Opinion
B318077
09-21-2023
ROBERT K. KENT, Plaintiff and Appellant, v. RICHARD KAY, Defendant and Respondent.
Robert K. Kent, in pro. per., for Plaintiff and Appellant. The Maloney Firm, Patrick M. Maloney and Elizabeth T. Schaus for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. 20SMCV00871, Mark A. Young, Judge. Affirmed.
Robert K. Kent, in pro. per., for Plaintiff and Appellant.
The Maloney Firm, Patrick M. Maloney and Elizabeth T. Schaus for Defendant and Respondent.
HOFFSTADT, J.
An attorney sued his client to recover the attorney fees he alleged he was owed, a portion of which was a contingency fee. The trial court dismissed the attorney's complaint on demurrer as time-barred. Although we take a different path of reasoning, we independently agree with the trial court's ruling. We accordingly affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Robert Kent (plaintiff) is an attorney. So is Richard Kay (Kay).
A. Kay retains plaintiff in 2013, and they orally agree to a fee contract
In early February 2013, Kay asked plaintiff to represent him in a probate dispute and, more specifically, to file a petition challenging various aspects of Kay's parents' trusts, which had a net worth exceeding $125 million. During the initial consultation, plaintiff and Kay "orally" agreed that (1) plaintiff would pay all costs and expenses of litigation (subject to repayment if Kay sufficiently prevailed in the litigation), and (2) Kay would pay plaintiff 25 percent of any "payments, distributions of assets or other benefits" obtained in the litigation. Plaintiff ultimately prosecuted or defended Kay in five different matters related to the probate dispute-namely, the petition filed for Kay in early February 2013; a second petition filed for Kay in July 2013; a petition filed by one of Kay's siblings; and two civil actions filed for Kay or his father-in-law. In total, plaintiff spent 563.8 hours working on these matters for Kay in 2013.
B. Kay hires new lead counsel and phases out plaintiff
In September 2013, Kay retained The Boesch Law Group (Boesch) as lead counsel in all five matters. Kay told plaintiff only to perform legal work requested by Boesch, and to communicate with him solely through Boesch. Plaintiff repeatedly offered to assist Boesch, but his offers were all declined.
C. Kay and plaintiff start to negotiate a new fee contract in 2014, but do not agree on the terms
In July 2014, a Boesch attorney sent an email to plaintiff proposing a new hybrid hourly and contingency fee arrangement-namely, that plaintiff (1) be compensated for the work he did in 2013 on an hourly basis (which came to $253,710) from any settlement or judgment for Kay in excess of Kay's "established equitable or earmarked interests in the" trust assets, and (2) be awarded "an additional 10% of any gross settlement or judgment amount in excess" of Kay's "established equitable or earmarked interests" in the trust assets if plaintiff performed any work from January 1, 2014 forward. In that email, the Boesch attorney made clear that he did not have Kay's "agreement" to the proposal he had sent, but "may be able to secure [that] agreement." After several back-and-forth emails, plaintiff sent a signed draft "Attorney-Client Contingency Fee Agreement" to the Boesch attorney on Christmas Eve 2014; the terms of that draft largely mimicked the terms of the proposal made by the Boesch attorney months earlier. Kay never signed plaintiff's draft and the Boesch attorney never indicated that Kay had agreed to the terms of the proposal (that were later incorporated into plaintiff's draft).
D. Plaintiff is not asked to do any work, but reviews pleadings
Although Boesch never asked plaintiff to perform any legal work for Kay, plaintiff took it upon himself to review any pleadings he was served, so he would, in his own words, be "conversant with the litigation matters in the event he was requested to perform any services." This continued through September 2017. During this period, neither Kay nor plaintiff filed a motion with any court indicating that plaintiff was withdrawing as Kay's counsel.
Plaintiff alleged in his original complaint that his services ceased in "late 2014," but moved that end date nearly three years later to September 2017 in the operative first amended complaint. Because plaintiff included allegations explaining this change, the trial court did not reject it as a "sham pleading."
II. Procedural Background
On June 29, 2020, plaintiff sued Kay. In the operative, 83-page first amended complaint, plaintiff sued Kay on 10 different theories: (1) breach of written contract, (2) breach of oral contract, (3) account stated, (4) open book account, (5) unjust enrichment, (6) accounting, (7) fraudulent concealment, (8) declaratory relief, (9) breach of the implied covenant of good faith and fair dealing, and (10) quantum meruit. The relief plaintiff seeks, however, is keyed solely to the terms of the 2014 proposal between the Boesch attorney and plaintiff-namely, $253,710 in fees for plaintiff's 2013 work based on an hourly rate as well as 10 percent of Kay's recovery in the probate litigation if plaintiff performed any post-2013 work; at no point does plaintiff seek relief based on the 2013 oral agreement between himself and Kay.
Kay demurred to the operative complaint, chiefly on the ground that no valid contract exists and that plaintiff's sole claim is a time-barred claim for quantum meruit. After further briefing and a hearing, the trial court sustained the demurrer without leave to amend on November 10, 2021.
Kay contemporaneously filed a motion to strike plaintiff's requests for interest and punitive damages, which plaintiff opposed. The court denied the motion as moot, and the parties do not challenge that ruling on appeal.
Plaintiff filed this timely appeal.
Plaintiff filed his notice of appeal prematurely-that is, he appealed from the trial court's minute order sustaining Kay's demurrer and not from the judgment of dismissal entered six months later-but we exercise our discretion to treat the notice as properly filed. (Cal. Rules of Court, rule 8.406(d).)
DISCUSSION
Plaintiff argues that the trial court erred in sustaining the demurrer to his first amended complaint without leave to amend.
In assessing whether the trial court erred in this ruling, we ask two questions: "(1) Was the demurrer properly sustained; and (2) Was leave to amend properly denied?" (Shaeffer v. Califia Farms, LLC (2020) 44 Cal.App.5th 1125, 1134 (Shaeffer).) In answering the first question, we ask "'"whether the complaint states facts sufficient to constitute a cause of action."'" (Centinela Freeman Emergency Medical Associates v. Health Net of Cal., Inc. (2016) 1 Cal.5th 994, 1010; Cal. Dept. of Tax &Fee Admin. v. Superior Court (2020) 48 Cal.App.5th 922, 929 (Tax & Fee Admin.); see generally Code Civ. Proc., § 430.10, subd. (e).) In undertaking this inquiry, we accept as true "all material facts properly pled" in the operative complaint (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 152; Tax & Fee Admin., at p. 929) as well as those facts appearing in the exhibits attached to it, giving "precedence" to the facts in the exhibits if they "contradict the allegations" (Gray v. Dignity Health (2021) 70 Cal.App.5th 225, 236, fn. 10; Brakke v. Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 767). A complaint does not state facts sufficient to constitute a cause of action when it shows, on its face, that the cause of action is barred by the applicable statute of limitations. (County of Los Angeles v. Commission on State Mandates (2007) 150 Cal.App.4th 898, 912; Doe v. Roman Catholic Archbishop of Los Angeles (2016) 247 Cal.App.4th 953, 960.) In answering the second question, we ask "'"whether '"there is a reasonable possibility that the defect [in the operative complaint] can be cured by amendment."'"'" (Shaeffer, at p. 1134; Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1100.)
We review the trial court's ruling regarding the first question de novo (and, because we are reviewing the ruling and not the trial court's reasoning, we may affirm on any basis supported by the record), and review its ruling regarding the second for an abuse of discretion. (People ex rel. Harris v. Pac Anchor Transportation, Inc. (2014) 59 Cal.4th 772, 777; People v. Chism (2014) 58 Cal.4th 1266, 1295, fn. 12; Branick v. Downey Savings &Loan Assn. (2006) 39 Cal.4th 235, 242.)
I. Was the Demurrer Properly Sustained?
Because the statutes of limitations for written-contract-based claims, oral-contract-based claims, fraud claims, common count claims, and quantum meruit claims are different (compare Code Civ. Proc., § 337, subd. (a) [breach of written contract; four years], with id., § 339 [breach of oral contract; two years], id., § 338, subd. (d) [fraud; three years], id., § 337, subd. (b) [common counts; four years], and id., § 339 [quantum meruit; two years]), and because the applicable statute of limitations turns on "the nature" or "'gravamen'" of a claim (rather than its label) (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 22), we must ask two subsidiary questions: (1) What is the nature or gravamen of plaintiff's viable claim(s), and (2) based on that nature or gravamen, did the limitations period expire before plaintiff filed his action?
A. What is the nature or gravamen of plaintiff's claim(s)?
Although the 10 claims in plaintiff's operative complaint have 10 different labels, each falls into only one of two categories when we examine their nature or gravamen. Those two categories are (1) contract-based claims, and (2) quantum meruit. Plaintiff's claims for breach of written contract, breach of oral contract, and breach of the implied covenant of good faith and fair dealing are obviously contract-based claims. So are plaintiff's claims-at least as pled in this case-for account stated, open book account, accounting, fraudulent concealment, and declaratory relief. That is because each of these additional claims rests on the same underlying factual allegations as his contract claims; accordingly, each presupposes the existence of a contract or a contract-based duty. The only remaining claims are for quantum meruit and unjust enrichment, but unjust enrichment is not an independent claim (e.g., Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1370; Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793), and is, in any event, a quantum meruit claim by another name (Chodos v. Borman (2014) 227 Cal.App.4th 76, 96-97 (Chodos) ["'The underlying idea behind quantum meruit is the law's distaste for unjust enrichment'"]; Federal Deposit Ins. Corp. v. Dintino (2008) 167 Cal.App.4th 333, 346 [same]).
Plaintiff's operative complaint ostensibly refers to two contracts, but neither provides a basis for relief as a matter of law.
The complaint alleges facts regarding the 2013 oral contract between plaintiff and Kay, but plaintiff does not seek relief on the basis of that contract (that is, a fee of 25 percent of Kay's additional recovery from his parents' estate); instead, he seeks to enforce the terms of a different contract-namely, the alleged 2014 contract-and we must defer to plaintiff's decision regarding which alleged contract to enforce. (Cf. Zottman v. City and County of San Francisco (1862) 20 Cal. 96, 99-103 [where contractor's damages are based only on purported amended contract and not original contract, viability of claim is assessed according to that amended contract]; Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1352 [measure of damages for breach of a contract is amount caused by breach of that contract]; HSBC Bank Nevada, N.A. v. Aguilar (2012) 205 Cal.App.4th Supp. 6, 12 [if defendant defaults in breach of contract case where amount of general damages is alleged, court clerk must enter judgment in that amount].) Indeed, in response to our request for supplemental briefing on the issue of whether the 2013 oral contract is relevant to this appeal, plaintiff asserted that the 2013 oral contract was "superseded."
The complaint also alleges a 2014 contract, but the exhibits attached to the complaint demonstrate, as a matter of law, that this contract was never formed. (Bustamante v. Intuit, Inc. (2006) 141 Cal.App.4th 199, 208 ["the existence of a contract is a question [of law] for the court to decide"].) A contract exists only if there has been a "meeting of the [parties'] minds on all material points" (Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 359; Cheema v. L.S. Trucking, Inc. (2019) 39 Cal.App.5th 1142, 1149), and we adjudge whether there has been a meeting of the minds objectively-that is, by looking to the "outward manifestations or expressions of the parties, . . . and not their unexpressed intentions or understandings" (Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 141, disapproved on another ground in Reid v. Google, Inc. (2010) 50 Cal.4th 512; Bustamante, at p. 208). The exhibits attached to the operative complaint show, as a matter of law, that there was never any objective "meeting of the minds" between plaintiff and Kay regarding the material terms of the alleged 2014 contract: Although plaintiff assented to the terms of the 2014 contract he sent on Christmas Eve 2014, the Boesch attorney explicitly informed plaintiff that he did not have Kay's "agreement" when he initially proposed a precursor to that contract and the paper trail shows that Kay never subsequently agreed to those terms. Plaintiff responds in his supplemental brief that there was no "disagreement or misunderstanding" as to the proposed terms of the 2014 contract, but that misses the point of whether there was a meeting of the minds in the first place.
Accordingly, the only claims in plaintiff's first amended complaint that remain viable are those sounding in quantum meruit, which is the cause of action applicable when a promise to pay for services is implied due to the absence of a binding contract. (Iverson, Yoakum, Papiano &Hatch v. Berwald (1999) 76 Cal.App.4th 990, 996 (Iverson).) Plaintiff objects that we should not consider his complaint to rest on a quantum meruit theory because he pled that theory only as "a precautionary measure," but his ranking of the importance of this theory in his litigation strategy has no bearing on the fact that his contractbased claims are invalid.
B. Is the quantum meruit claim timely?
The statute of limitations period for a quantum meruit claim is two years. (Code Civ. Proc., § 339; Iverson, supra, 76 Cal.App.4th at p. 996.) When it comes to a quantum meruit claim to recover attorney fees incurred without an enforceable contract, the limitations-period clock starts ticking at "either [(1)] the date the last payment was made toward the attorney fees, or [(2)] the last date that the attorney performed services in the case." (Leighton v. Forster (2017) 8 Cal.App.5th 467, 490 (Leighton); Iverson, at p. 996.) Here, Kay never made any payments toward plaintiff's fees and the last date upon which plaintiff alleged that he performed any services was in September 2017. Because plaintiff did not file his lawsuit until more than two years later in June 2020, his quantum meruit claim is time-barred as a matter of law.
Plaintiff resists this conclusion with what boils down to three arguments.
First, plaintiff argues that the limitations-period clock on a quantum meruit claim to recover attorney fees should not start ticking as long as the attorney is still the client's "attorney of record" in a case. Plaintiff cites no authority for his argument, beyond trying to draw an analogy to the "continuous representation" doctrine. However, that doctrine merely holds that a client's claim for malpractice does not accrue while the attorney is still representing the client. (Code Civ. Proc., § 340.6, subd. (a)(2); Nguyen v. Ford (2020) 49 Cal.App.5th 1, 12-13.) That doctrine is inapt here, where all plaintiff did was remain on the file jacket while the probate disputes were pending and where the client had other counsel. (Cf. Rus, Miliband &Smith v. Conkle &Olesten (2003) 113 Cal.App.4th 656, 675-678 [where attorney withdraws as counsel but leaves the client without representation, attorney may not recover fees in quantum meruit].) More to the point, accepting plaintiff's argument would effectively grant attorneys the power to extend the limitations period for recovering unpaid fees in cases where there is no agreement as to fees by simply "hanging on" as one of many attorneys of record and refusing to be relieved as counsel (see Code Civ. Proc., § 284 [procedure for replacing counsel]; Cal. Rules of Court, rule 3.1362 [procedure for motion to be relieved as counsel]); this is an outcome at odds with the usual requirement that a plaintiff be diligent when seeking equity in recovering for their labors. (See, e.g., Weitz v. Yankosky (1966) 63 Cal.2d 849, 856-857 ["One moving in equity . . . must act diligently . . ."].)
Second, plaintiff argues that the limitations-period clock should not start ticking until the contingency in the attorney-client contingency fee agreement has come to pass, which in this case was Kay obtaining a settlement or judgment in excess of his "established equitable or earmarked interests" in his parents' estate. This argument is internally inconsistent. The happening of the contingency is only relevant if there is a contingency fee agreement, but quantum meruit presupposes that there is no such agreement and that the attorney is being compensated only for the "reasonable value of [the attorney's] services," typically at a reasonable hourly rate. (Fracasse v. Brent (1972) 6 Cal.3d 784, 791 (Fracasse); Chodos, supra, 227 Cal.App.4th at p. 100; Missakian v. Amusement Industry, Inc. (2021) 69 Cal.App.5th 630, 644 (Missakian) ["the terms of the invalid [contingency fee] agreement will very rarely provide the basis for calculating the quantum meruit award"].) Thus, it makes no sense to look to the contingency under a quantum meruit theory. Plaintiff cites Fracasse, which holds that "[a] cause of action to recover compensation for services rendered under a contingen[cy] fee contract does not accrue until the occurrence of the stated contingency," at least when there is a written contract and the client fires the lawyer (Fracasse, at p. 792); although quantum meruit supplied the measure of damages for the lawyer in Fracasse, the client's duty to pay those damages arose out of the contractual agreement that existed in that case. (Accord, Brown v. Connolly (1969) 2 Cal.App.3d 867, 870-871 [applying same rule].) Fracasse did not speak to the situation, present here, where quantum meruit supplies the legal theory for recovery due to the absence of any mutual agreement that ties the recovery of fees to a contingency. (See Trembath v. Digardi (1974) 43 Cal.App.3d 834, 836-837 [limiting Fracasse's accrual rule to cases where an attorney asserts contract rights against his client].) Plaintiff also cites Sayble v. Feinman (1978) 76 Cal.App.3d 509, but Sayble deals with when the limitations period begins on an agreement to share an annuity; like Fracasse, Sayble has nothing to do with quantum meruit.
Third, plaintiff argues that what he perceives to be two procedural errors warrant relief. He asserts that the trial court did not allow him the opportunity to make a surrebuttal argument during the hearing on the demurrer. But lawyers are not entitled to argue as much as they want, and nothing plaintiff would have said affects our analysis-which turns entirely on the allegations in the operative complaint and its exhibits. He also asserts that the trial court did not allow him to conduct discovery on several issues-namely, regarding (1) whether Kay ever declared the 2014 contract void, (2) whether Kay disputes that he proposed the material terms of the 2014 contract, (3) whether Kay disputes that he ratified the 2014 contract, (4) how the five litigation matters were ultimately resolved, (5) the terms of any settlement ultimately resolving those matters, and (6) the amount of assets distributed to Kay from Kay's parents' estate. But none of this discovery has any bearing on any step of our analysis as to why plaintiff's claims are time-barred; as a result, the denial of that discovery was harmless. (See Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242, 1270-1271 [any error in denying continuance of summary judgment motion to conduct discovery was harmless where discovery would not change ruling that moving party was entitled to judgment as a matter of law].)
II. Did the Trial Court Abuse Its Discretion in Denying Leave to Amend?
A trial court abuses its discretion in denying leave to amend only if there is a "reasonable possibility [that] an amendment . . . would cure the complaint's legal defect[s]." (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924.)
Here, there is no reasonable possibility of amendment. The exhibits to the first amended complaint definitively establish that the alleged 2014 contract is not a contract at all; any amended complaint that ignores or is contrary to those exhibits would constitute a sham pleading. (Smyth v. Berman (2019) 31 Cal.App.5th 183, 195.)
Plaintiff could potentially seek to amend the complaint to obtain relief under the 2013 oral agreement or to obtain relief under the 2014 written agreement by alleging, as proffered by plaintiff at oral argument, that additional oral conversations evinced a meeting of the minds (and hence formed a valid contract), but both of those agreements are void due to their noncompliance with the provisions of the Business and Professions Code regulating contingency fee agreements. As pertinent here, section 6147 provides that a "contract[] to represent a client," in whole or in part, "on a contingency fee basis" must (1) be in writing, and (2) be signed by both the client and the attorney. (§ 6147, subd. (a); Missakian, supra, 69 Cal.App.5th at p. 644; Arnall v. Superior Court (2010) 190 Cal.App.4th 360, 366 &fn. 6.) The "[f]ailure to comply" with these procedural requirements "renders the agreement voidable at the option of the [client], and the attorney shall thereupon be entitled to collect a reasonable fee" pursuant to quantum meruit. (§ 6147, subd. (b); Huskinson &Brown v. Wolf (2004) 32 Cal.4th 453, 460; Sheppard, Mullin, Richter &Hampton, LLP v. J-M Manufacturing Co., Inc. (2018) 6 Cal.5th 59, 88; Flannery v. Prentice (2001) 26 Cal.4th 572, 588-589.) A client can elect to render a voidable contingency fee agreement void by (1) explicitly rejecting the agreement, or (2) taking actions inconsistent with the client's validation of that agreement, such as not paying any fees pursuant to that agreement. (Leighton, supra, 8 Cal.App.5th at pp. 487-488; cf. Alderman v. Hamilton (1988) 205 Cal.App.3d 1033, 1038 (Alderman); see generally Fergus v. Songer (2007) 150 Cal.App.4th 552, 570 (Fergus) [conduct that "implicitly" rejects agreement will suffice]; see also Leighton, at pp. 487-488 [formal rescission of agreement not required]; O&C Creditors Group, LLC v. Stephens &Stephens XII, LLC (2019) 42 Cal.App.5th 546, 575 (O&C Creditors) [same].) It is undisputed that the 2013 contract was oral and that the 2014 contract, which had different proposed terms, is not signed by Kay, so neither contract constitutes a written contract signed by the attorney and client as section 6147 requires. What is more, the allegations of the operative complaint and attached exhibits establish that Kay opted to treat both the 2013 contract and 2014 contract as void because he hired new lawyers who instructed plaintiff not to do anything more, and never paid plaintiff for any of his work, which plaintiff says exceeded $250,000.
Unless otherwise indicated, all further statutory references are to the Business and Professions Code.
Plaintiff makes five further arguments.
First, he argues that a client does not opt to void a noncompliant contingency fee agreement unless he does so explicitly or otherwise rescinds the noncompliant agreement. The cases cited above refute this argument. To be sure, there are cases suggesting that a party to a voidable contract with an option to void it will be deemed to have exercised that option only if they obtain a "judicial adjudication or otherwise declare[] the agreement . . . void." (E.g., Depner v. Joseph Zukin Blouses (1936) 13 Cal.App.2d 124, 127-128; White Dragon Productions, Inc. v. Performance Guarantees, Inc. (1987) 196 Cal.App.3d 163, 172.) But those cases do not arise in the context of contingency fee agreements, which are a specialized type of agreement for which our Legislature has explicitly adopted a policy of protecting clients (Missakian, supra, 69 Cal.App.5th at p. 652; Leighton, supra, 8 Cal.App.5th at p. 483)-a policy that manifests itself with a rule that allows for implicit as well as explicit rejection of a noncompliant agreement.
Second, plaintiff argues that the 2013 oral contract is valid because he and Kay ratified it when they entered into the 2014 contract. We reject this argument for several reasons: The 2014 contract purported to change the terms of the 2013 oral contract, so it could not have ratified it (see, e.g., Martinez v. Brownco Construction Co. (2013) 56 Cal.4th 1014, 1021 [counteroffer rejects prior offer]); and though it is questionable whether an agreement that does not comply with section 6147 can be ratified, any ratification would require knowledge by Kay of his right to void the 2013 oral contract (accord, Fergus, supra, 150 Cal.App.4th at pp. 570-572; § 6148, subd. (d)(3) [requirements for written, hourly fee arrangement may be waived if client "knowingly states [so] in writing, after full disclosure of" those requirements]), and there are no allegations of Kay's knowledge here.
Third, plaintiff argues that section 6147 does not apply to Kay because Kay is himself an attorney who, in plaintiff's view, needs no protection of the law. But section 6147 contains no ostensible "clients-who-happen-to-be-attorneys" exception, and we are not at liberty to rewrite the statute to add one. (J.M. v. Huntington Beach Union High School Dist. (2017) 2 Cal.5th 648, 657, fn. 7 ["It is not for us to rewrite . . . statute[s]"]; O&C Creditors, supra, 42 Cal.App.5th at p. 576 [declining to "insert a timeliness component into . . . section 6147 where none exists"].)
Fourth, plaintiff argues that E.O.C. Ord, Inc. v. Kovakovich (1988) 200 Cal.App.3d 1194 (Ord) dictates a ruling in his favor. He is wrong. Although Ord holds that an oral contingency fee agreement is subject to a four-year statute of limitations as a breach of contract action, Ord did not apply section 6147 because the fee agreement at issue was formed in 1978 and 1979, which is before section 6147 took effect in 1982. (Id. at pp. 1196-1197; Alderman, supra, 205 Cal.App.3d at p. 1037 ["[a]ttorney fee agreements are evaluated at the time of their making"]; see also Russell v. Superior Court (1986) 185 Cal.App.3d 810, 814 [cannot retroactively apply statute to impair contractual rights].) The trial court here pointed out the temporal irrelevance of Ord, but plaintiff on appeal urges us to treat Ord as relevant because the appellate decision in that case came out after 1982. Given the clear frivolousness of this argument, it borders on the unethical.
Fifth, plaintiff argues that he can amend his complaint by dropping the quantum meruit claim. But this accomplishes nothing, as that claim is the only viable claim he has. Such an amendment would not "cure" the defect in the current complaint; it would make it worse.
DISPOSITION
The judgment is affirmed. Kay is entitled to his costs on appeal.
We concur:, LUI, P. J., CHAVEZ, J.