Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, Super.Ct.No. SCVSS126635, Frank Gafkowski, Jr., Judge. (Retired judge of the former Mun. Ct. for the Southeast Jud. Dist. of L.A., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed with directions.
Holstein, Taylor, Unitt & Law and Brian C. Unitt for Plaintiff and Appellant.
Skousen & Skousen and James Allen for Defendant and Respondent.
OPINION
McKINSTER, J.
Plaintiff and appellant Kristy Johnson (Johnson) filed an action for legal malpractice against her former attorney, defendant and respondent Robert James Skousen (Skousen), and his law firm, Skousen & Skousen (the law firm). The trial court sustained Skousen’s demurrer without leave to amend. Johnson appeals, contending that the demurrer should have been overruled. We reverse with directions.
Skousen and the law firm will collectively be referred to as “defendants.”
FACTS
Because the appeal arises after a demurrer, the facts are taken from the first amended complaint, the operative pleading.
Johnson apparently owned or had formerly owned a piece of real property in Wildomar, California. Some dispute arose over the sale of Johnson’s property. Johnson hired Skousen and the law firm to represent her on a breach of contract claim against the purchasers.
Johnson alleged that Skousen and the law firm misrepresented their experience and skill in such matters. She further alleged that defendants acted as trustees, but failed to disclose conflicts of interest with respect to their representation of Johnson. Among other things, they sought to recover from the property purchasers fees and charges which were not permitted by law. They also proceeded by way of a judicial, rather than a nonjudicial, foreclosure. These acts subjected Johnson and defendants to suit by the purchasers. Johnson alleged that defendants convinced her to place her funds, the proceeds of the property sale, into what they represented was a blocked account. The amount in issue on the purchasers’ suit was $10,000, but defendants generated many tens of thousands of dollars in attorney fees defending the suit. Defendants withdrew sums from the “blocked” account containing the proceeds to satisfy their “‘outstanding bills.’” Defendants also withdrew funds to pay for their own defense, not strictly for Johnson’s defense, against the purchasers’ suit. Johnson alleged that, “[f]or a period of over two years, defendants convinced Johnson that she was in need of continued representation, that there was no hope of resolving her case, that she had a meritorious claim and that the course of action dictated by defendants was in Johnson’s best interest. During that time, Defendants steadily depleted, and ultimately wiped out, the entire trust account and all of the assets of [Johnson].”
On November 6, 2005, the law firm filed a demurrer to the first amended complaint; Skousen filed his notice of demurrer on December 1, 2005. Skousen’s notice of demurrer requested the court to take judicial notice of certain discovery. The law firm had propounded certain interrogatories to Johnson, among which was the question: “115.3 State the name, ADDRESS, and the telephone number of each PERSON, other than the PERSON asking this interrogatory, who is responsible, in whole or in part, for damages claimed in this action.” Johnson’s “2nd (Further) Response to [the law firm’s] Form Interrogatories (Set No. One)” contained the following answer: “None.”
Skousen seized upon this answer as an admission that he, as an individual, had no responsibility for the alleged malpractice committed by the law firm.
Johnson opposed the demurrer in part on the ground that judicial notice of her discovery answers did not render the complaint uncertain or demonstrate any defense for Skousen. While Skousen pointed to the answer to interrogatory number 115.3, Johnson had also given answers encompassing her claim against him:
Interrogatory number 115.1 had asked: “State in detail the facts upon which you base your claims that the PERSON asking this interrogatory is responsible for your damages.” Johnson had responded: “Those are the facts, as previously responded to in Plaintiff’s responses to Form Interrogatories (Set No. One): Plaintiff hired defendants to represent her best interests and defendants failed to do so. Defendants depleted Plaintiff’s entire life savings. Defendants failed to resolve the case short of continued litigation and used her escrow funds when the case could have been resolved in a much more expeditious manner.”
Johnson’s counsel appended a declaration in opposition to the demurrer, averring that, “[a]t the time the original special interrogatories were answered by this office, I believed I had an agreement with counsel for [the law firm] that service had been completed on [Skousen]. In reviewing the answers to the interrogatories, I therefore presumed that they were propounded by all defendants, and understood the answer to no. 115.3 to mean that no one outside [the law firm] was responsible for Plaintiff’s damages. I therefore intended to include [Skousen] within the scope of the liable parties.” Johnson’s counsel “later learned that [] Skousen persisted in claiming he had not been duly served with summons and complaint until late in November. From reading the demurrer, it is now apparent that the interrogatories were intended to further that position, and as an artful way to aid him in escaping responsibility for his conduct in this matter. I have caused the response to no. 115.3 to be amended to include Skousen’s name to make clear what was already alleged in the complaint, that Plaintiff clearly contends that he was responsible for her damages.” Johnson attached to the opposition a copy of the amended answer to interrogatory no. 115.3, now specifying Skounsen’s name and address as a person responsible for her damages.
Defendants objected to the declaration of Johnson’s counsel, on the ground that “‘A declaration filed in opposition to a demurrer is “a nullity, of no purpose or effect whatever” in consideration of a demurrer.’” (Citing Kahn v. Superior Court (1987) 188 Cal.App.3d 752, 770 (Kahn) and Allred v. Bekins World Wide Van Services (1975) 45 Cal.App.3d 984, 992-993 (Allred).) They also argued that the amended interrogatory answer was inadmissible, as the initial answer was an admission against Johnson’s interest, and therefore binding for purposes of demurrer. (Citing Del E. Webb v. Structural Materials (1981) 123 Cal.App.3d 593, and Hills Transp. Co. v. Southwest Forest Ind. (1968) 266 Cal.App.2d 702.)
The trial court sustained the demurrer without leave to amend as to Skousen, although it overruled the demurrer as to the law firm. The complaint was dismissed as to Skousen.
Johnson now appeals the judgment of dismissal in favor of Skousen.
DISCUSSION
1.
STANDARD OF REVIEW
In reviewing a trial court’s order sustaining a demurrer, we exercise our independent judgment as to whether a cause of action has been stated as a matter of law. (Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790.) A trial court’s denial of leave to amend, however, is reviewed for abuse of discretion. The appealing party bears the burden of showing that the trial court abused its discretion, by demonstrating how he or she could amend the complaint to state a cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)
2.
THE TRIAL COURT ERRED IN SUSTAINING THE DEMURRER
Johnson’s first amended complaint is the operative pleading. On review after dismissal upon sustaining a demurrer, we give the first amended complaint a reasonable interpretation, and treat the demurrer as admitting all material facts properly pleaded. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The only issue on appeal is whether the complaint states facts sufficient to constitute a cause of action. (Hahn v. Mirda (2007) 48 Cal.App.4th 1188, 1191.) We do not assume the truth of contention, deductions, or conclusions of law and fact. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) We also consider facts which may be judicially noticed. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318, citing Serrano v. Priest (1971) 5 Cal.3d 584, 591.)
Consideration of “facts which may be judicially noticed” is the crux of the matter here. Skousen asked the trial court to take judicial notice of Johnson’s answers to interrogatories, replying “None,” to the question asking her to name any other person, aside from the person propounding the interrogatories, who was responsible for her damages. In essence, Skousen is calling “Olly, olly oxen free,” because Johnson misunderstood that the party propounding the interrogatories, the law firm, was not also doing so on behalf of Skousen, the individual.
Realizing her mistake, Johnson amended her interrogatory answers to name Skousen. Skousen urges, however, that just as a party may not artfully amend a pleading to avoid the effect of a judicial admission in an earlier pleading, Johnson should not be allowed to avoid the judicial admission of her initial interrogatory answer. In addition, Skousen contends, Johnson is precluded from presenting the amended interrogatory response because it was attached to a declaration of Johnson’s counsel. Skousen asserts that, “[a] declaration filed in opposition to a demurrer is ‘a nullity, of no purpose or effect whatever,’ in consideration of a demurrer.” (Kahn, supra, 188 Cal.App.3d at p. 770, fn. 7.) Thus, Skousen claims, the trial court could not properly consider the amended interrogatory answer.
The source of the Kahn quotation is Allred, supra, 45 Cal.App.3d at p. 993. In Allred, the Court of Appeal “treated as true ‘all material, issuable facts properly pleaded in the complaint . . . however improbable they may be.’ [Citation.]” (Id. at pp. 992-993.) In assessing the factual allegations to be tested, the court excluded from consideration a declaration provided by the plaintiff, which apparently provided “extraneous factual recitals in ‘response’ to the demurrers.” (Id. at p. 993.) The court deemed the supplemental declaration “a nullity, of no purpose or effect whatever,” because, in consideration of a demurrer, “defects of a complaint are properly cured by amendments thereto.” (Ibid.) The demurrer tests the pleadings by the factual matters actually alleged, and does not present a “moving target” of changing allegations by means of declarations.
Kahn also involved the attempt to supplement the allegations of the complaint via a declaration, in which additional factual recitals were proffered to bolster the plaintiff’s case. (Kahn, supra, 188 Cal.App.3d at p. 770, fn. 7.) In addition, Johnson’s declaration was made on information and belief, and thus was hearsay. (Ibid.)
Here, the declaration of Johnson’s counsel was not in the nature of supplementing the factual recitations of the complaint; rather, it addressed defendants’ request for judicial notice. Defendants had asked the trial court to take judicial notice of Johnson’s interrogatory answers; Johnson’s response was to assure that the court took judicial notice of her actual answer, which she had amended, rather than her original answer.
Skousen seeks to estop Johnson from amending her discovery answers, characterizing her initial answer as a “judicial admission.” Skousen correctly points out that an amended pleading that contradicts an admission in the original pleading is not allowed. (Astenius v. State (2005) 126 Cal.App.4th 472, 477.) Amending interrogatory answers is, however, perfectly permissible. Code of Civil Procedure section 2030.310 provides in relevant part: “(a) Without leave of court, a party may serve an amended answer to any interrogatory that contains information subsequently discovered, inadvertently omitted, or mistakenly stated in the initial interrogatory.” It further provides that, “At the trial of the action, the propounding party or any other party may use the initial answer under Section 2030.410, and the responding party may then use the amended answer,” and provides a procedure for the propounding party to secure a ruling that the original answer is binding:
“(b) The party who propounded an interrogatory to which an amended answer has been served may move for an order that the initial answer to that interrogatory be deemed binding on the responding party for the purpose of the pending action. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.
“(c) The court shall grant a motion under subdivision (b) if it determines that all of the following conditions are satisfied:
“(1) The initial failure of the responding party to answer the interrogatory correctly has substantially prejudiced the party who propounded the interrogatory.
“(2) The responding party has failed to show substantial justification for the initial answer to that interrogatory.
“(3) The prejudice to the propounding party cannot be cured either by a continuance to permit further discovery or by the use of the initial answer under Section 2030.410.
“(d) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to deem binding an initial answer to an interrogatory, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”
Defendants have not moved to determine that the original interrogatory answer is binding. They have not undertaken the risk of sanctions for bringing such a motion unsuccessfully, and the reason for that is fairly clear: Defendants would have to be able to show prejudice from the amended answer. They cannot; Skousen is not prejudiced by clarification that the complaint which named him as a defendant did so intentionally and that Johnson indeed does hold him responsible for her damages. There would have to be no substantial justification for the original answer; there was. Johnson’s original answer was based on a mistake that the individual (who is a member of the law firm) was included in the identity of the “party” propounding the interrogatories, inasmuch as the entity cannot act except through the actions of individual human beings.
In the absence of a proper determination, under the discovery rules, that Johnson was bound by her original interrogatory answer, Johnson was permitted to amend her answer. Because she had amended her answer, she was entitled to have the court take judicial notice of her actual answer to the pertinent interrogatory. In these circumstances, Johnson’s counsel’s declaration was not in the nature of a declaration providing supplemental facts in lieu of an amended pleading. It was in the nature of an objection to defendants’ request to take judicial notice, or a supplemental request to take judicial notice, such that the trial court would take judicial notice of the properly corrected interrogatory answer. Defendants were not entitled to restrict their request for judicial notice to a matter, i.e., a judicial record, which distorted and did not correctly represent the actual state of that record.
The original interrogatory answer, inadvertently (or ambiguously) indicating that Skousen was not a party Johnson claimed was responsible for her damages, was the ground upon which the trial court sustained the demurrer in his favor. The trial court refused to consider the amended interrogatory answer in taking judicial notice of the record. In so doing, the court improperly applied the notion of “judicial notice” in the demurrer context.
On the one hand, as indicated above, the court considered itself bound by judicial notice of a discovery answer that no longer obtained. In other words, the court took judicial notice of the wrong datum. Johnson’s amended discovery answer clearly and undisputedly named Skousen as a person responsible for her damages; her original answer was simply incorrect, and thus it was an improper basis upon which to sustain a demurrer. On the other hand, had the court taken judicial notice of both the original and the amended answers, the record indicated a factual conflict or dispute.
“In determining the sufficiency of a complaint against demurrer a court will consider matters that may be judicially noticed. [Citations.] ‘Accordingly, a complaint otherwise good on its face is subject to demurrer when facts judicially noticed render it defective.’ [Citation.] [¶] Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. [Citation.] On a demurrer a court’s function is limited to testing the legal sufficiency of the complaint. [Citation.] ‘A demurrer is simply not the appropriate procedure for determining the truth of disputed facts.’ [Citation.] The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable.” (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374 (Joslin).)
Thus, here, “[t]he trial judge could accept the truth of the facts stated in [Johnson’s discovery answers] only to the extent they were not or could not be disputed.” (Joslin, supra, 184 Cal.App.3d at p. 375.) Manifestly, however, Johnson’s answer to interrogatory no. 115.3 was disputed. It was therefore wholly improper for the trial court to decide the demurrer on the basis of the disputed fact represented by that discovery answer.
Johnson has urged in her opening brief that the first amended complaint otherwise is sufficient to state a cause of action for legal malpractice. Skousen did not address this argument in the respondent’s brief, effectively conceding that issue; indeed, the trial court overruled the identical demurrer as to the law firm, thus finding no ground upon which to sustain it.
We conclude that the trial court erred in sustaining the demurrer as to Skousen. Contrary to the trial court’s ruling, Johnson’s interrogatory answer(s) did not provide a basis upon which to sustain the demurrer as to Skousen.
DISPOSITION
The judgment of dismissal in favor of defendant Robert James Skousen is reversed, and the trial court is directed to overrule his demurrer. Appellant is awarded her costs on appeal.
We concur: RAMIREZ, P.J., MILLER, J.