G.H. DEVELOPMENT CORP. v. OZELL No. B210539.

G.H. DEVELOPMENT CORP., et al., Plaintiffs and Appellants, v. ROBERT OZELL, Defendant and Respondent.

Court of Appeals of California, Second District, Division Four.
Filed June 17, 2010.
Law Offices of Keith B. Bardellini and Keith B. Bardellini for Plaintiffs and Appellants.
Law Office of Bruce Adelstein and Bruce Adelstein for Defendant and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

This is an appeal from a judgment of dismissal in favor of defendant Robert Ozell following Ozell's demurrer to a fourth amended complaint filed by several plaintiffs, including appellants here: G.H. Development Corp.; 2011 Corporation; J.M.R., LLC; and G.H. Real Estate Development, LLC (collectively, appellants). Although the appellants' opening brief raised numerous issues, most of those issues involved parties and/or orders that are not encompassed in the notice of appeal, and we granted Ozell's motion to strike those portions of the opening brief. As to the only remaining issue — the propriety of dismissing the single claim alleged by appellants against Ozell, for breach of fiduciary duty — we conclude the trial court properly found that the fourth amended complaint did not allege any fiduciary duty owed by Ozell to appellants. Accordingly, we affirm the judgment.

BACKGROUND

A detailed recitation of the background facts and procedural history of this case is not necessary for resolution of this appeal. Suffice to say that Ozell was named as a defendant in a complex lawsuit filed by George Herscu and various companies controlled by him (including appellants) after disputes arose between Herscu and his son, Robert, over various investments. From what we can glean from the record on appeal,1 George and Robert Herscu engaged in real estate development together, using several corporate or limited liability entities for different projects. Issues arose regarding financial and other agreements that some of the parties entered into, and in May 2007, George Herscu filed a lawsuit, naming himself, appellants, and Del Norte Investment Co., LLC (Del Norte) as plaintiffs, and Robert Herscu, Ozell, and certain companies as defendants. According to the operative fourth amended complaint, Ozell performed legal work for Robert Herscu "and/or various entities affiliated with Robert Herscu" and for George Herscu "and/or various entities affiliated with George Herscu," and participated in some way in some or all of the development projects at issue in the lawsuit.

Before defendants filed a responsive pleading, plaintiffs filed a first amended complaint. Ozell and the other defendants filed demurrers to the amended complaint. The trial court sustained the demurrers with leave to amend all but one of the causes of action and dismissed the remaining claim. In addressing Ozell's demurrer, the trial court commented that Ozell's name was mentioned numerous times in the complaint as part of "string citations and string parties" without specifically describing his role in the alleged dispute; the court allowed plaintiffs leave to amend to "distinctly describe what Mr. Ozell's role is in all of this."

Plaintiffs filed a second amended complaint that apparently suffered from the same problems as the first amended complaint, and defendants again filed demurrers. At the hearing on the demurrers, defendants' counsel argued that the second amended complaint did not differentiate between the defendants in a way that would give them notice as to exactly what is being alleged as to each defendant, and that the complaint did not allege what obligation purportedly gave rise to any fiduciary duty owed by Ozell. Addressing Ozell's demurrers, the trial court stated, "I would sustain the demurrers as to Mr. Ozell to the extent that he's named in any of the causes of action. [¶] He's repeatedly referred to, but there's no claims alleged against him. He's an actor without a role as a defendant as presently pled." The court granted plaintiffs leave to amend, to give them "one more crack at this."

Before the third amended complaint was filed, some or all of the defendants filed one or more cross-complaints against some of the plaintiffs. Although we cannot determine for certain who were the parties to the cross-complaints (because the cross-complaints are not included in the record on appeal), we note there are entries in the case summary indicating that George Herscu and Del Norte filed answers to the cross-complaint of Robert Herscu and the Herscu Community Property Trust and to the cross-complaint of Robert Ozell.

Plaintiffs filed a third amended complaint, and defendants again filed demurrers. Nine days before the scheduled hearing on the demurrers to the third amended complaint, plaintiffs (represented by new counsel) filed a fourth amended complaint, without first seeking leave of court. This filing added new defendants and causes of action. The trial court ordered the fourth amended complaint stricken and announced its tentative decision to sustain the demurrers to the third amended complaint without leave to amend. With regard to the claims alleged against Ozell, the court told plaintiffs' counsel, "you can't just sprinkle somebody's name throughout a complaint and name — and name them as a defendant. [There] has to be some substantive grounds to bring them into a case if they did something. [¶] [There is] nothing alleged regarding any substantive acts by Mr. Ozell regarding the matters that are set forth in . . . those causes of action for accounting, declaratory relief, [or] breach of fiduciary duty." In response to plaintiffs' new counsel's request to give him an opportunity to amend the complaint, the court changed its tentative to grant plaintiffs leave to amend the existing causes of action, but stated that plaintiffs could not add new parties or causes of action.

Plaintiffs filed a new fourth amended complaint, the complaint at issue in this appeal. The only cause of action in which appellants (as opposed to other plaintiffs) asserted a claim against Ozell was the second cause of action, for breach of fiduciary duty.2 The trial court sustained Ozell's demurrer without leave to amend, finding that, although the complaint mentioned Ozell numerous times, it still did not include any allegations showing a breach of fiduciary duty by him. The trial court signed a written order dismissing plaintiffs' claims against Ozell, and appellants timely filed a notice of appeal from that order.3

DISCUSSION

The appellants' opening brief purports to challenge the trial court's sustaining without leave to amend three of the five causes of action alleged in the operative fourth amended complaint. But only one of those causes of action was alleged by appellants against Ozell — the second cause of action, for breach of fiduciary duty — so our discussion is limited to that cause of action. And we need look no further than appellants' opening brief to conclude that no valid claim was alleged by appellants against Ozell.

Appellants correctly cite the elements of a breach of fiduciary duty claim — existence of a fiduciary duty, breach of that duty, and damages caused by that breach (citing Mosier v. Southern Cal. Physicians Ins. Exchange (1998) 63 Cal.App.4th 1022, 1044) — and correctly note that the relationship between an attorney and client is a fiduciary one (citing Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 189). Appellants then assert that they alleged the existence of a fiduciary duty and breach of that duty because they alleged that Ozell was George Herscu's attorney and that Ozell entered into agreements that "constituted a business transaction or acquisition of an adverse pecuniary interest between Ozell, an attorney, and George Herscu," and were unfair and not fully disclosed to George Herscu. But those allegations do not allege the breach of a fiduciary duty owed to appellants. At best, they might allege a breach of a fiduciary duty owed to George Herscu, but he is not a party to this appeal.

To the extent appellants rely upon allegations in the fourth amended complaint that Ozell provided legal representation to "George Herscu and/or various entities affiliated with George Herscu" (italics added) to assert that Ozell owed a fiduciary duty to appellants — and they do not appear to do so in the appellants' opening brief — their reliance would be misplaced. First, the complaint does not state whether appellants were among the "various entities" Ozell purportedly represented as an attorney. Second, even if we could assume that appellants were intended to be included among those "various entities," those general references are controlled by the complaint's specific allegations that Ozell represented and breached a duty owed to George Herscu alone. (See Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 174-175.) Thus, the "various entities" allegations cannot save the fourth amended complaint.

Appellants assert, however, that even if Ozell's demurrers were well taken, the trial court abused its discretion by denying them leave to amend the complaint. While it is true that a trial court abuses its discretion when it sustains a demurrer without leave to amend if there is a reasonable possibility that the defect can be cured by amendment, "[t]he burden of proving such reasonable possibility is squarely on the plaintiff." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In this case, appellants had five attempts to allege a breach of fiduciary duty against Ozell and failed to do so. They have made no attempt, in the trial court or in this court, to show how they could cure the defect that has proven fatal to their claim: the absence of a fiduciary relationship between appellants and Ozell. Accordingly, we find the trial court did not abuse its discretion by denying appellants leave to file a fifth amended complaint against Ozell.

DISPOSITION

The order dismissing Ozell is affirmed. Ozell shall recover his costs on appeal.

We concur.

EPSTEIN, P. J.

MANELLA, J.

FootNotes


1. The appellant's appendix contains only seven documents (plus the case summary), three of which involved filings or proceedings that took place the order sustaining Ozell's demurrer without leave to amend was filed. The remaining documents are a proposed fourth amended complaint that the trial court struck because it was filed without the court's permission, the fourth amended complaint at issue in this appeal, and the notice of appeal and notice of designation of the record for this appeal. The appendix does not contain the moving or opposing papers relating to Ozell's demurrer, the order sustaining Ozell's demurrer without leave to amend, or even the judgment from which the appeal was taken. We are able to discern some of the procedural history from the reporter's transcript, which includes transcripts from the hearings on demurrers to the first, second, third, and fourth amended complaints.
2. There was one other claim alleged against Ozell and other defendants: it was alleged by George Herscu and Del Norte, and purported to be a claim for declaratory relief. The court found this was not a proper claim for declaratory relief, but was instead an attempt to plead a rescission or elder abuse claim. The court dismissed the claim, finding it was not properly pleaded.
3. The notice of appeal carefully lists the four entities that appeal from the dismissal order, and did not include George Herscu and Del Norte. Although those four entities were entitled to appeal from the order, since it resolved all claims between those entities and Ozell, George Herscu and Del Norte could not appeal because there remained pending a cross-complaint filed against them (but not appellants) by Ozell. (See (1994) , 743 ["an appeal cannot be taken from a judgment that fails to complete the disposition of all the causes of action between the parties"]; (1990) , 1601 ["It is well settled that where, as here, there is a judgment resolving issues between a plaintiff and one defendant, then either party may appeal from an adverse judgment, even though the action remains pending between the plaintiff and other defendants"].)

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