Filed 12/10/20 Lichtenberger v. Hunt, Ortmann, Palffy etc. CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

GRETCHEN D. 

LICHTENBERGER,

Plaintiff and Appellant,

v.

HUNT, ORTMANN, PALFFY, 

NIEVES, DARLING & MAH, 

INC. et al.,

Defendants and 

Respondents.

 B297569

 (Los Angeles County

 Super. Ct. No. PC058175)

APPEAL from a judgment and orders of the Superior Court 

of Los Angeles County, Stephen P. Pfahler, Judge. Affirmed.

Gretchen D. Lichtenberger, in pro. per., for Plaintiff and 

Appellant.

Clark Hill, Richard H. Nakamura Jr., David Brandon and 

Renee Diaz for Defendants and Respondents.

* * * * * *
2

A paralegal hired by a law firm to assist with enforcing a 

default judgment agreed to be paid by the client on a contingency 

basis from the proceeds of the judgment. When the judgment 

was later vacated due to what she alleges was malpractice by the 

law firm, she sued the law firm and two of its lawyers for 

malpractice and 11 other claims all premised on that malpractice. 

The trial court dismissed her lawsuit on the grounds that she, as 

a freelancer working to assist the law firm in its collection efforts, 

could not sue for malpractice. We agree, and affirm.

FACTS AND PROCEDURAL BACKGROUND

I. Facts1

A. Lawsuit prior to plaintiff’s involvement

Five individuals and four companies signed a promissory 

note to Harmanjit Singh (Singh). Among other things, the note 

provided that Singh was entitled to attorney fees if he prevailed 

in a lawsuit to collect on that note. 

When the debtors defaulted on the note, Singh retained the 

law firm of Hunt, Ortmann, Palffy, Nieves, Darling & Mah, Inc. 

(the law firm) to represent him. Lawyers Dustin Taylor Lozano 

1 We draw these facts from the operative second amended 

complaint except where its allegations are contradicted by (1) 

allegations in the verified original and first amended complaints 

(Webb v. City of Riverside (2018) 23 Cal.App.5th 244, 256 (Webb)), 

or (2) documents appended to the second amended complaint (Del 

E. Webb Corp.v. Structural Materials Co. (1981) 123 Cal.App.3d 

593, 604).

We also disregard the allegations that lawyers have a legal 

duty to assure that paralegals get paid and that lawyers are 

liable to paralegals for malpractice because these allegations are, 

at bottom, legal conclusions. (E.g., Shaeffer v. Califia Farms, 

LLC (2020) 44 Cal.App.5th 1125, 1140 [“a legal conclusion . . . is 

neither binding nor ‘controlling’”].)
3

(Lozano) and Aaron J. Flores (Flores) were assigned to handle the 

case for the law firm. 

While represented by the law firm, Singh sued the five 

individuals and four entities on the unpaid promissory note in 

Los Angeles Superior Court; the case was Singh v. Apheta LLC, 

Case No. SC123069 (the Apheta case). In the last quarter of 

2014, eight of the defendants did not answer the complaint and 

Singh requested—and obtained—an entry of default against 

each. 

On January 22, 2016, Singh—while still represented by the 

law firm—filed a first amended complaint in the Apheta case. 

However, the law firm did not serve any of the eight defaulted 

defendants with the amended complaint. 

On October 20, 2016, the trial court in the Apheta case held 

a default prove-up hearing based on the original complaint even 

though, by virtue of the filing of the first amended complaint, the 

original complaint was no longer the operative pleading. 

On October 28, 2016, the trial court entered a default 

judgment against the eight defaulted defendants in the Apheta

case. In that judgment, the court awarded Singh $214,906.08 on 

the promissory note, which included $69,660.78 in attorney fees. 

By that time, the law firm had billed Singh approximately 

$150,000 in fees. 

B. Plaintiff’s work for the law firm

On November 3, 2016, the law firm contacted Gretchen D. 

Lichtenberger (plaintiff) to assist in the effort to collect on the 

newly entered default judgment.2 Plaintiff is an experienced 

2 The second amended complaint inconsistently alleges that 

Lozano reached out to plaintiff nearly two years earlier—in 

December 2014 before the default judgment was entered. 
4

paralegal and registered process server who specializes in such 

collection work, and who had worked with the law firm and 

Lozano on prior matters.

Plaintiff agreed to assist the law firm in its effort to collect 

on the default judgment in the Apheta case. Rather than bill the 

law firm for “her paralegal services” at her hourly rate, plaintiff 

“directly” contracted with Singh to perform “all legal support 

services necessary” at the law firm’s direction and agreed to be 

paid by Singh, on a contingency basis, “upon recovery of money in

satisfaction of the [default] judgment.”3 Plaintiff and Singh 

signed a written Legal Services Agreement in mid-December 

2016.4 Plaintiff agreed to work on a deferred and contingency 

basis because the law firm either “could”—or, alternatively,

because Lozano had orally promised her he “would”—file a 

motion for attorney fees in connection with enforcing the default 

judgment that asked for a multiplier of the fees incurred, 

including her fees. 

In her work on the Apheta case, plaintiff incurred a total of 

$92,147 in fees and costs comprised of her paralegal work, her 

“process serving” work, and her out-of-pocket costs. 

3 The second amended complaint inconsistently alleges that 

plaintiff’s contract with Singh only covers her “paralegal” work, 

but not her out-of-pocket costs or her process service work, which 

she inexplicably alleges did not “benefit” Singh at all. 

4 The second amended complaint inconsistently alleges that 

Singh signed the Legal Services Agreement in March 2017 but 

backdated it to December 2016, the net effect of which is to take 

all of the services plaintiff provided between December 2016 and 

March 2017 outside of that contract and to make the law firm 

liable for those fees as part of an implied or express contract 

between the law firm and plaintiff. 
5

C. The default judgment unravels

In April 2017, four of the defendants named in the default 

judgment moved to set that judgment aside on the ground that 

they were never served with the first amended complaint. 

On June 30, 2017, the trial court set aside the default 

judgment in the Apheta case for those four defendants. 

II. Procedural Background

A. The original complaint, first amended 

complaint and demurrer

On December 19, 2017, plaintiff filed a verified complaint 

suing Singh for declaratory judgment. 

On May 17, 2018, plaintiff filed a verified first amended 

complaint that added as defendants the law firm, Lozano and 

Flores (collectively, the lawyer defendants) and added 11 new 

causes of action. 

The 12 causes of action alleged in the first amended 

complaint fall into three general groups. 

The first group consists of plaintiff’s claims for malpractice, 

unfair business practices, and tortious inference with her Legal 

Services Agreement with Singh. In one or all of these claims, 

plaintiff alleges what boil down to eight “legal blunder[s]” 

committed by the lawyer defendants in their representation of 

Singh in the Apheta case—namely, that the lawyer defendants

were negligent in (1) filing the first amended complaint without 

serving the eight defaulted defendants, likely due to insufficient 

legal research, (2) applying for only $69,660.78 in attorney fees at 

the default prove-up hearing rather than the $150,000 they had 

actually incurred, (3) not competently opposing the motion to set 

aside the default judgment, primarily due to their failure to 

follow plaintiff’s advice or use the legal brief she drafted, (4) not 

filing a motion to vacate the order setting aside the default 
6

judgment, which plaintiff suggested, (5) not pursuing collection 

efforts and not seeking collection-related attorney fees against 

the four defendants who remained in default, (6) not negotiating 

a settlement for Singh in the Apheta case, (7) not properly 

supervising Lozano, and (8) charging Singh unconscionable and 

“ridiculous[]” fees and “inflat[ing] their bill[s] to [an] extreme.” 

The second group consists of plaintiff’s claims for theft by 

false pretenses, fraud and intentional deceit, constructive fraud, 

and negligent misrepresentation. These fraud-related claims are 

based upon the lawyer defendants’ (1) failure to disclose to her 

the invalidity of the prior default judgment, which was “based on” 

the lawyer defendants’ “multiple legal mistakes” and “negligence” 

“in the Apheta” case, or (2) failure to file a motion for attorney 

fees in order to recover the cost of plaintiff’s services, plus a 

multiplier. The lawyer defendants’ nondisclosure is what 

induced plaintiff to sign the Legal Services Agreement with Singh. 

The third group consists of plaintiff’s contract-based 

claims—namely, (1) for a declaration that the lawyer defendants 

were “fully responsible” for her fees and costs, (2) for breach of an 

“implied contract” with Lozano, based on their past billing 

practice, which was breached when the lawyer defendants 

committed malpractice and did not file a motion for attorney fees 

with a multiplier, (3) for breach of the implied covenant of good 

faith and fair dealing attendant to an “implied contract” plaintiff 

had with the lawyer defendants, which was breached when the 

lawyer defendants did not “finish negotiating a settlement” “for 

Singh” in the Apheta case, (4) for promissory estoppel, based on 

the lawyer defendants’ promise to “claim all [her] fees and costs 

in the Apheta [m]atter,” and (5) for quantum meruit based on an

“implied contract”—and, quixotically, an “express contract”—she 
7

had with the lawyer defendants to compensate her for all 

“services . . . performed.” 

In July 2018, the lawyer defendants demurred to the first 

amended complaint. Following briefing and a hearing, the trial 

court in October 2018 sustained the demurrer as to all claims, 

reasoning that the “gravamen” of all of plaintiff’s claims against 

the lawyer defendants was “legal malpractice” in their 

representation of Singh in the Apheta case, which plaintiff had no 

standing to pursue because she was neither the “client” nor an 

“intended beneficiary” of Singh’s contract with the lawyer 

defendants for legal services. The court also identified a number 

of alternative grounds for sustaining the demurrer as to 

individual claims. Although the court did not grant leave to 

amend for any of the claims in the first two groups or as to 

plaintiff’s claim for declaratory relief against the lawyer 

defendants, the court granted her leave to amend as to the breach 

of contract, breach of the implied covenant of good faith, 

promissory estoppel and quantum meruit claims. 

B. The second amended complaint and demurrer

In November 2018, plaintiff filed a verified second amended 

complaint that re-alleged a breach of contract claim against 

Lozano, and re-alleged a breach of the implied covenant of good 

faith and fair dealing claim, a promissory estoppel claim and a 

quantum meruit claim against all of the lawyer defendants. As 

detailed in the footnotes set forth above, many of the factual 

allegations in the second amended complaint were inconsistent 

with the factual allegations in the verified original and first 

amended complaints. By virtue of these new factual allegations, 

the second amended complaint sought to narrow the scope of 

Singh’s responsibility for plaintiff’s fees under the Legal Services 
8

Agreement so as to expand the scope of the lawyer defendants’

liability for those fees. Specifically, the second amended 

complaint alleged that the Legal Services Agreement only covered 

plaintiff’s fees incurred when “enforc[ing] the [default] judgment” 

in the Apheta case and not “defend[ing] th[at] judgment,” that the 

Legal Services Agreement only covered her “paralegal” work and 

not process serving fees or her out-of-pocket costs, and that the 

Legal Services Agreement only covered her services after it was 

signed—all of which meant that the lawyer defendants were 

liable (on inconsistent theories of implied and express contract) 

(i) for all of her process service work and out-of-pocket costs and 

(ii) for all of her paralegal work prior to the Legal Services 

Agreement and after the motion to set aside the default judgment 

was filed. 

In December 2018, the lawyer defendants again demurred. 

Following another full round of briefing and a hearing, the trial 

court sustained the demurrer to all claims against the lawyer 

defendants in the second amended complaint.5 In addition to 

concluding that “[t]he gravamen of the entire Second Amended 

Complaint . . . as against [the lawyer defendants] remains legal 

malpractice,” the court identified a number of alternative 

grounds for sustaining the demurrer as to individual claims. 

Because plaintiff “fail[ed] to indicate how she [could] cure the 

5 The lawyer defendants had also demurred to the 

declaratory relief claim because plaintiff exceeded the scope of 

the trial court’s first demurrer ruling by amending that claim in 

the second amended complaint; however, because that claim was

asserted against Singh and not against the lawyer defendants,

the trial court ruled that the lawyer defendants lacked standing 

to demur. 
9

defects in her pleading,” the court sustained the demurrer 

without leave to amend. 

C. Judgment, order for costs and appeal

After the trial court entered judgment dismissing plaintiff’s 

second amended complaint against the lawyer defendants, and 

after the court awarded the lawyer defendants $1,674.69 in costs, 

plaintiff filed this timely appeal.6

DISCUSSION

In this appeal, plaintiff argues that the trial court erred (1) 

in sustaining the demurrers to the first and second amended 

complaints, (2) in denying her motion to deem admitted the 206 

requests for admission she served on the lawyer defendants, and 

(3) in awarding the lawyer defendants $150 in nonrefundable

jury fees as costs. We will address the first and third issues 

because our resolution of the first renders the second moot. (See 

Hood v. Hacienda La Puente Unified Sch. Dist. (1998) 65 

Cal.App.4th 435, 437 [affirming order of dismissal on demurrer 

renders antecedent discovery ruling moot].)

I. Demurrer

“In reviewing a trial court’s order sustaining a demurrer 

without leave to amend, we must ask (1) whether the demurrer 

was properly sustained, and (2) whether leave to amend was 

properly denied.” (Schep v. Capital One, N.A. (2017) 12 

Cal.App.5th 1331, 1335.) The first question requires us to 

6 Although plaintiff’s declaratory relief against Singh 

remains pending and is set for trial in 2021, we have jurisdiction 

over this appeal because the order sustaining the demurrer 

without leave to amend renders the judgment final as between 

plaintiff and the lawyer defendants. (Nguyen v. Calhoun (2003) 

105 Cal.App.4th 428, 437; Tinsley v. Palo Alto Unified School 

Dist. (1979) 91 Cal.App.3d 871, 880.)
10

“independently evaluate whether the operative complaint states 

facts sufficient to state a cause of action” (Alborzian v. JPMorgan 

Chase Bank, N.A. (2015) 235 Cal.App.4th 29, 34), and in so doing,

we accept as true “all material facts properly pled” in that 

complaint, although we discount and ignore pled facts that are 

contrary to those pled in prior complaints or contrary to 

documents subject to judicial notice (Winn v. Pioneer Medical 

Group, Inc. (2016) 63 Cal.4th 148, 152; Evans v. City of Berkeley

(2006) 38 Cal.4th 1, 20; Webb, supra, 23 Cal.App.5th at p. 256). 

The second question “requires us to decide whether ‘“‘there is a 

reasonable possibility that the defect [in the operative complaint] 

can be cured by amendment.’”’” (McClain v. Sav-On Drugs (2017) 

9 Cal.App.5th 684, 695, affd. (2019) 6 Cal.5th 951.) Because 

plaintiff proffers no suggestion on how to further amend her 

complaint and because we perceive no viable way to do so, the 

propriety of the dismissal order in this case turns entirely on 

whether her complaint states one or more viable causes of action. 

We independently agree with the trial court that none of 

the 12 causes of action plaintiff alleges against the lawyer 

defendants is viable because (1) those 12 claims are all premised 

on the lawyer defendants’ commission of legal malpractice while 

representing Singh in the Apheta case, and (2) the lawyer 

defendants’ duty of competent representation is owed to Singh, 

and not to plaintiff.

7

A. Plaintiff’s claims are all premised on the 

attorney defendants’ alleged malpractice

In evaluating whether a plaintiff has stated a claim against 

a particular defendant, what matters is the “gravamen” of that 

7 This conclusion obviates any need to evaluate the trial 

court’s alternative grounds for sustaining the demurrers.
11

claim—not its label. (Rubin v. Green (1993) 4 Cal.4th 1187, 1196; 

Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 

1595.) “‘The gravamen, or essential nature . . . of a cause of 

action is determined by the primary right alleged to have been 

violated . . .’ [Citation.]” (Chen v. Berenjian (2019) 33 

Cal.App.5th 811, 820-821.) “[T]he primary right” is, in turn, 

defined as the “plaintiff’s right to be free from the particular 

injury” or “harm” “suffered,” no matter which legal theory is 

being asserted or which remedy is being sought to redress that 

injury or harm. (Crowley v. Katleman (1994) 8 Cal.4th 666, 681

(Crowley); Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 

788, 797-798.) Because “‘the invasion of one primary right gives 

rise to a single cause of action’” (Bay Cities Paving & Grading v. 

Lawyers’ Mutual Ins. Co. (1993) 5 Cal.4th 854, 860 (Bay Cities), 

quoting Slater v. Blackwood (1975) 15 Cal.3d 791, 795), the 

violation of a single primary right cannot be split into multiple

claims in a single lawsuit or split across multiple lawsuits 

(Crowley, at p. 681; Bay Cities, at p. 860).

The primary right at issue in a claim for legal malpractice 

is the right not to be injured by “the failure of an attorney ‘to use 

such skill, prudence, and diligence as lawyers of ordinary skill 

and capacity commonly possess and exercise . . . .’” (Neel v. 

Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 

180-181; Bay Cities, supra, 5 Cal.4th at p. 860 [“primary right” 

underlying malpractice claim is “the right to be free of negligence 

by [one’s own] attorney”]; Khodayari v. Mashburn (2011) 200 

Cal.App.4th 1184, 1191 [same].) 

All three groups of claims asserted by plaintiff in the first 

and second amended complaints involve the invasion of the same 

primary right—that is, plaintiff’s purported right not to be 
12

injured by the lawyer defendants’ negligence in representing 

Singh in the Apheta case. (Bay Cities, supra, 5 Cal.4th at p. 860.) 

The malpractice, unlawful business practices, and tortious 

interference claims are all directly premised upon one or more 

“legal blunder[s]” or excessive billing practices committed by the 

lawyer defendants. The fraud claims are each based on the 

lawyer defendants’ failure to disclose to plaintiff their prior 

malpractice in representing Singh or their concurrent 

malpractice in not seeking attorney fees (plus paralegal fees) 

with a multiplier. And the breach underlying each of the 

contract-based claims, including the breach of an equitable duty 

to compensate plaintiff in the absence of a contract, was caused 

or necessitated by the lawyer defendants’ allegedly deficient 

representation of Singh. As to each of these claims, plaintiff is 

effectively saying, “I did not get paid because the lawyer 

defendants committed malpractice when they were representing 

Singh in the Apheta case.” The alleged malpractice by the lawyer 

defendants is the linchpin of each of plaintiff’s claims: If the 

malpractice claim fails, the rest of her claims necessarily fail. 

(See Lynch v. Warwick (2002) 95 Cal.App.4th 267, 273-274 

[breach of contract claim fails when it is based on malpractice, 

and malpractice claim is invalid]; Kracht v. Perrin (1990) 219 

Cal.App.3d 1019, 1022-1023 & fn. 3 [same, as to constructive 

fraud claim]; Jackson v. Rogers & Wells (1989) 210 Cal.App.3d 

336, 349 (Jackson); cf. Brooks v. Shemaria (2006) 144 

Cal.App.4th 434, 440-441 [breach of contract claim survives, 

despite invalid malpractice claim, because it is based on “the 

right to be billed in accordance with the terms of the retainer 

agreement” irrespective of any attorney negligence].)

Plaintiff resists this conclusion with three arguments.
13

First, she notes that plaintiffs are generally allowed to 

plead alternative theories, such that it is wrong to conclude that 

her legal malpractice claim “automatically subsumes all other 

causes of action.” Although a plaintiff is generally free to plead 

alternative—and even legally inconsistent—legal theories in a 

complaint (Newport Harbor Ventures, LLC v. Morris Cerullo 

World Evangelism (2016) 6 Cal.App.5th 1207, 1222-1223; Berman 

v. Bromberg (1997) 56 Cal.App.4th 936, 944-945), she may not do 

so where, as here and as explained above, the purportedly 

alternative theories involve an invasion of the same primary 

right (Bay Cities, supra, 5 Cal.4th at p. 860). Further, our 

conclusion that all of plaintiff’s claims arise from the same 

primary right not to be injured by the lawyer defendants’ 

malpractice is derived from our examination of the primary right 

underlying plaintiff’s malpractice claim and of the specific 

allegations underlying each of plaintiff’s other claims; we did not 

rely on any notion that malpractice “automatically subsumes” 

other claims.

Second, plaintiff contends that her fraud claims, at a 

minimum, arise from a primary right other than the right not to 

be harmed by an attorney’s malpractice. For support, she cites 

Jackson, supra, 210 Cal.App.3d at pp. 344-345 and Goodman v. 

Kennedy (1976) 18 Cal.3d 335, 346 (Goodman). Jackson and

Goodman merely held that an attorney may be sued for fraud 

when he or she makes fraudulent statements to third parties that 

are unrelated to his or her competence as an attorney. (Accord, 

Shafer v. Berger, Kahn, Shafton, Moss, Figler, Simon & 

Gladstone (2003) 107 Cal.App.4th 54, 69-70.) But these cases are 

not relevant where, as here, the alleged fraudulent nondisclosure 

is the failure to disclose one’s malpractice, which turns on 
14

whether there was, in fact, malpractice. In such cases, as 

Jackson itself held, the fraud claim involves the same primary 

right as the malpractice claim. (Jackson, at pp. 346-347.)

Third, plaintiff asserts that her quantum meruit claim, at a 

minimum, arises from a primary right other than attorney 

malpractice. We reject this assertion for several reasons. To 

begin, the quantum meruit claim plaintiff has pled is necessarily 

premised on the lawyer defendants’ malpractice: “But for [the 

lawyer defendants’] failure to act as any prudent attorney would 

act,” she alleges, “[plaintiff] would have been paid in full by now” 

(and maybe more, if a multiplier were applied). Further,

quantum meruit, as an equitable remedy, is unavailable “where 

it would frustrate the law or public policy” (Ochs v. PacifiCare of 

California (2004) 115 Cal.App.4th 782, 794), and for the reasons 

discussed below, allowing plaintiff to recover in quantum meruit 

in this case would effectively turn lawyers into guarantors of 

payment for their freelance contractors, even where, as here, the 

contractors have signed written contracts with others for 

compensation for those services. 

B. Plaintiff cannot state a claim for malpractice 

against the attorneys who retained her

To state a claim for legal malpractice, a plaintiff must 

allege that the lawyer owed her a duty and breached that duty by 

substandard representation. (Coscia v. McKenna & Cuneo (2001) 

25 Cal.4th 1194, 1999.) The viability of plaintiff’s claim for legal 

malpractice—and, by extension, all her remaining claims 

premised on malpractice—turns on whether the lawyer 

defendants owed her a duty to perform competently. (Goldberg v. 

Frye (1990) 217 Cal.App.3d 1258, 1267 [“Absent duty there can be 

no breach and no negligence” and malpractice].) The question of 

duty is ultimately a question of public policy, and hence a 
15

question of law we review de novo. (Goodman, supra, 18 Cal.3d 

at p. 342; Christensen v. Superior Court (1991) 54 Cal.3d 868, 

885.)

As a general rule, a lawyer owes a duty of competence and 

loyalty only to the client who retains that lawyer. (Borissoff v. 

Taylor & Faust (2004) 33 Cal.4th 523, 529-530.) This is because, 

in the ordinary case, the client and the lawyer have signed a 

retainer agreement and thus share a privity of contract. (Buckley 

v. Gray (1895) 110 Cal. 339, 342-343, overruled in part on other 

grounds as stated in Lucas v. Hamm (1961) 56 Cal.2d 583 

(Lucas); Giacometti v. Aulla, LLC (2010) 187 Cal.App.4th 1133, 

1137 [“The general rule is that privity of contract is a requisite to 

a professional negligence claim”].) 

This general rule is not without its exceptions. Courts have 

recognized that a lawyer may owe a duty of competence and 

loyalty to third parties other than the client when (1) the third 

party is the intended beneficiary of the legal work performed by 

the attorney, either because (a) the lawyer and client have 

expressly designated that third party as an intended beneficiary 

in the retainer agreement (Bily v. Arthur Young & Co. (1992) 3 

Cal.4th 370, 406, fn. 16), or (b) “the very nature” of the work the 

attorney was retained to perform for the client is for the benefit 

of the third party (Goodman, supra, 18 Cal.3d at p. 342; Lucas,

supra, 56 Cal.2d at pp. 589-891 [applying exception to named 

beneficiary in a will]; Osornio v. Weingarten (2004) 124 

Cal.App.4th 304, 323-324 [same]; Bucquet v. Livingston (1976) 57 

Cal.App.3d 914, 917-923 [applying exception to trust 

beneficiaries]); or (2) the attorney and client intend that the third 

party is to rely on the attorney’s legal work (Goodman, at p. 343,

fn. 4 [so noting]; Roberts v. Ball, Hunt, Hart, Brown & Baerwitz
16

(1976) 57 Cal.App.3d 104, 111 [same]). However, the fact that a 

third party would or could benefit from the lawyer’s competent 

representation of the client is not enough to extend the duty of 

competence and loyalty to that third party. (B.L.M. v. Sabo & 

Deitsch (1997) 55 Cal.App.4th 823, 832; see also Moore v. 

Anderson Zeigler Disharoon Gallagher & Gray (2003) 109 

Cal.App.4th 1287, 1294-1295 (Moore) [attorney does not owe duty 

to possible will beneficiary who might benefit from attorney’s 

duty to ensure that testator is competent to execute will]; 

Goodman, at p. 339 [attorney representing stock sellers does not 

owe duty to the buyers of that stock to advise them regarding 

consequences of stock transaction]; St. Paul Title Co. v. Meier

(1986) 181 Cal.App.3d 948, 951-952 [attorney representing buyer 

in real estate transaction does not owe duty to escrow company in 

drafting escrow instructions].) 

Plaintiff does not fall into either of these exceptions. She is

not—and, indeed, cannot be—the intended beneficiary of the 

attorney-client relationship between the lawyer defendants and 

Singh. She concedes she is not expressly named as an intended 

beneficiary in the retainer agreement. Nor could she be, either

as a matter of logic or basic temporal mechanics. That is because 

Singh retained the lawyer defendants to represent him back in 

2014, more than two years before plaintiff was brought on to 

assist in the effort to collect on the judgment. Plaintiff was 

indisputably not an intended beneficiary of the 2014 retainer 

agreement. Nor did Singh retain the lawyer defendants with the 

intent of having third parties like plaintiff—that is, paralegals 

hired to help with collection efforts that might or might not be 

necessary at some point in the future—rely on the lawyer 

defendants’ work. At most, plaintiff would have financially
17

benefitted if the lawyer defendants’ actions had not left the 

default judgment open to successful attack, but that is not 

enough to create a duty.

Plaintiff nevertheless argues that a lawyer has a “duty to 

assure” that any and all freelance professionals who assist a 

lawyer in representing a client are “compensated for [their] 

work.” Plaintiff offers two internally inconsistent rationales for 

her proffered duty—namely, that (1) the freelancer’s work puts 

the freelancer “in privity with the client,” and (2) the freelancer’s 

work renders the freelancer “the practical and legal equivalent of 

a ‘client.’” This argument invites us to recognize a new duty upon 

lawyers to assure that the professionals with whom they subcontract are fully compensated notwithstanding whatever other 

payment arrangements those professionals make. 

This is an invitation we respectfully decline.

To be sure, courts have the power to expand the duty owed 

by lawyers and to thereby expand the universe of plaintiffs who 

might be able to sue for legal malpractice. “‘The determination 

whether in a specific case the [lawyer] will be held liable to a 

third person not in privity is a matter of policy and involves the 

balancing of various factors.’” (Bily, supra, 3 Cal.4th at p. 397.) 

When it comes to expanding the scope of the duty not to be 

negligent in practicing law to third parties, the relevant factors 

are (1) “the extent to which the transaction was intended to affect 

the [third party] plaintiff,” (2) whether “the recognition of” a 

duty—and liability—to the third-party plaintiff “would impose an 

undue burden on the legal profession,” (3) “the likelihood that 

imposition of liability might interfere with the attorney’s ethical 

duties to the client,” (4) “the foreseeability of harm to” the thirdparty plaintiff, (5) “the degree of certainty that the [third-party] 
18

plaintiff [has] suffered injury,” (6) “the closeness of the connection 

between the [attorney’s] conduct and the injury suffered,” (7) “the 

moral blame attached to the [attorney’s] conduct,” and (8) “the 

policy of preventing future harm.” (Ibid.; Lucas, supra, 56 Cal.2d 

at p. 589; Berg & Berg Enterprises, LLC v. Sherwood Partners, 

Inc. (2005) 131 Cal.App.4th 802, 832 (Berg & Berg); Chang v. 

Lederman (2009) 172 Cal.App.4th 67, 77, 83, fn. 7; Moore, supra, 

109 Cal.App.4th at pp. 1294-1295.) 

We nevertheless decline to exercise our authority to create 

a duty that would require lawyers to ensure that the freelance 

professionals they hire to assist them in representing clients are 

fully compensated for their work. We reach this conclusion for 

four reasons. 

First, the underlying transaction between lawyer and client 

that gives rise to the need to hire freelance professionals is in no 

way intended to benefit those professionals. 

Second, imposing a duty upon lawyers to assure that the 

freelance professionals they retain are fully compensated—even 

when the professionals, like plaintiff herself, may have willingly 

agreed to alternative payment arrangements—effectively turns 

lawyers into guarantors. A lawyer faced with the knowledge that 

he or she is the ultimate backstop for the payment of all fees 

incurred by freelance professionals may prompt the lawyer to 

make different tactical decisions (e.g., not hiring a freelance 

professional, limiting their billable hours) that harm the client’s 

interest. At a minimum, these considerations divert a lawyer’s 

attention away from his or her ultimate duty of loyalty to the 

client; at worst, they divide the lawyer’s loyalty. Neither is 

acceptable. (Goodman, supra, 18 Cal.3d at p. 344 [duty that 

“‘would prevent [the lawyer] from devoting his [or her] entire 
19

energies to his [or her] client’s interests’” is undesirable]; Bily,

supra, 3 Cal.4th at p. 411, fn. 18 [same, as to duty that “divert[s]

a lawyer’s attentions from the service of the client”]; Berg & Berg,

supra, 131 Cal.App.4th at p. 832 [duty that would “put [lawyer] 

in an untenable and conflicted ethical position vis-à-vis [his or 

her] own client” is undesirable]; see generally Fireman’s Fund 

Ins. Co. v. McDonald, Hecht & Solberg (1994) 30 Cal.App.4th 

1373, 1379 [noting attorney’s “duty of undivided loyalty . . . in 

representing the client”].) 

Third, creating this new duty does not give the lawyer any 

greater incentive to perform competently for his or her client, as 

the threat of a malpractice action (or ethical sanction) already 

provides such incentive. (Accord, Bily, supra, 3 Cal.4th at p. 404.) 

Lastly, the recognition of this duty would still require the 

freelance professional to prove malpractice and thus may lead to 

inconsistent verdicts should a jury find that the same acts by the 

lawyer were not negligent vis-à-vis the client, but were negligent 

vis-à-vis the paralegal. 

These considerations are no doubt why courts have held 

that a prior attorney cannot sue his former client’s successor 

counsel for malpractice when the successor’s poor representation 

reduced the prior lawyer’s shared fee (Mason v. Levy & Van 

Bourg (1978) 77 Cal.App.3d 60, 67-68), and why freelance 

accountants cannot sue the attorney who hired them for 

malpractice in not reviewing their work closely enough (Mattco 

Forge, Inc. v. Arthur Young & Co. (1995) 38 Cal.App.4th 1337, 

1356-1357). 

II. Motion to Tax $150 Nonrefundable Jury Fee

The prevailing party in a lawsuit is entitled to its costs, 

which include jury fees. (Code Civ. Proc., §§ 1032, subd. (b), 
20

1033.5, subd. (a)(1).) Here, after the trial court sustained the 

demurrer to the second amended complaint without leave to 

amend and entered a judgment of dismissal, the lawyer 

defendants sought, among other costs, $150 in nonrefundable 

jury fees. Plaintiff moved to tax this cost on the ground that the 

lawyer defendants had the right to apply for a refund of that fee, 

and thus should not be entitled to collect it from her. The trial 

court denied plaintiff’s motion to tax that cost. We review the 

denial of a motion to tax costs for an abuse of discretion. (Gibson 

v. Bobroff (1996) 49 Cal.App.4th 1202, 1209.)

The trial court did not abuse its discretion in requiring 

plaintiff to pay the $150 in nonrefundable jury fee as costs 

because plaintiff’s argument to the contrary is utterly frivolous. 

Code of Civil Procedure section 631, subdivision (b) requires that 

at least one party to a civil case “pay a nonrefundable fee” of $150

to “offset the costs to the state of providing juries in civil cases.” 

(Code Civ. Proc., § 631, subd. (b).) It is undisputed that the 

lawyer defendants paid that nonrefundable fee. Plaintiff urges 

that Code of Civil Procedure 631.3, subdivision (a) provides that 

“[n]otwithstanding any other law,” a party may seek a refund of 

“deposited jury fees” if “that party waives a jury or obtains a 

continuance of the trial, or the case is settled” (id., § 631.3, subd. 

(a)), and from this argues that the lawyer defendants should have 

sought a refund of their $150 jury fee from the court rather than 

seeking it as a cost from her. What plaintiff ignores is that 

subdivision (c) of section 631.3 specifically says that the 

“nonrefundable” jury fee requirement set forth in section 631, 

subdivision (b) “is not subject” to the refund remedy “[in] this 

section.” (Id., § 631.3, subd. (c).) This plain language forecloses 
21

plaintiff’s argument, including her argument that failure to 

refund the jury fees is “unreasonable.”

DISPOSITION

The judgment, discovery order, and post-judgment order of 

costs are affirmed. The lawyer defendants are entitled to their 

costs on appeal. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.

HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

CHAVEZ