CHAVEZ, J.
Barbara Murbach (appellant) appeals from a final judgment in favor of Pasternak, Pasternak & Patton, David J. Pasternak, and John W. Patton (Patton) (collectively "respondents") on appellant's claims against them for legal malpractice, intentional misrepresentation, negligent misrepresentation, conversion, breach of fiduciary duty, violation of Business & Professions Code section 6203, subdivision (c) (section 6203), intentional infliction of emotional distress, negligent infliction of emotional distress, unjust enrichment, and common count/money had and received.
Appellant contends that the trial court erred in sustaining respondents' demurrer to her causes of action for negligent misrepresentation, intentional misrepresentation, negligent infliction of emotional distress, and intentional infliction of emotional distress. Appellant further contends that the trial court abused its discretion in failing to grant her leave to amend.
Next, appellant argues that the trial court abused its discretion by striking certain allegations from her First Amended Complaint (FAC).
Finally, appellant argues that the trial court erred in granting summary judgment in favor of respondents on her causes of action for legal malpractice, conversion, breach of fiduciary duty, and unjust enrichment.
In August 2005, appellant and other defendants were sued for predatory loan practices. The complaint against appellant alleged that she and the other defendants preyed on the vulnerable, including the poor, elderly, and undereducated. One of the named plaintiffs was Ethel Anderson (the Anderson action). As part of the alleged predatory loan practices, it was alleged that appellant's codefendants fraudulently transferred title of Ms. Anderson's property to appellant, without Ms. Anderson's knowledge or consent.
On February 27, 2006, appellant filed a cross-complaint in the Anderson action, claiming she was an innocent victim of her codefendants' fraudulent scheme. At the time that appellant filed her cross-complaint in the Anderson action she was represented by attorney Michael A. Scafiddi.
In February 2006, appellant and her codefendants were sued by Tyrone and Breland Kendall, who alleged a similar fraudulent home refinancing scheme (the Kendall action). The Kendalls were facing foreclosure when the defendants approached them with their scheme. Again, title of the home was transferred to appellant's name.
By May 2006, the Kendall action was related to the Anderson action. During a status conference, Mr. Scafiddi appeared on appellant's behalf. He expressly informed the trial court that he and his client would "be happy with a bench trial."
Respondents were substituted as counsel for appellant in the Anderson matter on June 14, 2006. In September 2006, shortly before trial in the Anderson action, the parties participated in a chambers conference with the trial judge. Appellant claims that it was at this conference that, for the first time, she was informed that she would not be getting a jury trial.
At this chambers conference respondents had negotiated a settlement agreement. The terms of the settlement agreement provided, in part, that appellant would deed the Anderson property back to Ms. Anderson. On appellant's cross-complaint against her codefendants, respondents negotiated a $65,000 cash settlement. In addition, respondents explained that although Chase Mortgage Co. (Chase) was not a party to the lawsuit, they anticipated and expected that once the loan had been satisfied, the derogatory credit entry in appellant's name in connection with her failure to make some mortgage payments on the Anderson property would be removed.
Appellant alleged that, in an effort to get her to accept the settlement agreement, Patton represented to appellant that he would agree to waive the balance of attorney fees that she owed respondents if she accepted the agreement. Appellant claimed that she felt pressured and backed into a corner when she realized she would not be getting a jury trial. She therefore agreed to accept the $65,000 settlement, with the alleged understanding that any outstanding attorney fees that she would have otherwise owed would be waived.
Appellant was present when the terms of the settlement agreement were recited on the record. She stated that she understood the terms and agreed to them.
On September 15, 2006, appellant sent respondents a letter regarding the settlement agreement. She indicated that "the following . . . must occur" prior to her signing any settlement agreement. She then listed six conditions, including:
On October 12, 2006, appellant received a bill from respondents for outstanding attorney fees. On October 13, 2006, she informed respondents that they should "cancel my agreement to the settlement of September 14, 2006, due to failure to comply with the terms."
On October 16, 2006, respondents sent a letter to appellant indicating that, "[i]f you instruct us to walk away from the settlement that has been proposed and proceed with trial, we will do so." Respondents then stated the importance "that the record of what has transpired and what we have advised is extremely clear." Respondents informed appellant that her "former attorney did not request a jury on [her] behalf or post fees," and that respondents inherited the case on that record. Respondents reiterated to appellant various reasons why she might not want a jury, which they stated that they had previously told her. Those reasons included the fact that a jury might include her with the other culpable defendants and might be sympathetic to "[Ms. Anderson], nearly ninety years old, a blind widow, and an African-American." Respondents also informed appellant that the credit issues she was facing would not be remedied sooner by going to trial. Respondents made it clear that their contract regarding fees remained in effect, and specified that "the firm has never waived its right to compensation pursuant to the fee agreement with you."
On October 27, 2006, having asked for some changes to the wording of three paragraphs, appellant agreed to the settlement. However, she specified that her agreement was "subject to agreeing that a dispute exists between you and I, about the waiver of attorney fees; and that this disputed amount of money, however much, will be placed into a trust account until the dispute is resolved." Appellant signed the settlement agreement four days later.
On November 8, 2006, respondents sent appellant a letter indicating that the total amount she owed respondents at that time was $10,940. Respondents also stated that pursuant to their agreement, respondents were entitled to recover attorney fees and costs expended in any dispute over fees in which the firm prevails. Accordingly, respondents withheld an additional $14,060 to cover the amount of respondents' expected legal fees to arbitrate the fee dispute.
On November 9, 2006, appellant wrote a letter expressing strong disagreement with respondents' decision to withhold the additional $14,060, and demanding a check for $54,060. On November 9, 2006, respondents mailed appellant a cashier's check in the amount of $40,000. On January 31, 2008, respondents mailed appellant a check for $14,060. Respondents indicated that it continued to be their position that they were entitled to retain the funds, however "in an excess of caution" they released the money pending the final resolution of the fee dispute.
On November 14, 2007, appellant filed a complaint in pro. per. against respondents for legal malpractice, intentional misrepresentation, negligent misrepresentation, conversion, and common count/money had and received.
Respondents demurred to the complaint, arguing that the complaint was uncertain and failed to plead any of the allegations. The trial court sustained the demurrer with leave to amend.
On March 12, 2008, appellant, represented by counsel, filed the FAC, alleging causes of action for legal malpractice, intentional misrepresentation, negligent misrepresentation, conversion, breach of fiduciary duty, violation of section 6203, subdivision (c), intentional infliction of emotional distress, negligent infliction of emotional distress, unjust enrichment, and money had and received.
On April 10, 2008, respondents demurred to appellant's second, third, sixth, seventh, and eighth causes of action, and moved to strike portions of the FAC. The demurrer was sustained in its entirety. As to appellant's second and third causes of action for negligent and intentional misrepresentation, the trial court found that the misrepresentations alleged were false promises to take future action, with no allegation that they were made without the intent to perform. Thus, the court concluded, the alleged misrepresentations were not actionable. In addition, appellant had failed to allege how she was damaged by her reliance on the alleged false promises. As to appellant's sixth cause of action for violation of section 6203, the trial court found that there was no private right of action.
Respondents' motion to strike was granted in part, denied in part, and declared to be moot in part by the court's ruling on the demurrer.
At the hearing on the demurrer and motion to strike, appellant's counsel appeared and submitted on the tentative decision of the trial court. Appellant's counsel did not request leave to amend.
Appellant filed a motion for reconsideration of the court's order on the demurrer and motion to strike the FAC in which appellant made reference to statutorily protected confidential information. Respondents brought a motion to strike the confidential information, which was granted. All references to such protected information were redacted from the public record. Appellant's motion for reconsideration was denied.
On September 5, 2008, respondents filed a motion for summary judgment of appellant's remaining causes of action for legal malpractice, breach of fiduciary duty, conversion, unjust enrichment, and money had a received. Respondents argued that none of appellant's remaining causes of action could survive summary judgment. Specifically, respondents argued that the failure to preserve appellant's jury trial rights could not amount to malpractice as a matter of law, and even if it could, appellant could not prove that it was respondents who waived that right. Further, appellant could not show any damages arising from the alleged waiver. Respondents also argued that their refusal to waive their fees was not an actionable wrong, and that appellant did not rely on any purported waiver in settling the Anderson action. Respondents contend that appellant's remaining claims were invalid for the reasons set forth above, and because she could not establish any damages flowing from the alleged actions. Thus, appellant's causes of action for breach of fiduciary duty, conversion, and unjust enrichment/money had and received were subject to summary judgment.
Respondents' summary judgment motion was heard and granted on November 6, 2008. Appellant filed a motion for reconsideration of the trial court's decision, which was heard and denied on December 11, 2008. Final judgment as to the claims asserted against respondents in appellant's FAC was entered on December 19, 2008.
Trial on respondents' cross-complaint against appellant for unpaid attorney fees was tried in March 2010. After a short trial, the jury returned a verdict in favor of appellant. The trial court entered judgment on the special verdict on June 22, 2010.
Appellant filed her notice of appeal from the trial court's order sustaining respondents' demurrer and from the judgment entered on respondents' summary judgment motion on August 2, 2010.
Appellant challenges three rulings made by the trial court: the order sustaining a demurrer to her second, third, seventh, and eighth causes of action; the order granting respondents' motion to strike certain allegations from the FAC; and the order granting summary judgment on her remaining causes of action. We address the demurrer and the motion for summary judgment separately below, and conclude that appellant has failed to show error as to either of these rulings.
In reviewing those causes of action to which respondents successfully demurred, we must give the complaint a reasonable interpretation and treat the demurrer as admitting all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967 (Aubry).) However, we do not assume the truth of contentions, deductions or conclusions of law. (Ibid.) The court's ruling must be affirmed "`if any one of the several grounds of demurrer is well taken. [Citations.]' [Citation.]" (Ibid.) We review de novo the legal sufficiency of the relevant causes of action. (Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790.)
The trial court's decision to sustain the demurrer without leave to amend is reviewed for abuse of discretion. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank).) Leave to amend may be considered on appeal even in the absence of a request by the plaintiff to amend the complaint. (Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 998.)
Bearing these principles in mind, we discuss the relevant causes of action.
In order to establish a cause of action for negligent misrepresentation, appellant must show: "`(1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another's reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.' [Citation.]" (National Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Services Group, Inc. (2009) 171 Cal.App.4th 35, 50 (National Union).)
A cause of action for intentional misrepresentation falls under the category of fraud and deceit. The elements of fraud that will give rise to a cause of action for deceit are: "`"(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or `scienter'); (c) intent to defraud, i.e. to induce reliance; (d) justifiable reliance; and (e) resulting damage."' [Citation.]" (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 973-974.) While a misrepresentation is generally only actionable if the misrepresentation concerns past or existing material facts (Tarmann v. State Farm Mut. Auto Ins. Co. (1991) 2 Cal.App.4th 153, 158), a promise to do something in the future may constitute intentional fraud if it was made without any intention to perform. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) This theory applies only if the promise was made with no actual intention to perform. "[M]aking a promise with an honest but unreasonable intent to perform is wholly different from making one with no intent to perform and, therefore, does not constitute a false promise." (Tarmann, supra, at p. 159.) There is no cause of action for a negligent false promise.
In the FAC, appellant alleged that respondents made the following misrepresentations: (1) respondents represented to appellant that they would preserve her right to a jury trial in the Anderson action; (2) respondents represented to appellant that they would serve her cross-complaint and first amended cross-complaint in the Kendall action on the cross-defendants; (3) respondents represented to appellant that it was not necessary to have her conditions written into the settlement agreement, but if it moved forward, her conditions would be met; (4) respondents represented to appellant that they would make sure that appellant's codefendants were not dismissed with prejudice from the Anderson action; (5) respondents represented to appellant that they would agree to waive any outstanding attorney fees and costs if she agreed to settle her cross-complaint in the Anderson action for $65,000; (6) respondents represented to appellant that she would receive the entire $65,000 if she agreed to settle her complaint in the Anderson action; and (7) respondents represented to appellant that they would make certain that Chase would remove all negative credit entries from her credit reports if she agreed to settle the Anderson action. As the trial court noted, all of the alleged misrepresentations were promises to take future action.
On appeal, appellant places these alleged misrepresentations into two categories of time, the "first period" of time, which she designates as June and July 2006, and the "second period" of time, which she designates as taking place during the court appearance of September 14, 2006. Appellant admits that the last four alleged misrepresentations could be classified as promises of future events. However, she focuses on the first two alleged misrepresentations: the promise that respondents would preserve her right to a jury trial in the Anderson action, and the alleged misrepresentation that they would serve her cross-complaint and amended cross-complaint on the cross-defendants in the Kendall action. Because these promises were made during the first period of time, appellant argues, they did not involve a promise to perform at some future time.
Appellant cannot change the nature of these allegations by separating them into two different time frames. Regardless of when they took place, the first two alleged misrepresentations — like the rest of the alleged misrepresentations — were promises to perform. As set forth above, a cause of action for negligent misrepresentation must be based on a misrepresentation of a past or existing material fact. (National Union, supra, 171 Cal.App.4th at p. 50.) Therefore, appellant has failed to plead negligent misrepresentation as a matter of law.
In order to prove intentional misrepresentation based on her allegations of false promises, appellant must plead facts showing that respondents had no intention to perform at the time the promises were made. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 481.) "`"[S]omething more than nonperformance is required to prove the defendant's intent not to perform his promise." [Citations.] . . . [I]f plaintiff adduces no further evidence of fraudulent intent than proof of nonperformance of an oral promise, he will never reach a jury.' [Citation.]" (Ibid. )
Evidence of fraudulent intent is often circumstantial. However, it must be pled with specificity. (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331 ["every element of a cause of action for fraud must be alleged in full, factually and specifically.") Fraudulent intent may be inferred from "such circumstances as defendant's insolvency, his hasty repudiation of the promise, his failure even to attempt performance, or his continued assurances after it was clear he would not perform. [Citation.]" (Tenzer v. Superscope, Inc. (1985) 39 Cal.3d 18, 30.) Appellant has not set forth any factual allegations suggesting that respondents made the alleged misrepresentations with fraudulent intent. Therefore, respondents' demurrer to appellant's cause of action for intentional misrepresentation was properly sustained.
In order to establish a cause of action for intentional infliction of emotional distress, appellant must show: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001 (Potter).) To be considered outrageous, conduct must "`"be so extreme as to exceed all bounds of that usually tolerated in a civilized community." . . .' [Citation.]" (Ibid.) Thus, liability does not arise from "`" mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities."'" (Ankeny v. Lockheed Missiles & Space Co. (1979) 88 Cal.App.3d 531, 537 (Ankeny).)
In support of her claim for intentional infliction of emotional distress, appellant claimed that the course of conduct alleged in her complaint was outrageous and despicable. Specifically, the allegations concerned the respondents' handling of appellant's defense in the underlying lawsuit. Among other things, the allegations concerned respondents' failure to request a jury trial and post jury fees; respondents' alleged promise that if appellant settled the case she would receive a total of $65,000 on her cross-complaint; respondents' alleged promise that they would waive attorney fees; respondents' alleged promise that Chase would remove all negative credit indications from appellant's credit record; and respondents' retention of an additional $14,060 above the amount of disputed attorney fees in order to cover their anticipated legal fees and costs to arbitrate the fee dispute.
These allegations concern the alleged mishandling of appellant's defense, as well as a purported improper retention of anticipated fees. Financial disagreements, or loss of money, do not constitute "outrageous conduct" for the purposes of a claim of intentional infliction of emotional distress. None of the conduct alleged is "`"so extreme as to exceed all bounds of that usually tolerated in a civilized community."'" (Potter, supra, 6 Cal.4th at p. 1001.) Assuming the truth of appellant's allegations, she has alleged false promises with no indication of fraudulent intent. At best, such actions may be considered the type of "indignities" or "petty annoyances" which can occasionally be expected in civilized interactions. (See Ankeny, supra, 88 Cal.App.3d at p. 537.) Even respondents' withholding of money to cover anticipated costs of an attorney fee dispute is not sufficiently outrageous as a matter of law. (See Yu v. Signet Bank/Virginia (1999) 69 Cal.App.4th 1377, 1398 (Yu) ["As assertion of legal rights in pursuit of one's own economic interests does not qualify as `outrageous' under this standard"].) Thus, appellant has failed to allege facts supporting her seventh cause of action and the demurrer to this cause of action was properly sustained.
There is no independent tort of negligent infliction of emotional distress. Instead, the tort is negligence. (Potter, supra, 6 Cal.4th at p. 984.) Therefore, "unless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant's breach of some other legal duty and the emotional distress is proximately caused by that breach of duty." (Id. at p. 985.) "Even then, with rare exceptions, a breach of the duty must threaten physical injury, not simply damage to property or financial interests. [Citations.]" (Ibid.) In the absence of physical injury, "courts have never allowed recovery of damages for [negligent infliction of] emotional distress arising solely from property damage or economic injury to the plaintiff." (Butler-Rupp v. Lourdeaux (2005) 134 Cal.App.4th 1220, 1228.)
Appellant's eighth cause of action fails because she has not, and cannot, allege that respondents assumed a duty to protect her emotional condition. Outside of the criminal defense context, an attorney's duty to his or her client is generally to protect economic interests. (Friedman v. Merck & Co. (2003) 107 Cal.App.4th 454, 472.) In other words, the attorney's duty to the client is economic; "the lawyer does not assume an obligation to protect the client's emotional state." (Ibid.) Absent such a duty, the lawyer cannot be responsible for negligent infliction of emotional distress.
Further, appellant has alleged no conduct which threatened physical injury. Generally, a plaintiff "`incurring neither physical impact nor physical damage, and whose loss . . . is solely economic, is entitled neither to punitive damages nor to a recovery for emotional distress.' [Citation.]" (Yu, supra, 69 Cal.App.4th at p. 1397.) Appellant's alleged emotional distress arising out of the alleged conduct of respondents is insufficient to support her claim of negligent infliction of emotional distress as a matter of law, and the demurrer to this cause of action was properly sustained.
Appellant argues that the trial court abused its discretion in denying leave to amend. She points out that, if it is reasonably possible that a plaintiff can cure a defective complaint by amendment, or where the pleading can be liberally construed to state a cause of action, the court should not sustain a demurrer without leave to amend. (Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, 118.)
Specifically, appellant argues that her cause of action for intentional misrepresentation failed because she did not allege that respondents made the alleged promises without the intent to perform. Because this was the only deficiency in this cause of action, and because the trial court was able to specifically articulate what appellant was required to allege, appellant argues, she could have cured the defect by amendment.
As set forth above in section I.B.4., evidence of fraudulent intent must be pled with specificity. While appellant makes the general contention that she can cure the deficiency in this cause of action, she does not explain how she will amend her complaint to state a cause of action. We do not assume the truth of contentions. (Aubry, supra, 2 Cal.4th at p. 967.) Appellant bears the burden of proving that there is a reasonable possibility that she can cure the defect in this cause of action by amendment. (Blank, supra, 39 Cal.3d at p. 318.) To satisfy this burden, she must show "`in what manner [she] can amend [her] complaint and how that amendment will change the legal effect of [her] pleading.' [Citation.]" (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43.) "Where the appellant offers no allegations to support the possibility of amendment . . . there is no basis for finding the trial court abused its discretion when it sustained the demurrer without leave to amend. [Citations.]" (Id. at p. 44.) Appellant has offered no factual allegations to support her contention that she can amend to plead intent. Therefore, we decline to find an abuse of discretion in the trial court's ruling on this cause of action.
Appellant also states generally that "all defects as to the third, sixth, seventh and eighth causes of action would have also been cured." In the absence of specific showings as to how she would propose to amend these causes of action, we have no basis for a finding that the trial court abused its discretion in denying leave to amend. The trial court's decision to deny leave to amend is therefore affirmed.
Appellant next challenges the trial court's grant of summary judgment. Appellant argues that triable issues of material fact existed as to each of her remaining causes of action.
On appeal from a summary judgment, we undertake a de novo review of the proceedings below, and independently examine the record to determine whether triable issues of material fact exist. (Code Civ. Proc., § 437c; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) We review the trial court's ruling, not its rationale; therefore, we are not bound by the trial court's stated reasons for granting summary judgment. (Kids' Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)
In ruling on the motion, we must consider all of the evidence and the inferences that can reasonably be drawn therefrom. We must view the evidence and inferences in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) "All doubts as to whether there are any triable issues of fact are to be resolved in favor of the party opposing summary judgment. [Citation.]" (Ingham v. Luxor Cab Co. (2001) 93 Cal.App.4th 1045, 1049.)
Bearing these standards in mind, we examine each of appellant's causes of action subject to the summary judgment below.
To state a cause of action for legal malpractice, a plaintiff must plead: "`"(1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney's negligence." [Citation.]'" (Jocer Enterprises, Inc. v. Price (2010) 183 Cal.App.4th 559, 572.) "`To show damages proximately caused by the breach, the plaintiff must allege facts establishing that, "but for the alleged malpractice, it is more likely than not the plaintiff would have obtained a more favorable result." [Citations.]' [Citation.]" (Ibid.)
In their motion for summary judgment, respondents argued that appellant could not meet this last requirement of the tort of legal malpractice. Respondents pointed to undisputed evidence that they informed appellant, well before she agreed to the settlement, that they had never "waived [their] right to compensation pursuant to the fee agreement" with appellant and had no intention of waiving their fees. On October 27, 2006, prior to entering the settlement agreement, appellant acknowledged that she understood respondents' position on the fees and suggested that respondents agree to withhold the disputed amount until the fee dispute was resolved. Appellant signed the final settlement agreement four days later. Respondents argued that, because there was undisputed evidence that appellant entered into the settlement agreement with full knowledge that respondents did not intend to waive their fees, appellant could not argue that she should have achieved a settlement that included such a waiver.
Instead, respondents argued, it was appellant's obligation to show the difference between what she did obtain pursuant to the settlement, and what she would have obtained had she gone to trial (and continued to incur attorney fees.) (Barnard v. Langer (2003) 109 Cal.App.4th 1453, 1461-1462.) Respondents argued that appellant had not, and could not, show that she had a basis for believing she would have achieved a better result at trial. In fact, respondents pointed out, appellant did not even allege that, but for the alleged fee waiver, she would have in fact proceeded to trial.
Appellant took issue with respondents' position as to damages. She claimed that the question of whether she would have gotten a better result had she gone to trial was "irrelevant." Appellant made no effort to argue that she would have received a better result had she proceeded to trial. Instead, she alleged that her loss was the $10,940 in fees and costs which respondents allegedly agreed to waive, as well as the "loss of use" of the $14,060 which respondents later retained for anticipated costs of arbitration of the fee dispute.
The trial court determined that, to the extent that appellant's legal malpractice claim was premised on an alleged fee waiver, it failed because appellant could not show that she relied on the waiver in entering the settlement agreement. Appellant disputes this finding, arguing that respondents were controlling the money, so she had no other choice but to go along with their recommendations. Furthermore, appellant takes issue with the trial court's determination that appellant failed to show that she was damaged by respondents' actions, specifically respondents' retention of the $14,060 for over a year.
Our analysis of appellant's claim for legal malpractice focuses on the last two elements of the tort: causation and damages. In the context of a legal malpractice claim, "the plaintiff must establish that but for the alleged negligence of the defendant attorney, the plaintiff would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred." (Viner v. Sweet (2003) 30 Cal.4th 1232, 1241.)
The question of whether appellant would have obtained a better result at trial is an essential part of her legal malpractice claim. The requirement that a plaintiff show that, but for the alleged malpractice she would have achieved a better result, is a requirement that "has been in use for more than 120 years . . . to safeguard against speculative and conjectural claims. [Citation.]" (Viner v. Sweet, supra, 30 Cal.4th at p. 1241.) It is far from irrelevant — it is absolutely crucial to appellant's claim for legal malpractice. (Ibid. [requirement that appellant show she would have obtained a better result but for the malpractice "serves the essential purpose of ensuring that damages awarded for the attorney's malpractice actually have been caused by the malpractice"].)
As to respondents' alleged promise to waive fees, it cannot be considered actionable malpractice unless appellant is able to establish that, but for this promise, she would have obtained a better result. Appellant argues that she felt backed into a corner, because respondents were controlling the money. Therefore, she agreed to the settlement despite the respondents' clear indication that they did not agree to waive fees. Appellant has presented no evidence that she would have obtained a better settlement, or would have obtained a better result at trial, but for this alleged promise.
Respondents' later decision to withhold $14,060 in anticipation of the costs of arbitrating the disputed fees is not actionable as legal malpractice for the same reason. Appellant has made no effort to show that, but for this retention of money, she would have achieved a better outcome in the Anderson action. She did receive this portion of her settlement funds when respondents returned it to her in January 2008.
In sum, appellant has failed to establish a triable issue of material fact as to causation and damages. "[F]ailure to prove[] any of [the elements] is fatal to recovery." (Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1682.) Therefore, her legal malpractice claim fails as a matter of law.
"The elements of a conversion cause of action are (1) plaintiffs' ownership or right to possession of the property at the time of the conversion; (2) defendants' conversion by a wrongful act or disposition of plaintiffs' property rights; and (3) damages. [Citation.]" (Baldwin v. Marina City Properties, Inc. (1978) 79 Cal.App.3d 393, 410.)
In their motion for summary judgment, respondents argued that appellant could not meet the elements of this tort as to either her claim that respondents waived their fees or to her claim that they wrongfully withheld $14,060 in anticipation of the costs of the fee dispute.
As to the $10,940, respondents argued that this was a disputed sum which appellant agreed should be kept in respondents' trust account pending the outcome of their fee dispute. Thus, appellant could not establish that she had a right to possession of the money, nor could she establish conversion by a wrongful act.
As to the $14,060, respondents argued that it was undisputed that this sum was returned to appellant. Furthermore, respondents argued, both sums were held in respondents' client trust account, therefore were not wrongfully converted to respondents' use any time.
In opposition, appellant argued that the $14,060 was withheld from her for nearly 15 months before it was returned on January 31, 2008. Despite the fact that the money was eventually returned to her, appellant argued that "the mere retention of the money that [appellant] was rightfully entitled to, no matter how long, is a conversion."
The trial court determined that appellant did not offer competent evidence that she suffered harm as a result of the delay in payment of the $14,060. As to the $10,940, the trial court found that appellant failed to offer any evidence that she had a right to possession of those funds. Finally, the trial court concluded, because the funds were held in respondents' trust account, appellant could not prove that respondents disposed of the money in a manner inconsistent with her rights.
Appellant argues that she has satisfied all three elements of this tort. She claims that she identified evidence supporting her claim that: (1) she had a right to possession of both the $10,940 and the $14,060 at the time of the alleged conversion; (2) respondents wrongfully retained the funds; and (3) she incurred damages by being deprived of her money.
At the time that respondents withheld the $10,940, there was a dispute as to whether respondents were entitled to that amount. Appellant agreed that the money should be held in respondents' trust account until that dispute was resolved. These facts are undisputed. Therefore, appellant cannot prove that she had a right to this amount at the time of the alleged conversion, or that respondents wrongfully converted the funds. Her claim for conversion as to the $10,940 fails as a matter of law.
At the time that respondents informed appellant that they intended to withhold an additional $14,060, appellant made it clear that she strongly disagreed with respondents' position, and felt that she was entitled to the money right away. However, appellant does not dispute that the money was, at all times, retained in respondents' client trust account, and was returned to her on January 31, 2008.
In addition, appellant has failed to establish a triable issue of fact as to damages. She received the money back, in full, prior to the time that she filed the action against respondents. While she made vague claims that she lost the Kendall property due to her inability to use the funds, her claims were conclusory and not supported by any evidence showing the amount of the mortgage, her payment history, or any other pertinent information to support this assertion. (See O'Neil v. Dake (1985) 169 Cal.App.3d 1038, 1044 [a summary judgment motion may not be defeated by "speculation, conjecture, imagination or guess work"].) A triable issue of fact must be supported by a factual foundation in the record, not mere conclusory assertions or possibilities. (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 525.) Appellant has failed to create a triable issue of fact as to the existence of any damages resulting from respondents' delay in returning her money to her. Therefore, her claim of conversion as to the $14,060 fails as a matter of law.
The elements of a cause of action for breach of fiduciary duty are: (1) the existence of a fiduciary relationship; (2) breach of fiduciary duty; and (3) damages. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.) In her FAC, appellant alleged that respondents had breached their fiduciary duty to her by "doing the things herein alleged, to wit: committing legal malpractice; making misrepresentations; converting money that was otherwise owed to [appellant]; and violating Section 6203(c) . . . ."
In their summary judgment motion, respondents argued that appellant's breach of fiduciary duty claim was dependent upon appellant showing that there was factual support for the acts she alleged constituted malpractice and/or conversion. In addition, appellant was required to show damages caused by such actions. Respondents argued that appellant failed to present triable issues of fact on any of these issues.
On appeal, appellant asserts that respondents' wrongful withholding of money was a breach of fiduciary duty. However, she fails to cite to any relevant fact supporting her claim that she was harmed.
We have already determined that respondents are entitled to judgment as a matter of law on appellant's claims of legal malpractice, intentional and negligent misrepresentations, and conversion. Furthermore, even if appellant had made a sufficient showing that a breach of fiduciary duty occurred, we find that appellant's claim for breach of fiduciary duty fails as a matter of law for the same reason that her legal malpractice and conversion claims failed — because of her complete failure to make a showing that she was damaged by any alleged breach. As set forth above, appellant has not adequately addressed this issue on appeal in connection with her breach of fiduciary duty claim. We therefore find that, because appellant has not shown that there is a triable issue of material fact as to whether she suffered actionable harm, her claim for breach of fiduciary duty fails as a matter of law.
Unjust enrichment is not a cause of action in California. "`The phrase "Unjust Enrichment" does not describe a theory of recovery, but an effect: the result of a failure to make restitution under circumstances where it is equitable to do so.' [Citation.]" (Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793.) Unjust enrichment is synonymous with restitution. (Ibid.)
In their motion for summary judgment, respondents argued that their retention of the $10,940 did not constitute unjust enrichment because the money was withheld at appellant's own suggestion that the disputed funds be held in trust pending a fee arbitration. Further, respondents argued that their retention of the $14,060 did not constitute unjust enrichment because that sum was returned to appellant.
On appeal, appellant argues that she has presented sufficient evidence of a triable issue of material fact as to unjust enrichment based on "the same arguments for conversion and breach of fiduciary duty."
Appellant has failed to make a showing that there is a triable issue of material fact as to her claim of unjust enrichment. There is no evidence that respondents were unjustly enriched, or that appellant is entitled to restitution in any amount. Therefore, appellant's unjust enrichment claim fails as a matter of law.
In a separate order filed November 10, 2011, we granted respondents' motion to strike portions of appellant's opening brief which referred to statutorily protected confidential information.
On October 26, 2011, we advised counsel that we were considering imposing sanctions on appellant pursuant to California Rules of Court, rule 8.276(a) (hereafter rule 8.276), and that counsel should be prepared to address this issue at oral argument.
Rule 8.276 provides that we may impose sanctions for "[i]ncluding in the record any matter not reasonably material to the appeal's determination." We find that appellant's inclusion in the appellate record of material that has been statutorily designated as confidential — and was previously ordered stricken from the trial court record — was unreasonable. Counsel for respondents filed a declaration pursuant to rule 8.276(b), indicating that counsel's cost for bringing the motion to strike and request for sanctions was $550.
Pursuant to rule 8.276, we grant respondents' request for sanctions in the amount of $550, payable forthwith to respondents' counsel Robie & Matthai.
The judgment is affirmed. Respondents are entitled to their costs on appeal.
BOREN, P. J. and DOI TODD, J., concurs.
