Forbes v. Spencer
James Forbes sued Eileen Spencer and Jack Helsel (Spencer, except as context indicates), alleging breach of a contract to pay attorney fees. Spencer moved for judgment on the pleadings. The trial court converted the motion to a summary judgment motion to consider evidence not embraced by the pleadings, granted summary judgment and sanctioned Forbes and his counsel. Forbes prematurely appealed; his counsel did not appeal. Although a motion for judgment on the pleadings is distinct from a motion for summary judgment, in this case the trial court gave Forbes ample notice of the procedural change of posture and nowhere in the trial court or on appeal does Forbes identify any prejudice caused by the change. In such circumstances, even if we concluded the trial court erred, reversal would not be required. (Cal. Const., art. VI, 13; see Cal. Code Proc., 475.) Although Spencer concedes the statutory procedures to obtain sanctions were not followed, the record on appeal does not indicate Forbes raised procedural objections in the trial court and Court decline to consider them for the first time on appeal. Again, no prejudice is shown. Court affirm.
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