Filed 4/3/13 Cravea v. Nejadpour CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


GERALD CRAVEA,                                                          B237993

         Plaintiff and Appellant,                                       (Los Angeles County
                                                                        Super. Ct. No. BC383052)
         v.

F. BARI NEJADPOUR et al.,

         Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Alan S. Rosenfield, Judge. Affirmed.


         Law Offices of Thomas P. Carter and Thomas P. Carter for Plaintiff and
Appellant.


         L.A. Law Group and Matthew S. Grayson for Defendants and Respondents.

                                            _____________________
                                     INTRODUCTION
       The trial court granted the motion for summary judgment of defendants and
respondents F. Bari Nejadpour and Nejadpour & Associates (Nejadpour defendants) and
then entered judgment in their favor and against plaintiff and appellant Gerald Cravea.
We affirm.
       This action arises from the alleged legal malpractice and fraud of Benjamin Donel
and the Law Offices of Benjamin Donel (Donel defendants), who represented plaintiff in
a number of matters. Plaintiff contends that the Nejadpour defendants were “partners” of
the Donel defendants and, as such, were vicariously liable for the Donel defendants’
alleged negligent and fraudulent conduct. The main issue on appeal is whether there was
a triable issue of material fact concerning the alleged actual or ostensible partnership
between Donel and Nejadpour, or their two respective law firms. We shall conclude that
the trial court correctly found that, as a matter of law, there was no partnership.
                 FACTUTAL AND PROCEDURAL BACKGROUND
       1.      Donel’s Representation of Plaintiff
       From approximately January 2005 to February 2007, the Donel defendants
provided legal services to plaintiff. They represented plaintiff in a variety matters,
including the foreclosure sale of several of plaintiff’s properties, plaintiff’s bankruptcy
petition, a probate matter, and a criminal case.
       Between January 2005 and December 2006, plaintiff executed four different
retainer agreements. Each agreement was on stationary for the Law Offices of Benjamin
Donel & Associates, and stated that the contract was between plaintiff and Benjamin
Donel. The Nejadpour defendants were not mentioned in the retainer agreements.
       Three of the four retainer agreements included the following provision:
“ASSOCIATION OF COUNEL: Attorney [Donel] may associate other counsel at his
discretion and at any stage of the legal proceedings, providing that there is no additional
charge to Client [plaintiff] for such services. This association is for trial counsel to
control litigation of the case because of the area of specialty.”



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       Defendant F. Bari Nejadpour never provided any legal services to plaintiff and
was never paid by plaintiff any amount of money. Indeed, the first time plaintiff met
Nejadpour was at a deposition in this case, long after Donel stopped providing plaintiff
with legal services.
       2.     The Relationship Between Donel and Nejadpour
       At some point after he passed the state bar in 2003 and before he began
representing plaintiff, Donel developed a professional relationship with his friend
Nejadpour. According to Donel, he and Nejadour “occasionally” made special
appearances on each other’s behalf. Nejadpour estimates that Donel made three or four
appearances for him, and that he made one or two appearances for Donel. Nejadpour and
Donel did not pay each other for making special appearances and did not give money to
each other for any purpose. Rather, the two men informally agreed to make appearances
for each other on a quid pro quo basis.
       Donel and Nejadpour also sometimes informally consulted with each other over
the telephone regarding legal issues. They deny, however, consulting with each other on
the matters Donel handled for plaintiff. Moreover, Donel and Nejadpour did not share
bank or trust accounts or expenses and profits. They also maintained separate offices,
Donel’s in Beverly Hills and Nejadpour’s on Wilshire Boulevard in Los Angeles.
       3.     Representations Donel and Nejadpour Made to Third Parties Regarding
              Their Relationship
       During the time period the Donel defendants represented plaintiff, they sent letters
to plaintiff and others which listed in the top right corner “Law Offices of Lawrence
Levy”1 and “Nejadpour & Associates” as “ASSOCIATED COUNSELS.” In at least one
letter from the Donel defendants to plaintiff, their letterhead stated that “Law Offices of
Lawrence Levy” and “Nejadpour & Associates” were “OFFSIDE COUNSELS.” The

1
        Donel was an intern for Levy before he became a lawyer. Donel claims that he
informed Levy that he placed his name on his stationary. Levy, however, in a declaration
filed in this action, stated that he never gave Donel permission to use his name for any
purpose and that he never had an “association” with Donel’s firm of any kind.


                                              3
letterhead on some correspondence the Donel defendants sent to plaintiff, however, did
not include a reference to Nejadpour & Associates or the Law Offices of Lawrence Levy.
       The Nejadpour defendants placed Benjamin Donel’s name on their letterhead
below the name of F. Bari Nejadpour, “Managing Partner.” They also listed Donel under
“People” on their website. Further, the Nejadpour defendants’ letterhead stated that their
“Beverly Hills Office” was located at 280 S. Beverly Drive, No. 209, which was the
Donel defendants’ office.2 There is no evidence, however, that plaintiff received any
correspondence from the Nejadpour defendants, and plaintiff concedes that he never
searched on the internet for the Nejadpour defendants’ website.
       Donel and Nejadpour both concede that they had an informal agreement to use
each other’s name on their respective stationary. In their depositions taken in this action,
Donel and Nejadpour provided similar explanations for entering into this agreement.
Donel testified that he placed Nejadpour & Associates on his stationary so that it would
look “more professional.” Nejadpour stated he thought his law firm would look “more
impressive” by listing other professionals, including plaintiff, on its stationary.
       At his deposition, plaintiff stated that Donel told him that he had a “full-service”
law firm, and that he had attorneys working for him who would be able to assist plaintiff
in different areas of law. When plaintiff received letters from the Donel defendants that
listed law firms on the top right corner, he assumed that those law firms and the Donel
defendants “worked together.”
       4.     Procedural History of This Case
       Plaintiff commenced this action against the Donel defendants and other defendants
on December 31, 2007, by filing a complaint in the superior court. In his operative third
amended complaint (TAC), plaintiff set forth 10 causes of action against the Donel
defendants and Nejadpour defendants—five for professional negligence and five for


2
       The Nejadpour defendants’ letterhead also stated an address for the firm’s
“Switzerland Office.” Nejadpour claims that he occasionally worked on his California
cases in that office.


                                              4
fraud and misrepresentation.3 The TAC did not allege that the Nejadpour defendants
directly provided legal services to plaintiff, or that they made any false and fraudulent
statements to him. Instead, the TAC alleged that the Nejadpour defendants are liable for
Donel’s alleged tortious conduct because Donel was their employee or partner.
       On January 6, 2011, the Nejadpour defendants filed a motion for summary
judgment. In support of their motion, the Nejadpour defendants filed, inter alia, a
declaration by Benjamin Donel. Donel stated in his declaration that he was not and never
had been Nejadpour’s partner.
       On June 13, 2011, the trial court issued an order granting the motion. Based on
that order, the trial court entered judgment in favor of the Nejadpour defendants and
against plaintiff on October 17, 2011. Plaintiff filed a timely notice of appeal of the
judgment.
                                     CONTENTIONS
       Plaintiff makes three main arguments on appeal. He first contends that the trial
court should have denied the Nejadpour defendants’ motion for summary judgment
because there was a triable issue of material fact regarding whether an actual partnership
existed between the moving defendants and the Donel defendants. Next, plaintiff argues
the motion should have been denied because there was a triable issue of material fact
regarding whether a partnership by estoppel existed. Finally, plaintiff contends there are
triable issues of material fact as to whether Nejadpour violated Business and Professions
Code section 17200 et seq. and section 17500 et seq. by falsely representing that he was
part of Donel’s firm and that Donel was part of his firm.
                                      DISCUSSION
       1.     Standard of Review
       We review the trial court’s grant of summary judgment independently. (Salas v.
Department of Transportation (2011) 198 Cal.App.4th 1058, 1067.) A motion for
3
        The TAC also set forth three causes of action against defendants Gilda Daneshgar,
Shiva Donel, Easy Realty and Loans, and Easy Financial LLC, none of whom are parties
to this appeal.


                                             5
summary judgment must be granted “if all the papers submitted show that there is no
triable issue as to any material fact and that the moving party is entitled to a judgment as
a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)
         In conducting our de novo review, we employ the same three-step analysis as the
trial court. (Benson v. Superior Court (2010) 185 Cal.App.4th 1179, 1185.) “The three
steps are (1) identifying the issues framed by the complaint, (2) determining whether the
moving party has made an adequate showing that negates the opponent’s claim, and
(3) determining whether the opposing party has raised a triable issue of fact.” (Food
Safety Net Services v. Eco Safe Systems USA, Inc. (2012) 209 Cal.App.4th 1118, 1124.)
         2.    Plaintiff’s Causes of Action in the TAC Against the Nejadpour Defendants
               Depend On a Partnership Relationship Between the Nejadpour Defendants
               and the Donel Defendants
         The TAC alleged that the Donel defendants negligently handled legal matters for
plaintiff and defrauded plaintiff in numerous ways. It did not, however, contain any
specific factual allegations regarding the Nejadpour defendants’ alleged wrongdoing.
The TAC merely alleged that Benjamin Donel “was an employee or partner of Defendant
Nejadpour & Associates.” The causes of action in the TAC against the Nejadpour
defendants thus rest on their alleged vicarious liability for Donel’s alleged negligence and
fraud.
         In his opposition to the motion for summary judgment and in his respondent’s
brief, plaintiff did not contend that Donel was an “employee” of the Nejadpour
defendants. Therefore the main issue on appeal, as framed by the TAC, is whether the
Nejadpour defendants were actual or ostensible partners of Donel or his law firm.
         3.    The Nejadpour Defendants Met Their Burden of Negating Plaintiff’s Claim
               That They Had an Actual or Ostensible Partnership with the Donel
               Defendants
               a.     Actual Partnership
         A partnership is an “association of two or more persons to carry on as coowners of
a business for profit.” (Corp. Code, § 16202, subd. (a).) “Generally, a partnership


                                              6
connotes co-ownership in partnership property, with a sharing in the profits and losses of
a continuing business.” (Chambers v. Kay (2002) 29 Cal.4th 142, 151 (Chambers).) The
partnership itself and each of its partners are jointly and severally liable for the tortious
acts committed in the ordinary course of business by the partnership or any of its
partners. (Corp. Code, §§ 16305, 16306.)
       In support of their motion for summary judgment, the Nejadpour defendants filed
a declaration by Benjamin Donel, wherein Donel categorically denied that he had ever
been a partner with F. Bari Nejadpour. They also presented evidence describing the
nature of the relationship. This evidence indicated that while Donel and Nejadpour
occasionally made special appearances for each other on a quit pro quo basis, and
sometimes consulted with each other on legal matters, they did not operate a business
together on a continuing basis, or enter into a joint venture to represent plaintiff or any
other client.4 Crucially absent from their business relationship was any agreement to
share profits, losses, revenues or expenses, or any practice of doing so. (Sandberg v.
Jacobson (1967) 253 Cal.App.2d 663, 668 [“It is essential . . . to the existence of a
partnership that there be a community of interest and an agreement to share jointly in the
profits and losses resulting from the enterprise”].) The Nejadpour defendants thus met
their burden of showing that plaintiff could not establish the existence of an actual
partnership between them and the Donel defendants.
              b.      Ostensible Partnership
       Plaintiff contends that if Nejadpour and Donel were not actual partners, they were
at a minimum ostensible partners. A partnership by estoppel is formed when the acts of
an ostensible or purported partner are “ ‘factually and legally sufficient to lead another
person to believe he was a copartner and assumed responsibility for such.’ ” (Armato v.

4
        Plaintiff argues in the respondent’s brief that Nejadpour and Donel entered into “a
partnership agreement or joint venture.” A partnership and joint venture are the same in
all essential respects (Chambers, supra, 29 Cal.4th at p. 151), except that “[a] joint
venture usually involves a single business transaction, whereas a partnership may involve
‘a continuing business for an indefinite or fixed period of time.’ ” (Weiner v. Fleischman
(1991) 54 Cal.3d 476, 482.)

                                               7
Baden (1999) 71 Cal.App.4th 885, 898; accord J & J Builders Supply v. Caffin (1967)
248 Cal.App.2d 292, 297 (J & J Builders).)
       Corporations Code section 16308, subdivision (a) provides: “If a person, by
words or conduct, purports to be a partner, or consents to being represented by another as
a partner, in a partnership or with one or more persons not partners, the purported partner
is liable to a person to whom the representation is made, if that person, relying on the
representation, enters into a transaction with the actual or purported partnership.”
       The Nejadpour defendants presented evidence negating plaintiff’s ostensible
partnership allegations. This evidence showed that plaintiff had not met Nejadpour
before filing his suit, and had not seen his website or any correspondence from Nejadpour
before agreeing to hire the Donel defendants. Plaintiff thus could not have relied on any
representation made by Nejadpour in entering into a transaction with the purported
Donel-Nejadpour partnership.
       Plaintiff’s ostensible partnership claim therefore rests solely upon Donel’s alleged
representations to plaintiff made with Nejadpour’s consent. These representations were
found in Donel’s letterhead, which referred to Nejadpour & Associates as one of two
“Associated Counsels” or “Offside Counsels.” Significantly, Donel’s letterhead never
referred to Nejadpour or his firm as a “partner.” It is also worth noting that “Nejadpour
& Associates,” and not F. Bari Nejadpour, was listed as an associated counsel. Generally
individuals and not law firms are “partners” with each other. Moreover, Donel’s
letterhead must be placed in the context of the four retainer agreements plaintiff signed
and the bills Donel sent plaintiff for services rendered. None of the retainer agreements
or bills mentioned or referred to Nejadpour or his firm in any way. We hold that under
these circumstances, the representations on Donel’s letterhead concerning Nejadpour &
Associates were not, as a matter of law, sufficient to establish an ostensible partnership.




                                              8
       4.     Plaintiff Did Not Meet His Burden of Showing There is a Triable Issue of
              Material Fact
       Plaintiff did not meet his burden of showing there is a triable issue of material fact
with respect to an alleged actual or ostensible partnership between the Nejadpour
defendants and the Donel defendants. He presented no evidence whatsoever regarding a
continuous business or joint venture involving the sharing of profits and losses. Plaintiff
therefore did not show there is a triable issue regarding an actual partnership.
       With respect to an ostensible partnership, plaintiff filed excerpts from his
deposition regarding representations made by Donel. Specifically, plaintiff contends that
Donel stated to plaintiff that he had different attorneys working for him who specialized
in different areas of the law, and that he had a full-service law firm. There is no
evidence, however, that Nejadpour approved of or even knew about these representations.
The Nejadpour defendants cannot be liable under an ostensible partnership theory based
on Donel’s unauthorized statements. (See J & J Builders, supra, 248 Cal.App.2d at
p. 297 [“Unauthorized declarations of Jeffrey made outside the presence of Caffin would
not be admissible to establish ostensible partnership of Caffin”].)
       Plaintiff’s reliance on J & J Builders is misplaced. There, the plaintiff sued
defendants Jeffrey and Caffin, individually and as copartners doing business as “Perry
Masonry,” to recover payment for building materials it delivered to the defendants. Prior
to the delivery, the plaintiff’s representative had a meeting with Jeffrey and Caffin. At
the meeting, in Caffin’s presence, Jeffrey stated: “ ‘This is my new partner . . . [W]e are
going to go into a new business, and I want to discontinue [my previous business]
account and start with Perry Masonry. . . .” (J & J Builders, supra, 248 Cal.App.2d at
p. 294.) While Jeffrey said this, Caffin sat silent. (Ibid.) Subsequently, plaintiff sent
invoices to “Perry Masonry,” and was paid by checks bearing that name. (Ibid.) The
Court of Appeal held that under these circumstances, Caffin could be liable to the
plaintiff as an ostensible partner. (Id. at p. 297.)




                                               9
       The present case is distinguishable from J & J Builders. Neither Donel nor
Nejadpour ever represented to plaintiff orally or in writing that they were “partners” with
each other. Further, Donel’s oral statements about having a full-service law firm were
not made in Nejadpour’s presence or with his consent. Indeed, plaintiff did not meet
Nejadpour until long after Donel stopped representing plaintiff. Further, unlike the
invoices in J & J Builders, Donel’s bills in no way indicated that Donel rendered services
in his capacity as a partner of Nejadpour or anyone else. J & J Builders therefore lends
no support to plaintiff’s ostensible partnership claim.
       5.     Plaintiff Cannot Survive Summary Judgment Based on a New Unfair
              Business Practices Claim
       Plaintiff argues that Nejadpour violated Business and Professions Code section
17200 et seq. and section 17500 et seq. by falsely representing that he was part of
Donel’s firm and that Donel was part of his firm. We shall not reach the merits of
plaintiff’s unfair business practices claim because the claim was not alleged in the TAC
and plaintiff did not argue he could assert this claim in the trial court.
       The issues on a motion for summary judgment are framed by the pleadings.
(Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 7.) “If a
plaintiff wishes to expand the issues presented, it is incumbent on the plaintiff to seek
leave to amend the complaint either prior to the hearing on the motion for summary
judgment, or at the hearing itself.” (Laabs v. City of Victorville (2008) 163 Cal.App.4th
1242, 1258.) To allow a plaintiff to expand the issues without filing an amended
pleading, “allows nothing more than a moving target.”5 (Id. at p. 1258, fn. 7.)



5
        Some courts have limited the ability of a plaintiff to amend his or her complaint in
response to a motion for summary judgment. For example, in Van v. Target Corp. (2007)
155 Cal.App.4th 1375, 1387, fn. 2, the court stated that “amendments are usually allowed
after summary judgments have been filed only to repair complaints that are legally
insufficient—in other words, those that would be subject to a motion for judgment on the
pleadings.” The court further stated that a plaintiff cannot amend his or her complaint to
state a different theory of recovery. (Id. at p. 1388, fn. 2.)


                                              10
       Further, if an appellant does not raise an argument in the trial court, he forfeits the
argument on appeal. (Kaufman & Broad Communities, Inc. v. Performance Plastering,
Inc. (2006) 136 Cal.App.4th 212, 226.) The forfeiture rule “is designed to advance
efficiency and deter gamesmanship.” (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247,
264 (Keener); accord Hartley v. Superior Court (2011) 196 Cal.App.4th 1249, 1260
[“The main purpose of the forfeiture rule is to protect the trial court and the opposing
party from unfairness”].) It encourages the parties to bring errors to the attention of the
trial court, so that they may be corrected before a judgment is entered and an appeal is
taken. (Keener, at p. 264; In re Wilford J. (2005) 131 Cal.App.4th 742, 754.)
       Here, plaintiff did not set forth an unfair business practices cause of action in the
TAC. He also did not seek leave in the trial court to amend the TAC to add such a cause
of action. Whether the Nejadpour defendants violated certain provisions of the Business
and Professions Code was simply not an issue raised by the motion for summary
judgment or adjudicated by the trial court.
       Moreover, plaintiff did not argue in opposition to the Nejadpour defendants’
motion for summary judgment that he could assert an unfair business practices claim.
Plaintiff therefore forfeited any argument on appeal that the trial court “erred” by failing
to deny the motion on the ground that he can maintain an unfair business practices claim
against the Nejadpour defendants.
       Plaintiff argues that we should consider his “new legal theory” because it is based
on facts that were before the trial court and is purely a question of law. It is true that we
have discretion to consider pure questions of law for the first time on appeal. (Sheller v.
Superior Court (2008) 158 Cal.App.4th 1697, 1709.) We are more inclined to exercise
such discretion when there has been a change in decisional law that affects the rights of
the parties. (GreenLake Capital, LLC v. Bingo Investments, LLC (2010) 185 Cal.App.4th
731, 739, fn. 6.)




                                              11
       In this case, however, we decline to consider plaintiff’s new unfair business
practices claim. Plaintiff offers no reason why he failed to raise this argument below. He
does not, for example, claim that his new legal theory is based on a change in decisional
law. Moreover, because plaintiff never amended his TAC to add an unfair business
practices claim, the Nejadpour defendants had no opportunity to present evidence
showing that plaintiff could not prevail on such a claim. The Nejadpour defendants
submitted papers showing that there was no triable issue of material fact and that they
were entitled to judgment as a matter of law on all of the causes of action stated in the
TAC. It is fundamentally unfair to the Nejadpour defendants to change the goal posts at
this stage of the litigation.
                                      DISPOSITION
       The judgment is affirmed. Respondents F. Bari Nejadpour and Nejadpour &
Associates are awarded costs on appeal.


       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                  KITCHING, J.

We concur:




                       KLEIN, P. J.




                       CROSKEY, J.




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