Filed 9/13/13 Degenarro v. Geiger & Merritt, LLP CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


GLORIA DEGENARRO, Individually and
as Trustee, etc., et al.,
                                                                       G047461
     Plaintiffs and Appellants,
                                                                       (Super. Ct. No. 30-2012-00544102)
         v.
                                                                       OPINION
GEIGER & MERRITT, LLP,

     Defendant and Respondent.



                   Appeal from a judgment of the Superior Court of Orange County,
Ronald L. Bauer, Judge. Reversed and remanded with directions.
                   Sayre & Levitt, Federico Castelan Sayre and Adam L. Salamoff for
Plaintiffs and Appellants.
                   Lewis Brisbois Bisgaard & Smith, Kenneth C. Feldman and Brian Slome
for Defendant and Respondent.
                                             *               *               *
                                      INTRODUCTION
              The basic facts of this case are simple: Client is represented by law firm in
a civil case. Client, unhappy with the representation received, fires the law firm and hires
a new firm. The old law firm sues client for unpaid legal fees. Client and the old law
firm execute a settlement agreement. Client then serves on the old law firm the
malpractice lawsuit it had filed before the settlement agreement was executed.
              The question before us on appeal is whether client’s failure to file the
malpractice claim as a compulsory cross-complaint, rather than as a separate lawsuit,
requires its dismissal. We conclude, based on the record before it, the trial court correctly
sustained the old law firm’s demurrer because the malpractice claim was a compulsory
cross-complaint.
              However, on appeal, client asks for leave to amend the complaint to allege
the compulsory cross-complaint rule is inapplicable because of the terms of the
settlement agreement. Given the liberal rules of granting leave to amend, client should be
given an additional opportunity to try to state a cause of action and explain in a pleading
why the compulsory cross-complaint rule does not apply as a result of the settlement
agreement.
              We therefore reverse the judgment and remand with directions to the trial
court to sustain the demurrer with leave to amend.
                    STATEMENT OF FACTS AND PROCEDURAL HISTORY
              Gloria Degenarro, individually and as trustee of the J.E.D. Family Trust,
The Village Retail Center, LLC, and Brad Degenarro (collectively, the Degenarros) hired
Geiger & Merritt, LLP (the Geiger firm), to represent them in a civil matter. The Geiger
firm filed a complaint, naming the Degenarros as the plaintiffs, against the Metropolitan
Water District of Southern California (the Metropolitan Water District) and W.A. Rasic
Construction Company, Inc. (W.A. Rasic); the causes of action asserted were for inverse
condemnation and negligence (the underlying action).

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              About eight months later, the Degenarros fired the Geiger firm, and
substituted in the law firm of Bartel & Evans LLP (the Bartel firm). Soon thereafter, the
Metropolitan Water District’s motion for summary adjudication was granted; the
Degenarros stipulated to dismiss their remaining causes of action against the
Metropolitan Water District; the court entered an order of dismissal of the claims against
the Metropolitan Water District; summary judgment was granted in favor of W.A. Rasic
and against the Degenarros, and judgment was entered in favor of W.A. Rasic; and the
Degenarros filed a notice of appeal challenging the dismissal and the judgment. The
Degenarros later settled their claims against the Metropolitan Water District.
              In June 2011, the Geiger firm filed a lawsuit against the Degenarros for
breach of written contract, quantum meruit for services rendered, and for an account
stated, seeking unpaid legal fees and costs which had been incurred in the underlying
action (the legal fees action). The Degenarros filed an answer to the complaint in the
legal fees action in August 2011. One of the affirmative defenses alleged in the answer
was that “[t]he legal services rendered were rendered negligently depriving the services,
or some of them, of any value.” The Degenarros did not file a cross-complaint to the
legal fees action.
              In February 2012, the Degenarros filed a legal malpractice action against
the Geiger firm and the Bartel firm (the malpractice action). The Degenarros alleged
neither the Geiger firm nor the Bartel firm had adequately marshaled the facts in the
underlying action in order to oppose the dispositive motions filed by the Metropolitan
Water District and W.A. Rasic, and both had failed to retain or designate qualified expert
witnesses in the underlying action. The Degenarros did not file a notice of related case in
the malpractice action, and did not serve the malpractice action complaint on the Geiger
firm at that time.
              In April 2012, the Degenarros and the Geiger firm entered a settlement
agreement in the legal fees action. The legal fees action was dismissed with prejudice.

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              The malpractice action was served on the Geiger firm in May 2012, after
the legal fees action had been dismissed. The Geiger firm then demurred to the
malpractice action, in part on the ground that the Degenarros’ claim for legal malpractice
was a compulsory cross-complaint in the legal fees action. Following briefing and a
hearing, the trial court sustained the demurrer without leave to amend, and entered a
judgment and order of dismissal in favor of the Geiger firm. The Degenarros timely
appealed.1
                                         DISCUSSION
                                              I.
                                    STANDARD OF REVIEW
              “We independently review the ruling on a demurrer and determine de novo
whether the pleading alleges facts sufficient to state a cause of action. [Citation.] We
assume the truth of the properly pleaded factual allegations, facts that reasonably can be
inferred from those expressly pleaded, and matters of which judicial notice has been
taken. [Citation.] We construe the pleading in a reasonable manner and read the
allegations in context. [Citation.] ‘We affirm the judgment if it is correct on any ground
stated in the demurrer, regardless of the trial court’s stated reasons. [Citation.]’
[Citation.]” (Entezampour v. North Orange County Community College Dist. (2010) 190
Cal.App.4th 832, 837.) In ruling on a demurrer, a court may consider only the allegations


       1
          The Geiger firm correctly notes that the notice of appeal purports to appeal from
an order dated August 31, 2012, which is the date of the trial court’s minute order
sustaining the demurrer, not that of the judgment. An order sustaining a demurrer is not
an appealable order. (Doan v. State Farm General Ins. Co. (2011) 195 Cal.App.4th
1082, 1090, fn. 4.) However, “[t]he notice of appeal must be liberally construed. The
notice is sufficient if it identifies the particular judgment or order being appealed.” (Cal.
Rules of Court, rule 8.100(a)(2).) The judgment and order of dismissal in this case
references the same August 31, 2012 minute order identified in the notice of appeal. We
liberally construe the notice of appeal to be from the judgment and order of dismissal
filed September 21, 2012.

                                              4
of the complaint, and matters that are judicially noticeable. (Blank v. Kirwan (1985) 39
Cal.3d 311, 318.)
                                             II.

      THE DEMURRER WAS PROPERLY SUSTAINED BECAUSE THE MALPRACTICE ACTION
      SHOULD HAVE BEEN FILED AS A COMPULSORY CROSS-COMPLAINT IN THE LEGAL
        FEES ACTION; NOTHING IN THE COMPLAINT OR IN ANY MATTER SUBJECT TO
                      JUDICIAL NOTICE SUGGESTS OTHERWISE.
              “[I]f a party against whom a complaint has been filed and served fails to
allege in a cross-complaint any related cause of action which (at the time of serving his
answer to the complaint) he has against the plaintiff, such party may not thereafter in any
other action assert against the plaintiff the related cause of action not pleaded.” (Code
Civ. Proc., § 426.30, subd. (a).) A related cause of action “means a cause of action which
arises out of the same transaction, occurrence, or series of transactions or occurrences as
the cause of action which the plaintiff alleges in his complaint.” (Id., § 426.10,
subd. (c).)
              The Degenarros’ claim that the Geiger firm committed legal malpractice in
the underlying action is related to the Geiger firm’s cause of action for the Degenarros’
failure to pay legal fees incurred in the underlying action. (K.R.L. Partnership v.
Superior Court (2004) 120 Cal.App.4th 490, 498-499.) If the Degenarros’ cause of
action for legal malpractice against the Geiger firm existed at the time they filed their
answer in the legal fees action, then the malpractice action was a compulsory
cross-complaint that was required to be filed in the legal fees action.
              Based on the allegations of the complaint and the matters of which this
court may take judicial notice, we conclude the Degenarros’ cause of action for legal
malpractice against the Geiger firm existed at the time the Degenarros filed their answer
in the legal fees action. Before that answer was filed in August 2011, (1) the
Metropolitan Water District’s motion for summary adjudication had been granted;
(2) pursuant to a stipulation, the Degenarros had dismissed their additional causes of

                                              5
action against the Metropolitan Water District in order to make the summary adjudication
order appealable; (3) W.A. Rasic’s motion for summary judgment had been granted; and
(4) the Degenarros had filed a notice of appeal from the judgment in favor of W.A. Rasic
and the order of dismissal of the action against the Metropolitan Water District. Indeed,
in their answer to the complaint in the legal fees action, the Degenarros alleged that the
legal services provided by the Geiger firm in the underlying action “were rendered
negligently.” Therefore, the malpractice claim was a compulsory cross-complaint in the
legal fees action; the trial court correctly sustained the Geiger firm’s demurrer to the
malpractice action.
                                             III.
     THE CASE IS REMANDED TO GIVE THE DEGENARROS THE OPPORTUNITY TO AMEND.
              If the trial court sustains a demurrer without leave to amend, we must
consider “whether there is a reasonable possibility that the defect can be cured by
amendment.” (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) Leave to amend is liberally
granted. (Kempton v. City of Los Angeles (2008) 165 Cal.App.4th 1344, 1348.) We note
that the Degenarros’ requests for leave to amend have been general and conclusory, and
they have yet to tell any court what facts they might allege in order to state a valid cause
of action.2

       2
          In their opposition to the demurrer, the Degenarros made the following
conclusory request: “Should the court be inclined to grant [the Geiger firm’s] Demurrer,
[the Degenarros] respectfully request leave to amend the complaint, so they may allege
the Complaint with more specificity, so that it comports with the ruling of the Court.”
They did not request leave to amend at the hearing on the demurrer. The Degenarros’
appellate counsel conceded at oral argument before this court that the Degenarros did not
properly request leave to amend in the trial court.
          The Degenarros did not request leave to amend in either their opening or reply
brief on appeal. In their supplemental letter brief, filed at this court’s invitation, they
stated, in a heading: “If the trial court should not have considered the settlement
agreement, it is nonetheless evidence that appellants should have been granted leave to
amend to allege additional facts that the malpractice action was both preserved and
excluded from settlement.” (Boldface & some capitalization omitted.)

                                              6
              The Degenarros’ entire argument, both in the trial court and on appeal,
relies on the terms of the settlement agreement by which the parties settled the legal fees
action. The Degenarros contend their right to file their legal malpractice claim as a
separate action, rather than as a compulsory cross-complaint in the legal fees action, was
specifically preserved by the settlement agreement of the legal fees action, which
excluded a malpractice claim from its release. The Degenarros argue in their appellate
briefs that the Geiger firm either waived its right to argue the compulsory
cross-complaint defense, or should be judicially or equitably estopped from asserting that
defense. The relevant portions of the release and settlement agreement are quoted here:
              “Accordingly, the parties agree as follows:
              “2. [The Degenarros] shall pay to the [Geiger firm] the sum of Thirty
Thousand Dollars ($30,000.00) after execution and delivery of this Release & Settlement
Agreement by [the Geiger firm], as well as delivery to [the Degenarros] of the fully
executed Dismissal With Prejudice, which pertains to the instant action. . . .
              “3. In consideration of the payment provided for in paragraph 2 herein, [the
Geiger firm] and its successors and assigns do hereby release and forever discharge the
[Degenarros] . . . of and from any and all past, present or future claims, causes of action,
demands, obligations, actions, causes of action, claimed rights and damages, costs,
expenses, compensation of any nature whatsoever and whether for compensatory or
punitive damages, with which the [Geiger firm] . . . now ha[s] or which may hereinafter
accrue or otherwise be acquired on account of, which are subject of, the action filed
herein being County of Orange, Superior Court, Central Justice Center, action Case
Number 30-2011-00486139, except for all general and affirmative defenses, offsets,
setoffs, cross-complaints and causes of action relating to a potential legal malpractice
claim by the [Degenarros] against the [Geiger firm] arising out of [the Geiger firm]’s
representation of [the Degenarros] in the underlying case, which defenses, offsets,
setoffs, cross-complaints and causes of action are expressly reserved by the [Degenarros].

                                              7
The [Geiger firm] hereby absolutely and forever releases and discharges the [Degenarros]
from any and all matters which are the subject of said complaint, including but without
limitation, any and all known or unknown claims arising out of this lawsuit, including
any claims by the [Degenarros] for the return of fees and costs previously paid, except for
all general and affirmative defenses, offsets, setoffs, cross-complaints, and causes of
action relating to a potential legal malpractice claim by the [Degenarros] against the
[Geiger firm] arising out of [the Geiger firm]’s representation of [the Degenarros] in the
underlying case, which defenses, offsets, setoffs, cross-complaints and causes of action
are expressly reserved by the [Geiger firm]. . . .
              “4. In consideration of the Release & Settlement Agreement set forth
hereinabove, [the Degenarros] and their successors and assigns do hereby release and
forever discharge the [Geiger firm] . . . of and from any and all past, present or future
claims, causes of action, demands, obligations, actions, causes of action, claimed rights
and damages, costs, expenses, compensation, except a legal malpractice claim by the
[Degenarros] against the [Geiger firm] arising out of their representation in the
underlying case, which cause of action is expressly reserved by the [Degenarros] and
whether for compensatory or punitive damages, with which the [Degenarros], their heirs,
successors or assigns, now have or which may hereinafter accrue or otherwise be
acquired on account of, which are subject of, the action filed herein being County of
Orange, Superior Court, Central Justice Center, action Case Number 30-2011-00486139.
The [Degenarros], hereby absolutely and forever release and discharge the [Geiger firm]
from any and all matters which are the subject of said complaint, except a legal
malpractice claim by the [Degenarros] against the [Geiger firm] arising out of their
representation in the underlying case, which cause of action is expressly reserved by the
[Degenarros], any and all known or unknown claims arising out of this lawsuit, including
any claims of the [Degenarros] for the return of fees and costs previously paid.”
(Boldface omitted, italics added.)

                                              8
              The settlement agreement, which was attached as an exhibit to the
Degenarros’ opposition to the demurrer and appears at pages 86 through 91 of the clerk’s
transcript on appeal, is not a matter of which the trial court or this court could take
judicial notice. In a procedurally similar case, the appellate court concluded neither the
trial court nor the appellate court could properly consider a written release because a
release is not a matter of which a court may take judicial notice. (Afuso v. United States
Fid. & Guar. Co. (1985) 169 Cal.App.3d 859, 861-862, disapproved on other grounds in
Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287, 310-311.) “On
appeal, plaintiff contends the trial court erred in sustaining the demurrer to her complaint.
Initially, she argues the language of the release does not preclude her from litigating her
claim against defendants for their violation of [Insurance Code] section 790.03.
However, we need not address this issue since the release was not properly before the
trial court. [¶] ‘A demurrer tests the pleadings alone and not the evidence or other
extrinsic matters. Therefore, it lies only where the defects appear on the face of the
pleading or are judicially noticed [citations]. The only issue involved in a demurrer
hearing is whether the complaint, as it stands, unconnected with extraneous matters,
states a cause of action [citation].’ [Citation.] Defendants here did not request that the
trial court take judicial notice of the release. [Citation.] However, even if they had,
judicial notice would not have been proper. Although a trial court may properly take
judicial notice of the records of any court of record of any state of the United States
[citations], there is no indication that the release in this case was part of any court record.
Typically, the release in a personal injury suit is not filed with the court. Thus, the trial
court here improperly considered the contents of the release.” (Afuso v. United States
Fid. & Guar. Co., supra, at pp. 861-862.) In this case, too, the trial court could not
properly consider the contents of the settlement agreement in ruling on the demurrer.
              We invited the parties to submit supplemental letter briefs addressing
whether any exception to the aforementioned rule would permit this court to consider the

                                               9
terms of the settlement agreement on appeal. Having analyzed the parties’ arguments, we
remain convinced that the settlement agreement is not a matter of which we may take
judicial notice.3
               However, in their supplemental letter brief, the Degenarros argue we may
still consider the settlement agreement in determining whether they should be granted
leave to amend.
               It is reasonably possible that the Degenarros could amend their complaint
in the malpractice action to support a valid cause of action on the grounds the settlement
agreement preserves their right to sue for malpractice in a separate action, and bars the
Geiger firm from asserting, as an affirmative defense, that the compulsory
cross-complaint rule precludes the malpractice action. We cannot further comment on
the manner in which the Degenarros may try to do so, except to acknowledge that they
have stated enough on appeal to warrant an opportunity to amend. We emphasize that we
express no opinion as to whether the Degenarros will be able to amend the complaint to
state a cause of action, or whether any such amended complaint will also be subject to
demurrer.
                                            IV.
                                        CAUSATION
               The Geiger firm makes an additional argument in support of affirming the
trial court’s order sustaining the demurrer—that there was no causal link between the
Geiger firm’s provision of allegedly negligent legal services and the Degenarros’ alleged
damages. It is true that the Degenarros’ complaint alleges, “Defendant Bartel & Evans


       3
          We reject the Degenarros’ argument that the Geiger firm waived the right to
object to consideration of the settlement agreement as a part of the appellate record.
Whether a document is a proper subject of judicial notice is a matter for the court to
determine. The parties may not force an appellate court to take judicial notice of a
document that is not within the scope of Evidence Code section 451 et seq., by failing to
object to a nonexistent request for judicial notice of the document in the trial court.

                                             10
had the opportunity to correct prior deficiencies with regard to the retention/designation
of experts on behalf of [the Degenarros] who would be able to provide expert opinions
regarding [the Degenarros]’ spring/water rights, but failed to retain/designate appropriate
and/or qualified experts, even though such experts were available and were interviewed
after the fact.” (Some capitalization omitted.)
              Under some circumstances, attorneys cannot be held liable for mistakes
they make if those mistakes could have been cured by counsel that substituted into the
case, if the new counsel has the time to correct those errors, and the errors are not such
that they are irreparable. (Steketee v. Lintz, Williams & Rothberg (1985) 38 Cal.3d 46, 57
[“attorney cannot be held liable for failing to file an action prior to the expiration of the
statute of limitations if he ceased to represent the client and was replaced by other
counsel before the statute ran”]; Stuart v. Superior Court (1992) 14 Cal.App.4th 124,
127-128 [attorney filed personal injury action in municipal court, limiting the damages
recoverable, and failed to serve summons and complaint during statutory period; because
a new attorney was substituted in before date on which proof of service had to be
returned, original attorney was entitled to summary judgment in malpractice action].)
              The Degenarros’ complaint in the malpractice action alleged not only that
the Geiger firm and the Bartel firm committed malpractice by failing to retain and
designate expert witnesses, but also that both the Geiger firm and the Bartel firm “failed
to adequately marshal facts which would have shown that [the Metropolitan Water
District] and W.A. Rasic failed to conduct appropriate investigation of the subject soil,
resulting in delay of the project, causing [the Degenarros] to sustain damage.” That
allegedly negligent action is not alleged to have been curable by the Bartel firm after the
Geiger firm substituted out of the case. We reject the Geiger firm’s argument that this
court, based on the record before us, can decide as a matter of law that the malpractice
was curable by the Bartel firm, and that the demurrer could be sustained based on
causation.

                                              11
                                                V.

            WE DO NOT HAVE JURISDICTION TO ORDER THE FILING OF A CROSS-
                       COMPLAINT IN THE LEGAL FEES ACTION.

              The Degenarros argue that the trial court retained jurisdiction over the legal
fees action (Code Civ. Proc., § 664.6), and that they should, therefore, be permitted to
seek leave from that court to file a cross-complaint for malpractice. There are at least
two problems with this argument.
              First, the Degenarros’ argument is again premised on the language of the
parties’ settlement agreement; the legal import of the settlement agreement is not before
us, and the agreement itself is not a matter of which we may take judicial notice.
              Second, and more fundamentally, the legal fees action is not before us in
this appeal from a judgment in the malpractice action. Indeed, the parties have stated the
legal fees action has been dismissed.


                                        DISPOSITION
              The judgment is reversed and the matter is remanded with directions to
sustain the demurrer, with leave to amend the complaint. In the interests of justice, all
parties shall bear their own costs on appeal.




                                                     FYBEL, J.

WE CONCUR:



MOORE, ACTING P. J.



ARONSON, J.

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