Cravea v. Nejadpour
Filed 4/3/13 Cravea v. Nejadpour CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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as specified by rule 8.1115(b). This
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purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
>
GERALD CRAVEA, Plaintiff and Appellant, v. F. BARI NEJADPOUR et al., Defendants and Respondents. | B237993 (Los Angeles County Super. Ct. No. BC383052) |
APPEAL from
a judgment of the Superior Court of
County,
Alan S. Rosenfield, Judge. Affirmed.
Law Offices
of Thomas P. Carter and Thomas P. Carter for Plaintiff and Appellant.
L.A. Law
Group and Matthew S. Grayson for Defendants and Respondents.
_____________________
The trial court granted the
and respondents F. Bari Nejadpour and Nejadpour & Associates (Nejadpour
defendants) and then entered judgment in their favor and against plaintiff and
appellant Gerald Cravea. We affirm.
This action arises from the alleged
legal malpractice and fraud of Benjamin Donel and the Law Offices of Benjamin
Donel (Donel defendants), who represented plaintiff in a number of
matters. Plaintiff contends that the
Nejadpour defendants were “partners†of the Donel defendants and, as such, were
vicariously liable for the Donel defendants’ alleged negligent and fraudulent
conduct. The main issue on appeal is
whether there was a triable issue of material fact concerning the alleged
actual or ostensible partnership between Donel and Nejadpour, or their two
respective law firms. We shall conclude
that the trial court correctly found that, as a matter of law, there was no
partnership.
1.
Donel’s Representation of Plaintiff
From
approximately January 2005 to February 2007, the Donel defendants provided
legal services to plaintiff. They
represented plaintiff in a variety matters, including the foreclosure sale of
several of plaintiff’s properties, plaintiff’s bankruptcy petition, a probate
matter, and a criminal case.
Between
January 2005 and December 2006, plaintiff executed four different retainer
agreements. Each agreement was on stationary
for the Law Offices of Benjamin Donel & Associates, and stated that the
contract was between plaintiff and Benjamin Donel. The Nejadpour defendants were not mentioned
in the retainer agreements.
Three of the
four retainer agreements included the following provision: “ASSOCIATION OF COUNEL: Attorney [Donel] may associate other counsel
at his discretion and at any stage of the legal proceedings, providing that
there is no additional charge to Client [plaintiff] for such services. This association is for trial counsel to
control litigation of the case because of the area of specialty.â€
Defendant F.
Bari Nejadpour never provided any legal services to plaintiff and was never
paid by plaintiff any amount of money.
Indeed, the first time plaintiff met Nejadpour was at a deposition in
this case, long after Donel stopped providing plaintiff with legal services.
2. The
Relationship Between Donel and Nejadpour
At some
point after he passed the state bar in 2003 and before he began representing
plaintiff, Donel developed a professional relationship with his friend
Nejadpour. According to Donel, he and
Nejadour “occasionally†made special appearances on each other’s behalf. Nejadpour estimates that Donel made three or
four appearances for him, and that he made one or two appearances for
Donel. Nejadpour and Donel did not pay
each other for making special appearances and did not give money to each other
for any purpose. Rather, the two men
informally agreed to make appearances for each other on a quid pro quo basis.
Donel and
Nejadpour also sometimes informally consulted with each other over the
telephone regarding legal issues. They
deny, however, consulting with each other on the matters Donel handled for
plaintiff. Moreover, Donel and Nejadpour
did not share bank or trust accounts or expenses and profits. They also maintained separate offices,
Donel’s in Beverly Hills and Nejadpour’s on Wilshire Boulevard in Los Angeles.
3.
Donel and Nejadpour Made to Third Parties Regarding Their
Relationship
During the
time period the Donel defendants represented plaintiff, they sent letters to
plaintiff and others which listed in the top right corner “Law Offices of
Lawrence Levyâ€
title="">[1] and
“Nejadpour & Associates†as “ASSOCIATED COUNSELS.†In at least one letter from the Donel
defendants to plaintiff, their letterhead stated that “Law Offices of Lawrence
Levy†and “Nejadpour & Associates†were “OFFSIDE COUNSELS.†The letterhead on some correspondence the
Donel defendants sent to plaintiff, however, did not include a reference to
Nejadpour & Associates or the Law Offices of Lawrence Levy.
The
Nejadpour defendants placed Benjamin Donel’s name on their letterhead below the
name of F. Bari Nejadpour, “Managing Partner.â€
They also listed Donel under “People†on their website. Further, the Nejadpour defendants’ letterhead
stated that their “Beverly Hills Officeâ€
was located at 280 S. Beverly Drive, No. 209, which was the Donel defendants’
office.
received any correspondence from the Nejadpour defendants, and plaintiff
concedes that he never searched on the internet for the Nejadpour defendants’
website.
Donel and
Nejadpour both concede that they had an informal agreement to use each other’s
name on their respective stationary. In
their depositions taken in this action, Donel and Nejadpour provided similar
explanations for entering into this agreement.
Donel testified that he placed Nejadpour & Associates on his
stationary so that it would look “more professional.†Nejadpour stated he thought his law firm
would look “more impressive†by listing other professionals, including
plaintiff, on its stationary.
At his
deposition, plaintiff stated that Donel told him that he had a “full-serviceâ€
law firm, and that he had attorneys working for him who would be able to assist
plaintiff in different areas of law.
When plaintiff received letters from the Donel defendants that listed
law firms on the top right corner, he assumed that those law firms and the Donel
defendants “worked together.â€
4. Procedural
History of This Case
Plaintiff
commenced this action against the Donel defendants and other defendants on December
31, 2007, by
filing a complaint in the superior court.
In his operative third amended complaint (TAC), plaintiff set forth 10
causes of action against the Donel defendants and Nejadpour defendants—five for
professional negligence and five for fraud and misrepresentation.
defendants directly provided legal services to plaintiff, or that they made any
false and fraudulent statements to him.
Instead, the TAC alleged that the Nejadpour defendants are liable for
Donel’s alleged tortious conduct because Donel was their employee or partner.
On January
6, 2011, the
Nejadpour defendants filed a motion for summary judgment. In support of their motion, the Nejadpour
defendants filed, inter alia, a declaration by Benjamin Donel. Donel stated in his declaration that he was
not and never had been Nejadpour’s partner.
On June 13,
2011, the trial court issued an order granting the motion. Based on that order, the trial court entered
judgment in favor of the Nejadpour defendants and against plaintiff on October
17, 2011. Plaintiff filed a timely
Plaintiff
makes three main arguments on appeal. He
first contends that the trial court should have denied the Nejadpour
defendants’ motion for summary judgment because there was a triable issue of
material fact regarding whether an actual partnership existed between the
moving defendants and the Donel defendants.
Next, plaintiff argues the motion should have been denied because there
was a triable issue of material fact regarding whether a partnership by
estoppel existed. Finally, plaintiff
contends there are triable issues of material fact as to whether Nejadpour
violated Business and Professions Code section 17200 et seq. and section 17500
et seq. by falsely representing that he was part of Donel’s firm and that Donel
was part of his firm.
1. >Standard of Review
We review
the trial court’s grant of summary judgment independently. (Salas
v. Department of Transportation (2011) 198 Cal.App.4th 1058, 1067.) A motion for summary judgment must be granted
“if all the papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to a judgment as a matter
of law.†(Code Civ. Proc., § 437c, subd.
(c).)
In
conducting our de novo review, we employ the same three-step analysis as the
trial court. (Benson v. Superior Court (2010) 185 Cal.App.4th 1179, 1185.) “The three steps are (1) identifying the
issues framed by the complaint, (2) determining whether the moving party has
made an adequate showing that negates the opponent’s claim, and
(3) determining whether the opposing party has raised a triable issue of
fact.†(Food Safety Net Services v. Eco Safe Systems USA, Inc. (2012) 209
Cal.App.4th 1118, 1124.)
2. Plaintiff’s
Causes of Action in the TAC Against the Nejadpour Defendants Depend
On a Partnership Relationship Between the Nejadpour Defendants and the Donel
Defendants
The TAC alleged that the
Donel defendants negligently handled legal matters for plaintiff and defrauded
plaintiff in numerous ways. It did not,
however, contain any specific factual allegations regarding the Nejadpour
defendants’ alleged wrongdoing. The TAC
merely alleged that Benjamin Donel “was an employee or partner of Defendant
Nejadpour & Associates.†The causes
of action in the TAC against the Nejadpour defendants thus rest on their
alleged vicarious liability for Donel’s alleged negligence and fraud.
In his opposition to the motion for
summary judgment and in his respondent’s brief, plaintiff did not contend that
Donel was an “employee†of the Nejadpour defendants. Therefore the main issue on appeal, as framed
by the TAC, is whether the Nejadpour defendants were actual or ostensible
partners of Donel or his law firm.
3. The
Nejadpour Defendants Met Their Burden of Negating Plaintiff’s Claim That They Had an Actual or Ostensible Partnership with
the Donel Defendants
a. Actual
Partnership
A
partnership is an “association of two or more persons to carry on as coowners
of a business for profit.†(Corp. Code,
§ 16202, subd. (a).) “Generally, a
partnership connotes co-ownership in partnership property, with a sharing in
the profits and losses of a continuing business.†(Chambers
v. Kay (2002) 29 Cal.4th 142, 151 (Chambers).) The partnership itself and each of its
partners are jointly and severally liable for the tortious acts committed in
the ordinary course of business by the partnership or any of its partners. (Corp. Code, §§ 16305, 16306.)
In support
of their motion for summary judgment, the Nejadpour defendants filed a
declaration by Benjamin Donel, wherein Donel categorically denied that he had
ever been a partner with F. Bari Nejadpour.
They also presented evidence describing the nature of the
relationship. This evidence indicated
that while Donel and Nejadpour occasionally made special appearances for each
other on a quit pro quo basis, and sometimes consulted with each other on legal
matters, they did not operate a business together on a continuing basis, or
enter into a joint venture to represent plaintiff or any other client.
relationship was any agreement to share profits, losses, revenues or expenses,
or any practice of doing so. (
Cal.App.2d 663, 668 [“It is essential . . . to the existence of a partnership
that there be a community of interest and an agreement to share jointly in the
profits and losses resulting from the enterpriseâ€].) The Nejadpour defendants thus met their
burden of showing that plaintiff could not establish the existence of an actual
partnership between them and the Donel defendants.
b. Ostensible
Partnership
Plaintiff
contends that if Nejadpour and Donel were not actual partners, they were at a
minimum ostensible partners. A partnership
by estoppel is formed when the acts of an ostensible or purported partner are “
‘factually and legally sufficient to lead another person to believe he was a
copartner and assumed responsibility for such.’ †(Armato
v. Baden (1999) 71 Cal.App.4th 885, 898; accord J & J Builders Supply v. Caffin (1967) 248 Cal.App.2d 292, 297
(J & J Builders).)
Corporations
Code section 16308, subdivision (a) provides:
“If a person, by words or conduct, purports to be a partner, or consents
to being represented by another as a partner, in a partnership or with one or
more persons not partners, the purported partner is liable to a person to whom
the representation is made, if that person, relying on the representation,
enters into a transaction with the actual or purported partnership.â€
The
Nejadpour defendants presented evidence negating plaintiff’s ostensible
partnership allegations. This evidence
showed that plaintiff had not met Nejadpour before filing his suit, and had not
seen his website or any correspondence from Nejadpour before agreeing to hire
the Donel defendants. Plaintiff thus
could not have relied on any representation made by Nejadpour in entering into
a transaction with the purported Donel-Nejadpour partnership.
Plaintiff’s
ostensible partnership claim therefore rests solely upon Donel’s alleged
representations to plaintiff made with Nejadpour’s consent. These representations were found in Donel’s
letterhead, which referred to Nejadpour & Associates as one of two
“Associated Counsels†or “Offside Counsels.â€
Significantly, Donel’s letterhead never referred to Nejadpour or his
firm as a “partner.†It is also worth
noting that “Nejadpour & Associates,†and not F. Bari Nejadpour, was listed
as an associated counsel. Generally
individuals and not law firms are “partners†with each other. Moreover, Donel’s letterhead must be placed
in the context of the four retainer agreements plaintiff signed and the bills
Donel sent plaintiff for services rendered.
None of the retainer agreements or bills mentioned or referred to
Nejadpour or his firm in any way. We
hold that under these circumstances, the representations on Donel’s letterhead
concerning Nejadpour & Associates were not, as a matter of law, sufficient
to establish an ostensible partnership.
4.
There is a Triable Issue of Material Fact
Plaintiff did not meet his burden of
showing there is a triable issue of material fact with respect to an alleged
actual or ostensible partnership between the Nejadpour defendants and the Donel
defendants. He presented no evidence
whatsoever regarding a continuous business or joint venture involving the
sharing of profits and losses. Plaintiff
therefore did not show there is a triable issue regarding an actual partnership.
With respect
to an ostensible partnership, plaintiff filed excerpts from his deposition
regarding representations made by Donel.
Specifically, plaintiff contends that Donel stated to plaintiff that he
had different attorneys working for him who specialized in different areas of
the law, and that he had a full-service law firm. There is no evidence, however, that Nejadpour
approved of or even knew about these representations. The Nejadpour defendants cannot be liable
under an ostensible partnership theory based on Donel’s unauthorized
statements. (See J & J Builders, supra,
248 Cal.App.2d at p. 297 [“Unauthorized declarations of Jeffrey made
outside the presence of Caffin would not be admissible to establish ostensible
partnership of Caffinâ€].)
Plaintiff’s
reliance on J & J Builders is
misplaced. There, the plaintiff sued
defendants Jeffrey and Caffin, individually and as copartners doing business as
“Perry Masonry,†to recover payment for building materials it delivered to the
defendants. Prior to the delivery, the
plaintiff’s representative had a meeting with Jeffrey and Caffin. At the meeting, in Caffin’s presence, Jeffrey
stated: “ ‘This is my new partner . . .
[W]e are going to go into a new business, and I want to discontinue [my
previous business] account and start with Perry Masonry. . . .†(J
& J Builders, supra, 248
Cal.App.2d at p. 294.) While
Jeffrey said this, Caffin sat silent. (
Subsequently, plaintiff sent invoices to “Perry Masonry,†and was paid
by checks bearing that name. (
The Court of Appeal held that under these circumstances, Caffin could be
liable to the plaintiff as an ostensible partner. (Id.
at p. 297.)
The present case is distinguishable
from J & J Builders. Neither Donel nor Nejadpour ever represented
to plaintiff orally or in writing that they were “partners†with each
other. Further, Donel’s oral statements
about having a full-service law firm were not made in Nejadpour’s presence or
with his consent. Indeed, plaintiff did
not meet Nejadpour until long after Donel stopped representing plaintiff. Further, unlike the invoices in
way indicated that Donel rendered services in his capacity as a partner of
Nejadpour or anyone else.
support to plaintiff’s ostensible partnership claim.
5. Plaintiff
Cannot Survive Summary Judgment Based on a New Unfair Business
Practices Claim
Plaintiff
argues that Nejadpour violated Business
and Professions Code section 17200 et seq. and section 17500 et seq. by falsely
representing that he was part of Donel’s firm and that Donel was part of his
firm. We shall not reach the merits of
plaintiff’s unfair business practices claim because the claim was not alleged
in the TAC and plaintiff did not argue he could assert this claim in the trial
court.
The issues
on a motion for summary judgment are framed by the pleadings. (Hodjat
v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 7.) “If a plaintiff wishes to expand the issues
presented, it is incumbent on the plaintiff to seek leave to amend the
complaint either prior to the hearing on the motion for summary judgment, or at
the hearing itself.†(
Cal.App.4th 1242, 1258.) To allow a
plaintiff to expand the issues without filing an amended pleading, “allows
nothing more than a moving target.â€
name="_ftnref5" title="">[5] (Id.
at p. 1258, fn. 7.)
Further, if
an appellant does not raise an argument in the trial court, he forfeits the
argument on appeal. (
Performance Plastering, Inc. (2006) 136 Cal.App.4th 212, 226.) The forfeiture rule “is designed to advance
efficiency and deter gamesmanship.†(
Cal.4th 247, 264 (Keener); accord
Cal.App.4th 1249, 1260 [“The main purpose of the forfeiture rule is to protect
the trial court and the opposing party from unfairnessâ€].) It encourages the parties to bring errors to
the attention of the trial court, so that they may be corrected before a
judgment is entered and an appeal is taken.
(Keener, at p. 264;
742, 754.)
Here,
plaintiff did not set forth an unfair business practices cause of action in the
TAC. He also did not seek leave in the
trial court to amend the TAC to add such a cause of action. Whether the Nejadpour defendants violated
certain provisions of the Business and Professions Code was simply not an issue
raised by the motion for summary judgment or adjudicated by the trial court.
Moreover,
plaintiff did not argue in opposition to the Nejadpour defendants’ motion for
summary judgment that he could assert an unfair business practices claim. Plaintiff therefore forfeited any argument on
appeal that the trial court “erred†by failing to deny the motion on the ground
that he can maintain an unfair business practices claim against the Nejadpour
defendants.
Plaintiff
argues that we should consider his “new legal theory†because it is based on
facts that were before the trial court and is purely a question of law. It is true that we have discretion to
consider pure questions of law for the first time on appeal. (Sheller
v. Superior Court (2008) 158 Cal.App.4th 1697, 1709.) We are more inclined to exercise such
discretion when there has been a change in decisional law that affects the
rights of the parties. (
LLC (2010) 185 Cal.App.4th 731, 739, fn. 6.)
In this case, however, we decline to
consider plaintiff’s new unfair business practices claim. Plaintiff offers no reason why he failed to
raise this argument below. He does not,
for example, claim that his new legal theory is based on a change in decisional
law. Moreover, because plaintiff never
amended his TAC to add an unfair business practices claim, the Nejadpour
defendants had no opportunity to present evidence showing that plaintiff could
not prevail on such a claim. The
Nejadpour defendants submitted papers showing that there was no triable issue
of material fact and that they were entitled to judgment as a matter of law on
all of the causes of action stated in the TAC.
It is fundamentally unfair to the Nejadpour defendants to change the
goal posts at this stage of the litigation.
DISPOSITION
The judgment
is affirmed. Respondents F. Bari
Nejadpour and Nejadpour & Associates are awarded costs on appeal.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS
KITCHING,
J.
We concur:
KLEIN, P. J.
CROSKEY, J.
Donel was an intern for Levy
before he became a lawyer. Donel claims
that he informed Levy that he placed his name on his stationary. Levy, however, in a declaration filed in this
action, stated that he never gave Donel permission to use his name for any
purpose and that he never had an “association†with Donel’s firm of any kind.
The Nejadpour defendants’
letterhead also stated an address for the firm’s “Switzerland Office.†Nejadpour claims that he occasionally worked
on his California cases in that office.
