Opinion
E050809
11-22-2011
WILLIAM MORSCHAUSER, Plaintiff and Appellant, v. GRAHAM VAAGE & CISNEROS, Defendant and Respondent.
McKennon Schindler, Robert J. McKennon, Eric J. Schindler, M. Scott Koller, and Reid A. Winthrop, for Plaintiff and Appellant. Graham Vaage and Susan L. Vaage for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. SCVSS124603)
OPINION
APPEAL from the Superior Court of San Bernardino County. Donald R. Alvarez, Judge. Affirmed.
McKennon Schindler, Robert J. McKennon, Eric J. Schindler, M. Scott Koller, and Reid A. Winthrop, for Plaintiff and Appellant.
Graham Vaage and Susan L. Vaage for Defendant and Respondent.
Plaintiff and appellant William G. Morschauser filed an action against defendant and respondent Graham Vaage & Cisneros (GVC) and others, arising out of alleged misrepresentations concerning the terms of a settlement agreement and the amount owed to release a lien on property owned by Morschauser's partnership. Morschauser alleged that GVC, attorneys for the lienholder, committed fraud and negligence. GVC moved for summary judgment, which the trial court granted. Morschauser appeals, contending the trial court erred in granting the motion, since there were triable issues of fact as to GVC's representations, actions, and duties. We affirm the judgment.
The only attorney at GVC who dealt with the matter that became the subject of this litigation was Michael Cisneros (Cisneros). This opinion will, where relevant, reference Cisneros only; however, GVC, not Cisneros, is a party to this appeal.
I. STANDARD OF REVIEW
The well-known principles generally governing appellate review of an order granting a motion for summary judgment are as follows: "A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. [Citation.] We review the trial court's decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.] In the trial court, once a moving defendant has 'shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,' the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff 'may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . .' [Citations.]" (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477, citing Code Civ. Proc.; Code Civ. Proc. § 437c, subd. (o)(2).)
II. PROCEDURAL BACKGROUND AND FACTS
In February 1989, Morschauser and Mohammed Abdizadeh established Devore Stop as a real estate development partnership (DS Partnership). They held title to the real property (Property) as tenants in common. Morschauser and Abdizadeh each held an undivided 50 percent interest in the Property, which included three contiguous parcels: Parcel 1 is a gas station and convenience store owned and operated by the partnership, and parcels 2 and 3 are unimproved. On April 1, 1998, they, individually, and as Mohammed Abdizadeh William G. Morschauser, a California Partnership, executed a promissory note and a construction loan agreement whereby California State Bank made a construction loan in the principal sum of $850,000. The loan was secured by a deed of trust on parcels 1 and 2. On March 24, 1999, Abdizadeh executed a promissory note and business loan agreement whereby First Security Bank of California made a business loan to Abdizadeh in the principal amount of $150,000. This loan was secured by a deed of trust on parcel 3. Later, Wells Fargo Bank became the owner of both by merger with First Security Bank of California.
In May 2001, Abdizadeh lost his Arco AM/PM franchise rights and could not make the monthly rent payments due for use of the Property. Commencing in July 2002, Wells Fargo proceeded with a nonjudicial foreclosure of the Property; however, Abdizadeh filed individual bankruptcy in order to stop the foreclosure proceedings. Abdizadeh's bankruptcy case was dismissed on December 18, 2002. On April 4, 2003, DS Partnership filed a voluntary petition under Chapter 11 of the United States Bankruptcy Code to stop the foreclosure. Morschauser, personally, as one of the general partners of DS Partnership, signed the bankruptcy petition and all supporting pleadings. He listed himself and Abdizadeh as general partners in the bankruptcy petition without any limiting language as to their respective powers or duties. The petition identifies the attorney for DS Partnership as Arshak Bartoumian of the Law Office of Stanley W. Hodge. At the bankruptcy hearings, Bartoumian appeared as counsel for DS Partnership, while Morschauser appeared on behalf of DS Partnership and himself. At no time did Morschauser claim that Abdizadeh was not authorized to act on behalf of the partnership.
In April 2003, Wells Fargo sold its interest in the deeds of trust to Continental Capital, LLC (ConCap) Shortly after acquiring the deeds of trust, ConCap retained Cisneros of GVC for the sole purpose of representing ConCap's interest in DS Partnership bankruptcy. Neither Cisneros nor GVC was involved in any foreclosure proceedings, either before or after the bankruptcy filing. Rather, in April 2003, Cisneros/GVC filed a motion for relief from the automatic stay in the bankruptcy proceedings on behalf of ConCap, in order to allow ConCap to continue with the previously commenced foreclosure. Morschauser, through Bartoumian as partnership counsel, opposed the motion.
Between May 2 and May 13, 2003, counsel for the parties (Cisneros and Bartoumian, the partnership's attorney,) negotiated repayment of the obligations admittedly owed to ConCap. On May 13, the parties reached an agreement, which they placed on the record in the bankruptcy court. Morschauser was present and affirmed the agreement reached between them. According to the agreement, ConCap agreed to provide Morschauser time to sell the Property, and thus, there would be no foreclosure unless there was a default in the agreement. DS Partnership would pay ConCap $10,000 on June 1 and July 1, 2003, until escrow closed on or before July 14, 2003. If necessary, the buyer or seller of the Property could opt to extend the closing of escrow two times, with each extension being 15 days. The obligation to pay $10,000 on August 1, 2003, would apply if the extension continued into August. At the close of escrow, ConCap would receive a payoff of all obligations.
Morschauser sent a letter dated May 13, 2003, to Cisneros, stating that he had represented himself, that Bartoumian was not court approved, and that certain payoff amounts were not correct because Abdizadeh had forged Morschauser's name. The agreement was formalized into a stipulation for relief from stay, which was received by the bankruptcy court on July 21, 2003. Abdizadeh signed the stipulation as general partner on behalf of DS Partnership. On July 22, an order was entered approving the stipulation without any objections to the contents of the stipulation or the fact that Abdizadeh signed it on behalf of the partnership.
On July 24, 2003, Bartoumian sent a letter to Cisneros on behalf of DS Partnership and Morschauser, explaining that Morschauser had not signed the stipulation because "he does not agree with the bank documents [i.e.,] . . . he did not sign the modification of the note, and other facts surrounding the settlement." Bartoumian further outlined various grounds that Morschauser allegedly had "against the lender in an adversarial action. . . ."
Prior to the stipulation being entered in the bankruptcy court, DS Partnership found a buyer for the Property. Thus, Bartoumian, on behalf of the partnership, filed a motion for authority to sell the Property subject to ConCap's liens. Prior to the hearing on the motion, Bartoumian sent a letter to Cisneros, in which a settlement offer was made to ConCap. In response, Cisneros advised that if Morschauser insisted on changing the terms of the stipulation for relief from stay, ConCap would oppose the upcoming motion to approve the sale. The motion was approved, and Bartoumian prepared an order, which provided that ConCap would be paid a discounted sum of $1,075,000 on both loans out of the sale proceeds, if and only if escrow closed on or before August 11, 2003.
When escrow did not close on the specified date as required in the order, counsel entered into further negotiations. As a result of those negotiations, the discounted amount originally agreed upon was not extended. Rather, ConCap's demand was increased to include the full amount then owed, including accrued default interest at the contract default rates, late charges, all fees incurred and costs. A settlement agreement was drafted, which provided that the partnership's cumulative obligation to ConCap on the notes was $1,253,773.99, but the repayment required for release of the liens was reduced to $1,175,000 (later amended to $1,100,000 per agreement with another creditor) in full and complete satisfaction of both outstanding promissory notes. This amount was to be paid from the pending sale of parcel 1. The $75,000 balance was to be secured by parcel 2 (co-owned by Morschauser and Abdizadeh as tenants in common) and would be repaid in monthly installments, and released when ConCap was paid in full. The final settlement agreement was sent to Bartoumian.
On August 13, 2003, Bartoumian called Cisneros and explained that, while Bartoumian and Abdizadeh had signed the agreement, Morschauser disagreed with the amounts owed to ConCap in the agreement and he would not sign it. Cisneros advised Bartoumian that if the agreement was not signed, then ConCap would not release its lien on parcel 1 and allow the pending sale to go forward, which would then allow ConCap to proceed with its foreclosure for the full amount previously agreed to by the parties. Shortly after this discussion, Cisneros received the signature page bearing Morschauser's signature.
Cisneros's and GVC's participation in the litigation ended, and GVC had no further contact with Morschauser or Bartoumian. Without the knowledge of Cisneros or GVC, ConCap commenced foreclosure on parcel 2. Cisneros and GVC first learned about it in March 2004 when TD Service Company, the foreclosing Trustee hired by ConCap, forwarded a letter received from Morschauser complaining about the settlement agreement terms. GVC forwarded it to ConCap. Neither Cisneros nor GVC was authorized by ConCap to take any action regarding this foreclosure. Apparently, ConCap commenced foreclosure because it never received the remaining $75,000 payment. Prior to the completion of the foreclosure, Morschauser paid $81,464.61 to ConCap to pay off remaining obligations owed under the settlement agreement. Following such payment, Morschauser requested, and received, a copy of the signature page of the settlement agreement.
On March 17, 2005, Morschauser initiated this action. In his first amended complaint filed on October 14, 2005, Morschauser alleged that: GVC falsely represented to him that the partnership owed an additional $75,000 pursuant to the settlement agreement, and that ConCap refused to release its lien on parcel 2 without the $75,000; GVC denied his request for an accounting on the loans; GVC forged Morschauser's signature on the settlement agreement; GVC knowingly made false representations; GVC knew the amounts in, and Morschauser's signature on, the settlement agreement were false; Morschauser relied on GVC's representations; and, based on such reliance, Morschauser suffered damages. Morschauser further alleged GVC "had a duty to act in a reasonable prudent manner and with reasonable skill and diligence, and refrain from prejudicing [Morschauser's] rights by proceeding on its client's forged and/or fraudulent documentation in violation of the law and ethical responsibilities governing members of the State Bar of California."
On July 22, 2009, GVC moved for summary judgment on the grounds that GVC had made no representations to Morschauser, had a good faith belief that he had signed the settlement agreement, did not maintain any accounting records for ConCap, did not owe Morschauser any duty, and was retained as counsel for ConCap only. In support of its motion, GVC offered various declarations, correspondence, and documents filed in the bankruptcy action. On October 6, 2009, Morschauser filed his opposition to GVC's motion. He argued that triable issues of fact exist as to whether GVC falsely represented that loan modification documents and the settlement agreement were properly executed; payment on the trust deeds through escrow resolved all of ConCap's claims; Abdizadeh had authority to bind the partnership; and all sums demanded were the correct amount. He further claimed GVC owed a duty to fairly and accurately deal with Morschauser and not to aid ConCap in violating the law. Morschauser relied upon his own declaration, correspondence, and various records in the bankruptcy action. On October 15, 2009, GVC filed its reply, noting the case boils down to a "dispute between two legally represented parties in a litigated matter over how much was owed on two promissory notes." GVC's sole participation was that of legal counsel for ConCap in the bankruptcy action. Thus, GVC argued its duty was to its client, ConCap, not Morschauser, who was separately represented by Bartoumian. GVC referenced the deposition testimony of Morschauser and asserted written evidentiary objections to Morschauser's declaration in support of his opposition to summary judgment. The trial court sustained many of GVC's objections and rendered a substantial portion of Morschauser's declaration in support of his opposition, along with the attachments, inadmissible. The trial court granted summary judgment in favor of GVC.
III. WAS GVC ENTITLED TO SUMMARY JUDGMENT?
On appeal, Morschauser contends the trial court erred in finding there were no triable issues of fact as to whether GVC committed fraud or negligence.
A. Fraud
Morschauser claims triable issues of fact exist as to whether GVC committed fraud, because (1) as a matter of law, Abdizadeh lacked authority to bind the partnership; (2) GVC, on behalf of ConCap, intentionally misrepresented the amount of money owed on the liens; (3) GVC concealed information regarding the bankruptcy court's order, falsely promising to calculate the balance owed on the loans; (4) Cisneros or ConCap forged Morschauser's name on the settlement agreement; and (5) GVC distributed the fraudulent settlement agreement to TD Service Company, encouraging it to proceed with the foreclosure. Morschauser argues that he and the partnership relied on these false representations and were damaged.
1. Abdizadeh's Authority as a Partner
According to Morschauser, Abdizadeh did not have the authority to bind the partnership because his personal bankruptcy resulted in his disassociation from the partnership. (Corp. Code, § 16601, subd. (6)(A) [partner becomes disassociated upon becoming a debtor in bankruptcy].) To begin with, as GVC points out, Morschauser's evidence of Abdizadeh's personal bankruptcy and its effect was ruled inadmissible at the trial level. Such ruling has not been challenged on appeal. Nonetheless, even if we consider it, we find no triable issue of fact as to Abdizadeh's authority.
In his reply brief, Morschauser states that "it is well within the Court of Appeal's purview to review the evidentiary rulings of the lower court to determine if an error was made." In general, the trial court's rulings on summary judgment are reviewed for an abuse of discretion. (Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1169.) However, Morschauser does not challenge any of the rulings, and to that extent, he has forfeited any contention of error. (Jones v. P.S. Development Co., Inc. (2008) 166 Cal.App.4th 707, 711, overruled on other grounds as stated in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532, fn. 7.)
According to the record before this court, Abdizadeh filed a personal bankruptcy on July 19, 2002. This personal bankruptcy case was dismissed five months later, on December 18, 2002. Four months after the dismissal, on April 4, 2003, DS Partnership filed for bankruptcy. About the same time as the partnership filed bankruptcy, Wells Fargo sold its interest in the deeds of trust to ConCap. Shortly thereafter, ConCap retained Cisneros/GVC for the sole purpose of representing ConCap's interest in the DS Partnership bankruptcy. Given the chronology of events, there is no evidence that ConCap would have been aware of Abdizadeh's personal bankruptcy.
More importantly, ConCap entered the picture after the partnership filed bankruptcy. According to the record, upon the partnership filing bankruptcy, Morschauser, personally, as one of the general partners of DS Partnership, signed the bankruptcy petition and all supporting pleadings, wherein he listed Abdizadeh as a general partner, without any limiting language as to his powers or duties in the bankruptcy petition. (Corp. Code, § 16301, subd. (1)). At the bankruptcy hearings, Morschauser appeared on his own behalf and that of DS Partnership. At no time did Morschauser claim Abdizadeh was not authorized to act on behalf of the partnership. Even Morschauser's declaration in support of opposition to motion from relief from stay signed on April 30, 2003, refers to the "partnership" and that Abdizadeh was a partner. If Morschauser believed Abdizadeh lacked the authority to bind the partnership, then Morschauser should not have noted in the bankruptcy pleadings that Abdizadeh was a general partner. Rather, Morschauser should have advised all parties and the court of the disassociation. Having failed to do so, he is estopped from denying Abdizadeh's authority as a general partner of DS Partnership. (Evid. Code, § 623.)
"Each partner is an agent of the partnership for the purpose of its business. An act of a partner, including the execution of an instrument in the partnership name, for apparently carrying on in the ordinary course the partnership business or business of the kind carried on by the partnership binds the partnership, unless the partner had no authority to act for the partnership in the particular matter and the person with whom the partner was dealing knew or had received a notification that the partner lacked authority." (Corp. Code, § 16301, subd. (1).)
Contrary to Morschauser's claim, the record is void of any evidence that GVC had actual or constructive notice that Abdizadeh did not have the authority to bind the partnership. Morschauser's claim that he told ConCap (via Steven Collias of ConCap) that Abdizadeh did not have authority to sign the settlement agreement, was insufficient notice. Again, as previously stated, documents filed in the bankruptcy court upon which all parties relied identified Abdizadeh as a general partnership with no limited authority. Morschauser cannot have it both ways.
"Whenever a party has, by his own statement or conduct, intentionally and deliberately led another to believe a particular thing true and to act upon such belief, he is not, in any litigation arising out of such statement or conduct, permitted to contradict it." (Evid. Code, § 623.)
Assuming we find that Abdizadeh was authorized to bind the partnership, GVC contends that "[a]ll actions taken by Abdizadeh, and all documents signed by him, were valid and binding on the partnership and therefore precluded a claim for fraud as a matter of law." GVC argues that Morschauser is "estopped from denying either [the] terms or enforceability" of the settlement agreement, and thus, it is "irrelevant that [he] disagrees with the amounts consented to by the partnership or that his signature is allegedly forged, as the other partner signed and bound the entity both under law and under the facts of this case . . . ." While GVC's argument has merit, we choose to address Morschauser's other claims of misrepresentation.
2. Misrepresentation of the Amount of Money Owed on the Liens
Morschauser, an accountant and attorney, claims that GVC conspired with ConCap to intentionally misrepresent the amount of money owed under the loan agreements. However, as GVC points out, Morschauser signed the original construction loan documents, which contain a provision that at the end of the loan period, the loan would be termed out at certain agreed-upon terms, including a fixed interest rate. According to Morschauser, if Abdizadeh "chose to let it go that way or if [he] negotiated with the lender to leave it as a low variable, more power to him." The loan was modified and the interest rate was changed. Thus, Morschauser erred in using the lower variable interest rate to calculate the amounts owed under the loan agreements. Because this error provided the basis of his claim of misrepresentation of the amount owed, his claim fails. More importantly, GVC was merely representing ConCap's legal interests. There is no evidence that GVC was responsible for calculating the amounts owed or that it was in a position to determine whether ConCap's calculations were correct.
We also note that Morschauser's calculations were not admitted, and that he has not challenged the trial court's ruling on appeal.
3. Misrepresentation of the Bankruptcy Court's Order
Morschauser claims GVC concealed information regarding the bankruptcy court's order. He argues that the court's order stated ConCap would receive $1,075,000 in exchange for the release of its liens. However, GVC "preyed upon Abdizadeh, who was ignorant of the bankruptcy court's order," and falsely convinced him that ConCap was owed $1,253,773, such that it was "financially advantageous for Morschauser and the partnership to agree to accept $1,175,000, and that a $75,000 lien should remain on parcel 2." What Morschauser fails to acknowledge is that the bank's order also stated ConCap's "demand for $1,075,000.00 must receive a full payoff by Monday August 11, 2003 at 5:00 p.m., or else the demand is null and void." When it became clear the August 11 deadline would not be met, the parties entered into the settlement agreement. If they had not done so, ConCap was authorized "to immediately proceed to foreclose on the . . . Property or take any other action authorized by the Notes, Agreements, Deeds, Change Agreements or California law . . . ."
4. Forgery of Morschauser's Name on the Settlement Agreement
Next, Morschauser claims Cisneros or ConCap forged his name on the settlement agreement; however, Morschauser had no proof of such forgery other than the allegation in his declaration, which was found to be inadmissible. He merely asserts that because ConCap/Cisneros/GVC were aware that Morschauser would not sign the settlement agreement, "either ConCap or GVC forged his [(Morschauser's)] signature on the agreement." In contrast, Cisneros unequivocally stated he did not forge Morschauser's signature. In his reply brief, Morschauser emphasizes the lack of a "fax header" on the signature pages with his signature, arguing if Cisneros received Morschauser's signature by facsimile, the page would contain a fax header. Again, this evidence was deemed inadmissible on the ground that it lacked foundation and personal knowledge, amounting to mere speculation, and there is no challenge to the trial court's ruling.
In any event, Abdizadeh signed the settlement agreement and his signature was sufficient to bind the partnership. In his reply brief, Morschauser points out that Abdizadeh only signed the agreement in his individual capacity, and that the agreement identified him as the partner who would be signing on behalf of the partnership. Thus, he claims this was evidence that GVC knew Abdizadeh did not have authority to bind the partnership. We disagree. Previously, Abdizadeh signed on behalf of the partnership, and there was nothing of record in the bankruptcy court to suggest his authority had changed.
5. GVC's Distribution of the Settlement Agreement to TD Service Company
Finally, Morschauser contends that GVC distributed the fraudulent settlement agreement to TD Service Company, encouraging it to proceed with the foreclosure. Because we conclude there was no fraud committed in the creation of the settlement agreement, we conclude there was no fraud in its distribution.
B. Other Causes of Action Relating to Fraud
In an attempt to defeat summary judgment, Morschauser contends the trial court should have examined the operative pleadings and determined whether Morschauser could have amended them to state other viable causes of action, namely, conspiracy to commit fraud, conspiracy to violate Civil Code section 2943, or willful violation of the automatic stay in bankruptcy. In response, GVC points out that Morschauser's request is too late. (Van v. Target Corp. (2007) 155 Cal.App.4th 1375 (Van).) We agree with GVC.
Civil Code section 2943 requires a beneficiary of a deed of trust, or his or her authorized agent, to supply to the trustor or escrow holder within 21 days after receipt of written demand certain specified information relating to the status of the deed of trust and note including the amount of the unpaid balance of the obligation. (Civ. Code, § 2943, subds. (a), (b).)
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The original complaint was filed on March 17, 2005. Now, more than five years later after judgment was granted in favor of GVC, Morschauser seeks to amend in order to defeat summary judgment. In Van, a group sued Target and other large retail stores for prohibiting their signature gathering activities at a table off to the side of the entrance to each store. (Van, supra, 155 Cal.App.4th at pp. 1378-1379.) Plaintiffs alleged they were "'uniformly, and consistently evicted from premises owned and operated by [defendants].'" (Id. at p. 1386.) At the hearing on the motion for summary judgment, plaintiffs claimed that summary judgment should be denied because a triable issue of fact existed concerning the ownership of the area in question. (Ibid.) Declining to consider the question of ownership, the trial court evaluated the character of the property and found it to be an extension of the store itself. (Id. at p. 1387.)
Following summary judgment in favor of defendants, plaintiffs, on appeal, argued there was a triable issue of fact as to whether defendants owned or leased the property in question. (Van, supra, 155 Cal.App.4th at p. 1387.) Rejecting the argument, the appellate court found that plaintiffs could not resist summary judgment on a theory that was inconsistent with their pleadings and representations. (Ibid.) According to the appellate court, "[Plaintiffs] alleged that the areas in question were [defendants'] property. The issues framed by the pleadings, therefore, did not include the question of the property's ownership and there was no reason for [defendants] to address ownership in their motion." (Ibid., fn. omitted.)
In their reply brief, the plaintiffs in Van claimed "they should not be bound by their complaints because they could have sought leave to amend to allege ownership differently." (Van, supra, 155 Cal.App.4th at p. 1387, fn. 2.) However, plaintiffs never requested leave to amend in the trial court, they never offered any explanation why such leave was not requested, and they failed to cite to any authority to support such late request. (Ibid.) Denying the late request, the appellate court stated: "[A]mendments are usually allowed after summary judgments have been filed only to repair complaints that are legally insufficient—in other words, those that would be subject to a motion for judgment on the pleadings. [Citations.] [Plaintiffs'] proposed amendment would not cure a legally insufficient complaint, but rather, would state a different theory of recovery. Such an amendment is impermissible. [Citation.]" (Ibid.) For the same reasons, Morschauser may not amend to state different theories of recovery.
Notwithstanding the above, having concluded the trial court properly granted summary judgment in favor of GVC on Morschauser's fraud claim, there can be no conspiracy to commit fraud or to violate any applicable statutes.
C. Negligence
Morschauser sued GVC on a negligence theory, contending that GVC "had a duty to act in a reasonable prudent manner and with reasonable skill and diligence, and refrain from prejudicing [Morschauser's] rights by proceeding on its client's forged and/or fraudulent documentation in violation of the law and ethical responsibilities governing members of the State Bar of California." The trial court granted summary judgment in favor of GVC on the grounds that GVC, as a matter of law, owed no duty to Morschauser. Morschauser contends the trial court erred. We disagree.
"The question whether a duty of care exists, or should be found, is one of law, and the determination is reached by balancing policy considerations under the circumstances of the particular case. [Citation.] These factors include: (1) the extent to which the transaction was intended to affect the plaintiff; (2) the foreseeability of harm to the plaintiff; (3) the degree of certainty that plaintiff suffered injury; (4) the closeness of the connection between the defendant's conduct and the injury suffered; (5) the moral blame attached to the defendant's conduct; (6) the policy of preventing future harm; (7) the likelihood that imposition of liability might interfere with the attorney's ethical duties to the client; and (8) the likelihood that such liability would impose an undue burden on the legal profession. [Citations.]" (Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 832.)
In general, a third party may not proceed against an attorney based upon his or her inadequate representation of another, where, as here, the third party is not an intended beneficiary of the attorney's work. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 342-344 [cases that impose a duty in favor of a third party are those in which the purpose of the retention of the attorney was for the specific objective of conferring a benefit in the transaction]; Johnson v. Superior Court (1995) 38 Cal.App.4th 463, 471-472.) Nor may a third party proceed against an attorney for allegedly conspiring with his or her clients to achieve the clients' ends, where, as here, the attorney has no duty to the third party and has no personal financial interest in the matter other than a fee for services. (Doctors' Co. v. Superior Court (1989) 49 Cal.3d 39, 44-45; Skarbrevik v. Cohen, England & Whitfield (1991) 231 Cal.App.3d 692, 709-711.)
Given the facts of this case, the trial court correctly found that GVC owed no duty to Morschauser.
IV. DISPOSITION
The judgment is affirmed. GVC shall recover its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
MILLER
J.
CODRINGTON
J.