Hewlett v. Braden CA1/5

Filed 3/2/16 Hewlett v. Braden CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

PATRICIA HEWLETT, Plaintiff and Appellant, A142571 v. JAMES M. BRADEN, (San Francisco County Super. Ct. No. CGC-14-537933) Defendant and Respondent.

Plaintiff Patricia Hewlett appeals from the trial court’s order sustaining the demurrer of her former attorney, defendant James Braden, without leave to amend. We affirm in part and reverse in part. BACKGROUND Plaintiff retained defendant in connection with an appeal of a bankruptcy court order. Defendant did not file an opening brief, apparently after concluding the appeal was meritless, but plaintiff filed one in propia persona. The federal district court rejected plaintiff’s appeal, finding no legal or factual basis to disturb the bankruptcy court’s judgment. Plaintiff appealed this ruling to the Ninth Circuit, which summarily affirmed the district court after finding “the questions raised in this appeal are so insubstantial as not to require further argument.” In separate orders, the federal district court and Ninth Circuit both denied plaintiff’s request to proceed in forma pauperis on her appeal to the Ninth Circuit on the ground that the appeal was frivolous.

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Plaintiff subsequently sued defendant for legal malpractice and breach of contract.1 Defendant demurred. The trial court sustained the demurrer, taking judicial notice of the federal court filings and finding “plaintiff cannot establish causation or damages as a matter of law” because “even if defendant owed a duty to file an appeal, there was nothing he could have done to lead to a better outcome for plaintiff.” The court dismissed plaintiff’s complaint without leave to amend. DISCUSSION “When reviewing a judgment dismissing a complaint after the granting of a demurrer without leave to amend, courts must assume the truth of the complaint’s properly pleaded or implied factual allegations. [Citation.] Courts must also consider judicially noticed matters. [Citation.] In addition, we give the complaint a reasonable interpretation, and read it in context. [Citation.] If the trial court has sustained the demurrer, we determine whether the complaint states facts sufficient to state a cause of action. If the court sustained the demurrer without leave to amend, as here, we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. [Citation.] If we find that an amendment could cure the defect, we conclude that the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred. [Citation.] The plaintiff has the burden of proving that an amendment would cure the defect.” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081 (Schifando).) I. Legal Malpractice “ ‘ “Actionable legal malpractice is compounded of the same basic elements as other kinds of actionable negligence: duty, breach of duty, causation, and damage.’ ” (Shopoff & Cavallo LLP v. Hyon (2008) 167 Cal.App.4th 1489, 1508–1509.) “A plaintiff alleging legal malpractice in the prosecution or defense of a legal claim must prove that, but for the negligence of the attorney, a better result could have been obtained in the