Filed 2/4/20 Rashti v. Borenstein CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

MITRA RASHTI,

Plaintiff and Appellant,

v.

JACOB BORENSTEIN,

Defendant and Respondent. B288109

(c/w B293711)

(Los Angeles County

Super. Ct. Nos. BC558875,

BC691328)

APPEAL from judgments of the Superior Court of Los Angeles County. Malcolm H. Mackey and Holly J. Fujie, Judges. Affirmed.

Law Offices of Helena Sunny Wise and Helena Sunny Wise for Plaintiff and Appellant.

Thompson Coe & O’Meara, Stephen M. Caine and Frances M. O’Meara, for Defendant and Respondent.

______________________________

In this consolidated appeal, plaintiff and appellant Mitra Rashti (Rashti) challenges two judgments entered against her and in favor of her former attorney, defendant and respondent Jacob Borenstein (Borenstein). The first judgment followed a court trial, and the second judgment followed a trial court order sustaining a demurrer without leave to amend. Rashti assigns a host of errors to the court trial, errors that she claims compel reversal of the judgment. Regarding the order sustaining Borenstein’s demurrer, Rashti fails to advance any arguments on appeal.

We find no error in either the judgment following trial or the order sustaining the demurrer without leave to amend. Accordingly, we affirm both judgments.

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual Background

Rashti was employed by the County of Los Angeles as an architectural assistant. Claiming a series of injuries and medical conditions over many years, in 2003, she applied to the Los Angeles County Employees’ Retirement Association (LACERA) for full service-connected disability retirement.

In January 2004, LACERA denied her claim on the grounds that her alleged disabilities were not work-related.

In March 2008, Rashti retained Borenstein to represent her in continuing efforts to obtain full disability retirement through a LACERA appeal. The retention was expressly limited to the LACERA appeal and did not include subsequent review of the LACERA appeal decision by the LACERA Board or by the superior court pursuant to Code of Civil Procedure section 1094.5.

After a hearing, the LACERA referee issued a written order denying that Rashti’s claimed injuries and medical conditions were service-related. She was not entitled to full disability retirement benefits.

II. Procedural Background

A. Rashti I

1. The pleadings

On October 1, 2014, Rashti sued Borenstein for professional negligence (Rashti I). The first amended complaint (FAC), the operative pleading, alleges two causes of action: legal malpractice and breach of fiduciary duty.

According to the FAC, Borenstein had previously represented Rashti in a workers’ compensation action “between 2000 and 2002.” She alleged that Borenstein “intentionally did not attend crucial hearings in Rashti’s workers[’] compensation case and further intentionally withheld same from Rashti.”

Regarding her LACERA appeal, Rashti alleged that Borenstein failed to introduce certain evidence, documentation or witness testimonies and failed to obtain or rebut certain medical reports. These claims were divided into categories based upon claimed orthopedic injuries, psychiatric problems, and vision problems.

2. Expert witness designations

With a July 2017 trial date approaching, on May 4, 2017, Borenstein served a demand for exchange of expert witness information on Rashti, in propria persona. The date of the exchange was set for May 26, 2017.

On May 5, 2017, Rashti filed a substitution of counsel, naming Helena Sunny Wise as her attorney of record.

Ms. Wise was aware of the demand for exchange of expert witness information that had been served on Rashti. After all, on May 26, 2017, Ms. Wise requested a continuance of trial, partly because the expert witness designations were “due on May 26, 2017.” She also requested “that all cut-off dates be reset as well.” The trial court granted Rashti’s request and trial was continued to September 25, 2017. Discovery and other pretrial deadlines were also continued. The date to exchange expert witness information was moved to August 8, 2017.

3. Rashti’s petition for writ of mandate; parties’ request for continuance is denied

On April 18, 2017, Rashti filed a petition for writ of mandate against the County of Los Angeles in response to renewed LACERA appeal proceedings, seeking to reverse or correct the decision denying her retirement benefits. Because the writ could have eliminated or substantially mitigated Rashti’s damages, on August 7, 2017, the parties asked that the trial be continued to allow the writ to be resolved first. That request for a continuance was denied.

4. Trial in Rashti I: Request for continuance is denied; motions in limine are argued; no jury for failure to pay fees

a. Rashti’s request for a continuance

On the first day of trial (Sept. 25, 2017), Rashti requested that the trial be continued. Her request was denied.

b. Borenstein’s motion in limine

Also on the first day of trial, case management issues and motions in limine were argued. As is relevant to the issues raised in this appeal, Borenstein’s motion in limine No. 4 (MIL No. 4) sought to bar Rashti from introducing expert testimony as a result of her failure to designate any expert trial witnesses pursuant to Code of Civil Procedure section 2034.210. Borenstein also advised the trial court that on August 7, 2017, he served a notice of nondesignation of experts, pursuant to Code of Civil Procedure section 2034.260, subdivision (b)(2).

Borenstein further argued that Rashti did not dispute the foregoing. Instead, on September 12, 2017, she e-mailed to Borenstein’s counsel her proposed list of trial witnesses. That list included legal and medical experts, some of whom were also percipient witnesses. Borenstein objected to Rashti’s attempt to designate experts even though no expert witness designation had been served. After all, Borenstein had not been given the opportunity to depose these experts.

c. Rashti’s opposition to MIL No. 4

Rashti opposed MIL No. 4. In so doing, she conceded that demands for exchange of expert witness information had been served and that she served nothing in response. Instead, she argued that Borenstein’s notice of nondesignation was not a proper response to the expert designation demand, allowing her not to respond at all. Furthermore, she had expected that a new demand would be served after the trial had been continued.

Alternatively, Rashti argued that expert testimony on the standard of care was unnecessary because “common sense [would] decide this case.” According to Rashti, the opinion of the LACERA referee would prove her claims.

Rashti further argued: “While preparing for the Final Status Conference, it has become increasingly apparent” that she wanted to amend the FAC. Allowing an amendment would permit a trial continuance, which would in turn permit additional expert discovery. Attached to her opposition was a proposed second amended complaint (PSAC), adding new factual allegations and new causes of action. The PSAC alleged that from 2006 to 2009, Borenstein represented Rashti in a separate workers’ compensation action involving her pursuit of potentially $200,000 for vocational rehabilitation. Significantly, that action was different from the one identified in the FAC. According to the PSAC, Borenstein allegedly misrepresented why that benefit was lost, saying it was due to a change in the law. And, that representation was allegedly false, supporting a new cause of action for fraud by concealment.

For the existing allegations regarding the LACERA appeal, the PSAC added causes of action for violation of the Consumer Legal Remedies Act (CLRA; Civ. Code, § 1750) and the Unfair Competition Law (UCL; Bus. & Prof. Code, § 17200).

d. Trial court order granting MIL No. 4

The trial court granted Borenstein’s MIL No. 4. No expert testimony regarding Borenstein’s standard of care or proximate causation of harm would be allowed. Rashti’s doctors would be limited to only her treating physicians and their reports. Any effort to expand their testimony beyond percipient observations and treatments would be barred.

In so ruling, the trial court rejected Rashti’s attempt to amend the FAC, finding that allowing the PSAC to be filed on the day of trial would be prejudicial to Borenstein. Also, any new claims arising from the alleged 2006 to 2009 action appeared time-barred, as that action ended about six years before the instant litigation commenced on October 1, 2014.

e. No jury trial

Finally, a jury trial was deemed waived due to nonpayment of fees. The action proceeded as a court trial.

f. Court trial; appeal

The matter proceeded to trial. At trial, Borenstein presented evidence that he arranged for Rashti’s examination by agreed medical examiners regarding her claims for service-connected disability. He also submitted the agreed medical examiners’ reports to the LACERA referee. And he submitted an opening and closing brief on Rashti’s behalf. Despite the evidence and argument submitted, the LACERA referee found that Rashti’s claimed disabilities were either not proven or not work-related. Borenstein then objected to the referee’s findings of fact and recommended decision. At that point, Borenstein’s representation of Rashti ended; he withdrew as her counsel. While Rashti could have sought further review of her claims, such as by the LACERA Board or the superior court, Borenstein was not retained by her to do so.

Following the presentation of evidence, on October 2, 2017, the trial court entered a general judgment in favor of Borenstein. In so ruling, the trial court noted that it did not “find any violation of this attorney. He had tried and attempted to the best of his ability to use his care—a careful attorney would use under the circumstances as the standard of care. [¶] . . . [¶] And I determine that he used the skill of a reasonable careful attorney would use in similar circumstances based upon the testimony that I’ve heard in [this] case.” No party requested a statement of decision.

In early January 2018, Rashti’s motion for a new trial was denied, and her timely notice of appeal was filed on February 9, 2018.

B. Rashti II

On January 22, 2018, Rashti filed a second, nearly identical lawsuit against Borenstein (Rashti II). Based upon the identical facts and occurrences pled in the FAC in Rashti I, the complaint in Rashti II added causes of action for violation of the CLRA and UCL. It also added the factual claims regarding the 2006 to 2009 workers’ compensation action as set forth in the PSAC in Rashti I.

Borenstein demurred to the complaint in Rashti II on the grounds that another action was pending and the action was barred by the rule against splitting causes of action, res judicata, and the statute of limitations.

The trial court sustained Borenstein’s demurrer without leave to amend. A judgment of dismissal was entered, and Rashti filed a notice of appeal.

C. Consolidation of Appeals

On January 9, 2019, we ordered that the two appeals be consolidated.

DISCUSSION

I. The trial court did not err in its judgment in Rashti I

A. Judgment is Supported by Substantial Evidence

Rashti argues that the trial court erred in entering judgment for Borenstein because his defense was not credible. In other words, Rashti appears to be arguing that the judgment is not supported by sufficient evidence.

1. Standard of review and applicable law

We review the sufficiency of the evidence supporting the judgment under the substantial evidence standard. Under that standard, we “view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor.” (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053.) Our task “begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted,” which will support the verdict. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873–874.)

Substantial evidence is any evidence that is “reasonable in nature, credible, and of solid value.” (People v. Bassett (1968) 69 Cal.2d 122, 139.) Testimony from a single witness may suffice. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.)

In other words, our inquiry on substantial evidence review is whether the evidence adds up to substantial evidence supporting the judgment. (People v. Jackson (2014) 58 Cal.4th 724, 749.)

Moreover, a general verdict was rendered by the court in this case. “[A] general verdict implies a finding in favor of the prevailing party of every fact essential to the support of his action or defense. [Citations.]” (Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 663, 673.)

“Actionable legal malpractice is compounded of the same basic elements as other kinds of actionable negligence: duty, breach of duty, causation, and damage. The elements of a cause of action for professional negligence are: (1) the duty of the professional to use such skill, prudence and diligence as other members of the profession commonly possess and exercise; (2) breach of that duty; (3) a causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional negligence. When these elements coexist, they constitute actionable negligence. On the other hand, absence of, or failure to prove, any of them is fatal to recovery.” (Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1682.)

2. Judgment is supported by sufficient evidence

Ample evidence supports the judgment in favor of Borenstein. To prepare Rashti for the hearing before the LACERA referee, Borenstein arranged for her examination by agreed medical examiners regarding her claims of service-connected disability. He then submitted those reports to the LACERA referee. And, he submitted an opening brief and a closing brief on Rashti’s behalf. Despite his efforts, the LACERA referee ruled against Rashti. But that ruling does not demonstrate that Borenstein committed legal malpractice. Rather, Rashti had to prove that Borenstein’s conduct fell below the standard of care. And the trial court determined that it did not.

To the extent the trial court based its decision upon Rashti’s failure to present expert testimony, Rashti argues that expert testimony was not required in this case. According to Rashti, “Courts in jurisdictions across the country have held that if an attorney’s breach is so clear that even a layperson can determine that it fails to meet the appropriate standard of care, a court may permit a plaintiff to proceed to trial without presenting expert testimony to establish the requisite standard of care or that an attorney breached the standard. This is often called the ‘common sense exception.’”

“In negligence cases arising from the rendering of professional services, as a general rule the standard of care against which the professional’s acts are measured remains a matter peculiarly within the knowledge of experts. Only their testimony can prove it, unless the lay person’s common knowledge includes the conduct required by the particular circumstances. [Citation.] This rule applies to legal malpractice cases. [Citation.]” (Unigard Ins. Group v. O’Flaherty & Belgum (1995) 38 Cal.App.4th 1229, 1239.) “‘In other words, if the attorney’s negligence is readily apparent from the facts of the case, then the testimony of an expert may not be necessary.’ (Goebel v. Lauderdale (1989) 214 Cal.App.3d 1502, 1508 [Goebel].)” (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1093 (Stanley).) Thus, in Goebel, no expert testimony was necessary to establish professional negligence against an attorney who failed to perform even the most perfunctory legal research and thus advised his client to handle financial affairs in a manner that violated the California Penal Code. (Goebel, supra, at p. 1508.) Likewise, in Stanley, no expert testimony was required to prove that an attorney was negligent by failing to perform a simple research task on a settled area of law. (Stanley, supra, at p. 1094.)

Here, expert testimony was required for Rashti to prove her legal malpractice claim against Borenstein. Unlike the cases mentioned above, it is not within the common knowledge what Borenstein could or should have done in the LACERA appeal. (See, e.g., Wilkinson v. Rives (1981) 116 Cal.App.3d 641, 648.)

B. Specific Trial Court Orders

Rashti challenges a host of trial court orders relating to the court trial in Rashti I. We address each argument in turn, keeping in mind the principle cited by both parties in their appellate briefs: In order to obtain reversal, Rashti must demonstrate prejudice by the alleged trial court errors. (Cal. Const., art. VI, § 13; Code of Civ. Proc., § 475.) “Prejudice is not presumed, and the burden is on the appealing party to demonstrate” not only error, but also prejudice so severe that “a miscarriage of justice has occurred. [Citations.]” (Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833.)

“To establish prejudice, an appellant must show a reasonable probability exists that, in the absence of error, he or she would have obtained a more favorable result.” (People ex rel. City of Santa Monica v. Gabriel (2010) 186 Cal.App.4th 882, 887.) The reviewing court is not obligated to examine the record to find prejudice. (Overhill Farms, Inc. v. Lopez (2010) 190 Cal.App.4th 1248, 1268.)

In other words, in her appellate briefs, Rashti was obligated to explain how the trial court erred and why that claimed error actually prejudiced her, making affirmance a miscarriage of justice. (Cal. Rules of Court, rule 8.204(a)(1).)

1. Jury Trial

Rashti argues that the trial court erred in refusing to grant a jury trial.

As pointed out by Borenstein, Rashti forfeited any objection to a court trial by failing to object below. (Algeri v. Tonini (1958) 159 Cal.App.2d 828, 832.) There is no indication in Rashti’s appellate briefs or in the appellate record that she objected to a court trial. Notably, Rashti did not file a motion for leave to submit jury fees late, pursuant to Code of Civil Procedure sections 473 and 631, subdivision (g).

Setting that procedural obstacle aside, there is no basis to reverse the judgment based upon the trial court’s order setting the matter for a court trial. Under Code of Civil Procedure section 631, subdivision (f)(5), a party waives trial by jury by failing to deposit timely jury fees. Thus, the trial court may refuse a jury trial if the jury fees are not deposited as required by Code of Civil Procedure section 631, and the litigants are not thereby deprived of any constitutional right. (Still v. Plaza Marina Commercial Corp. (1971) 21 Cal.App.3d 378, 387–388.) Moreover, “[p]rejudice cannot be presumed from the fact that [Rashti’s] case was tried before a judge instead of a jury. On the contrary, it is presumed that the trial was fair and impartial.” (Id. at p. 388.)

Here, it is undisputed that Rashti did not pay the jury fees as required by Code of Civil Procedure section 631. It follows that the trial court acted well within its discretion to proceed with a court trial. And Rashti was not prejudiced thereby.

2. Request to Continue Trial

Rashti argues that the trial court erred in denying two requests to continue trial: (1) Borenstein’s request to continue trial in light of Rashti’s petition for writ of mandate, a request that she agreed to; and (2) her request to continue trial on the first day of trial.

A continuance before or during trial shall not be granted except on an affirmative showing of good cause. (Cal. Rules of Court, rule 3.1332(c).) The denial of a request for a continuance of trial may not be reversed on appeal absent a clear showing of an abuse of discretion. (Foster v. Civil Service Com. (1983) 142 Cal.App.3d 444, 448.) The burden rests upon the complaining party to demonstrate from the record that such an abuse occurred. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)

Rashti has not shown that the trial court abused its discretion in denying either request for a continuance. All she does is reiterate the grounds for the requests. Moreover, she does not demonstrate or argue how the trial court’s denial of her request for a continuance prejudiced her. (See People v. Barnett (1998) 17 Cal.4th 1044, 1125.) While she complains broadly about the trial court’s “unwillingness to even minimally avoid conflicts for others,” she fails to explain how those alleged conflicts would have made any difference in the outcome of the trial.

Relatedly, and almost in passing, Rashti asserts that the trial court erred in denying her a “minimal postponement” of closing arguments. Rashti does not offer any cogent argument in support of her suggestion that the trial court’s failure to postpone closing argument somehow amounted to prejudicial, and reversible error. It follows that this argument is waived. (Evans v. CenterStone Development Co. (2005) 134 Cal.App.4th 151, 165 [arguments not fully or properly briefed are waived].)

3. Order Granting MIL No. 4

Rashti argues that the trial court erred in granting Borenstein’s MIL No. 4, the order that precluded her from presenting expert testimony at trial. In support, she asserts that the trial court improperly found that Borenstein made a demand for an exchange of expert witness information.

Code of Civil Procedure section 2034.210 provides, in relevant part: “After the setting of the initial trial date for the action, any party may obtain discovery by demanding that all parties simultaneously exchange information concerning each other’s expert trial witnesses.” Code of Civil Procedure section 2034.260, subdivision (a), continues: “All parties who have appeared in the action shall exchange information concerning expert witnesses in writing on or before the date of the exchange specified in the demand.” “[T]he trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to” . . . [l]ist that witness as an expert, . . . [s]ubmit an expert witness declaration, . . . [p]roduce reports and writings of the expert, and/or [m]ake that expert available for deposition.” (Code Civ. Proc., § 2034.300.)

Here, Borenstein served a demand for exchange of expert witness at least by May 2017. Rashti did not respond to this demand. Thus, the trial court properly excluded her proposed expert witness testimony.

To the extent Rashti suggests that a new demand for exchange of expert witness information had to be served each time the trial was continued, we are not convinced. Rashti offers no legal authority in support of this novel proposition. (Cal. Rules of Court, rule 8.204(a)(1)(B); Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545–546.) And, we doubt any such legal authority exists. Nothing in the Code of Civil Procedure indicates that a new demand for the exchange of expert witness information must be served before any and all new trial dates. In fact, the plain language of Code of Civil Procedure section 2034.210 refers only to the initial trial date. There is no mention of any continued trial dates.

In urging us to reverse, Rashti relies upon Borenstein’s failure to timely designate expert witnesses. Relying upon Fairfax v. Lords (2006) 138 Cal.App.4th 1019, 1027 (Fairfax), she argues, “since Borenstein did not timely designate, he should not have been allowed to exclude [Rashti’s] named witnesses either.” We are not persuaded. Fairfax does not stand for the proposition that one party’s failure to designate means that the other party is excused from the statutory requirement to designate his or her expert witnesses after a proper demand has been made.

In any event, Borenstein served a nondesignation of expert witnesses on August 7, 2017. If, after its receipt, Rashti was genuinely confused about whether to designate expert witnesses after the trial was continued to September 17, 2017, then she should have done something to clear up any misunderstandings.

4. Request to File the PSAC

Rashti argues that the trial court erred in denying her request to file an amended complaint.

A trial court may allow the amendment of a pleading. (Code Civ. Proc., §§ 473, subd. (a), 576.) “Although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [citations], this policy should be applied only ‘[w]here no prejudice is shown to the adverse party . . . .’ [Citation.] A different result is indicated ‘[w]here inexcusable delay and probable prejudice to the opposing party’ is shown.” (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.) We review a trial court’s order denying a motion for leave to amend for abuse of discretion; the trial court’s broad discretion will not be disturbed on appeal unless it clearly has been abused. (Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 230.)

Here, the trial court did not abuse its discretion. First, Rashti did not adhere to proper procedure to request the filing of an amended pleading. She did not file a proper motion for leave to amend, as required by California Rules of Court, rule 3.1324. She did not submit a supporting declaration. And, she did not offer any explanation for the delay.

Second, even if the arguments in her opposition to MIL No. 4 are somehow deemed to constitute a proper request to file an amended pleading, Rashti did not show any good cause in support of that request. As set forth above, she utterly failed to explain the delay in seeking the amendment. (See, e.g., Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 613 [“The law is well settled that a long deferred presentation of the proposed amendment without a showing of excuse for the delay is itself a significant factor to uphold the trial court’s denial of the amendment”].) In fact, it seems that she may have only been requesting that she be allowed to file an amended pleading so that she could (1) circumvent the trial court’s order denying her request for a continuance, and (2) re-open the timing for designating expert witnesses.

Third, Rashti has not demonstrated how Borenstein would not be prejudiced by this belated amended pleading. After all, the PSAC contained new factual claims and causes of action that were fundamentally different from what was alleged in the FAC. And, there had been no opportunity for discovery related to these new allegations.

Under these circumstances, the trial court did not abuse its discretion in denying Rashti’s request that she be permitted to file the PSAC.

II. The trial court did not err in sustaining Borenstein’s demurrer without leave to amend in Rashti II

As set forth above, Rashti filed a notice of appeal from the judgment of dismissal entered in Rashti II. That appeal was consolidated with Rashti’s appeal from the judgment entered against her in Rashti I.

“‘The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment. It is entitled to the assistance of counsel. Accordingly every brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.’ [Citation.] [¶] It is the duty of [the appellant], not of the courts, ‘by argument and the citation of authorities to show that the claimed error exists.’ [Citation.]” (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1050.)

Rashti did not meet her burden on appeal. In fact, her opening brief barely mentions the trial court’s order and judgment in Rashti II. Any passing references to the order sustaining Borenstein’s demurrer were not sufficiently flushed out to be cognizable.

Rashti argues that her fraud and deceit claims against Borenstein are viable and should not have been dismissed by way of demurrer. Similarly, she asserts that CLRA and UCL claims against Borenstein exist and should have been allowed to proceed. We cannot agree.

As the trial court correctly found, Rashti’s complaint in Rashti II violates the rule against splitting a cause of action. Because the claims in Rashti I and Rashti II “(at least in part) pertain to the same primary right,” the trial court rightly sustained Borenstein’s demurrer. (Code Civ. Proc., § 430.10, subd. (c) [demurrer may be sustained if “[t]here is another action pending between the same parties on the same cause of action”]; Wulfjen v. Dolton (1944) 24 Cal.2d 891, 894–895; Jenkins v. Pope (1990) 217 Cal.App.3d 1292, 1299, fn. 3.) In addition, because the judgment in Rashti I was on appeal at the time Rashti filed her complaint in Rashti II, Rashti I was still pending, providing another basis for the trial court to sustain Borenstein’s demurrer. (Code Civ. Proc., §§ 430,10, subd. (c), 1049 [“An action is deemed to be pending from the time of its commencement until its final determination upon appeal”].)

DISPOSITION

The judgments in Rashti I and Rashti II are affirmed. Borenstein is entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

________________________, J.

ASHMANN-GERST

We concur:

________________________, P. J. ________________________, J.

LUI HOFFSTADT