Filed 6/11/20 Licht v. Gantus CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

JEFFREY L. LICHT,

Plaintiff and Appellant,

v.

JOHN M. GANTUS,

Defendant and Respondent.

G057394

(Super. Ct. No. A239884)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Aaron Heisler, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Lara R. Shapiro for Plaintiff and Appellant.

John M. Gantus, in pro. per., for Defendant and Respondent.

* * *

Jeffrey L. Licht appeals from the trial court’s judgment of dismissal in favor of John M. Gantus after sustaining Gantus’s demurrer to Licht’s third amended petition (TAP or petition). Licht, an attorney, filed the petition in probate court to recoup attorney fees he alleged his client, Jan M. Hahn, failed to pay to him in trust proceedings. Licht alleged Gantus, who represented Hahn’s brother and adversary in the trust proceedings, Randy Nachtrieb, interfered with Licht’s access—as Hahn’s creditor—to escrow funds from the sale of trust property. Licht asserted against Gantus causes of action for breach of fiduciary duty, fraud, contempt, breach of a settlement agreement and an alleged oral stipulation, and unfair business practices. As we explain, Licht’s pleadings did not allege a basis to establish that a fiduciary relationship exists between attorneys representing opposing parties; nor did they suggest any other legal footing for Licht’s causes of action. Accordingly, the court did not err in sustaining Gantus’s demurrer without leave for Licht to file a fourth amended petition. We therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

“For purposes of reviewing a demurrer, we accept the truth of material facts properly pleaded in the operative complaint, but not contentions, deductions, or conclusions of fact or law.” (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924.) We also look to exhibits attached to the complaint for the operative facts. (Jibilian v. Franchise Tax Bd. (2006) 136 Cal.App.4th 862, 864, fn. 1 (Jibilian).) With these principles in mind, we summarize the TAP’s factual allegations.

In 2008, Licht represented Hahn in trust proceedings initiated against her by Nachtrieb. Hahn and Nachtrieb were the only children of Paul and Eileen Nachtrieb, and the sole beneficiaries of the family trust that Paul and Eileen created. Hahn was the successor trustee of the trust, and the trust’s primary asset was a residence on Park Avenue in Garden Grove in which Hahn lived.

In July 2008, Hahn and Nachtrieb entered into a settlement agreement that called for Hahn to purchase Nachtrieb’s interest under the trust in the Park Avenue property for $200,000. The agreement also authorized Hahn to refinance the property to make the payment, if necessary. If Hahn failed to make the payment by November 20, 2008, the agreement authorized entry of judgment in favor of Nachtrieb for $250,000, plus costs.

Additionally, if Hahn failed to make the November payment, the agreement authorized either party to obtain a court order for the sale of the property. The agreement further provided, “In the event of a sale of the Real Property hereunder, the Court shall order all proceeds from the sale thereof . . . to pay the Judgment of Nachtrieb,” assuming he obtained one, and “any remaining sums to be split equally between Hahn and Nachtrieb.” This payout, Hahn and Nachtrieb agreed, would be “after payment of all outstanding obligations of the Trust and/or Hahn, including, but not limited to, any outstanding mortgage obligations, any delinquent mortgage obligations, current and/or delinquent real property taxes, normal closing costs and commissions, or any other obligations of Hahn and/or the Trust . . . .” (Italics and underlining added.)

In resolving the trust proceedings this way, the parties consented to the court’s continuing jurisdiction to enforce their agreement, if necessary. The agreement provided, “The Court shall retain jurisdiction over the enforcement of the terms and conditions of this Settlement Agreement and Stipulation for Judgment, including but not limited to the purchase contemplated hereunder, the execution of all documents necessary to effectuate the same, and the entering of any judgment pursuant to California Civil Code § 664.6 [stipulated settlement agreements] or the enforcement of any provision of this Stipulation for Judgment.”

The parties executed the settlement agreement in late July 2008, and Licht signed the agreement beneath the words, “Approved as to Form and Content,” as Hahn’s attorney “individually and as Successor Trustee of the Nachtrieb Family Trust.” Gantus similarly signed the agreement as Nachtrieb’s attorney. On July 29, 2008, the court entered the settlement agreement as a stipulated order. (Code Civ. Proc., § 664.6.)

Hahn apparently failed to pay Nachtrieb his $200,000 share by the November 20, 2008 deadline. Almost four years later, on October 3, 2012, Nachtrieb obtained a court order for the sale of the Park Avenue property. Licht signed the court order, “Approved as to form,” as Hahn’s attorney.

The order directed that the property “be placed on the market for sale forthwith.” The order required Hahn to “cooperate at no out of pocket cost in all respects with the sale,” including “cooperation with the realtor in showing” the property. The order further directed that “to effect the sale of the Real Property, the Court hereby appoints Kathy Ladd . . . as the realtor in this matter.” The court’s order specified it “shall retain jurisdiction over all matters pertaining to this Order, and for all matters related to the Settlement Agreement and Stipulation for Judgment and Order Thereon filed herein” in July 2008.

Less than three weeks later, the events unfolded that formed the basis for Licht’s petition which asserted causes of action against Gantus, Nachtrieb, Ladd, and University. Licht’s petition alleged that “[o]n October 22, 2012, after [he] learned that the close of escrow had been set for [the next day] without any consultation with Licht or consideration of Licht’s claim [for attorney fees and interest from Hahn], . . . Licht faxed a letter to University Escrow, Karen Ladd and John Gantus demanding payment of $63,963.21 to him from escrow proceeds . . . .” Licht further demanded a halt to the escrow and that “no disbursement[s] be made if the escrow holder [i.e., University] did not intend to honor his demand, so that he could seek a court order relating to his rights therein.” Licht alleged that Gantus had “insinuated himself into the Escrow process by becoming,” on behalf of Nachtrieb when Nachtrieb obtained the sale order, “the ‘attorney for the escrow’ without disclosing this role to the Court or Licht.”

Licht alleged in his petition that Gantus “had concealed Licht’s existence as attorney for Hahn from University Escrow and Ladd.” In his faxed letter to University, Licht stated, “I represent Jan Hahn, the seller (‘Seller’) in the above referenced escrow (the ‘Escrow’).” Licht stated his escrow payment demand as follows: “In this regard, I am advising you that Ms. Hahn presently owes me $48,570.85 for the unpaid balance of legal fees and costs due me from her for legal services rendered to her prior to the filing of her now dismissed bankruptcy case that was filed on March 25, 2009.” The balance of Licht’s demand was for interest on that amount.

University did not close escrow the next day. Instead, Licht’s petition recounted that “on or about October 24, 2012, Gantus, on his own behalf and on behalf of Nachtrieb, filed in this Court [i.e., the probate court] an Ex Parte Application For Order to Compel Payments of the First Mortgage, Payment of the Second Mortgage,” another escrow payment, and “Payment to the Petitioner . . . , Mr. Nachtrieb, and to Compel the Closing of Escrow.”

Licht personally appeared at the hearing on the application the next day, October 25, 2012, a Thursday. According to Licht’s petition, the court’s staff attorney met with him and Gantus to request that the hearing on the application be trailed to Monday. Licht and Gantus agreed to this proposal. But Gantus allegedly reneged when the next day, a Friday, he “falsely told Court staff that the dispute set for hearing on [Monday] had been settled,” and thereby succeeded in having the hearing taken off calendar.

As a result, escrow closed on or before Monday, October 29, 2012, without payment of Licht’s attorney fee demand. Licht attempted to have the court disgorge the funds wired to Gantus at the closing, but the court declined to grant Licht’s ex parte request. Three years later, on October 26, 2015, Licht filed his initial petition, which commenced this action against Gantus and the other defendants.

After Licht filed a first and then a second amended petition, both of which drew sustained demurrers with leave to amend, Licht filed his TAP in November 2017. Licht alleged the causes of action outlined above, with an associated unfair business practices claim (Bus. & Prof. Code, § 17200 et seq.) premised on his substantive claims. Gantus, Ladd, and University again demurred in March 2018.

The trial court heard argument on the defendants’ respective demurrers to the TAP on April 25, 2018. After taking the matter under submission, the court issued a detailed ruling in a minute order, which we discuss more fully below in relation to each cause of action Licht alleged against Gantus. In sum, the court sustained Gantus’s demurrer without leave for Licht to amend again and subsequently entered a judgment of dismissal in May 2018. Licht now appeals.

DISCUSSION

1. Standard of Review

“We review de novo the trial court’s order sustaining a demurrer.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1468.) Our task is to determine whether the plaintiff—or here the petitioner—has stated a cause of action in his or her pleadings. (See Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, 824 (Gentry).) The party challenging the demurrer “‘has the burden of showing that the facts pleaded are sufficient to establish every element of the cause of action and overcoming all of the legal grounds on which the trial court sustained the demurrer.’” (Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1490.) “The judgment must be affirmed ‘if any one of the several grounds of demurrer is well taken.’” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) It also remains true as an axiom of appellate practice that our review is limited to the points raised and adequately supported in the appellant’s brief. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6 (Reyes).)

If, in applying these principles, “the factual allegations of the complaint state a cause of action on any available legal theory, the trial court’s order of dismissal must be reversed.” (Gentry, supra, 99 Cal.App.4th at p. 825.) We review a decision not to grant further leave to amend for abuse of discretion. (§ 472c, subd. (a); Rosen v. St. Joseph Hospital of Orange County (2011) 193 Cal.App.4th 453, 458 (Rosen).

2. Statute of Limitations

Gantus asserts the one-year statute of limitations for attorney malpractice (§ 340.6) as a blanket basis to uphold the trial court’s demurrer ruling. Gantus raised this argument below, but the court did not rely on it. Nor do we because Licht did not allege attorney-client malpractice against Gantus. Instead he alleged (1) a more general breach of fiduciary duty; (2) interference with prospective economic advantage; (3) fraud; (4) contempt of court; (5) breach of a settlement agreement and an alleged oral stipulation; and (6) unfair business practices. Fraud is specifically exempt from the malpractice limitations period. (§ 340.6, subd. (a).) Additionally, because the foregoing causes of action each have their own periods of repose against claims, we conclude section 340.6 is inapplicable.

3. Breach of Fiduciary Duty or Interference with Prospective Economic Advantage

Licht contends his TAP stated a cause of action for breach of fiduciary duty against Gantus or, alternately, a claim for tortious interference with prospective economic advantage. We disagree. We address Licht’s fiduciary duty claim first.

A. Breach of Fiduciary Duty

“The elements of a cause of action for breach of fiduciary duty are: (1) the existence of a fiduciary duty; (2) the breach of that duty; and (3) damage proximately caused by that breach.” (Mosier v. Southern Cal. Physicians Ins. Exchange (1998) 63 Cal.App.4th 1022, 1044.) “[T]he absence of any one of these elements is fatal to the cause of action.” (LaMonte v. Sanwa Bank California (1996) 45 Cal.App.4th 509, 517.)

Here, Licht’s pleadings failed to state any factual basis to establish Gantus owed a fiduciary duty to him, rather than to his client, Nachtrieb, or in addition to Nachtrieb. As the trial court observed in its minute order sustaining Gantus’s demurrer without leave to amend, Gantus was the “attorney representing the party adverse to Licht’s client in an underlying proceeding.” (Original underlining.) The trial court therefore found “[m]issing” from Licht’s petition “any allegations sufficient to establish Gantus owed Licht a fiduciary duty, or any breach of such a duty.” The court further observed, “Licht cites no authority suggesting any duty is owed between attorneys representing adverse parties in a litigation, nor that such a duty arises merely because their clients enter into a settlement agreement like the one at issue here.”

The trial court was correct. On appeal, Licht asserts without citation to authority that a fiduciary duty arose here because an “attorney receiving trust funds which are partly owed to another attorney does have a fiduciary duty to that other attorney.” We infer Licht is referring in this argument to a fee-splitting arrangement, but that is not relevant here because Gantus was not corepresenting Hahn. To the contrary, he represented her litigation opponent. Moreover, fee-splitting arrangements are contractual in nature, rather than of a fiduciary character, and, in any event, they are strictly construed to require written consent by the client precisely because of the lawyer’s fiduciary duty to the client rather than to an attorney with whom the fee is shared. (Cal. Rules of Prof. Conduct, rule 1.5.1; hereafter abbreviated to RPC.)

The rules similarly provide, both now and at the time of Gantus’s alleged misconduct, that an attorney must avoid “the Representation of Adverse Interests.” (Former RPC, rule 3-310; accord, RPC, rule 1.7.) As Nachtrieb’s attorney in the trust proceedings, Gantus could not also undertake a fiduciary duty to serve or otherwise represent the interests of Nachtrieb’s adversary, Hahn, or to Hahn’s attorney, Licht. The trial court therefore correctly ruled that Licht did not allege a viable breach of fiduciary duty claim against Gantus.

B. Interference with Prospective Economic Advantage

In his appellate brief, Licht mentions “interference with a prospective economic advantage” (IPEA) under the same heading in which he challenges the trial court’s breach of fiduciary duty ruling. We address the claim here to track Licht’s briefing. IPEA claims are sometimes referred to as business interference claims for ease of reference, as we do here. (Popescu v. Apple Inc. (2016) 1 Cal.App.5th 39, 63.)

Business interference claims may involve either intentional or negligent interference with prospective economic advantage. (Crown Imports, LLC v. Superior Court (2014) 223 Cal.App.4th 1395, 1404 (Crown Imports).) The elements of a business interference claim are: “‘“‘“(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentional [or negligent] acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.”’”’” (Ibid.)

It is unclear why Licht characterizes his claim as a species of business interference. The gravamen of his claim is that he sought payment of Hahn’s outstanding legal fees from the escrowed funds, but it is not clear to us how Gantus’s alleged interest in the same escrowed funds amounted to interference with Licht’s business relationship with Hahn. In any event, “‘a plaintiff must plead and prove that the conduct alleged to constitute the interference was independently wrongful, i.e., unlawful for reasons other than that it interfered with a prospective economic advantage.’” (Crown Imports, supra, 223 Cal.App.4th at p. 1404.) “The fact that the defendant’s conduct was independently wrongful is an element of the cause of action itself.” (Id. at pp. 1404-1405.)

Licht apparently views Gantus’s breach of an alleged fiduciary duty owed to him as the wrongful conduct underlying his IPEA claim. But as discussed, the trial court properly concluded Gantus owed his fiduciary duties to his client, Nachtrieb, not to Licht.

Additionally, as we discuss more fully below, and as we explained in Licht v. Ladd, it was Hahn’s and Nachtrieb’s prerogative to decide how they wanted to distribute the escrowed funds—and indeed whether they wanted to adhere to the distribution protocol they set out in their stipulated agreement. Gantus was not a party to the escrow or to Hahn and Nachtrieb’s stipulated agreement, and he therefore could not have ordered Nachtrieb—let alone Hahn—to distribute the escrow funds to Licht as Licht requested in the demand he faxed to Gantus. The fact that Licht may have wanted Gantus to counsel Nachtrieb or Hahn or anyone else to distribute the funds to him is irrelevant precisely because Gantus owed Licht no fiduciary duty to ensure Licht’s faxed demand was met. Even assuming Gantus owed Nachtrieb, as his client, a fiduciary duty to advise him to distribute the funds in a particular manner, that alleged breach would give rise to a cause of action for Nachtrieb against his lawyer, not for Licht. To our knowledge, no authority recognizes a derivative breach of fiduciary duty claim, premised by a third party on the alleged breach of a fiduciary duty owed to someone else.

Ultimately, however, Licht’s business interference claim fails for another insurmountable reason. Licht alleges Gantus “coerced Hahn to sign the escrow statement,” including apparently by endorsing or otherwise participating in a conspiracy with Ladd, who “falsely instructed Hahn that she must sign the escrow statement and other escrow papers without changes because it was legally required.” Licht’s complaint is that the escrow papers did not include him as a payee, as Hahn’s creditor for her attorney fees debt. Assuming arguendo that counseling Hahn either directly or through Ladd to distribute funds to individuals other than Licht constituted wrongful conduct by Gantus, the statute of limitations bars Licht’s business interference claim. The IPEA limitations period is two years (Knoell v. Petrovich (1999) 76 Cal.App.4th 164, 168). Licht waited three years to file his original petition. His IPEA claim is therefore time-barred.

Licht does not argue he could amend his petition to state a viable breach of fiduciary duty claim; therefore he does not carry his burden as the appellant ‘“of proving there is a reasonable possibility of amendment.”’ (Rosen, supra, 193 Cal.App.4th at p. 458.)

4. Fraud

Licht also argues the court erroneously sustained Gantus’s demurrer to his fraud cause of action. To the extent Licht’s fraud claim simply recast his breach of fiduciary duty claims, the claim failed in the absence of fiduciary duties owed to Licht. For example, in alleging fraud, Licht charged that Ladd and University, together with Gantus, Nachtrieb, and Does 1-100, “entered into a conspiracy to cheat Petitioner out of funds he was legally entitled to receive from the Escrow . . . .” In particular, Licht alleged that, “in violation of the Stipulation and Order,” Gantus, Nachtrieb, Ladd, University, and the Doe defendants conspired to defraud him “by committing acts in violation of the Sale Order, by committing acts in violation of fiduciary duties owed to Licht, and by committing acts of fraud.”

The fraudulent acts Licht alleged included University’s “deci[sion] to close Escrow without having the Court decide the matter,” or, phrased differently, “decid[ing] to close Escrow and disperse funds before the Court could have a chance to decide the matter of who received the funds . . . .” (Italics added.) This fraud claim extended to Gantus because Licht alleged Gantus engineered the expedited closing, contrary to Licht’s faxed request to both University and Gantus to delay it until he could obtain a court ruling. In other words, University “cooperat[ed] with Gantus to circumvent the Court’s Order and to disburse the funds before the Court could rule on the matter.”

Licht’s attempt to intermix fraud and fiduciary duty claims fails. He offers no authority which would permit him to fuse the two causes of action together. To the extent Licht alleged that University committed fraud by failing to adhere to Licht’s faxed instruction not to close escrow—or that Gantus, once he received Licht’s fax, similarly committed fraud by not instructing University to delay closing—both claims constitute “allegation[s] of breach of fiduciary duty, not fraud.” (Thomson v. Canyon (2011) 198 Cal.App.4th 594, 607.)

Both fiduciary duty claims fail. University did not owe Licht a fiduciary duty to obey his faxed payment demand or to await his application for a court order. Instead, “‘[a]n escrow holder is an agent and fiduciary of the parties to the escrow.’” (Markowitz v. Fidelity Nat. Title Co. (2006) 142 Cal.App.4th 508, 526, italics added.) Hahn and Nachtrieb were parties to the escrow by virtue of depositing evidence of their ownership interest in the Park Avenue residence to effect its sale (see ibid.), but Licht had no such interest. He was not a party to the escrow, and therefore University owed him no fiduciary duty. Likewise, as discussed, Gantus owed a fiduciary duty to Nachtrieb as his client, not to Licht, who was not his client. Licht’s fraud claim premised on alleged fiduciary breaches therefore failed both in theory—because no such pleading combination exists—and as a practical matter because no underlying fiduciary duty was established.

Couching his fraud claim in the language of conspiracy added nothing to it. Conspiracy in the civil context is not an independent tort or cause of action. (City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 211 (City of Industry); Faunce v. Cate (2013) 222 Cal.App.4th 166, 172-173.) The plaintiff alleging conspiracy must allege an underlying “cognizable cause of action for a civil wrong”; the conspiracy allegation merely extends the “basis of liability . . . to more than one defendant.” (Faunce, at p. 173.) We therefore turn to the elements of fraud to determine whether Licht’s petition stated a fraud cause of action.

“The essential elements of fraud, generally, are (1) misrepresentation; (2) knowledge of falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting damage.” (City of Industry, supra, 198 Cal.App.4th at p. 211; accord, Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1255.) “Each element must be pleaded with particularity so as to apprise the defendant of the specific grounds for the charge and enable the court to determine whether there is any basis for the cause of action.” (City of Industry, at p. 211.)

Licht’s petition focused largely on the reliance element. Licht alleged that Ladd and University, along with Gantus and Nachtrieb, “knew that Licht was relying on the Court’s [Sale] Order and on Ladd and University Escrow’s respective statuses as Court appointed realtor and escrow company to hold the disputed funds in escrow and not to disburse the funds prior to the Court ruling on the matter.” Licht, however, did not allege that Gantus, Ladd, University, or anyone else told him the funds would be distributed in any particular manner or held in escrow pending court resolution of his claim. In other words, Licht did not allege an express misrepresentation as the basis for his fraud claim.

Instead, Licht alleged his reliance in assuming that escrow would not close pending his stated intention to apply for a court order “was reasonable” because “the Court had appointed Ladd in an Order and had also prescribed the disbursement of funds in the Order.” That is not exactly so. The court’s sale order ordered that the trust property be sold, but not the manner in which the proceeds were to be disbursed from escrow. And while the court’s sale order appointed Ladd to sell the property, the order did not specify any terms or conditions for the sale.

It is true that Hahn and Nachtrieb, in their agreement resolving their trust litigation, agreed to its entry as a stipulated judgment disposing of the litigation (§ 664.6), and the court duly entered the agreement as a judgment the day after they signed it. Their agreement provided that if Hahn failed to pay Nachtrieb for his share of the trust property, it would be sold by court order. They also agreed the probate court “shall retain jurisdiction over the enforcement of the terms and conditions of this Settlement Agreement and Stipulation for Judgment.” And they further agreed that upon sale, if necessary, the court would order the distribution of proceeds, including any remaining funds “after payment of all outstanding obligations of the Trust and/or Hahn.” (Italics added.) But this agreement was only between Hahn and Nachtrieb. Gantus was not a party to it, nor was Ladd or University. Nothing in Licht’s petition suggested Hahn or Nachtrieb instructed Ladd or University to distribute the escrow funds in the manner Licht desired, or that Gantus had authority to do so. Instead, authority rested with Hahn and Nachtrieb, as parties to the escrow, to direct University’s actions, including closing the escrow.

Hahn and Nachtrieb’s stipulated settlement agreement was not self-executing. To the contrary, they provided in their agreement for its enforcement under the court’s continuing jurisdiction “upon ex parte application of either party” for the court to “order any documents required to be executed,” to “enter any Judgment, or issue any other interim relief otherwise sought by any party.” In short, nothing in Licht’s petition suggested it was anyone but Hahn’s or Nachtrieb’s responsibility to enforce the terms of the stipulated agreement.

Absent instructions from Hahn or Nachtrieb to University, whether directly or through Ladd as their sale agent or through Gantus as Nachtrieb’s attorney—to distribute the escrow proceeds according to the settlement agreement, it would have been a breach of fiduciary duty for Gantus, Ladd, or University to comply with Licht’s payment demand. It was Hahn’s and Nachtrieb’s prerogative to determine when and how they wanted the terms of the settlement agreement enforced; neither Gantus, nor Ladd, nor University had any authority to countermand Hahn or Nachtrieb. Thus, Licht’s repeated assertion in his petition that Gantus, Ladd, and University committed fraud by “circumvent[ing] the Court’s Order” requiring priority payment of Hahn’s creditors did not state a cause of action for fraud.

At best, Licht’s petition suggested Gantus impliedly represented to Licht that distribution of the escrow funds would halt pending court resolution of Licht’s claim. Licht alleged in his petition that “Gantus led Licht to believe that the Court would rule on the contested matter by filing a motion for the Court to adjudicate the dispute over the disbursement of funds, and knew that Licht would reasonably rely on Gantus’s filing of the motion as a representation that the funds would be held in escrow and the matter resolved by the Court.” (Italics added.) Licht’s conspiracy allegation indicates he intended this implied misrepresentation claim to extend to Ladd and University. He alleged that Gantus, in filing the motion, acted “on behalf of all Respondents [therefore including Ladd and University], in an effort to circumvent and frustrate Licht’s communicated intention to file a motion seeking a court order compelling payment to Licht.”

The flaw in Licht’s theory that filing a motion constituted a fraudulent misrepresentation is that Licht did not suggest Gantus—whether acting alone or together with Ladd and University—ever promised not to withdraw the motion. Licht’s allegation that filing the motion constituted a fraudulent misrepresentation is akin to alleging promissory fraud. “Promissory fraud or false promise ‘“is a subspecies of [the action for] fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud.”’” (Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1498.) By statute, “[a]ctual fraud” includes “[a] promise made without any intention of performing it.” (Civ. Code, § 1572, subd. (4).)

Nothing in Licht’s petition suggested Gantus or Ladd or University promised Licht the motion would not be withdrawn. We set out Licht’s allegations in detail to illustrate the absence of such a promise. Licht alleged Gantus filed the motion on Wednesday, October 24, 2012, as an “Ex Parte Application for Order” to, among other things, compel payment of the mortgages on the trust property and other expenses, distribution of remaining funds to Gantus’s client, Nachtrieb, “and to Compel the Closing of Escrow.” The application was set for a hearing the next day and Licht personally appeared to oppose it, submitting “a lengthy opposition . . . that requested an order of the Court requiring that Licht’s claim be paid from Escrow proceeds in accordance with the Settlement Stipulation and Order, and additional remedies.” According to Licht’s petition, the court’s “staff attorney then conferred with Licht and Gantus,” and obtained their consent to “trail[] the application to Monday October 29, 2012,” so the court could “review the opposition papers filed by Licht on behalf of Hahn.”

Licht alleged Gantus thwarted the Monday hearing by, on Friday, October 26, 2012, “contact[ing] the Court,” communicating with “Court staff,” and “request[ing] that the hearing be taken off calendar,” which “the Court granted . . . .” Licht alleged Gantus “did not inform Licht of the matter being taken off calendar until 4:35 p.m. on [that] Friday, October 26, 2012, when Gantus’ assistant . . . left a voicemail message to that effect,” which “Gantus confirmed . . . with a fax that he sent to Licht at 4:46 p.m. that same day.” Licht alleged Gantus fraudulently caused the court to take the hearing off calendar when Gantus “falsely told Court staff that the dispute set for hearing on [Monday] had been settled, and requested that the hearing be taken off calendar.”

Licht alleged that the escrow closed “as of October 29, 2012,” when “funds were distributed out of the escrow held by University . . . .” Licht’s petition stated he responded as follows, to no avail: “On Wednesday, October 31, 2012, Licht appeared by ex parte application and requested the Court to order the disgorgement of funds wired to Gantus, sanctions against Gantus, punitive damages, and the notification of the State Bar of California of Gantus’ unethical conduct. The Court declined to consider the ex parte application however, on the grounds that it was beyond the Court’s authority to consider these matters based on an ex parte application.” Licht’s petition does not state he reapplied for relief based on a motion to hold a contested hearing instead of an ex parte hearing. He filed his initial petition underlying the present appeal three years later in October 2015, and his TAP alleges “Contempt” as a cause of action against Gantus and Nachtrieb, but not Ladd or University.

As reflected in the foregoing chronology, Licht’s petition did not allege Gantus promised he would not withdraw his application. Even assuming Gantus implied an initial desire to secure a court ruling at the time he filed his application for a ruling, there was no express or implied representation that Gantus would not withdraw the motion.

Finally, Gantus’s alleged misrepresentation to the court was, as Licht expressly alleged, to the court, not to Licht. It is not legally or logically possible that Licht could rely on an alleged misrepresentation that was not made or communicated to him, but instead to another entity—the court through its staff. Consequently, Licht failed to adequately state a fraudulent misrepresentation claim; the trial court therefore properly sustained Gantus’s demurrer to his common law fraud cause of action. Licht does not suggest he could amend his petition. As a result, there is no basis to reverse the trial court’s decision denying Licht leave to amend a fourth time.

The court also found Licht failed to state a statutory claim for fraud “against Gantus under the Uniform Voidable Transactions Act (the ‘UVTA’, formerly the Uniform Fraudulent Transfers Act), found at Civil Code section 3439, et seq.” As relevant to Gantus, the court explained, “Missing, for example, are any allegations sufficient to establish that Gantus was a ‘debtor’ within the meaning of Civil Code section 3439.04, subdivision (a)(1).” Licht concedes on appeal that “Gantus, Ladd, and University Escrow are not the debtor[s]” on his claim for attorney fees. His fraudulent transfer claim therefore falls outside the scope of the UVTA. Thus, the court did not err in sustaining Gantus’s demurrer on this claim without leave to amend.

5. Contempt

As Licht concedes on appeal, his “contempt of court and fraud [claims] are based on the same facts.” (Capitalization and bold type omitted.) Specifically, Licht contends that by alleging Gantus “defraud[ed]” him “out of payment for his attorney fees,” he also stated a cause of action for contempt because Gantus committed the fraud “in direct contravention of the Court Order which prescribed the distribution of funds.” Phrased another way, Licht argues that Gantus engaged in contempt by “cooperating [with Ladd and University] to circumvent the Court’s Order and to disburse the funds before the Court could rule on the matter.”

The trial court determined, and Licht does not dispute, that the gravamen of Licht’s contempt claim was that “Gantus willfully violated two court orders: (1) the Settlement Agreement and Stipulation for Judgment . . . ; and (2) the Order for the Sale of Real Property.” In upholding Gantus’s demurrer, the trial court found Licht’s allegations insufficient to constitute contempt because “[n]either of the Orders at Issue directed Gantus himself to take or refrain from taking any particular actions.” The court did not err.

Contempt of court may be direct or indirect. Direct contempt is committed in the immediate view and presence of the court or of the judge in chambers. All other contempts are indirect. (Nierenberg v. Superior Court (1976) 59 Cal.App.3d 611, 616.) ““‘Contempt of court is a specific criminal offense,’”” and a “contempt proceeding” is not a “civil action,” either at law or in equity. (Wilde v. Superior Court (1942) 53 Cal.App.2d 168, 177.) Instead, contempt proceedings are “‘distinctly criminal [in] nature’” (ibid.); their purpose is “not for the vindication of a private right,” but to maintain “the dignity and authority of the court.” (H.J. Heinz Co. v. Superior Court (1954) 42 Cal.2d 164, 175, italics added (Heinz).)

Punishment for a contemnor’s acts against the court’s authority are limited to a fine up to $1,000, “payable to the court, or he or she may be imprisoned not exceeding five days, or both.” (§ 1218, subd. (a); Heinz, supra, 42 Cal.2d at p. 175 [in certain circumstances, “each day’s violation is a separate offense”].) The court also may jail a contemnor “if the contempt consists of the omission to perform an act which is yet in the power of the person to perform” (§ 1219, subd. (a)); in such cases, “he or she may be imprisoned until he or she has performed” the act. (Ibid.)

Proceedings involving an alleged indirect contempt—as is the case here—are initiated by affidavit. (§ 1211, subd. (a).) “‘“The affidavit is in effect a complaint, frames the issues before the court and is a jurisdictional prerequisite to the court’s power to punish.”’” (Koshak v. Malek (2011) 200 Cal.App.4th 1540, 1549 (Koshak).)

Licht filed an affidavit as an attachment to his petition, largely replicating the allegations in his petition. While the trial court questioned Licht’s “standing to seek to hold Gantus liable for . . . contempt,” there is authority that “‘[i]t is . . . of no importance who institutes the proceedings for contempt, since the alleged contemnor is not prejudiced in his defense by the particular mode in which the facts are brought to the attention of the court.’” (Bridges v. Superior Court (1939) 14 Cal.2d 464, 477, revd. on other grounds by Bridges v. California (1941) 314 U.S. 252, 259.) As another court has stated, “[a]n affidavit charging a person with contempt may be made by any person who is in possession of the facts.” (In re Larrabee (1938) 29 Cal.App.2d 240, 243.) We therefore turn to whether Licht adequately alleged actions by Gantus that would constitute contempt of a court order.

“Disobedience of any lawful judgment, order, or process of the court” is among the acts or omissions specifically enumerated as “contempts of the authority of the court.” (§ 1209, subd. (a)(5).) “‘The elements of proof necessary to support punishment for contempt are: (1) a valid court order, (2) the alleged contemnor’s knowledge of the order, and (3) noncompliance. [Citations.] The order must be clear, specific, and unequivocal. [Citation.] “Any ambiguity in a decree or order must be resolved in favor of an alleged contemnor.”’” (Koshak, supra, 200 Cal.App.4th at pp. 1548-1549.)

Consistent with its criminal nature, contempt requires proof of each of its elements beyond a reasonable doubt. (Oil Workers International Union v. Superior Court (1951) 103 Cal.App.2d 512, 527.) As a petty offense, contempt charges are tried to the court, not a jury. (Hawk v. Superior Court (1974) 42 Cal.App.3d 108, 133, fn. 25.)

Here, the trial court properly sustained Gantus’s demurrer to Licht’s contempt allegation because a reasonable trier of fact could not conclude Gantus was a party to Hahn and Nachtrieb’s stipulated judgment. He was not bound by it, its terms did not apply to him, and he could therefore not violate it. These are axiomatic contract law principles (Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 577 (Gruenberg)), which apply equally to stipulated judgments. (E.g., Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, 38; Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810.)

As we observed above, the stipulated judgment was not self-executing. It was up to Hahn and Nachtrieb to decide whether to enforce its terms, and the court’s sale order did not expressly incorporate the stipulated agreement’s distribution scheme. Consequently, Licht’s contempt claim against Gantus for not adhering to a stipulated judgment that neither Hahn nor Nachtrieb—nor the court in its sale order or otherwise—directed him to follow necessarily fails.

The contempt claim also fails because it is clear Licht filed it to “vindicat[e] a private right,” which is not a proper purpose. (Heinz, supra, 42 Cal.2d at p. 175.) Damages, as Licht requested in his cause of action “For Contempt for Violation of Court Order” (capitalization adjusted), are beyond “the limits within which a court may punish for contempt.” (Id. at p. 174) “To allow compensatory damages in the contempt proceeding would have the effect of turning it into an action for damages,” but “‘California has no provision for compensatory contempt proceedings.’” (Id. at p. 175.) Righting alleged personal, civil wrongs is beyond the scope of a contempt proceeding. Contempt is not a catch-all remedy for such claims; instead, a plaintiff “may be adequately protected through recourse to the remedies provided by other . . . law.” (Id. at p. 174.) As discussed, however, Licht’s business tort claim for alleged interference with his expectation he would benefit from the stipulated agreement’s distribution terms came too late under the statute of limitations.

6. Breach of Settlement Agreement and Breach of an Alleged Oral Stipulation

Licht contends the trial court erred in sustaining Gantus’s demurrer to the cause of action he entitled, “Fourth Cause of Action for Breach of Settlement Agreement and Stipulation re Continuance of Hearing.” By its terms, Licht asserts breaches of two different agreements in this cause of action: (1) the settlement agreement that Hahn and Nachtrieb entered into and on which they obtained a stipulated judgment resolving their trust litigation; and (2) Gantus’s alleged oral stipulation—at the request of the trial court staff attorney—to continue the hearing on Gantus’s ex parte motion from Thursday, October 25, 2012, to Monday, October 29, 2012. In sustaining Gantus’s demurrer regarding the first agreement, the trial court explained, “missing are any allegations sufficient to establish that Gantus was a party to that Settlement Agreement and Stipulation, or otherwise undertook any duties enforceable thereunder.” The court continued, “As to the alleged oral stipulation, Licht fails to adequately plead any breach by Gantus of the stipulation, or any resulting damage to Licht arising from such breach.” Licht establishes no grounds for reversal.

Licht’s only argument on appeal concerning Gantus’s liability for breaching Hahn and Nachtrieb’s settlement agreement is based on third party beneficiary grounds. He asserts that he (Licht) “clearly [was] an intended third party creditor beneficiary of the Settlement Agreement aka the Stipulation and Judgment because he is the person who is entitled to payment of Hahn’s debts to him, which is specifically noted in the Settlement Agreement . . . as taking priority over any other claims.” Licht’s attorney fees are not enumerated in the settlement agreement as a debt Hahn owed, but a third party beneficiary need not “‘“be specifically identified in the contract; he or she may enforce it if he or she is a member of a class for whose benefit the contract was created.’”” (Willemsen v. Mitrosilis (2014) 230 Cal.App.4th 622, 633 (Willemsen).) Licht contends that by its terms the settlement agreement’s intended beneficiaries include all to whom Hahn owed debts or, at a minimum, those, like Licht, whose creditor relationship with Hahn arose in the very trust proceedings resolved by the agreement.

Even assuming arguendo that this is true, however, Licht’s third party beneficiary claim fails for the simple reason that he asserts it against Gantus. At root, third party beneficiary theories of recovery are contract claims: they authorize the beneficiary “‘“under a contract to enforce it.”’” (Willemsen, supra, 230 Cal.App.4th at p. 633, italics added.) By definition, a contract binds those who enter into it; a contract therefore requires, “Parties capable of contracting.” (Civ. Code, § 1550.) Third party beneficiaries may enforce an agreement made by contracting parties “at any time before the parties thereto rescind it.” (Civ. Code, § 1559, italics added.) But nonparties are not bound by contract terms precisely because they did not agree to them. (Gruenberg, supra, 9 Cal.3d at p. 577.) Tort law may furnish a basis for recovery against third parties for interfering with a contract in some instances, but, as discussed, Licht’s business interference claim is well outside the limitations period, and therefore fails as a matter of law.

As to his second claim, Licht advances no argument or authority on appeal that contract liability applies or extends to attorneys engaged in litigation for an alleged breach of a stipulated continuance. “Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the[m] waived.” (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99.) Appeal of a sustained demurrer generally presents de novo questions of law, but our review is limited to the points raised and adequately supported in the appellant’s brief. (Reyes, supra, 65 Cal.App.4th at p. 466, fn. 6.) Therefore, for causes of action the court pared without challenge on appeal, the general rule applies that we presume the ruling was correct because “error must be affirmatively shown.” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)

7. Remaining Issues: Business and Professions Code Section 17200 and Continuance

Licht concedes his unfair business practices claim simply “incorporate[d] all the preceding factual allegations” underlying his fraud and breach of fiduciary duty causes of action. Business and Professions Code section 17200 et seq. defines unfair competition as any unlawful, unfair, or fraudulent business act or practice. (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 609.) The act “‘“borrows” violations of other laws and treats them as unlawful practices’ that the unfair competition law makes independently actionable.” (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.) Because Licht failed to allege viable fraud or breach of fiduciary duty claims, the trial court properly sustained the demurrer to this cause of action without leave to amend.

Nor did the court abuse its discretion, after the case had been pending for years, by denying Licht’s ex parte application to continue the demurrer hearing to depose Ladd or others. Licht made the ex parte motion on April 6, 2018, which Ladd and University opposed on April 9, 2018. The hearing on the demurrer was not scheduled to take place until April 25, 2018. The court denied Licht’s ex parte application for failure to allege imminent harm or irreparable injury.

The decision whether to grant or deny a continuance rests in the trial court’s sound discretion. (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984.) During the three weeks preceding the scheduled date for the demurrer hearing, Licht did not notice or attempt to notice any depositions, nor did he refile his continuance motion, once it was denied, to allege imminent harm or irreparable injury. Nothing suggested further discovery would reveal a fiduciary duty or other basis for Licht’s claims. Therefore, the court did not err in denying the requested continuance.

DISPOSITION

The judgment is affirmed. Gantus is entitled to his costs on appeal.

GOETHALS, J.

WE CONCUR:

ARONSON, ACTING P. J.

THOMPSON, J.