Rogozienski v. Allen

Filed 3/23/07 Rogozienski v. Allen CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Joan M. Lewis, Judge. Reversed in part; affirmed in part.

In their marriage dissolution proceeding, Shirley Rogozienski (Shirley), represented by defendant and respondent S. Michael Love, and plaintiff and appellant Frank E. Rogzienski (Frank) stipulated to the appointment of defendant and respondent James D. Allen as temporary judge. After judgment was rendered, Frank sought Allen's disqualification, alleging that during the proceeding Allen accepted but did not disclose the gift of a time-share interest in property from Love. Allen was found disqualified during that part of the proceeding following his acceptance of the gift and Frank was granted a new dissolution proceeding before a different judge.

In the present case, Frank sued Allen and Love, alleging various tort causes of action as to both and a breach of contract cause of action as to Allen, all arising from the gift and based on claimed damages resulting from the disqualification and need for new proceedings. The trial court sustained without leave to amend Allen's demurrer on the basis of judicial immunity and Love's demurrer on the basis the complaint failed to state facts sufficient to constitute any alleged cause of action. Frank appeals.

BACKGROUND

A. First Amended Complaint

1. The Dissolution Proceeding and Allen's Disqualification

The first amended complaint related the background of the dissolution action that provided the basis for the present case. In that case, Shirley, represented by Love, petitioned for dissolution of her marriage to Frank. Shirley and Frank entered into a written agreement for the appointment of Allen as temporary judge. The parties agreed to divide the cost of Allen's services.

The complaint alleged that during the dissolution proceeding, after Allen had made various rulings, Love, a friend of Allen, made a gift to Allen of a time-share in a resort. Frank alleged he was unaware of the gift and that Allen did not disclose it. After Allen made additional rulings, some adversely affecting Frank's financial interest, and entered judgment, Frank discovered the gift and moved for Allen's disqualification. Allen voluntarily withdrew from the dissolution proceeding.

The superior court later determined the gift resulted in Allen's disqualification as of the date of the gift. It noted that a judge shall be disqualified if a person aware of the facts might reasonably entertain a doubt that the judge would not be impartial (Code Civ. Proc.,  170.1, subd. (a)(6)(iii)) and that a disqualified judge has no power to act in a proceeding after his or her disqualification. (Code Civ. Proc.,  170.4.) The court further noted a temporary judge is under an ethical obligation not to accept a gift if the donor is a party or person whose interests are reasonably likely to come before the judge. (Cal. Code Jud. Ethics, canon 6D(2)(d).) The court concluded that aware of the facts, a person would likely entertain doubts about Allen's impartiality. The court concluded Allen was disqualified in the case as of the date of the gift.

This court concluded that while Allen might not have been disqualified until after he made some but not all rulings in the case, Frank, as a matter of due process, was entitled to a new proceeding before a different judge addressing all issues decided by Allen.^[1]

2. Causes of Action

In his complaint Frank states he has some doubt concerning whether he is entitled to redress from all the defendants or from one or more of them. He states his intention

that the action will resolve whether all the defendants or one or more of them is liable to him.

It appears, at least in major part, that appellant's causes of action were not based on any claim that Allen favored Love in the dissolution proceeding as a result of the gift. Rather, Frank alleged that as a result of the gift, its concealment and Allen's eventual disqualification, Frank incurred fees, costs and expenses in the now set aside first trial and would incur additional such expenses in the second trial. Frank also alleged he had suffered depreciation and loss in value and use of assets taken from him under the now set aside judgment and had suffered emotional distress.

a. Intentional Interference with Contractual Relations

In the first cause of action as to all defendants and in the second cause of action as to Love, Frank alleged intentional interference with his contractual relations. In the first cause of action, Frank noted the existence of contracts between himself and Shirley, e.g., a prenuptial agreement, between himself and others, e.g., a contract for the acquisition of Qualcom stock, and between himself and his attorney in the dissolution action. Frank alleged the defendants were aware of these contracts and by their action with regard to the gift either intended to prevent or make Frank's performance under the contracts more burdensome or knew their conduct would have those results.

In his second cause of action, Frank noted his agreement to pay for one-half of Allen's fee as temporary judge. He alleged Love, in making the gift to Allen, either intended to cause Frank's performance under that contract to be more burdensome or knew that would be the result.

b. Intentional Interference with Prospective Economic Advantage

As to the third cause of action, Frank noted the same relationships described in his intentional interference with contractual relations claim and alleged defendants engaged in the conduct related to the gift either intending to interfere with those economic relationships or knowing their conduct would cause such interference.

As to his fourth cause of action, Frank stated an economic relationship existed between Allen and himself for the resolution of the dissolution proceeding in an expeditious and cost effective manner. Frank alleged Love engaged in his wrongful conduct either with the intent to interfere with that relationship or knowing such interference would occur.

c. Negligent Interference with Prospective Economic Advantage

As to his fifth and sixth cause of action for negligent interference with prospective economic advantage, Frank made essentially the same allegation as made in his first through fourth causes of action.

d. Civil Rights Violation

In his seventh cause of action, as to all defendants Frank alleged that Allen's acceptance of a gift from Love and their concealment of the gift violated his civil rights by denying him a fair trial. Frank alleges this right includes a proceeding before a judge qualified to hear the matter and without the creation of doubts concerning the trial judge's impartiality.

e. Deceit and Fraudulent Concealment

In the eighth cause of action, Frank alleged Allen and Love, given their roles in the dissolution proceeding, should have disclosed Love's gift to Allen. Frank alleged defendants concealed or failed to disclose the fact of the gift so that Allen could continue as judge and receive his fee.

f. Breach of Contract

As to Allen, the ninth cause of action alleged breach of contract. Frank alleges Allen breached the covenant of good faith and fair dealing in his contract to act as judge in the dissolution proceeding by continuing to accept his fee after he had taken a gift from Love, knew he was disqualified to hear the matter and knew he was no longer entitled to his fee.

g. Unfair Competition

As to Love, the tenth cause of action alleged he engaged in fraudulent business acts and practices in violation of Business and Professions Code section 17200 et seq. Frank alleged the gift to Allen was an unfair and fraudulent business practice designed to provide and which did provide Love an unfair advantage in the dissolution proceeding.

h. Willful Misconduct and Intentional Infliction of Injury

The eleventh cause of action as to Allen and Love alleged that as members of the state bar they owed Frank a duty to refrain from conduct they knew or should have known would cause injury to Frank. The gift from Love to Allen and the failure to reveal it to Frank was such conduct.

I. Negligence

In his twelfth cause of action, Frank alleged that as members of the state bar Allen and Love had a duty to refrain from extrajudicial actions and conduct that would cause or was reasonably foreseeable to cause him harm. Frank alleged the defendants negligently breached this duty when Love gave Allen a gift and failed to disclose the gift during the dissolution proceeding.

j. Unjust Enrichment

As a thirteenth cause of action, Frank as to all defendants alleged unjust enrichment arising from their improper conduct.

3. Demurrers

a. Love

Love asserted all causes of action alleged against him failed to state facts sufficient to constitute a cause of action against him. As to the first through the sixth causes of action, i.e., intentional interference with contractual relations, intentional interference with prospective economic advantage and negligent interference with prospective economic advantage, Love argued they were uncertain in that the conduct cited could not support the tort alleged.

b. Allen

With regard to each cause of action alleged as to him, Allen argued the complaint failed to state facts sufficient to constitute a cause of action because they were barred by the doctrine of judicial immunity, the litigation privilege and the torts claim act. As to the civil rights violation cause of action, he specially demurred on the basis its allegations were vague, unintelligible and uncertain. As to the eleventh and twelfth causes of action based on claims of violation of professional rules of conduct applicable to attorneys, Allen argues such rules did not create causes of action.

4. Ruling

The trial court sustained Allen's demurrer without leave to amend as to each cause of action as barred by the doctrine of judicial immunity.

The trial court sustained Love's demurrer without leave to amend as to all causes of action. As to the first through the seventh causes of action, the demurrer was sustained based on the failure of the complaint to state facts constituting a cause of action. As to the eighth cause of action for deceit and fraudulent concealment, the court sustained the demurrer finding that Love owed Frank no duty. The ninth cause of action for unfair competition was sustained without leave to amend because there was no allegation of monies that should be restored to Frank. As to the eleventh and twelfth causes of action for willful misconduct and intentional infliction of injury and for negligence, the demurrer was sustained because Love owed Frank no duty and because no suit may be brought for alleged violations of the rule of professional conduct applicable to attorneys. The demurrer as to the thirteenth cause of action for unjust enrichment was sustained because there was no allegation Love held any property in trust for Frank.

DISCUSSION

Frank argues the trial court erred in sustaining Allen and Loves' demurrers.

"A demurrer admits all material facts properly pleaded, and because review of a ruling on a demurrer is a pure legal question, the trial court's determination is entitled to no deference from us. We must afford a reasonable interpretation of the complaint read as a whole with its parts in context. [Citation.] If the factual allegations of the complaint are adequate to state a cause of action under any legal theory, the demurrer must be overruled. [Citation.] We can only uphold a general demurrer sustained without leave to amend if it appears there is no cause of action stated under applicable substantive law. [Citation.]" (Charpentier v. Los Angeles Rams Football Co. (1999) 75 Cal.App.4th 301, 306-307, fns. omitted.)

When a complaint is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment. If it can, the trial court has abused its discretion and we reverse. If not, there has been no abuse of discretion and we affirm. The burden of proving such reasonable possibility is on the plaintiff. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

A. Allen's Demurrer

The trial court sustained Allen's demurrer without leave to amend as to all causes of action because they are barred by the doctrine of judicial immunity. Frank argues the trial court erred because the operative act resulting in damage to him, i.e., accepting a gift from Love during the dissolution proceeding, was not an act performed in his judicial capacity. Additionally, he argues Allen had no judicial immunity as to his ruling after accepting the gift because that act rendered him without jurisdiction to decide the matter.

1. Judicial Immunity

Judges have immunity from civil suits in the exercise of their judicial function. Such immunity exists to promote the fair administration of justice by allowing judges to act freely upon their own convictions without fear of adverse personal consequences. The immunity is absolute and applies even when the judicial acts were allegedly done maliciously and corruptly. (Regan v. Price (2005) 131 Cal.App.4th 1491, 1495.)

No judicial immunity exists, however, when the alleged act was nonjudicial, i.e., an action not taken in the judge's judicial capacity, or when, while the act was of a judicial nature, it was taken by the judge with a complete absence of jurisdiction. (Regan v. Price, supra, 131 Cal.App.4th at p. 1496.) Absence of jurisdiction in this context means a clear absence of jurisdiction over the subject matter. (Lewis v. Linn (1962) 209 Cal.App.2d 394, 397.)

Whether an act is a "judicial" one is determined by "'whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.' [Citation.]" (Regan v. Price, supra, 131 Cal.App.4th at p. 1499.) Judicial immunity is defined by the functions it protects and serves and not by the person to whom it attaches. (Soliz v. Williams (1999) 74 Cal.App.4th 577, 591.) It can be difficult to determine which acts are and are not judicial acts. For the most part, however, actions taken by a judge in connection with a judicial proceeding are considered judicial in nature. (Shaman, Judicial Conduct and Ethics (3d ed.)  14.04, pp. 503-505.)

2. Discussion

Frank attempted to plead around and now attempts to argue around the application of the doctrine of judicial immunity to Allen by narrowly focusing on Allen's acceptance of the gift. Thus, he argues that at the time Allen took the gift, he was not performing any judicial function and was not "on judicial duty." Frank makes clear his action against Allen is not based on his rulings but rather on the fact of disqualification and the expense it caused him.

Allen's act of accepting a gift from Love was merely one part of a more complex process that resulted in his disqualification and alleged harm to Frank. Allen was acting as a judge in the dissolution proceeding and in that role had a duty as a judicial officer not to accept a gift from Love and to disclose to the parties any fact that might affect his qualification to proceed with the matter. It was his failure to comply with these tenets of judicial ethics that resulted in his disqualification. Clearly, the policy basis for the doctrine of judicial immunity applies not just to judicial acts but also to judicial omissions. By accepting the gift and by failing to reveal it, Allen failed to act in manner that maintained his qualification to proceed with the matter or to mitigate any damage to the parties. Those were judicial acts and omissions and Allen is immune from liability in a suit arising from them.

Neither was there in this case a complete absence of subject matter jurisdiction. Allen was appointed as temporary judge. In the most fundamental sense, he had jurisdiction in the matter.

B. Love's Demurrer

We address the causes of action in the order they are addressed by the parties.

1. Twelfth Cause of Action

In his twelfth cause of action, Frank alleged that as a member of the California State Bar Love owed a duty of care to him to refrain from extrajudicial actions that would cause or that he could reasonably foresee would cause him harm. Frank alleged Love negligently breached that duty when during the dissolution proceeding he made and failed to disclose a gift to Allen resulting in Allen's disqualification from hearing the matter and ultimately causing Frank financial harm.

The trial court sustained Love's demurrer as to the negligence cause of action, finding that Love owed Frank no duty of care and that a cause of action could not be based on an alleged violation of the California Rules of Professional Conduct making it unethical for an attorney in a case to give a gift to the judge.

We conclude that while a violation of the California Rules of Professional Conduct does not alone create a cause of action against an attorney, Love, whether acting as an attorney or not, under the circumstances alleged here, owed a duty to Frank not to act in a manner that caused the disqualification of the trial judge and harm to Frank.

California Rules of Professional Conduct, rule 5-300(A), states in pertinent part: "A member shall not directly or indirectly give or lend anything of value to a judge." Rule 1-100(A) states in part: "These rules are not intended to create new civil causes of action."

Of course, the fact rule 1-100(A) states that the rules do not create new causes of action is not a shield against conduct that violates the duty of due care by a lawyer acting either in a professional or personal capacity.

While the circumstances here are unique, whether Love owed a duty of care to Frank not to give a gift to the judge in the dissolution proceeding can be analyzed like any other act.

The existence and scope of duty are legal questions for the court. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674.) The starting point in determining whether a duty of care exists in the negligence context is Civil Code section 1714, subdivision (a): "Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person."

The conclusion that a duty exists is the statement of a conclusion. It is the expression of the "'sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.'" (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477.)

We consider the following in deciding whether a duty exists: "'the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.'" (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 473; Ballard v. Uribe (1986) 41Cal.3d 564, 572-573, fn. 6.)

After reviewing these considerations and the alleged facts, we conclude Love owed a duty of care under the circumstances not to give a gift to Allen when Love was acting as counsel for a party in the dissolution action. Code of Civil Procedure section 170.1, subdivision (a)(6)(iii), states a judge shall be disqualified if "a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial." A disqualified judge has no power to act in any proceeding after his or her disqualification (Code Civ. Proc.,  170.4), and the acts of the judge subject to disqualification are voidable. (Betz v. Pankow (1993) 16 Cal.App.4th 931, 939-940.) It is foreseeable that an attorney for a party giving a nondisclosed gift to a judge during a proceeding would ultimately result in the disqualification of the judge and resulting harm to the parties to the proceeding.

Assuming the truth of the facts asserted, the harm to Frank was certain. The connection between Love's act and Frank's harm is close. The giving of a gift to a judge in a proceeding in which the benefactor is a party or the counsel for a party is morally blameworthy because it brings the judicial system into disrepute. Imposing a duty not to engage in such conduct serves to prevent future such harmful acts. The community will suffer no burden by imposing the duty.

The trial court erred in sustaining Love's demurrer to Frank's negligence cause of action without leave to amend. The judgment is reversed as to the twelfth cause of action and Frank is granted leave to amend to allege liability based not on Love's status as an attorney but on general concepts of the duty of care.

2. Eleventh Cause of Action

In his eleventh cause of action, Frank alleged Love engaged in willful misconduct. The cause of action cited Love's membership in the state bar. It noted rule 5-300(A) of the Rules of Professional Conduct prohibiting the giving of gifts to judges and various Penal Code sections proscribing bribery and corruption. Frank alleged Love breached the duty of care created by these provisions when during the dissolution proceeding he made and failed to disclose a gift to Allen resulting in Allen's disqualification from hearing the matter and ultimately causing Frank financial harm. The complaint alleged Love knew or should have known his conduct was certain or substantially certain to injure Frank.

The trial court sustained Love's demurrer to the eleventh cause of action, finding he had no duty to Frank for conduct allegedly violating the Rules of Professional Conduct.

Willful misconduct is a tort separate and distinct from negligence. It occurs when an intentional act is done with knowledge, either express or implied, that serious injury is not merely possible but probable or with the intentional doing of an act with a wanton and reckless disregard for the consequences. (Williams v. Carr (1968) 68 Cal.2d 579, 584; Palazzi v. AirCargo Terminals, Inc. (1966) 244 Cal.App.2d 190, 195; Donnelly v. Southern Pacific Co. (1941) 18 Cal.2d 863, 869.)

The trial court erred in sustaining Love's demurrer to the eleventh cause of action without leave to amend. As noted above, any liability for Love's conduct arose not from his membership in the state bar but from his actions under the circumstances alleged in the complaint. Frank is granted leave to amend to allege liability based not on Love's status as an attorney but on Love's actions.

3. Seventh Cause of Action

The seventh cause of action alleged a violation by Love of Frank's civil rights. The cause of action alleged the United States and California Constitutions guaranteed him the right to a fair trial. The complaint asserted that right included a trial free from actions that disqualified the trial judge and raised doubts concerning his impartiality. Frank alleged Love "interfered or attempted to interfere by coercion with the exercise" of that right.

The trial court sustained Love's demurrer to the seventh cause of action without leave to amend. It found no facts were alleged that Love engaged in any threats or coercive acts by way of state action.

Apparently, Frank meant his civil rights cause of action to be based both on 42 United States Code section 1983 and Civil Code section 52.1.

a. 42 U.S.C. Section 1983

The trial court sustained Love's demurrer as to Frank's 42 United States Code section 1983 action on the basis there was no state action. A necessary element of a federal civil rights action is that the conduct in question was taken under "under color or state law." This means a misuse of power possessed by virtue of state law and made possible only because the alleged wrongdoer possesses authority under state law. (Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 333, fn. 1.) To constitute state action, a private party must be deemed to have engaged in a conspiracy with state actors, or been a willful participant in a joint activity with them. (Dennis v. Sparks (1980) 449 U.S. 24, 27-28 [101 S.Ct. 183]; Adickes v. S. H. Kress & Co. (1970) 398 U.S. 144, 152 [90 S.Ct. 1598].)

Frank alleged Allen, who was acting as a judge, and thus for the state, and Love conspired and willfully participated in a joint activity that resulted in the loss of Frank's constitutional right to a fair trial before an impartial judge. The trial court erred in finding no allegation of state action and erred in sustaining Love's demurrer to the seventh cause of action insofar as it was based on 42 United States Code section 1983.

b. Civil Code section 52.1

Civil Code section 52.1, subdivision (b), authorizes an action at law by an individual against anyone who interferes by "threat, intimidation or coercion," with any rights secured by the federal or state Constitution. There is no requirement that the interference be made under color of law. (Jones v. Kmart Corp., supra, 17 Cal.4th at p. 333.)

Frank argues Love interfered with his right to a trial free by actions that disqualified the trial judge and raised doubts concerning the impartiality of the trial judge. The difficulty with Frank's civil rights cause of action based on section 52.1, subdivision (b), is that there is no allegation Love's actions, whatever their effect, involved threats, intimidation or coercion. In an attempt to come within the section, Frank argues: "Here, for purposes of a civil rights action under Civil Code 52.1, coercion is found (a) in Mr. Love's continuing to pursue and obtain rulings and orders from Mr. Allen after the [g]ift had been accepted and Mr. Allen was thus disqualified from further acting as temporary judge in the [u]nderlying [p]roceeding, and (b) in the involuntary taking of property from [p]laintiff . . . ."

Neither of these cited acts is, by any reasonable definition, coercive. The trial court properly sustained without leave to amend Love's demurrer to the seventh cause of action insofar as it was based on Civil Code section 52.1.

4. Eighth Cause of Action

Frank argues the trial court erred in sustaining without leave to amend Love's demurrer to his eighth cause of action, "Deceit Fraudulent Concealment." The factual basis for the cause of action was Love's failure to disclose to Frank the gift made by Love to Allen during the dissolution proceeding. The trial court sustained the demurrer without leave to amend, finding that Love owed Frank no duty to disclose.

There are four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts. In this case no fiduciary relationship is alleged. As to the other three circumstances in which nondisclosure may be actionable, including a defendant's exclusive knowledge of a material fact, there must exist some other relationship between the plaintiff and defendant in which a duty to disclose can arise. Such relationship can only come into being as a result of some sort of transaction between the parties. Thus, a duty to disclose may arise from the relationship between seller and buyer, employer and prospective employee, doctor and patient, or parties entering into any kind of contractual agreement. All of these relationships are created by transactions between parties from which a duty to disclose facts material to the transaction arises under certain circumstances. (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336-337.)

There was no transaction between Frank and Love that established a relationship such that Love had a duty to disclose the fact of the gift to Allen. There is no indication that any amendment to the cause of action is possible to plead a viable claim of fraudulent concealment and the trial court properly sustained Love's demurrer as to the eighth cause of action without leave to amend.

5. First and Second Causes of Action

Frank argues the trial court erred in sustaining Love's demurrer to the first and second causes of action for intentional interference with contractual relations.

In the first cause of action, Frank noted the existence of various contractual relationships between himself and his wife, various third parties, e.g., Qualcomm and with his attorney in the dissolution proceeding. Frank alleged Love was aware of these contracts and that by his gift to Allen and the actions related to that gift, he either intended to prevent Frank's performance or to cause his performance of these contracts to be more expensive or that Love knew that his actions were substantial certain to have that result.

In his second cause of action for intentional interference with contractual relations, Frank noted his agreement to pay one-half Allen's fee in the dissolution proceeding. He alleged that aware of this contract Love intended by his gift to Allen to make Frank's performance of that agreement more expensive or burdensome or knew that such act would have that effect.

The trial court sustained Love's demurrer to the first and second causes of action, finding Frank failed to state facts supporting the allegation that Love intended to disrupt the contractual relationships cited in the complaint.

"'[A] stranger to a contract may be liable in tort for intentionally interfering with the performance of the contract.' [Citation.] To prevail on a cause of action for intentional interference with a contractual relationship, a plaintiff must plead and prove (1) the existence of a valid contract between the plaintiff and a third party; (2) the defendant's knowledge of that contract; (3) the defendant's intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage. [Citation.] To establish the claim, the plaintiff need not prove that a defendant acted with the primary purpose of disrupting the contract, but must show the defendant's knowledge that the interference was certain or substantially certain to occur as a result of his or her action. [Citation.]" (Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1148.)

The tort of intentional interference with contractual relations arises not just from an actual breach, but when there is an interference with or disruption of the contractual relationship. (LiMandri v. Judkins, supra, 52 Cal.App.4th at p. 344.)

Plaintiff need not allege an actual or inevitable breach of contract in order to state a claim for disruption of contractual relations. Court's have recognized that interference with the plaintiff's performance may give rise to a claim for interference with contractual relations if the plaintiff's performance is made more costly or more burdensome. (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1129.)

The tort of intentional interference with a contractual relationship is directed at the disruption of and interference with the relationship and the tort does not arise simply because in some way the plaintiff has suffered damages related to a contractual relationship. For example, here Frank cites his contract with counsel for legal services in the dissolution action as one of the contracts disrupted or interfered with by Love's actions. Presumably, Frank means that Love's actions made his contract with counsel more expensive because Frank will as a result of those actions have to pay additional attorney fees. The tort is concerned with interference with the contractual relationship itself. The tort does not arise simply because the actions of the defendant incidentally affect a contractual relationship.

We conclude the trial court properly sustained Love's demurrer without leave to amend to the first cause of action for the intentional interference with a contractual relationship.

We conclude, however, the court erred in sustaining Love's demurrer with regard to the second cause of action, i.e., interference with Frank's contractual relationship with Allen. Frank alleged a contract existed with Allen to serve as a temporary judge. The alleged actions by Love led to if not a breach then a serious disruption in that contractual relationship. Love's demurrer with regard to that action should not have been sustained.

6. Third through Sixth Cause of Action

Frank argues the trial court erred in sustaining without leave to amend Love's demurrer to the third and fourth causes of action for intentional interference with prospective economic advantage and to the fifth and sixth causes of action for negligent interference with prospective economic advantage.

Frank's causes of action for interference with prospective economic advantage mirror his causes of action for interference with contractual relations. In the third cause of action for intentional interference with prospective economic advantage, Frank cites Love's gift to Allen and alleges it was made with the intention or with the knowledge that the gift would disrupt Frank's economic relationship with the parties cited in the causes of action for interference with contractual relations. In the fourth cause of action, Frank makes the same claims with regard to his relationship with Allen. In the fifth and sixth causes of action, Frank repeats the allegation but alleges negligent rather than intentional interference.

The trial court sustained without leave to amend Love's demurrer to the third through the sixth causes of action. The court found as to each that Frank failed to allege Love interfered with economic relationships that could have prospectively brought economic advantage to Frank.

"To prevail on a cause of action for intentional interference with prospective economic advantage in California, a plaintiff must plead and prove (1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff, (2) the defendant's knowledge of the relationship, (3) the defendant's intentional acts designed to disrupt the relationship, (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the defendant's acts. [Citation.]" (Reeves v. Hanlon, supra, 33 Cal.4th at p. 1152, fn. 6.)

A cause of action also exists for negligent interference with prospective economic advantage. (See Aas v. Superior Court (2000) 24 Cal.4th 627, 643-645.)

The elements of both torts require the plaintiff allege some claim of interference with a prospective economic benefit such that it is reasonably probable that the claimed loss of economic advantage would have been realized but for the defendant's interference. (Youst v. Longo (1987) 43 Cal.3d 64, 71; Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 522-523.)

Frank's claims of interference with prospective economic advantage are totally conclusory with regard to the economic benefit involved and how it is reasonably probable that but for Love's interference any economic advantage would have been realized. Even on appeal Frank provides only the vaguest of claims in this regard. The trial court properly sustained Love's demurrer without leave to amend.

7. Tenth Cause of Action

In his tenth cause of action, Frank alleged Love's gift to Allen was an unfair and fraudulent business practice within the meaning of Business and Professions Code section 17200. The cause of action alleged Love made the gift to provide him with an unfair advantage in the dissolution proceeding.

The trial court sustained Love's demurrer without leave to amend, finding there was no remedy based upon the facts pled and that Frank failed to allege Love had monies that could be restored to Frank.

The trial court was correct. Putting aside the question of the application of Business and Professions Code section 17200 to this case, it is clear Frank was not entitled under the section to the remedy he sought.

Business and Professions Code section 17203 defines the remedies available against those who engage in unfair business practices as defined in Business and Professions Code section 17200. The trial court may enjoin the unfair practice or it may "restore to any person in interest any money or property, real or personal, which may have been acquired by means of such unfair competition." ( 17203.) Section 17203 is "not an all-purpose substitute for a tort or contract action." (Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 173.) The section does not provide for compensatory damages. (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1266; Inline, Inc. v. Apace Moving Systems, Inc. (2005) 125 Cal.App.4th 895, 904.)

What Frank sought in his tenth cause of action, e.g., monies paid to Allen and his expenses in the dissolution action, was not restitution; indeed, there appears nothing Love could return to Frank. What Frank sought was damages. Love's demurrer to the tenth cause of action was properly sustained without leave to amend.

8. Thirteenth Cause of Action

Frank argues the trial court erred in sustaining Love's demurrer to the thirteenth cause of action for unjust enrichment. As a factual basis for the claim, Frank realleged Love's gift to Allen, etc., and stated the result was that Love had been unjustly enriched to Frank's detriment.

There is no cause of action for unjust enrichment. Rather, unjust enrichment is a basis for obtaining restitution based on quasi-contract or imposition of a constructive trust. (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1490; 1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, 1015, 1016, pp. 1104-1105.) Although Frank's complaint states he is seeking restitution or imposition of a constructive trust, he is in fact simply seeking damages.

The trial court properly sustained Love's demurrer to the thirteenth cause of action without leave to amend.

DISPOSITION

The judgment is reversed insofar as it sustained Love's demurrer to the second cause of action. It is reversed as to the seventh cause insofar as it sustained Love's demurrer with regard to the civil rights action alleged pursuant to 42 United States Code section 1983. It is sustained as to eleventh and twelfth causes of action but reversed as to the order foreclosing Frank from amending those causes of action. In all other respects the judgment is affirmed. Each party to bear its own costs on appeal.

BENKE, Acting P. J.

WE CONCUR:

McDONALD, J.

McINTYRE, J.

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^[1] We take judicial notice of this court's unpublished opinions in In re the Marriage of Rogozienski (D045626) and Rogozienski v. Rogozienski (D042201).