Filed 5/26/15
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SECOND APPELLATE DISTRICT

                                    DIVISION ONE


SONDRA WISE KUMARAPERU,                         B253978

        Plaintiff and Appellant,                (Los Angeles County
                                                Super. Ct. No. BC503228)
        v.

JOHN FELDSTED et al.,

        Defendants and Respondents.



        APPEAL from an order of the Superior Court of California, County of Los
Angeles. Susan Bryant-Deason, Judge. Affirmed.
        Sylvester, Oppenheim & Linde, Richard D. Oppenheim, Jr., David A. Seeley, for
Plaintiff and Appellant.
        Jacks & Maybaum, Bradley W. Jacks, Russell W. Clampitt, for Defendants and
Respondents.
                        ___________________________________
       In this legal malpractice action, plaintiff Sondra Wise Kumaraperu alleges her
attorneys negligently advised her to draw a check on an account that she owned but on
which she was not a signatory and deposit the funds into another account she owned,
which she alleges exposed her to a criminal forgery prosecution. The trial court sustained
the attorneys‟ demurrer without leave to amend on the grounds that Kumaraperu bore
unclean hands and failed to allege she had been found factually innocent of forgery. We
affirm, but on a different ground: Transferring one‟s own funds from one account to
another cannot be the basis of a forgery prosecution absent intent to defraud, even if the
transfer is effected by means of a false signature. Therefore, plaintiff‟s criminal
prosecution could not reasonably have been foreseen by defendants, and any damages she
incurred defending against it were not caused by them.
                                     BACKGROUND
       We take the facts from plaintiff‟s first amended complaint, which is operative.
Plaintiff and her husband, Neil Kumaraperu, owned a private daycare center and school
in Montrose, California known as the Pennsylvania Avenue Montessori Infant Care and
Preschool (the school). At one point, Neil had conveyed an interest in the school to
Ananda and Ranjini Niyarapola, but when they defaulted on payments the interest
reverted to the Kumaraperus.
       The school maintained a checking account and an operating account. Neil and the
Niyarapolas were the only signatories on the checking account, the latter remaining so
even after their interest in the school reverted to the Kumaraperus. Plaintiff was a
signatory only on the operating account.
       Neil died on January 17, 2012, leaving plaintiff as the sole owner and operator of
the school; no other person owned an interest in the school or its assets or had any
capacity to operate it, and Ananda and Ranjini Niyarapola expressly disclaimed any
interest in the money in the school‟s checking account.
       While operating the school, plaintiff discovered the school‟s director had
inadvertently deposited approximately $36,500 in tuition checks into the checking
account rather than the operating account, funds that were needed immediately to pay

                                             2
operating expenses such as rent and salaries. Having no access to the checking account,
plaintiff sought legal advice from defendants as to how to move the money into the
operating account. Defendants advised her to draw a check on the checking account
payable to herself in the amount of $36,500, sign it with Ranjini Niyarapola‟s name, and
deposit the check into the operating account. Defendants informed plaintiff this transfer
would be legal and proper.
       Plaintiff did as defendants advised, and used the funds to operate the school. She
was later charged by the Los Angeles County District Attorney with forgery, after which
defendants denied having advised her to make the transfer and indicated they would
neither assist with nor provide testimony in her criminal defense.
       Plaintiff sued defendants for professional negligence, breach of contract, and
fraud, alleging they breached their agreement to represent her “properly and
competently” and knowingly misrepresented that forgery was legal. She alleged
defendants‟ actions put her in legal jeopardy, in that she became the object of a criminal
prosecution, and caused monetary damages in the form of attorneys fees expended to
defend against that prosecution. She also suffered “emotional distress, worry, anxiety,
chagrin, pain, suffering, humiliation, and harm to her personal reputation in the
community.”
       Defendants demurred to the first amended complaint, arguing the doctrines of
unclean hands and in pari delicto barred plaintiff‟s claims, the fraud action was uncertain,
and plaintiff‟s failure to allege she had been found actually innocent of the crime of
forgery precluded her action for legal malpractice. The trial court agreed on all grounds
and sustained the demurrer without leave to amend. Kumaraperu timely appealed from
the resulting judgment.
       On January 8, 2015, a preliminary hearing was held in the criminal action against
plaintiff, at the end of which Judge Patrick J. Hegarty dismissed the case on the basis of
insufficient evidence. (People v. Kumaraperu, Los Angeles Superior Court Case No.
GA088431.) We grant plaintiff‟s request for judicial notice of the minute order
dismissing the case and the court‟s finding therein of insufficient evidence. (Evid. Code,

                                             3
§ 452, subd. (d).) We also grant judicial notice of the preliminary hearing transcript, but
only to the extent it sheds light on the various actors‟ claims, not for the truth of
statements made during the hearing. (In re Vicks (2013) 56 Cal.4th 274, 314 [court may
take judicial notice of a judgment in another case, but not of the truth of facts asserted
during testimony in that case].)
       On February 19, 2015, we sent a letter to the parties asking for supplemental
briefing answering, among other questions, how defendants‟ conduct injured plaintiff.
Both sides responded with letter briefs, which we have considered.
                                       DISCUSSION
A.     Standard of Review
       When a demurrer is sustained, we review the complaint de novo to determine
whether it alleges facts stating a cause of action under any legal theory. (Rakestraw v.
California Physicians’ Service (2000) 81 Cal.App.4th 39, 43.) We accept as true all
properly pleaded material facts, but not contentions, deductions, or conclusions. (Id. at
pp. 42-43.) “[W]hen [a demurrer] is sustained without leave to amend, we decide
whether there is a reasonable possibility that the defect can be cured by amendment.”
(Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A plaintiff has the burden to show what
facts she could plead to cure defects in the complaint. (Ibid.; Total Call Internat., Inc. v.
Peerless Ins. Co. (2010) 181 Cal.App.4th 161, 166.) To meet this burden on appeal, the
plaintiff must enumerate the facts and demonstrate how they establish a cause of action.
(Ibid.) “On appeal from a judgment of dismissal entered after a demurrer has been
sustained without leave to amend, unless failure to grant leave to amend was an abuse of
discretion, the appellate court must affirm the judgment if it is correct on any theory.”
(Hendy v. Losse (1991) 54 Cal.3d 723, 742.)
B.     Imposture Without Fraud is not Forgery
       Plaintiff alleges she retained defendants to advise her how to transfer money from
her own business checking account to her own business operating account. She alleges
defendants breached the duty of care by failing to advise how to do so properly, instead



                                               4
advising her to sign another‟s name on a check and deposit it into the operating account,
which exposed her to a criminal prosecution for forgery.
       By accepting employment to give legal advice, an attorney “impliedly agrees to
use such skill, prudence, and diligence as lawyers of ordinary skill and capacity
commonly possess and exercise in the performance of the tasks which they undertake.”
(Lucas v. Hamm (1961) 56 Cal.2d 583, 591.) To state a cause of action for legal
malpractice, a plaintiff must plead “(1) the duty of the attorney to use such skill,
prudence, and diligence as members of his or her profession commonly possess and
exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach
and the resulting injury; and (4) actual loss or damage resulting from the attorney‟s
negligence.” (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199.)
       When poor legal advice proximately results in otherwise avoidable litigation, a
client may recover as damages attorney fees she incurs in that litigation. (Ishmael v.
Millington (1966) 241 Cal.App.2d 520, 525-526.) A plaintiff seeking to recover such
damages must allege a causal connection between the defendant‟s breach of duty and the
injury. (Christensen v. Superior Court (1991) 54 Cal.3d 868, 900.) Where the pleaded
facts do not naturally give rise to an inference of causation, the plaintiff must plead
specific facts affording such an inference. (Id. at pp. 900-901; see Bockrath v. Aldrich
Chemical Co. (1999) 21 Cal.4th 71, 78.)
       Plaintiff adequately alleges negligent conduct by defendants, because when a
signatory on a financial account dies, the proper course is for the account owner to update
the account card, not to pose as another signatory. But plaintiff fails to allege causation
because signing another‟s name on a check drawn on one‟s own account would not
subject the owner to criminal or civil liability absent intent to defraud.
       The negotiation of a check is a matter of private contract between a financial
institution and a depositor. (Estate of Fisher (1988) 198 Cal.App.3d 418, 429 [“The
account card serves as a contract between the depositor and the financial institution”].) A
check is a signed instrument by which the depositor (the drawer) instructs the financial
institution (the drawee) to transfer the depositor‟s funds to a check bearer in accordance

                                              5
with the account agreement. (Cal. U. Com. Code, §§ 3103, subd. (a); 3104, subds. (e)
[“An instrument is a „note‟ if it is a promise and is a „draft‟ if it is an order”] & (f)
[“„Check‟ means . . . a draft . . . payable on demand and drawn on a bank”].) The
purpose of the signature is to authenticate and effect the instruction, i.e., to authorize and
obligate the financial institution to pay out the funds in accordance with the depositor‟s
prior instructions. Although the prior instructions will state what signatures are valid to
invoke the financial institution‟s duty to pay, so long as the signer intends to effect a
transaction, a valid signature may be made by penning “any name, including a trade or
assumed name, or by a word mark, or symbol.” (Cal. U. Com. Code, §§ 3103, subd.
                         1
(a)(6), 3401, subd. (b).) It is the act of signing the instrument, not the name signed, that
creates the transaction.2 Simple imposture may constitute a breach of the account
owner‟s agreement with the financial institution, but it is not a crime.
       To make imposture a crime requires intent to defraud. “Every person who, with
the intent to defraud, knowing that he or she has no authority to do so, signs the name of
another person” to a check or, “with the intent to defraud, falsely” passes a forged check,
is guilty of forgery. (Pen. Code, § 470, subds. (a) & (d).) But plaintiff alleges she owned
the school, which means she owned the funds in its checking account. Transfer of funds
that one exclusively owns, without obligation to third parties, from one account to
another does not by itself constitute fraud, even if the transfer is effected by an imposture
that violates the account agreement. “[W]hat makes the difference between the impostor

       1
         California Uniform Commercial Code section 3401 provides: “(a) A person is
not liable on an instrument unless (1) the person signed the instrument, or (2) the person
is represented by an agent or representative who signed the instrument and the signature
is binding on the represented person under Section 3402. [¶] (b) A signature may be
made (1) manually or by means of a device or machine, and (2) by the use of any name,
including a trade or assumed name, or by a word mark, or symbol executed or adopted by
a person with present intention to authenticate a writing.”
       2
         This makes sense in today‟s banking, where checks are processed by machine
and drawer signatures are not, at least at present, compared to account cards except
retroactively when there has been an allegation of impropriety.


                                                6
in law and the forger in law is the intent of the maker, something not to be found on the
face or back of the instrument.” (United States v. Bank of America Nat’l Trust & Sav.
Asso. (9th Cir. Cal. 1959) 274 F.2d 366, 368.) Assuming the facts are as plaintiff alleges,
it follows that defendants could not reasonably have foreseen she would be prosecuted
               3
for forgery.
C.     Defendants’ Conduct was not the Proximate Cause of Plaintiff’s Injury
       To maintain an action for damages based on the wrongful act or neglect of
another, a plaintiff must allege the wrongful act was a direct and proximate cause of the
injury. “It is reasonably well settled . . . that the causation inquiry has two facets:
whether the defendant‟s conduct was the „cause in fact‟ of the injury; and, if so, whether
as a matter of social policy the defendant should be held legally responsible for the
injury.” (Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 252.) To
determine causation in fact, California has adopted the substantial factor test set forth in
the Restatement Second of Torts, section 431. (Mitchell v. Gonzales (1991) 54 Cal.3d
1041, 1052; Rest.2d. Torts, § 431 [negligent conduct is a legal cause of harm if it is a
substantial factor in bringing about the harm].) An event will be considered a substantial
factor in bringing about harm if it is “recognizable as having an appreciable effect in
bringing it about.” (Rest.2d Torts, § 433, com. (d).)
       An event that enables harm ultimately to occur need not necessarily be a
substantial factor in bringing about the harm. “[C]are must be taken to avoid confusing
two elements which are separate and distinct, namely, that which causes the injury, and
that without which the injury would not have happened. For the former the defendant
may be liable, but for the latter he may not; that is to say, in order to make a defendant
       3
          We must assume the facts are as plaintiff alleges. However, we note that at her
preliminary hearing, Ananda Niyarapola testified that he considered the money in the
checking account to belong to him because Neil Kumaraperu had orally agreed before he
died to pay him approximately $150,000 from that account—“eventually,” when the
school was sold. This somewhat contradicts plaintiff‟s allegation that Neil claimed no
interest in the checking account funds, and would hint at an explanation why the district
attorney prosecuted an otherwise inexplicable forgery complaint.


                                               7
liable his wrongful act must be the causa causans [immediate cause], and not merely the
causa sine qua non [necessary antecedent] [citation].” (Johnson v. Union Furniture Co.
(1939) 31 Cal.App.2d 234, 237.) “In a philosophical sense the causes of any accident or
event go back to the birth of the parties and the discovery of America; but any attempt to
impose responsibility upon such a basis would result in infinite liability, and would „set
society on edge and fill the courts with endless litigation.‟ As a matter of practical
necessity, legal responsibility must be limited to those causes which are so close to the
result, or of such significance as causes, that the law is justified in making the defendant
pay.” (Prosser, Proximate Cause in California (1950) 38 Cal. L.Rev. 369, 375, fns.
omitted.)
       The question of proximate cause is “an issue of whether the defendant is under any
duty to the plaintiff, or whether his duty includes protection against such consequences.”
(Prosser, Torts (4th ed. 1971) § 42, p. 244).) There is thus an element of foreseeability in
the inquiry, and a defendant owes no duty to prevent a harm that was not a reasonably
foreseeable result of his negligent conduct. (Cabral v. Ralphs Grocery Co. (2011) 51
Cal.4th 764, 779 [“the question of „the closeness of the connection between the
defendant‟s conduct and the injury suffered‟ [citation] is strongly related to the question
of foreseeability itself”].) The court‟s task “is not to decide whether a particular
plaintiff‟s injury was reasonably foreseeable in light of a particular defendant‟s conduct,
but rather to evaluate more generally whether the category of negligent conduct at issue is
sufficiently likely to result in the kind of harm experienced that liability may
appropriately be imposed.” (Id. at p. 772.) “„[F]oreseeability is not to be measured by
what is more probable than not, but includes whatever is likely enough in the setting of
modern life that a reasonably thoughtful [person] would take account of it in guiding
practical conduct.‟” (Bigbee v. Pacific Telephone & Telegraph Co. (1983) 34 Cal.3d 49,
57.) Causation in fact is thus ultimately “a matter of probability and common sense.”
(Osborn v. Irwin Memorial Blood Bank, supra, 5 Cal.App.4th at p. 253.) “If, as a matter
of ordinary experience, a particular act or omission might be expected to produce a
particular result, and if that result has in fact followed, the conclusion may be justified

                                              8
that the causal relation exists. In drawing that conclusion, the triers of fact are permitted
to draw upon ordinary human experience as to the probabilities of the case.” (Rest.2d
Torts, § 433B, com. b.)
       Ordinarily, foreseeability is a question of fact for the finder of fact, but it may be
decided as a question of law if under the undisputed facts there is no room for a
reasonable difference of opinion. (Cicone v. URS Corp. (1986) 183 Cal.App.3d 194,
206; Basin Oil Co. v. Baash-Ross Tool Co. (1954) 125 Cal.App.2d 578, 603.)
       Here, an attorney could not reasonably foresee that the district attorney would
prosecute a depositor for manipulating her own accounts containing her own money to
which no one else had any claim. Such a result would be highly extraordinary under the
circumstances plaintiff alleges because a key element to the crime of forgery is intent to
defraud, and a depositor cannot intend to defraud herself. We therefore conclude as a
matter of law that plaintiff failed to allege defendants‟ conduct was a substantial factor in
bringing about her injury.
       We asked plaintiff to explain in letter briefing specifically how defendants‟
negligence harmed her. In response, she merely reiterated that she had in fact been
subjected to criminal prosecution for forgery, and would not have been but for
defendants‟ deficient legal advice. This establishes only but-for causation—criminal
prosecution would not have occurred absent defendants‟ negligence—which does not
suffice. Plaintiff also argued Feldsted refused to come to her aid by admitting and
testifying in the criminal matter that he had instructed her to pose as Ranjini Niyarapola.
Plaintiff apparently believes Feldsted‟s testimony would have supported her forgery
defense, perhaps by negating intent. Whether she is correct in this is irrelevant, as the
issue is whether defendants caused the prosecution in the first place. In any event,
plaintiff can only speculate that Feldsted‟s intervention would have been helpful in some
material way, as she had already represented to the prosecutor that she was following his
advice when she posed as Ranjini. Under the prosecution‟s theory—that the money in
the school‟s checking account did not belong to her—this was no excuse.



                                              9
       Plaintiff‟s causes of action for fraud and breach of contract similarly fail. To state
a cause of action for fraud, a plaintiff must plead an intentional misrepresentation of
material fact with knowledge of its falsity and intent to induce reliance, actual reliance,
and damages proximately caused by the reliance. (Gonsalves v. Hodgson (1951) 38
Cal.2d 91, 100-102; Civ. Code, §§ 1709, 1710.) The elements of breach of contract are:
“(1) the contract, (2) plaintiff‟s performance or excuse for nonperformance, (3)
defendant‟s breach, and (4) the resulting damages to plaintiff.” (Careau & Co. v.
Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.) As plaintiff
alleges she suffered damages only in connection with the criminal prosecution, her failure
to allege defendants‟ conduct as a substantial factor in bringing about that prosecution
fails to establish they caused either her fraud or contract damages.
       We recognize that plaintiff faced an impossible task. On the one hand she was
required to allege lack of intent to defraud so as to deny criminal liability and avoid an
unclean hands defense, but at the same time allege a reasonably foreseeable risk of
criminal liability, which could only be predicated on her intent to defraud. (The trial
court‟s dismissal of the action based on the doctrines of unclean hands and in pari delicto
rested on the latter allegation—prosecution for fraud—but ignored the former—absence
of intent to defraud.) Plaintiff‟s simultaneous allegation of necessary but mutually
exclusive facts created a logical impossibility that led to the legal impossibility of
defendants being liable in negligence for damages caused by an unforeseeable event.
                                      DISPOSITION
       The judgment is affirmed. Respondents are to recover their costs on appeal.
       TO BE PUBLISHED.

                                                   CHANEY, Acting P. J.

We concur:
                                                                *
              JOHNSON, J.                          BENDIX, J.
       *
          Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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