrial or appeal where the pleading is substantially the same"].)

The doctrine of law of the case does not apply to points of law that might have been, but were not determined on the prior appeal. (Nally v. Grace Community Church, supra, 47 Cal.3d at p. 302.) However, "`[w]here the particular point was essential to the decision, and the appellate judgment could not have been rendered without its determination, a necessary conclusion in support of the judgment is that it was determined. With respect to such a point, the appellate decision is law of the case even though the point was not raised by counsel or expressly mentioned.'" (Hanna v. City of Los Angeles, supra, 212 Cal.App.3d at p. 376, quoting 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 754, p. 722 [now 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 477, pp. 535-536].) In other words, the doctrine is held applicable even to questions not expressly decided if they were "`implicitly decided because they were essential to the decision on the prior appeal.'" (Olson v. Cory (1983) 35 Cal.3d 390, 399.)

Here, as we noted above, when the Court of Appeal upheld the trial court's order sustaining the demurrer without leave to amend to the cause of action entitled "Breach of Fiduciary Duty and Fraud," it was essential to that decision that the Court of Appeal concluded, whether explicitly or implicitly, that the allegations in question failed to state facts sufficient to constitute any cause of action and that plaintiff failed to present a reasonable possibility for leave to amend. Since that was the nature of what the Court of Appeal decided, plaintiff was barred by the law of the case from attempting to reassert a cause of action premised on the same allegations but under a different label. Thus, the trial court properly granted defendants' motion for judgment on the pleadings based on application of the law of the case.9

As a further and distinct ground for its order granting judgment on the pleadings with respect to the fraud cause of action, the trial court also held that plaintiff failed to plead with specificity a factual basis to support a fraud claim. (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216-217 [facts showing elements of fraud cause of action must be alleged with particularity].) Plaintiff asserts this determination was in error because the pleading contained allegations that when defendant entered into the agreement to represent plaintiff, defendant misrepresented to plaintiff that he would provide competent legal services and perform legal work in plaintiff's best interest.10 According to plaintiff, these allegations reflect that in the moments before the fiduciary relationship had formally begun, defendant made promises that he had no intention to perform. We conclude no cause of action for fraud was stated.

It is apparent that the species of fraud claimed by plaintiff is promissory fraud, or the making of a promise with no intention to perform it. "To maintain an action for deceit based on a false promise, one must specifically allege and prove, among other things, that the promisor did not intend to perform at the time he or she made the promise and that it was intended to deceive or induce the promisee to do or not do a particular thing." (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 159.) Although a few older cases had suggested that mere failure to perform a promise was sufficient to create an inference of fraud, the Supreme Court clarified: "This is not, and has never been, a correct statement of the law ...." (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30.) Rather, "`something more than nonperformance is required to prove the defendant's intent not to perform his promise.' [Citations.]" Although particular circumstances may exist that indicate an intent to deceive, "if plaintiff adduces no further evidence of fraudulent intent than proof of nonperformance of an oral promise, he will never reach a jury." (Id. at p. 31.)

Here, plaintiff's third amended complaint failed to set forth facts, much less particular facts, leading to a reasonable inference that defendant's alleged nonperformance of his promise was fraudulent. Plaintiff's mere conclusions are patently insufficient to establish fraud. The trial court correctly held, as an alternative basis for granting judgment on the pleadings, that plaintiff failed to state a cause of action for fraud.11

III. Professional Negligence Cause of Action

The trial court granted a dismissal of the professional negligence cause of action on the ground that plaintiff had no expert witness to substantiate the allegations that defendant's conduct fell below the standard of care of an attorney. The trial court's ruling had two logical subparts: First, plaintiff was barred from attempting to call any expert witness at trial on the issue of the standard of care as a sanction for his failure to designate an expert witness pursuant to the Discovery Act. (Code Civ. Proc., § 2034.300 [sanction of excluding expert testimony].)12 Second, the trial court found that plaintiff's allegations of attorney malpractice were "not the type" that would allow the jury to determine, without testimony of an expert witness, that defendant's actions fell below the standard of care for attorneys. The trial court accordingly held that "without an expert witness, this cause of action also fails."

With respect to the sanction of exclusion of expert testimony pursuant to section 2034.300, the trial court found as follows: "Plaintiff has not designated an expert in this case. Defendant moves ... to exclude Plaintiff from calling an expert because he failed to timely file an expert witness list. Plaintiff has agreed he failed to do so." Thus, the basis of the trial court's ruling to exclude expert testimony was plaintiff's own admission that he failed to comply with the requirement that he timely designate and provide an expert witness list along with expert witness declarations.

On appeal, plaintiff does not challenge the finding that he failed to timely designate an expert witness. He argues, instead, that he was entitled to call defendants' expert and use him as his own expert witness at trial, based on the exception to the general rule set forth in section 2034.310. Section 2034.310 permits a party to "call as a witness at trial an expert not previously designated by that party" under certain limited conditions. The problem is that, in order to call another party's expert pursuant to section 2034.310, subdivision (a), plaintiff would have to show not only that the expert was designated by another party, but also that the expert "has thereafter been deposed under Article 3 (commencing with Section 2034.410)." (§ 2034.310, subd. (a).) Plaintiff failed to present a record establishing that the statutory condition (of the expert being deposed) was satisfied, and presumably the trial court rejected plaintiff's argument below for this very reason.13

We therefore uphold the trial court's ruling to exclude the introduction by plaintiff of expert witness testimony on the issue of duty of care. We do so because plaintiff admitted that he failed to comply with the requirement to timely designate expert witnesses, and also because plaintiff failed to meet his burden as appellant to demonstrate prejudicial error by reference to the record. "On appeal, we must presume the trial court's judgment is correct. [Citation.] ... [¶] It is the burden of the party challenging a judgment on appeal to provide an adequate record to assess error. [Citation.] Thus, an appellant must not only present an analysis of the facts and legal authority on each point made, but must also support arguments with appropriate citations to the material facts in the record. If he fails to do so, the argument is forfeited. [Citation.]" (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324.)

The balance of the trial court's order regarding the professional negligence cause of action was in the nature of a granting of nonsuit. The trial court reviewed the particular allegations of attorney malpractice and concluded that in order to prove that such alleged conduct violated the standard of care for an attorney, expert testimony was necessary. Since plaintiff was "without an expert witness," he could not prove his case and, therefore, the cause of action for professional negligence "fails." On appeal from a motion that is the functional equivalent of a nonsuit, "we must view the evidence most favorably to appellants, resolving all presumptions, inferences and doubts in their favor, and uphold the judgment for respondents only if it was required as a matter of law." (Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 28.)

In essence, we must simply decide if the trial court was correct that expert testimony was necessary to prove that the alleged conduct of defendant fell below the standard of care.14 If the trial court's assessment was correct on that point, the cause of action was properly dismissed as a matter of law.

"In negligence cases arising from the rendering of professional services, as a general rule the standard of care against which the professional's acts are measured remains a matter peculiarly within the knowledge of experts. Only their testimony can prove it, unless the lay person's common knowledge includes the conduct required by the particular circumstances. [Citation.] This rule applies to legal malpractice cases. [Citation.]" (Unigard Ins. Group v. O'Flaherty & Belgum (1995) 38 Cal.App.4th 1229, 1239; accord, Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1093.) That is, "`[w]here the failure of attorney performance is so clear that a trier of fact may find professional negligence unassisted by expert testimony, then expert testimony is not required.' [Citation.]" (Goebel v. Lauderdale (1989) 214 Cal.App.3d 1502, 1508.) This is not such a case.

As correctly summarized by the trial court, the third amended complaint alleged the following conduct relating to the Forte v. Powell litigation constituted professional negligence: (1) defendant failed to subpoena plaintiff's realtor to testify at trial, choosing instead to rely on her deposition testimony; (2) defendant failed to take the deposition of William Powell, Sr. (the father of one of the defendants), and instead agreed to the introduction of his stipulated testimony, which, plaintiff further alleged, included a false assertion that he owned a piece of real property adjacent to the one plaintiff wanted to buy; (3) defendant failed to subpoena the records of plaintiff's realtor, choosing to rely on the document production provided by defense counsel; (4) defendant failed to subpoena the records of plaintiff's lender, thereby allegedly missing out on documents that tended to show plaintiff intended to close escrow; (5) defendant failed to subpoena one of plaintiff's earlier counsel, who could have testified regarding communications that would have clarified plaintiff's intentions; (6) defendant suspended the production of transcripts of telephone calls that had been illegally recorded by plaintiff.15

We agree with the trial court's conclusion that a jury could not, without the assistance of expert testimony, determine that the alleged conduct violated the standard of care for attorneys. The allegations inherently involve such questions as the extent of discovery, the means of proof and the type of evidence that would be most helpful or convenient at trial to represent plaintiff's legal interests. Many of the particulars would likely involve tactical or evaluative decisions by the attorney involving competing considerations. Whether or not any of the alleged failures on defendant's part constituted a breach of the standard of care for a competent attorney is simply not a question that would be readily apparent to a jury without expert testimony. (See Kirsch v. Duryea, supra, 21 Cal.3d at pp. 309-311 [standard of care in such cases is not a matter of common knowledge].) Without an expert, plaintiff could not prove his case. Accordingly, the trial court correctly dismissed the professional negligence cause of action.

IV. Lichtenegger & Lee

Our discussion above relating to the fraud and professional negligence causes of action completely disposes of the same causes of action in the third amended complaint against Lichtenegger & Lee. Thus, the entire action was properly dismissed as to this defendant as well. Although unnecessary to consider any further contentions relating to Lichtenegger & Lee, we briefly state that we reject, as unsupported by any reference to the record or to relevant authority, the contention by plaintiff that the trial court erred in dismissing the professional negligence cause of action against Lichtenegger & Lee on statute of limitations grounds.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to defendants.

WE CONCUR:

Levy, Acting P.J.

Detjen, J.