Filed 3/2/16 Hewlett v. Braden CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


PATRICIA HEWLETT,
         Plaintiff and Appellant,
                                                                     A142571
v.
JAMES M. BRADEN,                                                     (San Francisco County
                                                                     Super. Ct. No. CGC-14-537933)
         Defendant and Respondent.


         Plaintiff Patricia Hewlett appeals from the trial court’s order sustaining the
demurrer of her former attorney, defendant James Braden, without leave to amend. We
affirm in part and reverse in part.
                                                  BACKGROUND
         Plaintiff retained defendant in connection with an appeal of a bankruptcy court
order. Defendant did not file an opening brief, apparently after concluding the appeal
was meritless, but plaintiff filed one in propia persona. The federal district court rejected
plaintiff’s appeal, finding no legal or factual basis to disturb the bankruptcy court’s
judgment. Plaintiff appealed this ruling to the Ninth Circuit, which summarily affirmed
the district court after finding “the questions raised in this appeal are so insubstantial as
not to require further argument.” In separate orders, the federal district court and Ninth
Circuit both denied plaintiff’s request to proceed in forma pauperis on her appeal to the
Ninth Circuit on the ground that the appeal was frivolous.




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       Plaintiff subsequently sued defendant for legal malpractice and breach of
contract.1 Defendant demurred. The trial court sustained the demurrer, taking judicial
notice of the federal court filings and finding “plaintiff cannot establish causation or
damages as a matter of law” because “even if defendant owed a duty to file an appeal,
there was nothing he could have done to lead to a better outcome for plaintiff.” The court
dismissed plaintiff’s complaint without leave to amend.
                                        DISCUSSION
       “When reviewing a judgment dismissing a complaint after the granting of a
demurrer without leave to amend, courts must assume the truth of the complaint’s
properly pleaded or implied factual allegations. [Citation.] Courts must also consider
judicially noticed matters. [Citation.] In addition, we give the complaint a reasonable
interpretation, and read it in context. [Citation.] If the trial court has sustained the
demurrer, we determine whether the complaint states facts sufficient to state a cause of
action. If the court sustained the demurrer without leave to amend, as here, we must
decide whether there is a reasonable possibility the plaintiff could cure the defect with an
amendment. [Citation.] If we find that an amendment could cure the defect, we conclude
that the trial court abused its discretion and we reverse; if not, no abuse of discretion has
occurred. [Citation.] The plaintiff has the burden of proving that an amendment would
cure the defect.” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081
(Schifando).)
I. Legal Malpractice
       “ ‘ “Actionable legal malpractice is compounded of the same basic elements as
other kinds of actionable negligence: duty, breach of duty, causation, and damage.’ ”
(Shopoff & Cavallo LLP v. Hyon (2008) 167 Cal.App.4th 1489, 1508–1509.) “A plaintiff
alleging legal malpractice in the prosecution or defense of a legal claim must prove that,
but for the negligence of the attorney, a better result could have been obtained in the

1
  Although plaintiff did not include her complaint in the record on appeal, both she and
defendant attached it to their respective briefs. On our own motion, we augment the
record to include the complaint. (Cal. Rules of Court, rule 8.155(a)(1)(A).)


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underlying action.” (Orrick Herrington & Sutcliffe v. Superior Court (2003) 107
Cal.App.4th 1052, 1057 (Orrick).)
       Plaintiff asserts, without elaboration, that her “complaint and attached exhibits
establish causation and damages.” We decline to address this conclusory argument. “We
need not address points in appellate briefs that are unsupported by adequate factual or
legal analysis.” (Placer County Local Agency Formation Com. v. Nevada County Local
Agency Formation Com. (2006) 135 Cal.App.4th 793, 814.)
       Plaintiff also contends the trial court erroneously made factual findings with
respect to the federal court orders, and the orders are irrelevant to her claim. As plaintiff
argues, “ ‘[a] court may take judicial notice of [another] court’s action, but may not use it
to prove the truth of the facts found and recited.’ ” (Steed v. Department of Consumer
Affairs (2012) 204 Cal.App.4th 112, 120.) Judicial notice may be taken of the fact that
plaintiff’s bankruptcy appeal was rejected on the merits. Her complaint does not allege
that her bankruptcy appeal would have been successful had defendant filed a brief on her
behalf.2 Accordingly, we affirm the trial court’s ruling with respect to plaintiff’s legal
malpractice cause of action. (Orrick, supra, 107 Cal.App.4th at p. 1057.)3
II. Breach of Contract
       “[A]n overpayment for services is contract damages.” (Orrick, supra, 107
Cal.App.4th at p. 1060.) A plaintiff unable to prove a better result would have occurred
but for an attorney’s negligence can nonetheless seek recovery of attorney fees as
contract damages where the plaintiff “claims he did not get what he paid for.” (Id. at
2
 In plaintiff’s brief she conclusorily argues: “Had [defendant] fulfilled his contractual
duty, he could have produced a better outcome for [plaintiff].” However, she does not
elaborate on this assertion and includes no record citation to support it. Moreover, as
noted above, no such allegation appears in the complaint.
3
  Because of this conclusion, we need not reach defendant’s argument that the federal
court orders collaterally estop plaintiff from litigating causation and damages. In
addition, the parties dispute whether plaintiff’s complaint includes a third cause of action
for declaratory relief, and plaintiff argues the trial court’s ruling on defendant’s demurrer
to two causes of action is therefore “uncertain.” She forfeited this argument by failing to
raise it below and we decline to consider it. (In re S.B. (2004) 32 Cal.4th 1287, 1293.)


                                              3
pp. 1060–1061.) Plaintiff’s complaint alleges defendant breached the parties’ contract by
“refusing to prepare an opening brief for plaintiff and thereafter refusing to refund
plaintiff’s money.” Her complaint seeks as contract damages, inter alia, “the money
plaintiff paid to defendant.”
       Defendant argues the retainer did not obligate him to file an opening brief in the
bankruptcy appeal. Although plaintiff checked a box on the Judicial Council form
indicating that a copy of the agreement was attached to her complaint, plaintiff did not in
fact attach a copy. Defendant requested the trial court take judicial notice of the
agreement, arguing he was simply correcting plaintiff’s “clerical oversight.” The trial
court, however, only took judicial notice of the filings in the federal case.
       Our review assumes the truth of the complaint’s properly pled allegations.
(Schifando, supra, 31 Cal.4th at p. 1081.) Although we may reject factual allegations to
the extent they conflict with the content of an exhibit attached to the complaint (Barnett
v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505), plaintiff did not attach the
agreement to her complaint. Accordingly, defendant’s demurrer fails to demonstrate
plaintiff cannot prevail on her breach of contract claim. We reverse the trial court’s order
on this cause of action.4
III. Leave to Amend
       Plaintiff seeks leave to amend her complaint to add new causes of action. Because
we are reversing the demurrer in part, this request should be presented to the trial court.
(See Code Civ. Proc., §§ 473, subd. (a)(1), 576.) We express no opinion on the merits of
any such request.
                                       DISPOSITION
       The judgment is reversed and the trial court’s order sustaining defendant’s
demurrer is vacated. The trial court is directed to issue a new order sustaining the

4
  Although the retainer agreement is not before us, we question defendant’s assertion that
contract language requiring an attorney to “[i]nvestigate the history of [a case], study the
facts and the applicable law, and thus assist [the client] with her appeal” cannot
reasonably be construed to include an obligation to file an opening brief in the appeal.


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demurrer to plaintiff’s negligence cause of action and overruling the demurrer to
plaintiff’s breach of contract cause of action. Each side shall bear their own costs on
appeal.




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                  SIMONS, J.




We concur.




JONES, P.J.




NEEDHAM, J.




(A142571)



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