Daily v. Racine

Filed 2/23/07 Daily v. Racine CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, C. Edward Simpson, Judge. Affirmed.

Karen Daily, in pro. per., for Plaintiff and Appellant.

Albert Abkarian & Associates and Albert Abkarian for Defendants and Respondents.

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This is a legal malpractice action in which the trial court sustained a demurrer without leave to amend. We affirm.

FACTS

A.

Karen Daily worked for Kaiser Foundation Hospitals for 22 years, then was fired.[1] She retained counsel (Helena Sunny Wise) and sued Kaiser for compensatory and punitive damages for racial discrimination and wrongful termination in violation of public policy. The case was tried to a jury, which awarded about $1.1 million to Daily for economic and emotional distress damages, after which the trial court rejected Dailys punitive damage claim for procedural reasons. Notice of entry of judgment was given on May 6, 2003.

On June 5, 2003, Kaiser filed a notice of appeal from the judgment (No. B167858).[2] On about August 25, Wise withdrew as Dailys attorney of record, leaving Daily in propria persona; on the same day, Daily (pro se) filed a tardy notice of cross-appeal from the judgment.[3] In September, Robert E. Racine substituted in as Dailys attorney of record. In February 2004, Racine substituted out, leaving Daily in propria persona. In April, Norman Pine substituted in as Dailys attorney of record and on April 28, he filed notice that Daily was abandoning her cross-appeal. On April 29, the court dismissed the appeal. In November 2005, Division Three of our court rejected Kaisers arguments and affirmed the judgment in favor of Daily. (Daily v. Kaiser Foundation Hospitals (Nov. 10, 2005, B167858) [nonpub. opn.].)

Meanwhile, on September 2003, Daily had filed a notice of appeal from a post-trial order denying her motion for attorneys fees and costs (B170235). In September 2006, Division Three rejected Dailys arguments and affirmed the order denying her motion for fees. (Daily v. Kaiser Foundation Hospitals (Sept. 22, 2006, B170235) [nonpub. opn.].) Wise represented Daily throughout this appeal.

B.

In February 2005, while the appeals were still pending, Daily (appearing pro se) sued Racine for negligence (legal malpractice), breach of fiduciary duty, breach of contract, and fraud, alleging that Kaiser had prevailed on its motion to dismiss her cross-appeal from the judgment because Racine had failed to oppose the motion or otherwise somehow compromised her position during the five months he represented her (September 2003 to February 2004).

Racines demurrer was sustained with leave to amend, and in June 2005 (at which point the Kaiser appeals were still pending) Daily filed a first amended complaint that is nothing more than an unintelligible amendment to the original pleading plus several attachments (e-mail printouts and the Racine retainer agreement). Racine demurred, contending the facts were insufficient to state a cause of action and that the new pleading was fatally uncertain, ambiguous, and unintelligible. The trial court sustained the demurrer without leave to amend, and Daily now appeals from the order dismissing her case against Racine.

DISCUSSION

In her pro se briefs on appeal, Daily contends her first amended complaint is sufficient and that Racines demurrer should have been overruled. We disagree.

To the extent Dailys complaint raises issues about the appeal from the post-trial order (B170235), she has no cause of action against Racine because he never represented her on that appeal or in any matter related to it. (Evid. Code,  450 et seq.; Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 877 [facts subject to judicial notice may be considered in ruling on a demurrer].)

To the extent Dailys complaint alleges that Racine was somehow at fault for the dismissal of her cross-appeal from the judgment (B167858), her complaint shows on its face and by facts subject to judicial notice show that Racine had nothing to do with the dismissal. Daily filed the tardy notice of appeal herself (in propria persona), almost a month before she retained Racine. (Cantu v. Resolution Trust Corp., supra, 4 Cal.App.4th at p. 877.) By the time Racine was retained, it was too late for him to do anything to save the cross-appeal (which was doomed from the day it was filed).

Daily has failed to allege any facts suggesting that Racine was negligent, or how his supposed negligence caused her damage. (Code Civ. Proc.,  430.10, subds. (e), (f).) For this reason, the demurrer to the first amended complaint was properly sustained without leave to amend.

DISPOSITION

The order of dismissal is affirmed. Racine is entitled to his costs of appeal.

NOT TO BE PUBLISHED.

VOGEL, J.

We concur:

MALLANO, Acting P.J.

JACKSON, J.*

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*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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[1] Neither Karen Dailys pro se brief nor her pleadings include a meaningful statement of facts, and the respondents brief makes no effort to provide us with the information we need to resolve this appeal. For these reasons, our summary of the facts is based on our review of the clerks transcript in this case and the opinions and dockets in the underlying case. (Evid. Code,  450 et seq. [judicial notice].)

[2] On August 1, Kaiser filed a second notice of appeal from an order denying its motion for judgment notwithstanding the verdict (No. B169209) which was consolidated into B167858.

[3] To be timely, Dailys notice of cross-appeal had to be filed within 20 days after the superior court clerk mailed notification of Kaisers appeal. (Cal. Rules of Court, rule 8.108(e).)