RONALD PIETRO v. ADAM MICHAEL SACKS

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Court of Appeal, Second District, California.

RONALD PIETRO, Plaintiff and Appellant, v. ADAM MICHAEL SACKS, Defendant and Respondent.

B208953

Decided: January 27, 2010

Ronald Pietro, in pro. per., for Plaintiff and Appellant. Law Offices of Adam Michael Sacks and Adam Michael Sacks, in pro. per., for Defendant and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

In Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985, our Supreme Court held “that mere self-representation is not a ground for exceptionally lenient treatment.   Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation.  (See Lawrence v. Superior Court (1988) 206 Cal.App.3d 611, 619, fn. 4.)” We apply the rule of Rappleyea in this appeal and affirm on the basis that appellant's briefing does not raise an arguable appellate issue, fails to cite to the record, contains no discussion of pertinent legal authority, and lacks a reporter's transcript of all pertinent hearings in the trial court.

Plaintiff and appellant Ronald Pietro, representing himself, filed a second amended complaint (SAC) against defendant and respondent Adam Michael Sacks alleging causes of action for breach of contract, breach of fiduciary duty, intentional misrepresentation, attorney malpractice, and unfair business practices.   The SAC was based on allegations that Pietro paid Sacks $30,000 to represent him in a sexual assault case, that Sacks misrepresented his level of professional experience, reneged on his promise to bring in counsel to assist, paid a third party a finder's fee for steering Pietro to him as a client, made derogatory comments regarding Pietro, threatened to share incriminating evidence with the prosecutor, and performed incompetently at the preliminary hearing.   The trial court sustained Sacks's demurrer to the SAC without leave to amend and entered judgment accordingly.   Pietro filed a timely notice of appeal.

Contents of Pietro's Opening Brief

Pietro's brief begins with an explanation of the effect of Sack's conduct on Pietro's family.   He then attacks Sacks as having “no right to be associated with the legal system.”   Pietro sets forth that he was hindered by the lack of funds in the trial court, and that Sacks attempted to slander and defame Pietro's new counsel below.

Pietro explains that he struggled with the loss of his mother and the loss of financial means to properly present his case.   Pietro writes that the prejudice of the judge in sustaining the demurrer and ordering dismissal showed a lack of sensitivity, and it is not surprising a judge would not favor “prosecuting” an attorney.

Pietro's statement of facts consists of 23 pages.   The content of the statement of facts is a near verbatim repetition of the SAC. It is not supported by citation to the record.

In the argument portion of Pietro's opening brief, Pietro urges this court to vacate the dismissal because he is not an attorney and never should have acted as such in this case, but after being “fleeced and robbed” by Sacks, he was unable to pay for representation.   He cannot understand why the trial court did not see that his first amended complaint and the SAC were sufficient.   If given a chance to go to trial, he would seek assistance from a “knowledgeable and reputable” attorney.   In support of his argument, Pietro cited the dissenting opinion in Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1061 for the proposition that it is the policy of the courts to have matters resolved on the merits.   The only other authority cited in his brief is Code of Civil Procedure section 904.1, subdivision (a)(1), for the proposition that the judgment is appealable, and Evans v. City of Berkeley 38 Cal.4th 1, 5, for the proposition that factual allegations in a complaint are presumed to be true for purposes of demurrer.   Pietro's opening brief included a copy of five pages of discussion of demurrers found in Eisenberg et al., Cal. Practice Guide:  Civil Appeals & Writs (The Rutter Group 2009) paragraphs 8:136 to 8:139, pages 8-91 to 8-95 (rev.# 1, 2008).

Pietro attached the following documents to his opening brief:  the contract between Pietro and Sacks for attorney services;  checks paid to Sacks totaling $30,000;  a letter from Pietro to Sacks terminating the relationship and asking for return of all but $3,000 of the retainer;  a copy of a webpage for Sacks's law practice with written notes indicating it is a new site and not the one in existence at the time of the complaint;  a letter to Sacks concerning the timeliness of a demurrer;  and a motion to strike from an attorney who at one point represented Pietro.

DISCUSSION

As reflected in our review of Pietro's opening brief, he has raised no arguable issue on appeal supported by citation to pertinent authority.   In addition, Pietro has violated the rules pertaining to the presentation of matters in the opening brief.   Finally, to the extent Pietro complains of prejudice by the trial court or seeks leave to amend his SAC, he has failed to present this court with a full record supported by a reporter's transcript of all relevant proceedings in the court below.   For these reasons, we affirm the judgment.

Failure to Make an Argument on the Merits of Any Cause of Action

Pietro makes no argument in his opening brief regarding the merits of the trial court's order sustaining Sacks's demurrer.   He does not discuss the allegations of the various causes of action or relate the allegations to the legal elements of any of the causes of action.   In short, Pietro has not explained why the trial court erred in sustaining the demurrer to the SAC without leave to amend.

A reviewing court is not required to make an independent search of the record to find error or grounds to support the judgment.  (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116;  Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545.)   The reviewing court must be referred to that portion of the record supporting an appellant's contention on appeal, and if no citation is offered on a particular point, it may be treated as waived.  (Guthrey v. State of California, supra, at pp. 1115-1116.)   “When a party provides a brief ‘without argument, citation of authority or record reference establishing that the points were made below,’ we may ‘treat the points as waived, or meritless, and pass them without further consideration.’  (Troensegaard v. Silvercrest Industries, Inc. (1985) 175 Cal.App.3d 218, 228.)”  (H.N. & Frances C. Berger Foundation v. City of Escondido (2005) 127 Cal.App.4th 1, 15.)

Pietro's attempt to avoid the application of these well established rules on appeal is without merit.  “Pro per litigants are held to the same standards as attorneys.  (See Rappleyea v. Campbell [, supra,] 8 Cal.4th [at p.] 985.)”   (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543;  Robert J. v. Catherine D. (2009) 171 Cal.App.4th 1500, 1527;  In re Marriage of Rothrock (2008) 159 Cal.App.4th 223, 235.)

Our dissenting colleague maintains it is “unjust” to affirm the judgment, while acknowledging Pietro has utterly failed to comply with the rules applicable to all litigants on appeal.   That Sacks has also filed a deficient brief is of no moment, as he has no burden on appeal.   To be clear, none of the citations, arguments, or analysis set forth in the dissent can be found in any briefing by Pietro before this court.   Had Pietro's brief been written by an attorney, this court would not hesitate to affirm on the basis the brief contained no citations to the record, completely lacked any analysis of issues or citation to pertinent case law, and was unsupported by a necessary reporter's transcript.   The dissent runs afoul of the express admonition against lenient treatment for the self-represented as set forth in Rappleyea v. Campbell, supra, 8 Cal.4th at pages 984-985, as well as the legion of cases requiring an appellant to file a brief containing citations to the record and arguments supported by citation of authority.   There is nothing “unjust” in following the dictates of the California Supreme Court.

Allegations of Judicial Bias and Leave to Amend the SAC

The closest Pietro comes to raising a legal issue on appeal is his fleeting reference to judicial bias as being the basis of the trial court's demurrer ruling and the suggestion that if granted leave to amend, he would hire an attorney to properly handle the case upon issuance of the remittitur.   We reject the contentions for two reasons.

First, Pietro develops no argument to support either contention.  (Cal. Rules of Court, rule 8.204(a)(1)(B).)  He makes no reference to the record to substantiate the claim of judicial bias.  (Id., rule 8.204(a)(1)(C).)  References to matters in the record must include citation to the volume and page number where the matter appears.  (Ibid.;  In re S.C. (2006) 138 Cal.App.4th 396, 406.)   An appellate court may find issues forfeited for noncompliance with the rules pertaining to the form and content of appellate briefs.  (In re S.C., supra, at p. 407;  Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379 [arguments must be supported by references to the record, including exact page citations].)   Neither in his briefs nor at oral argument did Pietro suggest in what manner he would amend to state a cause of action.   We therefore deem the contentions waived or meritless.  (H.N. & Frances C. Berger Foundation v. City of Escondido, supra, 127 Cal.App.4th at p. 15;  Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 [“When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary.”].)

Second, Pietro has not supplied this court with the reporter's transcript of any hearing that would support a claim of judicial bias or a holding that the trial court abused its discretion by denying leave to amend the SAC. A judgment is presumed to be correct, and it is the burden of the party challenging the judgment to provide an adequate record to review any claim of error.  (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1200-1201;  People v. Seneca Ins. Co. (2004) 116 Cal.App.4th 75, 80.)   By electing to proceed on appeal without a reporter's transcript, we must assume the record would show no bias on the part of the trial court and no basis for finding an abuse of discretion is sustaining the demurrer without leave to amend.  (People v. Seneca Ins. Co., supra, at pp. 80-81.)

DISPOSITION

The judgment is affirmed.   The parties are to bear their own costs on appeal.

KRIEGLER, J.

I concur:

TURNER, P. J.

MOSK, J., Dissenting

I respectfully dissent.

Plaintiff and appellant Ronald Pietro (plaintiff) filed a complaint alleging, in essence, that his former attorney, defendant Adam Michael Sacks (defendant), bilked him out of tens of thousands of dollars while engaging in acts of gross professional malfeasance.   The complaint was sufficient on its face, and yet the trial court-stating reasons that bore little relation to the facts actually alleged in the complaint-sustained defendant's demurrers without leave to amend and dismissed plaintiff's lawsuit.

To permit this judgment to stand on the grounds stated by the majority is unjust.   The record is adequate to demonstrate that the trial court erred in sustaining the demurrers.   All this court has to do is determine whether plaintiff alleged facts sufficient to constitute a cause of action.   In both his opening brief and the supplemental briefing requested by this court, plaintiff provided argument that he stated causes of action for, inter alia, breach of contract, breach of fiduciary duty and fraud, and he set forth in detail the facts he alleged to state those claims.   Accordingly, I would address plaintiff's appeal on the merits, and I would reverse the judgment and remand to give plaintiff the opportunity to prove his case.

BACKGROUND

A. Factual Background

As this matter comes to us after the trial court sustained defendant's demurrers, this court must accept as true the well-pleaded facts in plaintiff's second amended complaint and the reasonable inferences that may be drawn from those facts.  (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 894;  Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 883.)   Plaintiff alleged as follows: 1

In March 2006, plaintiff was charged with unspecified felony sex offenses.   (Pen.Code, § 261 et seq.)   Thereafter, defendant contacted plaintiff to solicit his engagement as plaintiff's defense attorney.   Defendant told plaintiff that he had substantial experience in defending major felony cases and that plaintiff was “virtually assure[d]” of being acquitted if he retained defendant.   Defendant told plaintiff that he would associate with an attorney named Angela Berry to assist him in plaintiff's defense, at no additional cost to defendant.

Plaintiff entered into a written fee agreement with defendant, a copy of which was attached to the second amended complaint.   The fee agreement was not signed by plaintiff, but it was signed by defendant, the party charged with breaching the agreement in this case.   As set forth in the fee agreement, plaintiff agreed to pay defendant a $30,000 flat fee, in return for which defendant would represent plaintiff “in full thru trial.”

Plaintiff paid defendant the full $30,000 fee.   Sometime thereafter, plaintiff learned from an unspecified source that, contrary to defendant's representations, defendant had no prior criminal defense experience.   Plaintiff spoke with attorney Angela Berry, who confirmed that fact.   Ms. Berry also told plaintiff that, contrary to defendant's promise, she would not assist with plaintiff's defense because defendant refused to pay her.   Plaintiff also learned that defendant had paid a “finder's fee” to a nonlawyer friend of plaintiff who had helped defendant obtain the engagement.

On October 1, 2006, plaintiff attempted to terminate the representation and requested a full refund of the fee.   Defendant, however, verbally abused plaintiff and his wife.   Defendant contacted plaintiff's friends and told them that plaintiff would almost certainly be convicted if plaintiff fired defendant.   Defendant also threatened to contact the prosecutor in plaintiff's criminal case and tell the prosecutor that plaintiff had admitted to doing the crimes of which he was charged.   As the result of defendant's abuse, plaintiff became “severely depressed.”   Plaintiff relented to defendant's demands and did not terminate the representation.

Three weeks later, defendant represented plaintiff at the preliminary hearing in plaintiff's criminal case.   Defendant was unprepared for the hearing.   At the hearing, defendant failed to pursue lines of inquiry that, according to plaintiff, could have resulted in the dismissal of some or all of the charges or might have developed information that would have assisted plaintiff's defense.   Defendant also failed to introduce at the preliminary hearing certain “sensitive information” that would have proved plaintiff incapable of committing the charged crimes.   One can infer from the allegations in the complaint that plaintiff was bound over for trial.2

Two days after the preliminary hearing, plaintiff sent a letter to defendant terminating the representation.   Plaintiff cited as his reasons defendant's refusal to answer questions about his criminal defense experience;  defendant's refusal to meet with plaintiff to discuss the case;  defendant's “belittling and derogatory comments” about plaintiff;  and defendant's lack of preparation for and incompetent performance at the preliminary hearing.   Plaintiff requested a refund of “at least” $25,000 of the fee to enable plaintiff to retain new defense counsel.

Defendant refused to refund any portion of the fee, and refused to provide an accounting of his time or expenses.   Defendant also refused to cooperate with plaintiff's new attorney, resulting in “an incredible amount” of wasted time.   After plaintiff's new attorney obtained plaintiff's case file, plaintiff discovered that defendant “had done no work whatsoever” to prepare for the preliminary hearing or to prepare the case for trial.

B. Procedural Background

Plaintiff filed a Judicial Council form complaint in propria persona, alleging causes of action for (1) breach of contract, (2) fraud, (3) breach of fiduciary duty, and (4) intentional infliction of emotional distress.   The trial court sustained defendant's demurrers to all causes of action with leave to amend.

Plaintiff obtained counsel and filed a first amended complaint alleging causes of action for (1) breach of contract, (2) breach of fiduciary duty, (3) fraud, (4) legal malpractice, and (5) unfair competition.   Defendant moved to strike portions of the first amended complaint and demurred to the entire complaint and to each cause of action.   Prior to the hearing on the demurrer, plaintiff's counsel moved to be relieved as attorney of record, and the trial court granted the motion.   Plaintiff, in propria persona, failed to oppose the demurrers on the merits.   Instead, he moved to strike them as untimely because defendant had filed them one day late.   The trial court sustained the demurrers with leave to amend on the ground that the demurrers were unopposed.

On October 24, 2007, plaintiff filed his second amended complaint, again alleging causes of action for (1) breach of contract, (2) breach of fiduciary duty, (3) fraud, (4) legal malpractice, and (5) unfair competition.   Defendant again demurred to the entire complaint and to each cause of action.   Plaintiff failed timely to oppose the demurrers, and it appears that plaintiff did not attend the scheduled hearing on March 5, 2008.   The trial court issued a tentative ruling sustaining the demurrer without leave to amend, but granted plaintiff leave to file additional papers the next day.   If plaintiff's papers did not comply with previous orders of the court, the tentative ruling would become final.   Plaintiff filed a belated opposition and a document that appeared to be a proposed third amended complaint.

The trial court considered plaintiff's belated opposition and, on March 21, 2008, issued a written minute order sustaining the demurrers without leave to amend.   There was no appearance by counsel on that date.   The trial court stated, “The entire action fails to state sufficient facts after having been amended two times.   All the claims involve an oral contract based on a written contract yet the pleading fails to set forth what the defendant's contractual duties were, how the duties were either not satisfied or not performed, nor how any purported obligation was breached, nor how any of the causes of action give rise to a claim for damages.   The late filed opposition of March 14, 2008 fails to address any of these deficiencies.  [¶] This case apparently relates to an underlying criminal action and plaintiff does not explain what duties, if any, defendant breached during the criminal prosecution.”

The trial court entered a judgment of dismissal.   Plaintiff timely appealed.   (See Code Civ. Proc., § 668.5;  Cal. Rules of Court, rule 8.104(a)(3);  see also InSyst, Ltd. v. Applied Materials, Inc. (2009) 170 Cal.App.4th 1129, 1134.)

DISCUSSION

A. Adequate Record and Forfeiture

The record is adequate to permit our de novo review of the legal sufficiency of the complaint.   An appellant is not required to provide a comprehensive record of the trial court proceedings.   The appellant is required only provide a record sufficient to demonstrate the error claimed and to overcome the presumption of correctness.  (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295 [appellant must “provide an adequate record to assess error”];  Forrest v. State of California Department. of Corporations (2007) 150 Cal.App.4th 183, 194;  Estate of Davis (1990) 219 Cal.App.3d 663, 670, fn. 13 [appellant “need[s] to make sure the record adequately reflect[s] whatever error he believe[s] the trial court made”];  see 1 Eisenberg, et al., Cal. Practice Guide:  Civil Appeals and Writs (The Rutter Group 2008) ¶ 8:17, p. 8-5 (rev. # 1, 2009).)   The record includes all three iterations of the complaint, the points and authorities and other documents filed by both parties in connection with the demurrer proceedings, and the trial court's written minute order stating its reasons for sustaining the demurrers.

I agree that plaintiff-who is not an attorney, and who represented himself on this appeal-has not complied with all of the applicable rules of appellate procedure in presenting his appeal.   But defendant (who is an attorney) also failed to comply with all of the applicable rules-for example, he relies extensively on matters outside the record in both his respondent's and supplemental briefs-and he did not raise the issue of forfeiture.   This is not a case involving complex or novel questions of law.   There is no justification in considerations of either substantial justice or judicial efficiency for denying relief to a pro per plaintiff whose complaint is facially sufficient because, in essence, he failed to cite to cases setting forth the elements of a simple breach of contract or tort claim.   Not only is it nonsensical to avoid ruling on the sufficiency of the complaint because of the lack of a citation to the obvious and a transcript of whatever hearing there was, it is manifestly unjust.

B. Standard of Review

“In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules.  ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.  [Citation.]  We also consider matters which may be judicially noticed.’  [Citation.]  Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.   [Citation.]  When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action.  [Citation.]”  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)   In addition to the facts alleged, we may consider matters subject to judicial notice and the exhibits attached to the complaint.  (Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal.App.4th 390, 400.)  “[W]e may affirm the sustaining of a demurrer 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.)   When a demurrer is sustained without leave to amend, “we decide whether there is a reasonable possibility that the defect can be cured by amendment:  if it can be, the trial court has abused its discretion and we reverse;  if not, there has been no abuse of discretion and we affirm.  [Citations.]  The burden of proving such reasonable possibility is squarely on the plaintiff.   [Citation.]”  (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.)

C. Breach of Contract

The elements of a breach of contract claim are (1) the existence and terms of the contract, (2) the plaintiff's performance or excuse for failing to perform, (3) the defendant's breach, and (4) plaintiff's damages.  (Amelco Electric v. City of Thousand Oaks (2002) 27 Cal.4th 228, 243;  Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1031.)   In the second amended complaint, plaintiff alleged facts giving rise to cognizable claims on several contract-related theories.

1. Plaintiff Alleged Fees Paid Subject to Forfeiture

An attorney may forfeit his or her fees in a matter by engaging in “acts of impropriety inconsistent with the character of the legal profession and incompatible with the faithful discharge of professional duties․”  (Jeffry v. Pounds (1977) 67 Cal.App.3d 6, 9;  see Clark v. Millsap (1926) 197 Cal. 765, 785;  Cal Pak Delivery, Inc. v. United Parcel Service, Inc. (1997) 52 Cal.App.4th 1, 14-16;  see also Sullivan v. Dorsa (2005) 128 Cal.App.4th 947, 965;  Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1005-1006 & fn. 4;  Rest.3d Law Governing Lawyers § 37 [“A lawyer engaging in clear and serious violation of duty to a client may be required to forfeit some or all of the lawyer's compensation”];  id. com. a [“A client who has already paid a fee subject to forfeiture can sue to recover it”].)

In his second amended complaint, plaintiff alleged that defendant engaged in a number of clear and serious violations of his ethical and fiduciary duties to plaintiff.   Plaintiff alleged, or one can reasonably infer from the facts alleged, that (1) defendant engaged in a prohibited solicitation of plaintiff, in violation of California Rule of Professional Conduct, rule 1-400(B), (C); 3  (2) in his solicitation of plaintiff, defendant falsely represented his criminal defense experience and his intention to retain the services of attorney Angela Berry (rule 1-400(D)(1), (2)),4 and made an impermissible prediction concerning the result of the representation (rule 1-400(E) & Standards (1));  (3) defendant illegally split the fee paid by plaintiff with a nonlawyer (rule 1-320(A)) or paid an illegal referral fee to a nonlawyer (rule 1-320(B));  (4) defendant violated his fiduciary duty of loyalty to plaintiff by threatening to tell the prosecutor that plaintiff had admitted to the crimes of which he was charged (see rule 5-100(A)); 5  (5) defendant knowingly undertook a representation he was not competent to perform and recklessly failed to perform competently at plaintiff's preliminary hearing (rule 3-110(A), (C));  (6) defendant breached his ethical and fiduciary duty to account for and return all unearned fees to plaintiff promptly after defendant's services were terminated (rules 3-700(D)(2), 4-100(B)(3), (4)); 6  (7) defendant charged an unconscionable fee for the services he actually performed (rule 4-200);  and (8) defendant failed to cooperate with plaintiff's new counsel after defendant's services were terminated (rule 3-700(A)(2), (D)(1)).

Plaintiff thus adequately alleged that the fee he had paid defendant was subject to forfeiture, and that plaintiff was entitled to recover the fee.   We need not determine on this appeal whether defendant was entitled to retain fees on a quantum meruit basis, as defendant filed no responsive pleading raising the issue.

2. Plaintiff Alleged Defendant Failed to Perform Substantial Services

Plaintiff alleged that he entered into a fee agreement with defendant, and attached a copy of the written fee agreement as an exhibit to the second amended complaint.   The fee agreement provided that plaintiff was to pay defendant a flat fee of $30,000, in return for which defendant would represent plaintiff in his criminal matter “in full thru trial.”   The fee agreement further provided that plaintiff's fee would be deemed earned only if defendant had provided “substantial services,” and even then the fee would not be deemed earned by defendant to the extent “the fee retained would be unconscionable․”  Plaintiff was empowered to discharge defendant “at any time.”   Plaintiff alleged that he paid defendant's fee in full, and attached copies of two checks payable to defendant, totaling $30,000, as exhibits to the second amended complaint.

Plaintiff alleged that defendant performed no substantial services to earn the fee that plaintiff paid.   Although defendant appeared for plaintiff at the preliminary hearing, plaintiff alleged that defendant was unprepared for the hearing, and that a subsequent review of plaintiff's case file by plaintiff's new attorney revealed that defendant “had done no work whatsoever in either preparing for the [p]reliminary hearing or otherwise preparing [plaintiff's] case for trial.”   Plaintiff further alleged that defendant refused to return any portion of the fee.   In sum, plaintiff alleged that he paid defendant $30,000 for legal services that defendant never performed.   That is a cognizable breach of contract claim.

3. Plaintiff Alleged Defendant Charged an Unconscionable Fee

Plaintiff also adequately alleged in the alternative that, even if defendant earned some portion of the fee, defendant nevertheless charged an unconscionable fee by retaining the full $30,000.   As noted, the fee agreement provided that the flat fee would be deemed earned once defendant provided “substantial services,” “[u]nless the fee retained would be unconscionable․”  (Italics added.)

Under California law, an unconscionable attorney fee is one that “is ‘so exorbitant and wholly disproportionate to the services rendered ․ as to shock the conscience.’ ”  (Bushman v. State Bar (1974) 11 Cal.3d 558, 564 [$2,800 fee unconscionable when attorney failed to document time spent on matter, client was impecunious, and reasonable value of services was $300;  “the right to practice law ‘is not a license to mulct the unfortunate’ ”];  see Tarver v. State Bar (1984) 37 Cal.3d 122, 134 [attorney fee of $55,7573.68 unconscionable where reasonable value of attorney's services was $20,600];  see also rule 4-200;  In the Matter of Van Sickle (Review Dept.2006) 4 Cal. State Bar Ct. Rptr. 980, 989 [$10,910.45 fee retained by attorney unconscionable where reasonable value of attorney's services was $5,000];  Vapnek, et al., Cal. Practice Guide:  Prof. Responsibility (The Rutter Group 1997) ¶ 5:296, p. 5-39 (rev.# 1, 2002) (Vapnek) [“Attorneys cannot avoid refunding unearned advance fees by exorbitant charges for the initial work done”].)

In this case, the $30,000 flat fee was agreed to compensate defendant for representing plaintiff “in full thru trial.”   But defendant did not represent plaintiff “in full thru trial”-defendant represented plaintiff only at the preliminary hearing, after which plaintiff discharged defendant, as expressly permitted by the contract.   Moreover, plaintiff alleged that defendant did little or no work to prepare for the preliminary hearing.   Accordingly, plaintiff adequately alleged that defendant breached the fee agreement by retaining an unconscionable fee for the services defendant actually performed.

4. Plaintiff Alleged Breach of Promise to Retain Angela Berry

Plaintiff alleged that, as part of their fee arrangement, he and defendant orally agreed that defendant would retain the services of attorney Angela Berry to assist him in plaintiff's defense.7  The $30,000 fee paid by plaintiff to defendant was to include Ms. Berry's services.   Plaintiff alleged that defendant failed to hire Ms. Berry or to make a good faith effort to do so because he refused to compensate Ms. Berry for her services on plaintiff's case.   One can infer from the allegations in the complaint that plaintiff was damaged because he agreed to and paid defendant's fee on the express understanding that Ms. Berry's legal services would be provided.   Plaintiff thus paid some portion of the $30,000 fee for services that he never received.   Because plaintiff alleged facts sufficient to state claims for breach of contract, the trial court erred by sustaining defendant's demurrer to plaintiff's first cause of action.

D. Breach of Fiduciary Duty

“ ‘[A] breach of fiduciary duty is a species of tort distinct from a cause of action for professional negligence.  [Citations.]  The elements of a cause of action for breach of fiduciary duty are:  (1) existence of a fiduciary duty;  (2) breach of the fiduciary duty;  and (3) damage proximately caused by the breach.  [Citation.]’  [Citation.]  [¶] ‘The attorney-client relationship is a fiduciary relation of the very highest character․’  [Citation.]  [¶] ‘The scope of an attorney's duty may be determined as a matter of law based on the Rules of Professional Conduct which, “together with statutes and general principles relating to other fiduciary relationships, all help define the duty component of the fiduciary duty which an attorney owes to his [or her] client.”  [Citations.]  Whether an attorney has breached a fiduciary duty to his or her client is generally a question of fact.  [Citation.]’  [Citation.]”  (Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1534-1535.)

In this case, plaintiff alleged that (1) defendant refused to account for his fees and to remit unearned fees to plaintiff, and (2) defendant threatened to give false incriminatory information to the prosecutor to dissuade plaintiff from firing him.   Each of these allegations was sufficient to state a claim for breach of fiduciary duty.

1. Plaintiff Alleged Defendant Failed to Remit Unearned Fees

An attorney owes his or her client fiduciary duties with respect to funds paid to the attorney for fees not ultimately earned by the attorney.  (T & R Foods, Inc. v. Rose (1996) 47 Cal.App.4th Supp. 1, 7;  see also Finch v. State Bar (1981) 28 Cal.3d 659, 665.)  “Taking money for services not performed or not to be performed is close to the crime of obtaining money by false pretenses, and undoubtedly involves moral turpitude.”  (1 Witkin, Cal. Procedure (5th ed.   2008) Attorneys, § 488, p. 605;  see also Matthew v. State Bar (1989) 49 Cal.3d 784, 791 [retention of unearned fees is “serious misconduct”];  In the Matter of Nees (Review Dept.1996) 3 Cal. State Bar Ct. Rptr. 459, 465 [failure to return $7,000 in unearned fees after attorney “failed to perform any proven amount of legal services”].)   When a client terminates an attorney's services, the attorney is obligated promptly to account to the client for the fees earned, and to return to the client any unearned portion of the fee.  (Rules 3-700(D)(2), 4-100(B)(3), (4);  see also Friedman v. State Bar (1990) 50 Cal.3d 235, 241;  In the Matter of Fonte (Review Dept.1994) 2 Cal. State Bar Ct. Rptr. 752, 758 [attorney's duty to account for fees drawn against advanced fee payment].)   When the amount of fees earned by the attorney is disputed, the attorney may not keep the portion he or she claims, but must place the disputed portion of the fee in a client trust account.  (Rule 4-100(A)(2);  In the Matter of Fonte, supra, 2 Cal. State Bar Ct. Rptr. at p. 758.)

In this case, plaintiff alleged that defendant did not earn the fee plaintiff had paid;  defendant “[t]ime and time again refused to provide” an accounting;  and defendant refused to return any portion of the fee.   Plaintiff thus alleged facts sufficient to state a claim for breach of fiduciary duty.

2. Plaintiff Alleged Defendant Breached His Fiduciary Duty of Loyalty

One of the fundamental duties owed by an attorney to a client is the duty of loyalty.  (Vapnek, et al., supra, ¶ 3:187, p. 3-75 (rev.# 1, 2008);  2 Mallen & Smith, Legal Malpractice (2009 ed.) § 15:9, pp. 716-717;  Rest.3d Law Governing Lawyers § 16 & com. e.) As our Supreme Court has stated, “ ‘[i]t is ․ an attorney's duty to protect his client in every possible way, and it is a violation of that duty for him to assume a position adverse or antagonistic to his client without the latter's free and intelligent consent given after full knowledge of all the facts and circumstances.  [Citation.]  By virtue of this rule an attorney is precluded from assuming any relation which would prevent him from devoting his entire energies to his client's interests.’ ”  (Flatt v. Superior Court (1994) 9 Cal.4th 275, 289, quoting Anderson v. Eaton (1930) 211 Cal. 113, 116;  accord, Betts v. Allstate Ins. Co. (1984) 154 Cal.App.3d 688, 715-716.)

In this case, plaintiff alleged that defendant prevented plaintiff from terminating defendant's services prior to the preliminary hearing by threatening to fabricate false admissions by plaintiff that he committed the crimes charged and to communicate such fabrications to the prosecutor.   In other words, plaintiff alleged that he was the victim of an extortion perpetrated by his own attorney, in violation of his attorney's fiduciary duty of loyalty.   Although plaintiff has not alleged any specific economic loss, plaintiff alleged that he “became severely depressed” due to plaintiff's alleged intentional misconduct.   Damages for emotional distress are recoverable under such circumstances.  (See Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 927 [“intentional torts will support an award of damages for emotional distress alone ․ in cases involving ‘extreme and outrageous intentional invasions of one's mental and emotional tranquility’ ”];  Betts v. Allstate Ins. Co., supra, 154 Cal.App.3d at p. 715-718 [approving award of emotional distress damages only to client against law firm caused by firm's “host of ethical/legal improprieties”];  see also Perez v. Kirk & Carrigan (Tex.App.1991) 822 S.W.2d 261, 266-267 [attorney breached fiduciary duty by disclosing client's confidential information to district attorney;  allegation of emotional distress constituted sufficient damage to sustain cause of action].)   Accordingly, the trial court erred by sustaining the demurrer to defendant's second cause of action.

E. Fraud

The elements of a cause of action for fraud are:  (1) a misrepresentation;  (2) knowledge of falsity;  (3) intent to defraud or induce reliance;  and (4) actual reliance by the plaintiff.  (Civ.Code, § 1709;  Conroy v. Regents of University of Cal. (2009) 45 Cal.4th 1244, 1255;  Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173.)   The plaintiff must allege that he actually relied upon the misrepresentations, and that in the absence of fraud, he would not have entered into the contract or other transaction.  (The MEGA Life & Health Ins. Co. v. Superior Court (2009) 172 Cal.App.4th 1522, 1530;  Schauer v. Mandarin Gems of Cal., Inc. (2005) 125 Cal.App.4th 949, 960.)   A promise made without the intention to perform may be an actionable misrepresentation of fact.  (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)  “[O]ne who is induced by fraud to enter into a contract is entitled both to ‘affirm’ the contract and to sue for damages in tort.”  (Denevi v. LGCC, LLC (2004) 121 Cal.App.4th 1211, 1220.)

Plaintiff alleged two actionable misrepresentations of fact by defendant.   First, plaintiff alleged that, to induce plaintiff to engage his services, defendant falsely represented that he was an experienced criminal defense attorney who had “conducted numerous criminal [f]elony trials.”   Plaintiff alleged that he relied on defendant's representation when he retained defendant and paid his fee.   Plaintiff further alleged that he later discovered that defendant had no criminal defense experience and that plaintiff's case would be defendant's first major felony trial.   Plaintiff's basic measure of damage was the $30,000 fee he paid to defendant in reliance on defendant's misrepresentation.   Plaintiff thus alleged each of the elements of a cognizable fraud claim.

Second, plaintiff alleged that, to induce plaintiff to hire him, defendant promised to engage the services of attorney Angela Berry to assist in plaintiff's defense, at no additional cost to plaintiff.   Plaintiff alleged that defendant made that promise knowing that he “would not and could not” do so, and that defendant in fact did not do so.   One can also infer defendant's fraudulent intent from the fact that he made no good faith effort to perform, as defendant allegedly refused to compensate Ms. Berry for her services.   Plaintiff alleged that he relied on defendant's false promise in retaining defendant as his criminal attorney.   Again, plaintiff's base damage was the $30,000 fee he paid to defendant.   The trial court erred in sustaining the demurrers to plaintiff's third cause of action.

F. Legal Malpractice and Unfair Competition

Plaintiff's second amended complaint also alleged causes of action for legal malpractice and unfair competition (Bus. & Prof.Code, § 17200).   The trial court properly sustained the demurrers to these causes of action without leave to amend.

1. Legal Malpractice

The gravamen of plaintiff's professional negligence claim was that defendant mishandled the preliminary hearing in plaintiff's criminal case, resulting in plaintiff being bound over for trial.   There is no allegation regarding, and the record does not indicate, the ultimate disposition of plaintiff's criminal case.8

Under California law, a plaintiff asserting a legal malpractice claim arising from representation in a criminal action must allege and prove that he or she actually was innocent of the crime charged and that he or she was exonerated.   (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1201;  Wiley v. County of San Diego (1998) 19 Cal.4th 532, 545 (Wiley );  Wilkinson v. Zelen (2008) 167 Cal.App.4th 37, 45-47;  Sangha v. LaBarbera (2006) 146 Cal.App.4th 79, 85-86;  Redante v. Yockelson (2003) 112 Cal.App.4th 1351, 1357-1358.)   These requirements prevent criminals from profiting from their crimes by asserting malpractice claims against their attorneys, and require criminals to bear sole responsibility for their criminal acts.  (Wiley, supra, 19 Cal.4th at pp. 537-539.)   Plaintiff alleged neither element in his second amended complaint.9  Although the trial court did not rely on these grounds in sustaining the demurrer or denying leave to amend, we must affirm if the trial court's judgment was correct on any theory.  (C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1102.)

In his opening brief on appeal, plaintiff asserts that a jury acquitted him of the charges against him.   That fact was not alleged in plaintiff's third amended complaint, however, nor is there any indication elsewhere in the record that plaintiff established in the trial court how he could amend the complaint to cure the deficiencies in his pleading.  (Blank v. Kirwan, supra, 39 Cal.3d at p. 318 [burden is on plaintiff to demonstrate how complaint might be amended to state a claim];  C.R. v. Tenet Healthcare Corp., supra, 169 Cal.App.4th at p. 1102 [same].)   Accordingly, plaintiff has failed to establish that the trial court abused its discretion in denying him leave to amend.   The trial court properly sustained the demurrer to plaintiff's fourth cause of action without leave to amend.

2. Unfair Competition

Plaintiff alleged a violation of the Unfair Competition Law (Bus. & Prof.Code, § 17200 et seq.), apparently premised on an internet advertisement by defendant allegedly claiming that defendant was an experienced criminal defense attorney.   Plaintiff attached as an exhibit to his second amended complaint three pages that he alleged were copies of defendant's internet advertisement.   Plaintiff, however, failed to allege facts establishing his standing to bring a claim pursuant to section 17200.

The purpose of the Unfair Competition Law “is to protect both consumers and competitors by promoting fair competition in commercial markets for goods and services.  [Citation.]”  (Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 949 (Kasky );  McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1470.)   The Unfair Competition Law “defines ‘unfair competition’ to mean and include ‘any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by [the false advertising law (§ 17500 et seq.) ].’ (§ 17200.)”  (Kasky, supra, 27 Cal.4th at p. 949.)

A party's standing to bring a section 17200 claim is governed by section 17204.   That section provides in pertinent part, “Actions for relief pursuant to this chapter shall be prosecuted exclusively in a court of competent jurisdiction by [specified government attorneys] ․, or by a person who has suffered injury in fact and has lost money or property as a result of the unfair competition.”  (Italics added.)   Accordingly, a private plaintiff must demonstrate that he or she suffered both injury in fact and a loss of money or property caused by the unfair competition.  (See Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1348-1349 [standing requires causal connection between unlawful business activity and plaintiff's injury in fact];  see also Daro v. Superior Court (2007) 151 Cal.App.4th 1079, 1099 [no causation when plaintiff would have suffered same injury regardless of unlawful activity].)

Nowhere in his second amended complaint did plaintiff allege that he was aware of and relied upon defendant's internet advertising when he retained and paid for defendant's legal services.   Moreover, the exhibit attached to the second amended complaint contains no reference to defendant's criminal defense experience-the exhibit describes only defendant's education and bar admissions, and his experience as a family law attorney.10  Accordingly, plaintiff failed to allege and there is no basis to infer that the allegedly false advertisement was the cause of plaintiff's damage.   The trial court properly sustained the demurrer to plaintiff's fifth cause of action.   Again, because there is no indication in the record that defendant could cure this defect by amendment, plaintiff has failed to establish that the trial court abused its discretion in denying plaintiff leave to amend.  (C.R. v. Tenet Healthcare Corp., supra, 169 Cal.App.4th at p. 1102.)

For the reasons stated, I would reverse the judgment with respect to plaintiff's first, second and third causes of action for breach of contract, breach of fiduciary duty and fraud.   I would affirm the judgment as to plaintiff's fourth and fifth causes of action for legal malpractice and unfair competition.

FOOTNOTES

FN1. It is important to recognize that the following recites plaintiff's allegations, not findings of fact..  FN1. It is important to recognize that the following recites plaintiff's allegations, not findings of fact.

FN2. Plaintiff asserts in his opening brief that he was subsequently acquitted of the charges against him.   He made no such allegation in the second amended complaint, however, nor does that fact otherwise appear in the record..  FN2. Plaintiff asserts in his opening brief that he was subsequently acquitted of the charges against him.   He made no such allegation in the second amended complaint, however, nor does that fact otherwise appear in the record.

FN3. Further rule references are to the California Rules of Professional Conduct..  FN3. Further rule references are to the California Rules of Professional Conduct.

FN4. See Discussion, Part E, post..  FN4. See Discussion, Part E, post.

FN5. See Discussion, Part D.2, post..  FN5. See Discussion, Part D.2, post.

FN6. See Discussion, Part D.1, post..  FN6. See Discussion, Part D.1, post.

FN7. The written fee agreement contained no integration clause..  FN7. The written fee agreement contained no integration clause.

FN8. See footnote 2, ante..  FN8. See footnote 2, ante.

FN9. Plaintiff's failure to allege these elements is not fatal to his breach of contract, breach of fiduciary duty or fraud claims because-as discussed ante -those claims do not arise from defendant's allegedly negligent representation.  (Brooks v. Shemaria (2006) 144 Cal.App.4th 434, 439-443;  compare Lynch v. Warwick (2002) 95 Cal.App.4th 267, 273-274 [requirements of actual innocence and exoneration applied when basis of breach of contract and breach of fiduciary duty claims was professional negligence] with Bird, Marella, Boxer & Wolpert v. Superior Court (2003) 106 Cal.App.4th 419, 430-432 [no requirement of actual innocence to recover unethical and excessive fees charged by criminal defense attorney].).  FN9. Plaintiff's failure to allege these elements is not fatal to his breach of contract, breach of fiduciary duty or fraud claims because-as discussed ante -those claims do not arise from defendant's allegedly negligent representation.  (Brooks v. Shemaria (2006) 144 Cal.App.4th 434, 439-443;  compare Lynch v. Warwick (2002) 95 Cal.App.4th 267, 273-274 [requirements of actual innocence and exoneration applied when basis of breach of contract and breach of fiduciary duty claims was professional negligence] with Bird, Marella, Boxer & Wolpert v. Superior Court (2003) 106 Cal.App.4th 419, 430-432 [no requirement of actual innocence to recover unethical and excessive fees charged by criminal defense attorney].)

FN10. The document attached as Exhibit D to plaintiff's opening brief is not part of the record, and I therefore do not consider it..  FN10. The document attached as Exhibit D to plaintiff's opening brief is not part of the record, and I therefore do not consider it.

MOSK, J.