Filed 9/17/19 Antoine v. Riverstone Residential CA, Inc CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

—-

EVELYN ANTOINE et al.,

Plaintiffs and Respondents,

v.

RIVERSTONE RESIDENTIAL CA, INC. et al.,

Defendants and Respondents;

NELLY CASAFRANCA,

Objector and Appellant.

C083946

(Super. Ct. No. 34201300155974CUOEGDS)

We dismiss this appeal for lack of standing.

“Objector” Nelly Casafranca, who is not a named party of record, filed a notice of appeal from the trial court’s “FINAL APPROVAL ORDER AND JUDGMENT” approving a settlement in this class action lawsuit brought by employees (Evelyn Antoine et al.) against employers (Riverstone Residential CA, Inc., et al.) for unfair business practices and specified labor law violations regarding wages, meal and rest periods, etc. The class action suit includes a cause of action under the Labor Code Private Attorneys General Act of 2004 (PAGA), which authorizes employees to sue employers for statutory penalties for Labor Code violations and attorney fees. (Lab. Code, §§ 2698-2699.)

Casafranca, an unnamed class member, objected the Antoine settlement was invalid as to the PAGA claim for various reasons and would foreclose her own PAGA claim that she filed in Orange County Superior Court, alleging claims duplicative of those in the Antoine complaint. Casafranca filed the Orange County complaint as a “representative action” on behalf of herself and others similarly situated. (Lab. Code, § 2699, subds. (a), (g).)

The Sacramento County judge in the Antoine suit addressed and rejected Casafranca’s objections in a tentative ruling, adopted its tentative ruling, and specified in the “FINAL APPROVAL ORDER AND JUDGMENT” that “[t]he Objection of Nelly D. Casafranca to Proposed Settlement . . . is overruled and denied in its entirety.” The court retained jurisdiction to enforce the terms of the Settlement. Casafranca filed a notice of appeal.

After Casafranca filed her opening brief on appeal and appellant’s appendix, plaintiffs, joined by defendants, moved for dismissal of Casafranca’s appeal on the ground that she lacks standing because she did not make herself a party of record in the Sacramento County class action. We deferred ruling on the dismissal motion. We now grant respondents’ request for judicial notice and grant their motion to dismiss Casafranca’s appeal.

DISCUSSION

“Under Code of Civil Procedure section 902, ‘any party aggrieved’ may appeal a judgment. ‘It is generally held, however, that only parties of record may appeal . . . .’ ” (Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260, 263 (Hernandez).)

Unnamed class members do not become parties of record under section 902 with the right to appeal the class settlement, judgment, or attorney fees award, unless they formally intervene in the class litigation before the action is final or file an appealable motion to set aside and vacate the class judgment under Code of Civil Procedure section 663. (Hernandez, supra, 4 Cal.5th at pp. 263, 267, reaffirming J. Traynor’s 75-year-old decision in Eggert v. Pac. States S. & L. Co. (1942) 20 Cal.2d 199, 201.)

Unnamed class members who do not become parties of record are nevertheless bound by the outcome of the class action. (Williams v. Superior Court (2017) 3 Cal.5th 531, 548.)

The Supreme Court in Hernandez expressly disapproved of Court of Appeal cases that had allowed appeal by unnamed class member “objectors” who (like Casafranca) informally object to settlement during fairness hearings. (Hernandez, supra, 4 Cal.5th at p. 269.) The Supreme Court observed that those cases focused primarily on the “aggrieved” element of Code of Civil Procedure section 902 and failed to examine the statute’s additional element that the objector must also be a “ ‘party’ of record.” (Id. 4 Cal.5th at p. 270.) Hernandez also rejected reliance on federal authorities, because “[o]ur state common law, legislation, and procedural rules of court differ significantly from the federal common law and procedural rules. [Citations.]” (Id. at pp. 271-272.) Hernandez also noted policy considerations for its holding, for example, meritless objections can disrupt settlements by requiring class counsel to expend resources fighting appeals and by delaying the point at which settlements become final. (Id. at p. 272.) Justice Liu wrote a concurring opinion in Hernandez, agreeing to follow Eggert as a matter of stare decisis but suggesting the Legislature may wish to weigh in, given significant changes in class action litigation practice since Eggert. (Hernandez, supra, 4 Cal.5th at p. 274, concurring opn. by Liu, J.)

Here, it is undisputed that Casafranca did not formally intervene or move to set aside or vacate the judgment. Respondents ask us to take judicial notice of the register of actions from the Sacramento County Superior Court website, reflecting that Casafranca never sought to intervene in the class action and never filed a motion to set aside and vacate the judgment. Casafranca opposes judicial notice, arguing the register is not itself a court record subject to judicial notice under Evidence Code section 452, subdivision (d), and even if it is, we cannot take judicial notice of truth of facts asserted therein. However, Casafranca does not claim that the register is incorrect and does not claim that she filed anything in the trial court to intervene or set aside or vacate the judgment. And we can take judicial notice that no filing for intervention or motion to set aside or vacate the judgment appears in the trial court’s register of actions. (Evid. Code, § 452, subd. (d) [judicial notice may be taken of records of any court of this state]; D. Cummins Corp. v. United States Fidelity & Guaranty Co. (2016) 246 Cal.App.4th 1484, 1492, fn. 8 [appellate court took judicial notice of trial court’s register of actions]; Tabarrejo v. Superior Court (2014) 232 Cal.App.4th 849, 855, fn. 2 [judicial notice of docket entries on trial court’s public website].)

Casafranca argues the rules for becoming a party of record in class action litigation do not apply here, because she challenges the class settlement only as to the PAGA claim, and Hernandez did not involve a PAGA claim, and a PAGA claim need not be filed as a class action. She cites Arias v. Superior Court (2009) 46 Cal.4th 969, which held class action requirements did not need to be met where the employee filed a PAGA claim as a “representative action” rather than a class action. (Id. at p. 975, citing Lab. Code, § 2699, subd. (a).) Class action requirements did apply, however, to the complaint’s other causes of action for unfair competition (Bus. & Prof. Code, § 17200 et seq.), which the Court struck due to failure to comply with class action requirements. (Id. at p. 977.) Arias held “an employee who, on behalf of himself and other employees, sues an employer under the unfair competition law (Bus. & Prof. Code, § 17200 et seq.) for Labor Code violations must satisfy class action requirements, but . . . those requirements need not be met when an employee’s representative action against an employer is seeking civil penalties under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.).” (Arias, supra, 46 Cal.4th at p. 975.)

However, Arias did not hold that a PAGA claim must be filed as a representative action rather than a class action. To the contrary, Arias said: “In a ‘representative action,’ the plaintiff seeks recovery on behalf of other persons. There are two forms of representative actions: those that are brought as class actions and those that are not. [Citations.]” (Id. 46 Cal.4th at p. 977, fn. 2.) The Supreme Court also stated: “Actions under the Labor Code Private Attorneys General Act of 2004 may be brought as class actions. (See Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1173.) At issue here is whether such actions must be brought as class actions.” (Arias, at p. 981, fn. 5.) In Amaral, a PAGA claim was pursued as a class action (without objection on that ground) together with other class action claims against the employer, and the appellate court stated PAGA allows class members to recover PAGA penalties. (Amaral, at pp. 1173, 1197-1198.)

Arias rejected the employer’s argument that PAGA should be construed as requiring that all PAGA claims be brought as class actions. (Id. 46 Cal.4th at p. 984.) An employee suing under PAGA does so as the proxy or agent of the Labor Workforce Development Agency [LWDA], which lacks adequate resources to bring all such actions to recover civil penalties. (Id. at p. 986, citing Lab. Code, § 2699.) The employee may bring the action only after giving written notice to both the employer and LWDA (Lab. Code, § 2699.3, subd. (a)(1)), and 75 percent of any civil penalties recovered are distributed to LWDA (id., § 2699, subd. (i)). The remaining 25 percent is to be shared among affected employees. (Williams v. Superior Court, supra, 3 Cal.5th at p. 545.) A PAGA judgment “binds all those, including nonparty aggrieved employees, who would be bound by a judgment in an action brought by the government.” (Arias, supra, 46 Cal.4th at p. 986.)

Thus, a PAGA claim may be pursued as a class action, and when it is, unnamed class members do not become parties of record with the right to appeal under Code of Civil Procedure section 902 unless they formally intervene in the class litigation before the action is final, or file an appealable motion to set aside and vacate the class judgment under Code of Civil Procedure section 663. (Hernandez, supra, 4 Cal.5th at pp. 263, 267.)

Here, the Antoine lawsuit that included a PAGA claim was pursued as a class action. Originally, Ms. Antoine filed a class action complaint that did not include a PAGA claim, while other employees (not Casafranca) separately filed suits that did raise PAGA claims. All of these suits were incorporated in an amended complaint pursuant to a class-wide settlement, as stated in the Notice of Class Action Settlement filed with the Sacramento County Superior Court. The Sacramento court approved the settlement and allowed the filing of the amended complaint, which added the other plaintiff-employees as named plaintiffs in Antoine’s complaint. Casafranca was not included, because she did not initiate her own PAGA claim until after she received notice of the proposed settlement.

Since the PAGA claim in the lawsuit at issue in this appeal was pursued as a class action, class action rules apply, and Casafranca’s failure to make herself a party of record leaves her without standing to appeal.

Accordingly, Casafranca lacks standing to appeal, and we grant respondents’ motion to dismiss.

DISPOSITION

The appeal is dismissed.

HULL, Acting P. J.

We concur:

MAURO, J.

RENNER, J.

Filed 9/17/19 Dubasso v. LQR Resort Desert Real Estate CA4/2

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 TWO

MICHAEL DUBASSO et al.,

Plaintiffs and Appellants,

v.

LQR RESORT DESERT REAL ESTATE, INC. et al.,

Defendants and Respondents.

E069952

(Super.Ct.No. PSC1602890)

OPINION

APPEAL from the Superior Court of Riverside County. David M. Chapman, Judge. Reversed.

John Sullivan for Plaintiffs and Appellants.

Harmeyer Law Group, Jeff G. Harmeyer and Lauren L. Walker for Defendants and Respondents.

I. INTRODUCTION

In January 2016, plaintiffs and appellants, Michael Dubasso and Jenny Dubasso, purchased a home in the Tradition community (Tradition) in LaQuinta. In connection with plaintiffs’ purchase of the home, defendants and respondents, LQR Resort Desert Real Estate, Inc. (LQR) and Kathleen O-Keefe (O-Keefe) (collectively, defendants), served as plaintiffs’ real estate broker and agent, respectively. Following the close of escrow on the purchase of their home, plaintiffs applied for membership in Tradition’s Golf Club (Club), a social and golf club in Tradition, but Tradition’s membership committee rejected plaintiffs’ application.

Plaintiffs brought this action for money damages against defendants for their alleged failure to disclose to plaintiffs—before plaintiffs entered into their contract to purchase their Tradition home—that Club membership was not “automatic” for Tradition homeowners, but was, instead, subject to a “vetting process” by Tradition’s membership committee. Plaintiffs allege defendants either intentionally or negligently breached their fiduciary duty to plaintiffs by failing to discover that plaintiffs did not wish to purchase their Tradition home unless they could be Club members, and to advise plaintiffs to make their purchase contract contingent on Tradition’s approval of plaintiffs’ Club membership application.

The court granted defendants’ motion for summary judgment on plaintiffs’ complaint and entered judgment in favor of defendants. In this appeal, plaintiffs claim they raised triable issues of material fact concerning whether defendants had a fiduciary duty to plaintiffs to discover—before plaintiffs entered into their contract to purchase their Tradition home—whether plaintiffs did not wish to purchase the home unless their Club membership application would be approved, and to advise plaintiffs to make their purchase contract contingent on their acceptance as Club members. We conclude that defendants’ motion for summary judgment was erroneously granted and reverse the judgment in favor of defendants.

II. FACTS AND PROCEDURAL HISTORY

A. The Allegations of Plaintiffs’ Complaint

In their operative fourth amended complaint, plaintiffs allege they were searching for a retirement home in LaQuinta in late 2015. In November 2015, O’Keefe showed plaintiffs several homes in Tradition, including the home that plaintiffs purchased in January 2016 for $2 million. During their visit to Tradition in November 2015, plaintiffs “shared” with O’Keefe their concern that living in a country club community might be “lonely and isolating.” O’Keefe told plaintiffs they should not be concerned because “the social club at the Tradition was amazing” and there “would be plenty of people around . . . .”

At O’Keefe’s suggestion, plaintiffs visited the Tradition clubhouse to see “what it had to offer” and to meet its general manager, Heidi Risk. On this occasion and on two subsequent occasions, plaintiffs “made it clear” to O’Keefe that plaintiffs “intended” to become members of the “Club” in addition to purchasing a Tradition home. At no time, however, did O’Keefe explain to plaintiffs that they would have to apply for membership “to the golf and social club, or undergo a vetting process, or suggest in any way that membership [in the golf and social club] was anything other than automatic upon purchasing” the Tradition home that plaintiffs later purchased.

When plaintiffs and O’Keefe first went to the Tradition clubhouse and met Risk, O’Keefe explained to Risk, in plaintiffs’ presence, that plaintiffs were considering purchasing a Tradition home and that plaintiffs, “intended, in addition, to become members of the social club and, eventually, the golf club.” Risk was “warm and welcoming,” gave plaintiffs a tour of the Club’s facilities, and “tout[ed] the many amenities” of Club membership. Jenny Dubasso told Risk how “excited” she was and how she “could not wait” to become a Club member. Risk met with plaintiffs on several subsequent occasions but, like O’Keefe, Risk never told plaintiffs that they would have to apply for Club membership, undergo a vetting process, or suggest to plaintiffs that Club membership was not “automatic” upon the purchase of a Tradition home. Following their meetings with Risk and their discussions with O’Keefe, plaintiffs understood they would “automatically” become Club members if they purchased a Tradition home. Plaintiffs were “looking forward to dining, working out, playing golf, and becoming part of the [Tradition] community.”

Around November 20, 2015, plaintiffs, represented by LQR and O’Keefe, made an initial offer to purchase their Tradition home. Plaintiffs and the seller ultimately agreed to a $2 million purchase price, an escrow was opened, and the escrow closed around January 28, 2016. Around one week later, plaintiffs “took a check to the clubhouse for their [Club] membership and presented it” to Risk. Risk then explained, for the first time, that “it ‘didn’t work like that,’” that plaintiffs had to “fill out an application,” and that plaintiffs’ Club membership was not “‘automatic’” but was “subject to a ‘vetting process.’” (Italics omitted.)

At that point, plaintiffs completed a Club membership application. After much delay, plaintiffs were “finally invited” to meet with the Tradition membership committee. The meeting lasted around one hour, and plaintiffs answered “many questions.” One or two weeks later, around April 18, 2016, Risk called plaintiffs and told them, to their “shock and disbelief,” that they were “‘not a fit’” for Club membership. (Italics omitted.) When asked for an explanation, Risk told plaintiffs that the membership committee’s reasons for rejecting plaintiffs’ application were “‘confidential’ and that no further explanation would be forthcoming.” (Italics omitted.)

Having purchased their Tradition home, plaintiffs were “devastated” and “felt like pariahs in their own neighborhood.” Jenny Dubasso became physically ill, and plaintiffs’ marriage suffered. Had plaintiffs known they would have to apply for membership in the Tradition golf and social clubs, they would have made their purchase of their Tradition home contingent on their acceptance in the Club. In July 2017, when they filed their operative complaint, plaintiffs estimated that the market value of their Tradition home had fallen by $200,000 since January 2016.

B. Defendants’ Motion for Summary Judgment or Summary Adjudication

Plaintiffs’ complaint alleges five causes of action against defendants, styled as: (1) fraudulent concealment, (2) negligence, (3) breach of fiduciary duty (based on fraud and deceit), (4) breach of fiduciary duty (based on negligence), and (5) willful failure to comply with Civil Code sections 2079.2, 2079.16, and 2079.24. Each cause of action is based on defendants’ alleged failure to advise plaintiffs, before they entered into their contract to purchase their Tradition home, that their Club membership would not be “automatic” upon their purchase of their Tradition home, but would, instead, be subject to a “vetting process” and the approval of Tradition’s membership committee.

Defendants moved for summary judgment, or summary adjudication of each cause of action, on the sole ground that the covenants, conditions, and restrictions (CC&R’s) of Tradition’s community association “disclosed” to plaintiffs that the purchase of a Tradition home did not “guarantee” membership in the Club. Defendants adduced undisputed evidence that plaintiffs were provided with a copy of the CC&R’s on December 21, 2015, during the escrow for the purchase of their Tradition home, and that plaintiffs signed a “Receipt for Documents” stating they “approve[d]” of the CC&R’s “in their entirety.” Defendants argued the CC&R’s “clearly state[d] that the right to use the Tradition Golf Club facilities arises only through an agreement with the golf club owner and is not automatic upon purchase of a property in the Tradition Development.” (Italics added.)

Defendants also adduced the CC&R’s, which provide, in pertinent part: “The Golf Club Facilities are not part of the Common Area and are not subject to this Declaration, and no provision of this Declaration gives, or shall give, any Owner or occupant of any Lot the right to use the Golf Club Facilities.[ ] Rights to use the Golf Club Facilities will be granted only to those persons, and on those terms and conditions, as may be determined from time to time by the Golf Club Owner.[ ] By way of example, but not limitation, the Golf Club Owner shall have the right to approve users and determine eligibility for use, to reserve use rights, to transfer any or all of the Golf Club Facilities or operation thereof to anyone and on any terms, to limit availability of use privileges, and to require the payment of a purchase price, a membership contribution, an initiation fee, a membership deposit, dues, and/or use charges. Each Owner and occupant of any Lot hereby acknowledges that no right to the use or enjoyment of the Golf Club Facilities arises from ownership or occupancy of a Lot but arises, if at all, only from a membership agreement or other similar agreement with the Golf Club Owner. The Golf Club Owner shall have the right, from time to time in its sole and absolute discretion and without notice, to amend or waive the terms and conditions of use of the Golf Club Facilities including, but not limited to, eligibility for and duration of use rights, categories or use, extent of use privileges, and number of users. The Golf Club Owner shall also have the right, in its sole and absolute discretion and without notice, to reserve use rights and to terminate use rights altogether, subject to the provisions of any outstanding membership documents.” (Italics added, underlining omitted.)

In opposition, plaintiffs did not dispute that they received a copy of the CC&R’s during the escrow. But, plaintiffs argued, the CC&R’s did not mention that Club membership was subject to a “vetting process,” or was “anything other than automatic upon submission of an application therefor.” Plaintiffs also argued that, “[a] reasonable person would conclude,” upon reading the CC&R’s, that “if they wanted to become a member, they simply needed to enter into a ‘membership agreement or other similar agreement with the Golf Club owner.’” (Italics omitted.)

Plaintiffs submitted their declarations, attesting to the facts alleged in their complaint, including that they “made it clear” to O’Keefe, during their first visit to Tradition and on two subsequent occasions, that they “intended” to become members of the Tradition “social club,” in addition to purchasing their Tradition home, but O’Keefe never told plaintiffs they would have to undergo a vetting process or that Club membership was “anything other than automatic upon submitting an application therefor.” Plaintiffs averred that, “[h]ad O’Keefe advised [them] that [they] would have to undergo a vetting process, or suggest[ed] in any way that [Club] membership was anything other than automatic upon submission of an application therefor, [then plaintiffs] would have insisted that O’Keefe condition [their] purchase . . . on [their] acceptance as members to the Club, and [they] would not, ultimately, have purchased [their Tradition home].”

Plaintiffs also adduced deposition testimony of O’Keefe and Risk. O’Keefe testified she took plaintiffs to see their Tradition home “at least five times”; that she and plaintiffs “[m]aybe . . . talked about joining the [C]lub a couple of times”; but plaintiffs told O’Keefe they were “unsure” whether they wanted to become Club members. O’Keefe and plaintiffs specifically discussed that, “for those [who] don’t play golf, . . . there would be the ability to have a social membership so that you could still dine in the club, have a workout facility and a spa.” Because plaintiffs were interested in a social club membership, O’Keefe took plaintiffs to see Risk and, at that time, told Risk that plaintiffs “‘may be interested in a social membership.’” O’Keefe believed Risk would tell plaintiffs, “all the information they need[ed] to know” about Club membership, or membership in the Tradition golf and social clubs. O’Keefe did not know, and never discussed with plaintiffs, what, if anything, Risk told plaintiffs about Club membership or the “vetting process” entailed in becoming a Club member, before plaintiffs entered into their purchase contract. Rather, O’Keefe assumed that Risk told plaintiffs what they needed to do in order to become Club members. For her part, Risk did not recall discussing the Club “membership process” with plaintiffs.

O’Keefe knew Club membership was “not automatic,” but she did not know what was entailed in the “vetting process” to become a Club member. For that reason, she “always” told her clients, “‘[f]or [C]lub information, you speak to the membership director, because they handle membership. I handle the real estate. I do not sell memberships.’ [¶] So I don’t know what their [vetting] practices are . . . . That’s why I tell . . . any client . . . ‘speak directly to membership, because I don’t have all of the information.’ And I don’t want to have all the information. My job is complicated enough.”

O’Keefe testified it was her practice to make Club membership a contingency to purchase contracts for clients who told her they did not want to buy the home unless they could be Club members. She testified: “If a client said to me, ‘I specifically want to be a member of this club, and I don’t want to buy this house if I can’t have a club membership,’ then I would have to write that into the contract that . . . the purchase of [the] home is contingent upon the club’s acceptance. So the property would not close until the club membership gave such notice that the clients were definitely to become members.” In October 2015, before O’Keefe wrote plaintiffs’ purchase offer, she wrote an offer for another Tradition buyer and made that offer contingent on that clients’ acceptance as a Club member.

But because plaintiffs “weren’t sure” whether they wanted a Club membership and plaintiffs did not tell O’Keefe they did not want to buy their home unless they could be Club members, O’Keefe testified that her “main concern was to make sure that the transaction closed . . . .” If plaintiffs had said to her, “‘I’m not that interested, we don’t really know [whether we want a Club membership],’ fine, I don’t care if you get a membership or you don’t get a membership. It doesn’t matter to me. It’s your decision, and . . . there’s no benefit to me to constantly pursue someone getting a membership. If they don’t want something, then I drop it.” O’Keefe admitted that, before plaintiffs entered into their purchase contract, O’Keefe did not know “one way or another” whether plaintiffs “intended to ever join the [C]lub.”

As noted, Risk did not recall discussing the Club membership process with plaintiffs. Risk also testified that the Club’s marketing procedure did not disclose that there was a vetting process for Club membership. Risk told real estate agents she dealt with, including O’Keefe, that if Club membership “is important to the person purchasing the home, they should make their offers contingent upon that.”

C. The Trial Court’s Ruling

Following a hearing, the court summarily adjudicated each cause of action in favor of defendants and, accordingly, granted defendants’ motion for summary judgment. In its tentative decision, which the court implicitly adopted in granting the motion, the court reasoned that the CC&R’s, which plaintiffs had received during the escrow, “clearly” advised plaintiffs that the Club “sets [its] own terms of membership.” On this basis, the court implicitly concluded that defendants met their initial burden of showing that plaintiffs could not establish that defendants “concealed or suppressed a material fact,” and, accordingly, that plaintiffs could not establish a critical element of each of their alleged causes of action.

The court also reasoned that, in their opposition, plaintiffs were offering “a new basis for an alleged breach of duty” which they did not allege in their complaint. This purported new theory was that defendants were negligent “in failing to make [plaintiff’s] purchase offer contingent upon membership in the [C]lub.” But this was not a new theory of liability. In their complaint, plaintiffs alleged they would have “insisted” that their purchase contract be made contingent upon their acceptance as Club members, had they known their acceptance as Club members would not be “automatic” upon their purchase of their Tradition home.

But even if plaintiffs were not advancing a new theory of liability, the court reasoned that, “the evidence [did] not support a breach of [fiduciary] duty” by defendants. The court pointed out that O’Keefe testified that her practice to include Club membership as a contingency in purchase offers “was based on when a buyer has expressed an intention to be a member and only desires to purchase in the Tradition community if they are accepted as members. Here, the facts reflect that [plaintiffs] were unsure whether they wanted to be a member and that uncertainty was expressed to O’Keefe. As a result, O’Keefe took them to tour the [C]lub and meet with Risk to discuss membership. At no time thereafter did [plaintiffs] tell O’Keefe that they definitely wanted to be members of the [C]lub. In addition, upon receipt of the CC&Rs prior to the close of escrow [plaintiffs] were advised that membership was not automatic and at the time could have addressed any concerns they had with O’Keefe, but failed to do so. Accordingly, [plaintiffs] cannot establish that there was a breach of any duty . . . .” (Italics added.) Plaintiffs timely appealed.

III. DISCUSSION

A. Standard of Review

A motion for summary judgment is to be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment bears the initial burden of showing that the plaintiff’s causes of action have no merit, and the defendant meets this burden by making a prima facie evidentiary showing that one or more elements of each cause of action cannot be established, or there is a complete defense to each cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-851; Code Civ. Proc., § 437c, subd. (p)(2).) If the defendant meets this burden, the burden shifts to the plaintiff to produce evidence of a triable issue of material fact concerning the element or defense. (Aguilar v. Atlantic Richfield Co., supra, at pp. 849-851; Code Civ. Proc., § 437c, subd. (p)(2).)

We review an order granting summary judgment de novo, considering all of the evidence adduced on the motion (except evidence the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) “We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. [Citations.]” (Zubillaga v. Allstate Indemnity Co. (2017) 12 Cal.App.5th 1017, 1021.) The trial court’s stated reasons for granting the motion are not binding on us, because we review the court’s ruling, not its rationale. (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.) But in conducting our de novo review, we apply the same three-step process required of the trial court: We first identify the issues framed by the pleadings, because the motion must respond to these allegations by establishing a complete defense or otherwise showing there is no basis for relief on any theory reasonably contemplated by the pleadings. Second, we determine whether the moving party has established facts justifying a judgment in its favor. Third and finally, and if the moving party has met its initial burden, we determine whether the opposition has demonstrated the existence of a triable issue of material fact. (Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 848.)

B. Applicable Legal Principles

1. The Fiduciary Duties of Real Estate Brokers and Their Agents

A real estate broker is an agent for the broker’s client or principal; in contrast, a real estate salesperson is “strictly the agent of the broker” under whom the salesperson is licensed. (2 Miller & Starr, Cal. Real Estate (4th ed. 2018) § 3.5, p. 3-17 to 3-18.) A broker is a fiduciary to its principals, in the same way a trustee is a fiduciary to the trust’s beneficiaries. (Batson v. Strehlow (1968) 68 Cal.2d 662, 674 [“The law imposes on a real estate agent [i.e., broker] ‘the same obligation of undivided service and loyalty that it imposes on a trustee in favor of his beneficiary.’”]; Field v. Century 21 Klowden-Forness Realty (1998) 63 Cal.App.4th 18, 25 (Field) [“[A] broker’s fiduciary duty to his client requires the highest good faith and undivided service and loyalty.”].) And, as the broker’s agent, a real estate salesperson employed by a broker “owes the same fiduciary duties to the broker’s principal that are owed by the broker.” (2 Miller & Starr, Cal. Real Estate, supra, § 3:33, pp. 3-153 to 3-156, fn. omitted.)

As fiduciaries, a broker and its salespersons or agents have a duty to investigate and discover, and to advise the broker’s principal concerning, all material facts that may bear upon and allow the principal to make a well-informed decision in the real estate transaction in question. (Field, supra, 63 Cal.App.4th at pp. 25-26.) “A fiduciary’s failure to share material information with the principal is constructive fraud . . . .” (Michel v. Moore & Associates, Inc. (2007) 156 Cal.App.4th 756, 762.)

The Field court explained the scope of a broker’s fiduciary duty to its principal: “‘The broker as a fiduciary has a duty to learn the material facts that may affect the principal’s decision. He [the broker] is hired for his professional knowledge and skill; he is expected to perform the necessary research and investigation in order to know those important matters that will affect the principal’s decision, and he has a duty to counsel and advise the principal regarding the propriety and ramifications of the decision. The [broker’s or] agent’s duty to disclose material information to the principal includes the duty to disclose reasonably obtainable material information. [¶] . . . [¶] The facts that a broker must learn, and the advice and counsel required of the broker, depend on the facts of each transaction, the knowledge and the experience of the principal, the questions asked by the principal, and the nature of the property and the terms of sale. The broker must place himself in the position of the principal and ask himself the type of information required for the principal to make a well-informed decision. This obligation requires investigation of facts not known to the agent and disclosure of all material facts that might reasonably be discovered.’ [Citation.]” (Field, supra, 63 Cal.App.4th at pp. 25-26, quoting 2 Miller & Starr, Cal. Real Estate (2d ed. 1989) § 3.17, pp. 94, 96-97, 99, fn. omitted.)

2. Plaintiffs’ Causes of Action

Plaintiffs’ complaint alleges five causes of action against LCQ (plaintiffs’ broker) and O’Keefe (LCQ’s agent), styled as: (1) fraudulent concealment, (2) negligence, (3) breach of fiduciary duty (based on fraud and deceit), (4) breach of fiduciary duty (based on negligence), and (5) willful failure to comply with Civil Code sections 2079.2, 2079.16, and 2079.24. The factual basis of each cause of action is defendants’ alleged failure to advise plaintiffs, before plaintiffs entered into their contract to purchase their Tradition home, that plaintiffs’ Club membership would not be “automatic” based on their purchase of their Tradition home, but would instead be subject to a vetting process and the discretionary approval of the golf club owner, or the Club’s membership committee.

In moving for summary judgment, or summary adjudication of each cause of action, defendants claimed plaintiffs could not establish that defendants had a duty to disclose to plaintiffs that Tradition Club membership (including social club membership) was subject to a vetting and discretionary approval process, or that defendants breached their duty to disclose this alleged material fact to plaintiffs. In support of their motion, defendants relied solely on the CC&R’s, which plaintiffs acknowledged they received during the escrow, as discharging defendants’ alleged duty to inform plaintiffs about the vetting and discretionary approval process for Tradition golf and social club membership. The court granted summary judgment in part on this ground.

In interpreting CC&R’s, we apply the same rules that govern the interpretation of contracts. (Bear Creek Master Assn. v. Southern California Investors, Inc. (2018) 28 Cal.App.5th 809, 818.) The language of a contract governs its interpretation, if the language is clear and explicit. (Civ. Code, § 1638.) The relevant language of the CC&R’s is clear and explicit.

As noted, the CC&R’s state: “Rights to use the Golf Club Facilities will be granted only to those persons, and on those terms and conditions, as may be determined from time to time by the Golf Club Owner. By way of example, but not limitation, the Golf Club Owner shall have the right to approve users and determine eligibility for use, to reserve use rights, to transfer any or all of the Golf Club Facilities or operation thereof to anyone and on any terms, to limit availability of use privileges, and to require the payment of a purchase price, a membership contribution, an initiation fee, a membership deposit, dues, and/or use charges. Each Owner and occupant of any Lot hereby acknowledges that no right to the use or enjoyment of the Golf Club Facilities arises from ownership or occupancy of a Lot but arises, if at all, only from a membership agreement or other similar agreement with the Golf Club Owner. The Golf Club Owner shall have the right, from time to time in its sole and absolute discretion and without notice, to amend or waive the terms and conditions of use of the Golf Club Facilities including, but not limited to, eligibility for and duration of use rights, categories or use, extent of use privileges, and number of users. The Golf Club Owner shall also have the right, in its sole and absolute discretion and without notice, to reserve use rights and to terminate use rights altogether, subject to the provisions of any outstanding membership documents.” (Italics added, underlining omitted.)

The CC&R’s plainly notified plaintiffs that membership in the Tradition golf and social clubs was subject to the golf club owner’s discretion. But the CC&R’s did not expressly inform plaintiffs that golf and social club membership was subject to a vetting and discretionary approval process. We do not think that the general language used in the CC&R’s was sufficient to excuse, as a matter of law, defendants’ obligation to inform plaintiffs in some manner of a fact that defendants were actually aware of: that the golf club might reject plaintiffs’ membership application even if plaintiffs were willing to enter into the required membership agreement, pay the membership fees, and meet any articulated membership requirements.

Additionally, a reasonable person in plaintiffs’ position, knowing what plaintiffs aver they knew at the time they received the CC&R’s, reasonably could have concluded that the golf club owner would “automatically” approve any Tradition homeowner’s golf or social club membership application, if the applicant was willing to enter into a membership agreement on terms set by the golf club owner, pay the membership fees, and meet any articulated membership requirements. Plaintiffs’ evidence shows that, despite all of the discussions plaintiffs had with O’Keefe and all of the meetings plaintiffs had with Risk at the Tradition clubhouse, neither O’Keefe, Risk, nor anyone else gave plaintiffs any reason to believe that the golf club owner would not automatically approve plaintiffs’ application for golf or social club membership if plaintiffs were willing to sign the required membership agreement, pay the membership fees, and meet any articulated membership requirements.

The CC&R’s were entirely consistent with plaintiffs’ understanding that golf and social club membership was only contingent upon signing a membership agreement and paying the required fees. Given plaintiffs’ understanding, the CC&R’s reasonably could have indicated to plaintiffs that the golf club owner was merely reserving the right to set the terms of golf and social club membership based on space, availability, or other factors not personal to any applicant, and to revise the terms of membership from time to time, subject only to the terms of any outstanding membership agreements.

Defendants correctly point out that plaintiffs had the right, under Civil Code section 1102.3, to terminate their purchase contract within five days of the date the CC&R’s were mailed to plaintiffs during the escrow for the purchase of the property, after plaintiffs’ signed their purchase contract. But as explained, plaintiffs’ evidence shows plaintiffs had no reason to terminate their purchase contract based on the CC&R’s.

All of the evidence adduced on the motion shows there is a triable issue of material fact whether the vetting and discretionary approval process for Club membership was a material fact which may have affected plaintiffs’ decision to enter into their purchase contract. (Field, supra, 63 Cal.App.4th at p. 25.) On the one hand, plaintiffs’ evidence indicates that plaintiffs’ acceptance as Club or social club members was a material fact which would have affected their decision to enter into their purchase contract. Plaintiffs averred they would have “insisted” that their purchase contract be made contingent on their acceptance as Club or social club members, had they known, before they entered into their purchase contract, that there was a vetting and discretionary approval process for Club membership. Plaintiffs also averred they “made it clear” to O’Keefe—at the time they first met with Risk at the Tradition clubhouse, and on two subsequent occasions before they entered into their purchase contract—that they “intend[ed]” to become Club members.

O’Keefe’s testimony, on the other hand, indicates that plaintiffs’ acceptance as golf or social club members may not have been a material fact affecting plaintiffs’ decision to enter into their purchase contract. O’Keefe testified that plaintiffs “consistently” told her they were “unsure” whether they wanted to be Club members. O’Keefe’s testimony indicates that plaintiffs’ acceptance as Club or social club members may not have been important or material to plaintiffs, and that plaintiffs would not have made their purchase contract contingent on their acceptance as Club or social club members, had plaintiffs known about the vetting and discretionary approval process before plaintiffs entered into their purchase contract. These questions are for a trier of fact to determine.

We observe that, if plaintiffs’ evidence is credited by the trier of fact, that evidence and O’Keefe’s admissions indicate that O’Keefe negligently and perhaps even intentionally failed to discharge her and LQR’s fiduciary duty to plaintiffs as plaintiffs’ broker and agent in the purchase of plaintiffs’ Tradition home. O’Keefe admitted she knew that “Club” membership was “not automatic,” but she did not know, nor did she make any effort to discover or inform plaintiffs, what was entailed in the “vetting process” to become a Club or social member. Instead, O’Keefe took plaintiffs to the Tradition clubhouse to meet with Risk and assumed that Risk would tell plaintiffs “all the information they needed to know” about Club membership. But Risk never told plaintiffs there was a vetting process for golf or social club membership until after plaintiffs closed escrow on the purchase of their home, and O’Keefe did not, at any time, discuss with plaintiffs what, if anything, Risk told plaintiffs about the vetting process.

O’Keefe ostensibly believed she had no duty to advise plaintiffs that there was a vetting and discretionary approval process for Club and social club membership, or what that process entailed. O’Keefe even admitted she did not “want to have all the information” about the Golf Club Owner’s “vetting practices” because her “job is complicated enough.” To O’Keefe, it “did not matter” whether plaintiffs obtained a golf or social club membership; it was of “no benefit” to her to “constantly pursue someone getting a membership.” According to O’Keefe, because plaintiffs did not tell O’Keefe that they did not want to buy their home unless they could be Club members, O’Keefe did not concern herself with the vetting process, nor did she advise plaintiffs to make their purchase contract contingent on their becoming golf or social club members. Instead, O’Keefe’s “main concern was to make sure that the transaction closed.”

But plaintiffs’ evidence shows plaintiffs knew nothing about and had no reason to suspect that there was a vetting and discretionary approval process until, around one week after the escrow closed in January 2016, Risk told plaintiffs that there was a vetting process when plaintiffs “took a check to the clubhouse” and attempted to join the “Club.” If plaintiffs’ evidence is credited, O’Keefe’s admissions show that O’Keefe negligently and perhaps even intentionally breached her fiduciary duty to plaintiffs to ascertain whether plaintiffs’ Club or social club membership was an important matter affecting plaintiffs’ decision to purchase their home, before plaintiffs entered into the contract to purchase their Tradition home around November 2015. (See Field, supra, 63 Cal.App.4th at pp. 25-26 [discussing scope of buyers’ agent’s fiduciary duty].)

In sum, there are triable issues of material fact whether (1) plaintiffs’ acceptance as Club or social club members was a material fact affecting their decision to enter into their purchase contract for their Tradition home, and (2) whether defendants breached that duty by failing to inform plaintiffs that there was a vetting and discretionary approval process for Club membership before plaintiffs entered into the contract to purchase their Tradition home. These triable issues are relevant to each of plaintiffs’ causes of action, including the first cause of action for fraudulent concealment.

“Breach of a real estate agent’s fiduciary duty to his or her client may constitute negligence or fraud, depending on the circumstances of the case. [Citation.] Additionally, a real estate agent, as a fiduciary, is also ‘“. . . liable to his principal for constructive fraud even though his conduct is not actually fraudulent. Constructive fraud is a unique species of fraud applicable only to a fiduciary or confidential relationship.” [Citation.] [¶] “[A]s a general principle constructive fraud comprises any act, omission or concealment involving a breach of legal or equitable duty, trust or confidence which results in damage to another even though the conduct is not otherwise fraudulent. Most acts by an agent in breach of his fiduciary duties constitute constructive fraud. The failure of the fiduciary to disclose a material fact to his principal which might affect the fiduciary’s motives or the principal’s decision, which is known (or should be known) to the fiduciary, may constitute constructive fraud. . . .”’” (Assilzadeh v. California Federal Bank (2000) 82 Cal.App.4th 399, 415.)

Thus, defendant’s motion for summary judgment, or summary adjudication of each cause of action, was erroneously granted.

IV. DISPOSITION

The judgment in favor of LQR and O’Keefe on plaintiffs’ operative fourth amended complaint is reversed. Plaintiffs shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278.)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

McKINSTER

Acting P. J.

RAPHAEL

J.

Filed 9/17/19 Dalton Realty v. Lechuga CA2/7

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 SEVEN

DALTON REALTY LLC,

Plaintiff and Respondent,

v.

DONALD LECHUGA,

Defendant and Appellant.

B287901

(Los Angeles County

Super. Ct. No. KC069347)

APPEAL from a judgment of the Superior Court of Los Angeles County, Dan T. Oki, Judge. Affirmed.

Edward G. McLee for Defendant and Appellant.

Law Offices of Steven P. Chang, Steven P. Chang and Heidi M. Cheng for Plaintiff and Respondent.

_______________________

In its request for a default judgment and the proposed judgment form, plaintiff Dalton Realty requested compensatory damages from defendant Donald Lechuga rather than the specific performance of a contract for the sale of real property. The court signed the proposed judgment but later vacated the judgment at Dalton Realty’s request once Dalton Realty discovered its error. Lechuga challenges the court’s power to vacate its judgment and argues in the alternative that the court should have vacated his default when it vacated the judgment. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2017 Dalton Realty LLC sued Donald Lechuga for breach of a contract for the sale of real estate. Dalton Realty alleged in its complaint that it had timely tendered the agreed-upon initial payments of $130,000 required by the parties’ escrow instructions and that it had performed all other obligations required by the parties’ agreement, but that Lechuga failed to convey title and close escrow on the property for more than two years. Dalton Realty also alleged that the escrow instructions provided that if Lechuga failed to close as Dalton Realty “is ready and intended to close escrow on the date as agreed upon, [Lechuga] agrees to pay [Dalton Realty] interest at [the] rate of 12.00% per annum on $130,000.00 until close of escrow.”

Under its cause of action for breach of contract, Dalton Realty contended that as a result of Lechuga’s breach it had sustained “monetary damages in an amount to be proven at trial, including but not limited to its initial payments of at least $130,000, the right to the possession, use and enjoyment of the Property, and other incidental and consequential damages according to proof.” Dalton Realty sought specific performance of the contract in a separate cause of action. In the prayer for relief, Dalton Realty requested compensatory damages according to proof; monetary damages “due to legal and professional costs incurred”; an order compelling specific performance “pursuant to the terms of the Escrow Instructions including delivery of perfect title to Plaintiff and interest of 10% per annum on $130,000.00 from date of breach until close of escrow”; prejudgment interest; attorney fees, costs, and litigation expenses; and any other relief the court deemed proper.

Lechuga failed to respond to the complaint, and on July 6, 2017, Dalton Realty requested that the court enter Lechuga’s default. The court entered the default the same day.

On August 15, 2017, Dalton Realty requested that the court enter a default judgment against Lechuga. Dalton Realty used the CIV-100 form for its application for default judgment. This form provides spaces for applicants to enter the details of the requested judgment. Under Item 2.a., “Demand of complaint,” Dalton Realty entered $130,000. Under Item 2.c., “Interest,” Dalton Realty entered $28,246.66. Dalton Realty specified $525.00 in costs, listed attorney fees as remaining to be determined, and stated that the total amount of damages was $158,771.66. Additionally, Dalton Realty stated that in its complaint it demanded daily damages in the amount of $35.62 per day beginning July 31, 2015. The application did not request specific enforcement of the contract.

The amounts Dalton Realty listed in the application for default judgment corresponded with the amounts it specified on the proposed judgment it submitted to the trial court. The proposed judgment did not include an order for specific performance.

Dalton Realty supported its application for default with the declaration of Shaiwkuen Chen, also known as Richard Chen, the authorized representative of Dalton Realty. Chen described the terms of the real property sale agreement and the escrow instructions, and he detailed both its compliance with the requirements of the parties’ agreement and Lechuga’s failure to deliver title to the property. Chen stated, “As a proximate result of Defendant’s breach of its agreement with Plaintiff as alleged above, Plaintiff has sustained monetary damages in an amount according to proof, including but not limited to its initial payments of at least $130,000, the right to the possession, use an[d] enjoyment of the Property, and other incidental and consequential damages according to proof.” Chen stated that Dalton Realty had no adequate legal remedy because monetary damages are presumptively inadequate for breach of an agreement to transfer real property. He asserted that Dalton Realty’s damages could not be adequately remedied at law unless the court ordered Lechuga to perform under the real estate contract and deliver title to the property to Dalton Realty.

In the final concluding paragraph of the declaration, Chen stated that Dalton Realty “demands judgment as follows: [¶] a. For an Order compelling specific performance pursuant to the terms of the Escrow Instructions including delivery of perfect title to Plaintiff and interest of 10% per annum on $130,000.00 awarded as credit already paid from the date of breach until close of escrow, equating to daily interest of $35.62 at a total of 793 days through October 1, 2017 (the anticipated day for entry of judgment; [¶] b. The difference between the prejudgment interest awarded above, and Plaintiff to deposit additional fund[s] to Culture Escrow within 30 days of the full purchase price of $240,000; [¶] c. Escrow is ordered to transfer title upon receipt of [the] full purchase price comprising of [sic] the original $130,000.00 deposit, prejudgment interest awarded herein, and additional deposit by Plaintiff for the remaining balance; [¶] b.[sic] For attorney’s fees, costs, and litigation expenses incurred herein; [¶] c.[sic] For all other relief that as the Court may deem just and proper.”

On August 15, 2017, the court signed the judgment form submitted by Dalton Realty.

On November 1, 2017, Dalton Realty filed a motion requesting amendment of the judgment to order specific performance of the contract rather than compensatory damages. According to Dalton Realty, “the Judgment submitted with the default judgment package mistakenly includes an award of damages in the amount of $130,000.00” when Dalton Realty actually wanted specific performance of the contract and the $130,000 to be awarded as credit already paid for the property. Dalton Realty characterized the issue as “a drafting error on the part of Plaintiff’s . . . counsel which was not realized until after the Judgment was entered.” In its notice of motion, Dalton Realty asked the court to amend the judgment pursuant to “Code of Civil Procedure section 473 and the inherent power of the court”; in its memorandum of points and authorities it relied more specifically on Code of Civil Procedure section 473, subdivision (d) and the court’s inherent power.

Lechuga understood Dalton Realty’s motion for amendment of the judgment to be seeking relief pursuant to section 473, subdivisions (b) and (d), and the inherent power of the court. He argued in opposition to Dalton Realty’s motion that relief was unavailable to Dalton Realty on any of these three grounds. In its reply brief, Dalton Realty argued that Lechuga, as a defaulting defendant, was not entitled to challenge the motion and that his opposition should be stricken. Dalton Realty urged the court that its “Amended Judg[]ment proposed herewith corrects the previous judgment entered by reflecting the intent of the court and the relief sought by Plaintiff in this action.”

On November 28, 2017, the court conducted a hearing on Dalton Realty’s motion at which both parties appeared and argued. The record does not include a transcript from this hearing. At the close of the hearing, the court adopted its tentative ruling, vacated the judgment, and set a default prove-up hearing for January 12, 2018.

In the tentative order adopted by the trial court, the court set forth section 473, subdivision (d) [the court’s power to correct clerical error in a judgment] and section 187 [the court’s ability to adopt suitable processes and modes of proceedings], and then discussed various decisions concerning the correction of clerical error in a judgment. The court continued, “Here, judgment was entered in plaintiff’s favor for $130,000.00, as requested in the proposed judgment. Plaintiff’s complaint, however, included a cause of action for specific performance and sought such a remedy in its prayer. Plaintiff’s authorized representative, Shaiwkuen Chen (“Chen”), moreover, specifically requested specific performance in his declaration provided in support of plaintiff’s default prove-up packet . . . .” After quoting from Chen’s declaration, the court concluded, “Plaintiff, then, intended that the $130,000.00 be awarded as credit already paid from the date of breach until close o[f] escrow, not for a return of the funds. With that said, a higher standard of evidence is required to obtain a default judgment affecting title to or possession of land. Accordingly, the motion is granted, to the extent that the court vacates its 8/15/17 judgment and sets the matter for a default prove-up hearing.”

In December 2017, Lechuga filed a motion seeking to set aside his default pursuant to section 473, subdivision (b), on the ground that the default was entered against him through his mistake, inadvertence, or excusable neglect. Dalton Realty opposed the motion.

The court heard Lechuga’s motion for relief from default and held the default prove-up hearing on January 12, 2018. No reporter’s transcript has been provided. The court first denied Lechuga’s motion on the ground that he had not established mistake, inadvertence, or excusable neglect; and then it conducted the prove-up hearing, receiving oral testimony from Chen and exhibits from Dalton Realty. The court entered a default judgment against Lechuga ordering specific performance of the real estate contract, with Dalton Realty receiving credit for the $130,000 it had previously paid toward the property. Dalton Realty was ordered to deposit the remaining funds due into escrow; the escrow company was authorized to close escrow and transfer the property; and Lechuga was ordered to execute any necessary documents to facilitate the closing of escrow within 10 days of being presented with them. Lechuga appeals.

DISCUSSION

I. Change in Judgment

Although the court appears to have based its decision to vacate the default judgment on its statutory and inherent power to correct clerical errors in its rulings, its findings reveal that the court was not correcting a clerical error in its ruling to ensure that the judgment as recorded conformed to the judgment it had actually rendered. To the contrary, the court had entered judgment as requested in the proposed judgment presented by Dalton Realty. Neither the inherent power of the court to correct clerical errors nor its statutory power to correct clerical errors in section 473, subdivision (d) authorizes substantive changes to a signed judgment expressing the exercise of judicial discretion. (See In re Candelario (1970) 3 Cal.3d 702, 705 [as “[a]ny attempt by a court, under the guise of correcting clerical error, to ‘revise its deliberately exercised judicial discretion’ is not permitted,” “[a]n amendment that substantially modifies the original judgment or materially alters the rights of the parties, may not be made by the court under its authority to correct clerical error . . . unless the record clearly demonstrates that the error was not the result of the exercise of judicial discretion”]; In re Marriage of Kaufman (1980) 101 Cal.App.3d 147, 151 [“When a signed judgment does not express the express judicial intention of the court, the signing of the judgment involves clerical rather than judicial error”]; §473, subd. (d) [court may “correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed”].) Moreover, we are aware of no authority, nor have the parties identified any, that considers vacating a judgment and scheduling a new prove-up hearing to be within the scope of amending a judgment as entered to conform it to the judgment previously made by the court.

This, however, does not establish that the court lacked the authority to vacate the judgment. “‘No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.’ [Citation.]” (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19.)

Section 473, subdivision (b) provides that “[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” While the statute refers to a proceeding “taken against” a party, it has long been held that a party in whose favor a judgment has been rendered may also obtain relief from the judgment. (Brackett v. Banegas (1893) 99 Cal. 623, 625 [“a party in whose favor judgment has been rendered is entitled to relief the same as though the judgment had been rendered against him; . . . the statute is intended to be remedial, and should receive a liberal interpretation”].) This relief, moreover, is not limited to involuntary judgments or dismissals: “California courts have consistently held that parties may obtain relief from judgments, dismissals, or stipulations voluntarily entered into pursuant to a voluntary agreement through the discretionary relief provision of section 473.” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 255 (Zamora).)

At our request, the parties submitted supplemental briefing concerning whether the court’s ruling could be affirmed as an exercise of its authority under section 473, subdivision (b). Dalton Realty, which in the trial court had cited counsel’s inadvertent drafting mistake as the factual basis for its request for relief but had not discussed section 473, subdivision (b) in its moving papers, argued in its supplemental briefing that the court’s judgment should be affirmed under section 473, subdivision (b). Lechuga had argued in the trial court that section 473, subdivision (b) was inapplicable because Dalton Realty had obtained a judgment in its favor. In his supplemental briefing he acknowledged that a party in whose favor judgment is rendered may also be entitled to relief under section 473, subdivision (b), and instead he argued that Dalton Realty had not submitted sufficiently detailed declarations to the trial court to permit determination of whether relief under section 473, subdivision (b) was warranted.

We conclude that it was not an abuse of discretion for the trial court to vacate the judgment and set a new default prove-up hearing. Discretionary relief under section 473, subdivision (b) is available on the basis of attorney error when “the attorney’s mistake or inadvertence was excusable”; that is, when “‘“a reasonably prudent person under the same or similar circumstances” might have made the same error.’” [Citation.] In other words, the discretionary relief provision of section 473 only permits relief from attorney error ‘fairly imputable to the client, i.e., mistakes anyone could have made.’ [Citation.]” (Zamora, supra, 28 Cal.4th at p. 258, italics omitted.) Drafting errors are the quintessential excusable mistakes anyone could make: the error here in filling out the judgment form is akin to inadvertently substituting the word “against” for the phrase “in favor of” in an offer to compromise, as occurred in Zamora. (Id. at p. 259.) The California Supreme Court explained in that case, “The erroneous substitution of the word ‘against’ for the phrase ‘in favor of’ is a clerical or ministerial mistake that could have been made by anybody. While counsel’s failure to review the document before sending it out was imprudent, we cannot say that his imprudence rendered the mistake inexcusable under the circumstances. Indeed, appellate courts have routinely affirmed orders vacating judgments based on analogous mistakes made by an attorney or his or her staff. For example, courts have set aside judgments where: (1) The attorney mistakenly checked the ‘with prejudice’ box instead of the ‘without prejudice’ box (see Romadka v. Hoge (1991) 232 Cal.App.3d 1231, 1237 . . . ); (2) an associate misinterpreted the instructions of the lead attorney and gave incorrect information at a hearing (see Bergloff v. Reynolds (1960) 181 Cal.App.2d 349, 358-359 . . . ); and (3) the attorney’s secretary lost the answer to be filed (see Alderman v. Jacobs (1954) 128 Cal.App.2d 273, 275-276 . . . ).” (Zamora, at p. 259.)

The court’s findings demonstrate that the court accepted as true the representation by Dalton Realty’s counsel that counsel had made an inadvertent drafting error when completing the proposed judgment form, resulting in a request for relief that was inconsistent with the client’s desired relief and with the relief sought in the declaration supporting the request for judgment. Further, the court could not have found that granting the opportunity for a new default prove-up hearing was proper without believing that it was in the interest of justice to vacate the judgment so that the court could rule upon Dalton Realty’s intended request for relief. The record supports the trial court’s conclusions. Dalton Realty appears to have been diligent in seeking relief, filing its application within 80 days after the entry of judgment and well within the six-month period for relief established by section 473, subdivision (b). (§ 473, subd. (b) [the party must seek relief “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken”].) Lechuga suffered no apparent prejudice from the vacation of the judgment; his default on the complaint having already been entered, he had no right to participate in the litigation. (Garcia v. Politis (2011) 192 Cal.App.4th 1474, 1479.) Dalton Realty, however, would have been severely prejudiced if bound by the unintended judgment for money damages, as it is “presumed that the breach of an agreement to transfer real property cannot be adequately relieved by pecuniary compensation.” (Civ. Code, § 3387.) The court did not abuse its discretion when it vacated the judgment and set the matter for a new prove-up hearing.

II. Impact of the Vacation of Judgment on Lechuga’s Default

Lechuga argues that if the trial court had the power to vacate the judgment, then Dalton Realty’s motion seeking to change the judgment was the equivalent of an amendment of the complaint and should, therefore, have opened his default. This contention has no merit.

“It is settled by a long line of decisions that where, after the default of a defendant has been entered, a complaint is amended in matter of substance as distinguished from mere matter of form, the amendment opens the default, and unless the amended pleading be served on the defaulting defendant, no judgment can properly be entered on the default. [Citations.] The reason for this rule is plain. A defendant is entitled to opportunity to be heard upon the allegations of the complaint on which judgment is sought against him. His default on the original complaint is limited in its effect to that complaint; and, if by amendment a matter of substance is added, he should be given the opportunity to contest the same before any judgment is given against him on account thereof.” (Cole v. Roebling Const. Co. (1909) 156 Cal. 443, 446.) Here, the court’s order vacating the judgment and setting a new default prove-up hearing did not amend the complaint or alter the litigation in an equivalent manner. Dalton Realty sought specific performance as well as damages in the operative complaint. Lechuga defaulted on that complaint: He had received the opportunity to contest the allegations in the complaint, and he had chosen not to do so. As Dalton Realty did not demand any relief not requested in the operative complaint, its request to change the judgment did not operate to open Lechuga’s default.

III. Lechuga’s Motion to Set Aside Default

After the trial court set aside the judgment and set a new default prove-up hearing, Lechuga moved to set aside his default under section 473, subdivision (b) on the grounds of mistake, inadvertence, and/or excusable neglect. In support of his motion, Lechuga declared that this was his first time being sued, and he lacked familiarity with court processes. He acknowledged that he had been served with the summons and complaint, as well as receiving notice of a case management conference set for October 13, 2017. Lechuga also acknowledged that the notice warned him that it did not exempt him from filing a responsive pleading, but he declared that he did not know what that meant. According to Lechuga, he telephoned the court in June 2017 and confirmed that “the case was set for October 13, 2017.” He understood from that call that he should appear in court on that day. Lechuga declared, “I intended to go to that hearing to explain my side of the case to the judge. I first met with my attorney on October 12, 2017, seeking help for the October 13 hearing. He explained to me that the case was over by default and there would be no court proceeding on October 13.” Lechuga stated that his default was caused by his “mistake in not understanding the court process and my inadvertence and neglect to contact an attorney earlier to file a timely response to the Complaint.” Lechuga attached a proposed answer to his motion.

The court denied Lechuga’s motion to set aside his default on the ground that Lechuga’s reasons for his default did not constitute mistake, inadvertence, or excusable neglect under section 473, subdivision (b). Lechuga argues that this was an abuse of discretion. He contrasts the court’s grant of relief to Dalton Realty based on the assertion of inadvertent drafting error with the “very strict” interpretation of section 473, subdivision (b) employed by the court when ruling on his motion, and he also relies on the policy of the law favoring a hearing on the merits of the case.

We review the court’s decision for an abuse of discretion (Zamora, supra, 28 Cal.4th at p. 257) and find none here. “Mistake is not a ground for relief under section 473, subdivision (b), when ‘the court finds that the “mistake” is simply the result of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law . . . .’ [Citation.]” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206 (Hearn).) “[A]s for inadvertence or neglect, ‘[t]o warrant relief under section 473 a litigant’s neglect must have been such as might have been the act of a reasonably prudent person under the same circumstances. The inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief. [Citations.] It is the duty of every party desiring to resist an action or to participate in a judicial proceeding to take timely and adequate steps to retain counsel or to act in his own person to avoid an undesirable judgment. Unless in arranging for his defense he shows that he has exercised such reasonable diligence as a man of ordinary prudence usually bestows upon important business his motion for relief under section 473 will be denied. [Citation.] Courts neither act as guardians for incompetent parties nor for those who are grossly careless of their own affairs . . . . The only occasion for the application of section 473 is where a party is unexpectedly placed in a situation to his injury without fault or negligence of his own and against which ordinary prudence could not have guarded.’ [Citation.]” (Ibid.)

Lechuga disregarded the express advisement on the summons that he must respond to the complaint in writing within 30 days; took no action for months besides confirming the date of the case management conference, even when served with notice of the request for entry of default and notice of request for entry of a default judgment; and failed to contact an attorney until October with respect to a complaint he had defaulted upon by July. Lacking familiarity with the legal process and neglecting to consult an attorney do not make excusable the choice to take no action on a summons and complaint. “The trial court could reasonably conclude that the default judgment was not the result of any mistake, inadvertence, surprise or excusable neglect on the part of appellant, but rather, was the consequence of appellant’s failure to take reasonably prudent steps to avoid entry of judgment.” (Hearn, supra, 177 Cal.App.4th at pp. 1206-1207.)

DISPOSITION

The judgment is affirmed. Respondent shall recover its costs on appeal.

ZELON, J.

We concur:

PERLUSS, P. J.

SEGAL, J.

Filed 9/17/19 Mackovksa v. Viewcrest Road Properties CA2/7

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

ANDRIJANA MACKOVKSA, et al.,

Plaintiffs and Appellants,

v.

VIEWCREST ROAD PROPERTIES, LLC, et al.,

Defendants and Respondents.

B288778

(Los Angeles County

Super. Ct. No. BC639501)

APPEAL from a judgment of the Superior Court of Los Angeles County, Barbara A. Meiers and Gregory W. Alarcon, Judges. Reversed.

Law Offices of Walter H. Hackett and Walter Henry Hackett for Plaintiffs and Appellants Andrijana Mackovska and Aleksandar Mackovski.

Lenore L. Albert, in pro. per., for Plaintiff and Appellant Lenore Albert.

Lang, Hanigan & Carvalho and Arthur Carvalho, Jr. for Defendants and Respondents.

___________________________

INTRODUCTION

Aleksandar Mackovski and Andrijana Mackovska sued Viewcrest Road Properties claiming Viewcrest wrongfully removed their personal belongings and took possession of residential property Viewcrest had purchased at a foreclosure sale. After sustaining Viewcrest’s demurrer to Mackovska’s causes of action for lack of standing, the trial court set Mackovski’s case for a jury trial. The court subsequently ruled, however, Mackovski waived his right to a jury trial by failing to timely post jury fees. Nine days later, Mackovski filed a motion for relief from the jury trial waiver, which the trial court denied, and the case proceeded to a court trial, at which Viewcrest prevailed. But a party opposing a motion for relief from a jury trial waiver must make a showing of prejudice. Because Viewcrest did not make that showing, the trial court erred in denying Mackovski’s motion.

Mackovski did not file a petition for writ of mandate seeking immediate appellate review of the trial court’s order denying his motion for relief from the jury waiver. Instead, he waited to raise the issue until his appeal from the adverse judgment following the court trial. Some cases hold that when a party seeks review of such an order on appeal from the judgment without having filed a petition for writ of mandate challenging the order, the party must show actual prejudice from the denial of a jury trial. Other cases hold that the party appealing from the judgment need not make such a showing of prejudice. We agree with the latter line of cases and reverse the trial court’s order erroneously denying Mackovski’s motion for relief from the jury trial waiver. We also reverse an order imposing sanctions against Mackovski, Mackovska, and their attorney, Lenore Albert, under Code of Civil Procedure section 128.5.

FACTUAL AND PROCEDURAL BACKGROUND

A. Viewcrest Purchases the Property, and the Tenants Move Out

On August 12, 2013 Viewcrest purchased real property at a foreclosure sale. At the time, two tenants, Barry Young and Marilyn Tesauro, lived at the property and were paying rent to Mackovska. On August 13, 2013 Michael Tessler, acting as a property manager for Viewcrest, delivered a handwritten note addressed to the occupants of the property stating he wanted to discuss the orderly transfer of possession.

That same day, Michael Tessler received a telephone call from a person named Rory who claimed to be a representative of the occupants of the property. Michael Tessler attempted unsuccessfully to meet with Rory to arrange for the occupants to vacate the property voluntarily in exchange for a payment by Viewcrest. Michael Tessler eventually asked for Rory’s email address to send a proposal. At Rory’s request, Michael Tessler sent Mackovski a draft agreement proposing to pay the tenants $2,500 to vacate the premises voluntarily. Mackovski conveyed a counteroffer of $25,000 by sending an email stating, “Thank you for the offer, but a zero is missing.” Viewcrest did not accept Mackovski’s counteroffer. Instead, Viewcrest retained an attorney and, on August 22, 2013, served the tenants with a notice to quit.

On August 25, 2013 Young and Tesauro advised Viewcrest in writing they were the tenants of the former owners. Young and Tesauro agreed with Viewcrest they would remain in possession of the property, pay rent to Viewcrest, and voluntarily vacate by November 20, 2013. Young and Tesauro removed most of their belongings from the property on November 9, 2013, intending to vacate the property the next day. Viewcrest intended to take possession of the property as soon as Young and Tesauro moved out.

B. Mackovski Moves In

On November 10, 2013 Young returned to the property to collect his remaining items. While Young was there, Mackovski and another person arrived and attempted to enter the property. Young called the police, who arrived and directed Mackovski and his companion to leave. Disturbed by Mackovski’s conduct, Young called Michael Tessler and told him he could no longer protect his (Michael Tessler’s) interest in the property. Later that evening, Young met with Irwin Tessler, Michael Tessler’s father, to deliver the keys. Young told Irwin Tessler he had left a few belongings at the property and asked Irwin Tessler to place them in the alley behind the house.

Irwin Tessler drove to the property, saw it was occupied, and called the police. The police arrived and said they had already been to the property earlier that day. Irwin Tessler showed the police the trustee’s deed upon sale conveying title to Viewcrest and explained that whoever was occupying the property (it turned out to be Mackovski) was there without Viewcrest’s consent. The police spoke to Mackovski, who showed them a copy of a complaint Mackovska filed against Bank of America in August 2013 and asserted the complaint gave him the right to occupy the premises. The police left without requiring Mackovski to leave.

C. Viewcrest Changes the Locks

On November 12, 2013 an attorney advised Michael Tessler that Viewcrest could take possession of the property from any unlawful occupants by entering the property at a time and in a manner that would not disturb the peace. Following this advice, Irwin Tessler and his other son, Jason, went to the property, found it vacant, gained access using the keys Young had delivered, and changed the locks. The only items of personal property Irwin Tessler saw in the house were two air mattresses and bedding, a portable radio, some food, a few items of clothing, and several pairs of shoes. In the garage there was a car, a small box of tools, and a washer and dryer.

Rory subsequently went to the property and challenged Irwin Tessler’s right to occupancy. Irwin Tessler called the police, who arrived just before Mackovski also arrived. The police inspected the property and informed Mackovski that all of the personal property had been removed and placed either in a pile in the alley or in a car in the garage. The police gave Mackovski some of the personal belongings and drove the car out of the garage.

D. Mackovski and Mackovska Sue Viewcrest, and the Trial Court Sets and Re-sets the Case for Trial

Mackovski and Mackovska, represented by Albert, filed this action on November 2, 2016 against Viewcrest, Michael Tessler, and Irwin Tessler. Mackovski and Mackovska alleged Viewcrest “wrongfully took possession of the [property] and removed all of the tenants’ belongings.” They asserted causes of action for fraud, trespass to chattels, conversion, negligence, and intentional infliction of emotional distress.

On July 10, 2017 the trial court (Judge Meiers) sustained Viewcrest’s demurrer to Mackovska’s causes of action without leave to amend. The court overruled Viewcrest’s demurrer to Mackovski’s cause of action for fraud and his claim for punitive damages. The July 10, 2017 hearing on the demurrer included a case management conference, and the court set the matter for a jury trial on August 21, 2017, six weeks later. Mackovski, however, did not post jury fees on or before the date scheduled for the initial case management conference, thus waiving his right to a jury trial under Code of Civil Procedure section 631.

Meanwhile, on August 16, 2017 Viewcrest and the two individual defendants filed an ex parte application to continue the trial because two “essential third party witnesses,” police officers who had responded to calls regarding the incidents at the property, had received trial subpoenas and advised counsel for Viewcrest they would be on vacation during the week of August 21, 2017, when the case was set for trial. Counsel for Viewcrest stated in his supporting declaration that, because the “trial date was set on July 10, 2017, just 32 days [sic] before the trial date,” he had been “unable to take the depositions of any third party witnesses, including the two police officer[s].”

Mackovski opposed the ex parte application, arguing that Viewcrest and the individual defendants had “represented that they were ready, willing and able to go to trial in August 2017” and that the defendants, as soon as they received Mackovski’s trial documents, “all of the [sic] sudden said their witnesses were not available and they needed a trial continuance.” Mackovski pointed out that the parties had exchanged trial exhibits, witness and exhibit lists, and proposed jury instructions, that the defendants had not propounded any discovery and there was no discovery outstanding, and that the case had “dragged on for almost a year.”

The trial court granted Viewcrest’s ex parte application to continue the trial. Although the court on July 10, 2017 had set the case for a jury trial, the court’s minute order granting Viewcrest’s ex parte application stated that “the case is re-set as a court trial for November 9, 2017” and that the final status conference “is waived.” The court also ruled the discovery cut-off date would be “as if this was the original trial date.”

Seven days later, on August 23, 2017, Mackovski posted jury fees. On August 25, 2017 Mackovski filed a motion for relief from waiver of jury trial, which he called a “motion for jury trial.” He argued there was “no known prejudice” to Viewcrest if the court granted the motion. Viewcrest opposed the motion by filing a declaration by its attorney, unaccompanied by a memorandum of points and authorities, stating Mackovski waived his right to a jury trial when he “failed to post jury fees within the time set by the court at the case management conference held July 10, 2017.” Counsel also stated neither side objected at the August 16, 2017 hearing on Viewcrest’s ex parte application to continue the trial when the court ruled that the case would proceed as a court trial.

On October 5, 2017 the trial court denied Mackovski’s motion for relief from the jury trial waiver. The court’s minute order stated: “[Mackovski’s] motion for a jury trial is denied, [Mackovski] not having timely filed jury fees and having previously stipulated to a court trial.” Mackovski did not seek extraordinary writ review of the denial of the motion for jury trial.

D. The Trial Court Rules for Viewcrest and Sanctions Mackovski, Mackovska, and Albert

The parties appeared on November 9, 2017, and the court transferred the case to a different department (Judge Alarcon) for trial. The trial commenced later that day and concluded after six days of testimony. On December 11, 2017 the court issued a nine-page proposed statement of decision. The court credited the testimony of Michael Tessler, Irwin Tessler, and Tesauro and discredited the testimony of Mackovski and Mackovska. The court stated: “Through the course of the trial, it became apparent that the two conspired to attempt to force, without any legal justification, Viewcrest to pay them money to gain possession of the Property.” The court ruled in favor of the defendants and against Mackovski on all his causes of action.

On January 4, 2018 Viewcrest filed a motion for sanctions under section 128.5 against Mackovska, Mackovski, and Albert. The proof of service stated counsel for Viewcrest served the motion the previous day. Viewcrest argued the trial “made clear to the court what [the defendants] have known all along—this case was an attempted shakedown perpetrated by a cadre of grifters with no compunction about how and from whom they try [to] take money. Of course, the damage they wrought would not have been possible without the assistance of an attorney, who, fully aware of all of the facts and circumstances, lent her skill and knowledge to their effort, extending the proceeding through a lengthy trial.” Viewcrest sought $70,540.95 in attorneys’ fees and costs. Neither the motion, memorandum of points and authorities, nor the declaration of counsel for Viewcrest made any mention of the safe harbor period in section 128.5 or of the untimely service of the motion. In opposition to the motion for sanctions, Albert, on behalf of herself and her two clients, argued that Viewcrest had given insufficient notice of the motion (less than 16 court days plus five days for mailing) and that there was no evidence the case was prosecuted in bad faith, frivolous, or a delay tactic.

On January 23, 2018 the court overruled Mackovski’s objections to the proposed statement of decision. The court adopted the proposed statement of decision as the court’s final statement of decision.

On January 29, 2018 the trial court granted Viewcrest’s motion for sanctions under section 128.5 and awarded Viewcrest $70,540.95. The court found that Mackovski, Mackovska, and Albert “all continued to prosecute this action frivolously through trial, with both subjective, and objective, bad faith intent, for the reasons set forth in the opposing declaration and exhibits, and based upon the Court’s observations during trial.” The court also found that “notice was proper” and that a “‘party filing a sanctions motion under [section] 128.5 does not have to comply with the 21-day “safe-harbor” waiting period applicable to [section] 128.7.’”

The trial court entered judgment on February 9, 2018. Mackovski, Mackovska, and Albert timely appealed from the judgment and the order imposing sanctions.

DISCUSSION

A. The Trial Court Abused Its Discretion in Denying Mackovski’s Motion for Relief from the Jury Trial Waiver
B.
Article I, section 16 of the California Constitution provides: “Trial by jury is an inviolate right and shall be secured to all . . . . In a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute.” “‘The jury as a fact-finding body occupies so firm and important a place in our system of jurisprudence that any interference with its function in this respect must be examined with the utmost care.’” (Monster, LLC v. Superior Court (2017) 12 Cal.App.5th 1214, 1225; see Brown v. Mortensen (2019) 30 Cal.App.5th 931, 940 [“‘The constitutional right of trial by jury is not to be narrowly construed.’”]; Hodge v. Superior Court (2006) 145 Cal.App.4th 278, 283 [“A jury trial is an important constitutional right that should be ‘“zealously guarded by the courts.”’”].) “‘The denial of a trial by jury to one constitutionally entitled thereto constitutes a miscarriage of justice and requires a reversal of the judgment.’” (People v. One 1941 Chevrolet Coupe (1951) 37 Cal.2d 283, 300.)

A party in a civil case may waive the right to a jury trial under section 631 in several ways, including by failing to deposit jury fees “on or before the date scheduled for the initial case management conference in the action.” (§ 631, subds. (c), (f)(5).) Even when a civil litigant waives his or her right to a jury trial, however, the trial court has discretion to “allow a trial by jury.” (§ 631, subd. (g); see Tesoro del Valle Master Homeowners Assn. v. Griffin (2011) 200 Cal.App.4th 619, 638 (Tesoro); Johnson-Stovall v. Superior Court (1993) 17 Cal.App.4th 808, 810 (Johnson-Stovall); Massie v. AAR Western Skyways, Inc. (1992) 4 Cal.App.4th 405, 410 (Massie).) The trial court should grant a motion for relief of a jury waiver “unless, and except, where granting such a motion would work serious hardship to the objecting party.” (Boal v. Price Waterhouse & Co. (1985) 165 Cal.App.3d 806, 809 (Boal); see Gann v. Williams Brothers Realty, Inc. (1991) 231 Cal.App.3d 1698, 1703 (Gann).) When there is doubt about whether to grant relief from a jury trial waiver, the court must resolve that doubt in favor of the party seeking a jury trial. (See Grafton Partners v. Superior Court (2005) 36 Cal.4th 944, 958 [“because our state Constitution identifies the right to jury trial as ‘inviolate’ [citation], any ambiguity or doubt concerning the waiver provisions of section 631 must be ‘resolved in favor of according to a litigant a jury trial’”]; Tesoro, at p. 638 [same]; Rodriguez v. Superior Court (2009) 176 Cal.App.4th 1461, 1470 [courts “are to resolve doubts in interpreting the waiver provisions of such a statute [allowing a waiver] in favor of a party’s right to a jury trial”].)

In a motion for relief from waiver of a jury trial, the crucial question is whether the party opposing relief will suffer any prejudice if the court grants relief. (Tesoro, supra, 200 Cal.App.4th at p. 638; see Johnson-Stovall, supra, 17 Cal.App.4th at p. 810 [“it is well established in cases involving failure to make a request or post fees that there must be prejudice to the party opposing jury trial”]; Wharton v. Superior Court (1991) 231 Cal.App.3d 100, 104 [“Where the right to jury is threatened, the crucial focus is whether any prejudice will be suffered by any party or the court if a motion for relief from waiver is granted.”].) “‘The prejudice which must be shown from granting relief from the waiver is prejudice from the granting of relief and not prejudice from the jury trial.’” (Massie, supra, 4 Cal.App.4th at p. 411.) “The mere fact that trial will be by jury is not prejudice per se.” (Johnson-Stovall, at p. 811.) Denying relief where the party opposing the motion for relief has not shown prejudice is an abuse of discretion. (Tesoro, at p. 639; Johnson-Stovall, at pp. 811-812; Massie, at p. 412.)

In opposition to Mackovski’s motion for relief from jury trial waiver, Viewcrest submitted the declaration of its attorney of record, who described as follows the prejudice Viewcrest would suffer if the court granted Mackovski’s motion: “Defendants have proceeded as if this case it [sic] to be tried to the court. Significant additional expense will be incurred of [sic] the case if [sic] tried instead to a jury. Defendants will be prejudiced if they are forced to bear this additional expense where (a) Plaintiff has already waived the right to a jury, (b) where the amount in dispute is less than $50,000 . . . and (c) there is no contract providing for the recovery of attorneys fees to the prevailing party.” None of these reasons shows prejudice.

As discussed, prejudice from having to try the case to a jury is not prejudice for purposes of a motion for relief from a jury trial waiver. (Johnson-Stovall, supra, 17 Cal.App.4th at pp. 810-811; Massie, supra, 4 Cal.App.4th at p. 411.) Thus, counsel’s assertion that a jury trial would impose “significant additional expense” does not support the trial court’s denial of the motion.

Moreover, counsel’s statement that Viewcrest had proceeded as if the parties were going to try the case to the court was not only unsupported by any specifics, it was demonstrably false. As stated, Viewcrest asked for a jury trial, and on July 10, 2017 the court set the case for a jury trial on August 21, 2017. The court did not “re-set” the case for a court trial until August 16, 2017, at which time the court continued the trial to November 9, 2017, giving Viewcrest plenty of time to prepare for a jury trial. Given the chronology, the only time Viewcrest could have proceeded as if there was going to be a court trial was the nine-day period from August 16, 2017, when the court “re-set” the trial from a jury trial to a court trial, to August 25, 2017, when Mackovski filed his motion for relief from waiver of jury trial. It is hard to see how, from those nine days, Viewcrest could have suffered “serious hardship” (Boal, supra, 165 Cal.App.3d at p. 809) or any prejudice that would justify denying Mackovski’s motion for relief. And it is equally unlikely Viewcrest could have suffered any other (unarticulated) prejudice because the court had already continued the trial to November 9, 2017, giving Viewcrest over two months to prepare for a jury trial. (See Johnson-Stovall, supra, 17 Cal.App.4th at pp. 811-812 [granting relief from a jury waiver six days before trial did not prejudice the opposing party because there was still sufficient time to prepare jury instructions, file motions in limine, and exchange trial exhibits]; cf. Gann, supra, 231 Cal.App.3d at pp. 1704-1705 [trial court did not abuse its discretion in denying a motion for relief from a jury waiver where “to grant relief within five days of trial would work a hardship in [the parties’] trial preparation”].)

Given the procedural status of the case, the evidence of prejudice in counsel for Viewcrest’s declaration fell far short. The first specific item of prejudice in the declaration, that Mackovski had already waived his right to a jury trial, was not prejudice at all. It was simply a procedural fact that required Mackovski to file a motion for relief from the jury trial waiver in the first place. It was not a fact the court could use to find Viewcrest would suffer prejudice if the court granted relief.

The second item of prejudice, that the amount in controversy was less than $50,000, was similarly irrelevant. Viewcrest does not argue otherwise, nor cite any evidence in the record of how the amount of Mackovski’s claim created any prejudice. Viewcrest also cites no authority for the proposition that having to try a case to a jury is more prejudicial when the plaintiff seeks less than $50,000 or that the right to a jury trial is any less in civil cases involving less than $50,000, or even in limited civil cases involving less than $25,000. The classification of a civil case does not affect the parties’ right to a jury trial. Indeed, even where the mandatory expedited jury trial provisions of section 630.20 and California Rules of Court, rule 3.1545 apply in a limited civil case, the parties still have the right to a jury trial (albeit by a “reduced jury panel”). (§§ 630.21, subd. (a); see id., § 630.23, subd. (b) [“The jury shall be composed of eight jurors and one alternate, unless the parties have agreed to fewer jurors.”]; id., § 630.26, subd. (a) [“A vote of six of the eight jurors is required for a verdict, unless the parties stipulate otherwise.”].)

The third ground of claimed prejudice, the absence of an attorneys’ fees provision, was also not evidence of prejudice. Counsel for Viewcrest presumably was suggesting his clients would be prejudiced because they expected to prevail, but would be unable to recover their attorneys’ fees. To the extent that is prejudice, it arises from the American rule requiring litigants, in the absence of an applicable statutory or contractual provision, to bear their attorneys’ fees. (See Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 751 [“Under the American rule, each party to a lawsuit ordinarily pays its own attorney fees.”].) It is not prejudice from granting relief from a jury trial waiver.

Viewcrest did not come close to making the requisite showing of prejudice. (See Boal, supra, 165 Cal.App.3d at p. 810 [“In short, the claim of prejudice borders on being frivolous and cannot support the denial of the motion.”].) The trial court abused its discretion in denying Mackovski’s motion for relief from the jury trial waiver. (See Tesoro, supra, 200 Cal.App.4th at p. 639 [“‘The court abuses its discretion in denying relief where there has been no prejudice to the other party or to the court from an inadvertent waiver.’”].)

C. Mackovski Does Not Have To Show Actual Prejudice
D.
Mackovski’s failure to file a petition for writ of mandate after the trial court denied his motion for relief from jury trial waiver does not preclude review of that order on appeal from the judgment. Although “review by way of extraordinary writ is ‘normally . . . the better practice,’” the “denial of a jury trial is ‘reviewable on appeal from the judgment.’” (Monster, LLC v. Superior Court, supra, 12 Cal.App.5th at p. 1224; see Van de Kamp v. Bank of America (1988) 204 Cal.App.3d 819, 862 [“While the better practice is to seek review of such a ruling by writ, saving the time and expense of a court trial if a jury trial improperly was denied, the ruling may be reviewed on appeal from the judgment.”].)

Viewcrest argues that, because Mackovski challenged the denial of relief from the waiver of a jury trial after judgment instead of seeking a writ of mandate, Mackovski must show actual prejudice to prevail on his appeal. As in cases considered on a petition for writ of mandate, however, appellants need not show actual prejudice resulting from a trial by the court rather than a jury. (See Byram v. Superior Court (1977) 74 Cal.App.3d 648, 654 (Byram) [petitioner for writ of mandate need not show actual prejudice caused by improper denial of jury trial after waiver].) Instead, “improper denial of jury trial is per se prejudicial.” (Boal, supra, 165 Cal.App.3d at p. 810; see Simmons v. Prudential Ins. Co. (1981) 123 Cal.App.3d 833, 838-839 (Simmons) [“‘The denial of a jury trial after waiver where no prejudice is shown to the other party or to the court is prejudicial.’”]; Bishop v. Anderson (1980) 101 Cal.App.3d 821, 825 (Bishop) [same].)

Viewcrest cites a different line of cases, including Gann, supra, 231 Cal.App.3d 1698, McIntosh v. Bowman (1984) 151 Cal.App.3d 357 (McIntosh), and Byram, supra, 74 Cal.App.3d at p. 654, to argue Mackovski must show actual prejudice. The court in Gann summarized the law from this line of cases as follows: “Some courts have held that a party should not be able to obtain a reversal on [the ground the trial court abused its discretion in denying relief from a jury trial waiver] after judgment without a showing of prejudice occurring in the trial. [Citation to McIntosh.] Although it is difficult to envision precisely how one shows prejudice from denial of a jury trial aside from that inherent in deprivation of a constitutional right, the seldom articulated reason for allowing the trial court’s determination to stand is that a party should not be able to play ‘Heads I win. Tails you lose’ by waiting until after judgment to seek review of the denial of relief from jury waiver. [Citation to McIntosh.] Thus courts have held that prejudice will not be presumed from the fact that the trial was to the court rather than to the jury. [Citations to McIntosh and Byram.] Rather, it is presumed that the party had the benefit of a fair and impartial trial.” (Gann, at p. 1704.)

Neither Gann nor McIntosh nor Byram supports the proposition that an appellant must show actual prejudice following the improper denial of relief from a jury waiver. First, Byram was an original proceeding on a petition for writ of mandate, not an appeal. (Byram, supra, 74 Cal.App.3d at p. 650.) And neither Gann nor McIntosh concluded the trial courts in those cases abused their discretion in denying relief from a jury trial waiver. (Gann, supra, 231 Cal.App.3d at p. 1704; McIntosh, supra, 151 Cal.App.3d at p. 363.) Thus, at best, the pronouncements by these courts on the standard applied to an appeal challenging a trial court’s denial of relief from waiver of a jury trial are dicta. (See, e.g., Gann, at pp. 1704-1705 [“even without requiring appellants to demonstrate prejudice from the court’s denial of their motion” for relief from the jury waiver, the trial court did not abuse its discretion on the merits of the motion].)

And they are not even persuasive dicta. Gann, McIntosh, and Byram are based on two presumptions that a “chain of case law” (Byram, supra, 74 Cal.App.3d at p. 652) dating back to 1931 has misapplied and adopted. (See ibid. [lamenting the adoption of an inappropriate standard of review of a trial court’s denial of a jury trial based on appellate decisions employing overbroad language].) First, Gann, McIntosh, and Byram all repeat the questionable statement that courts cannot presume prejudice from denial of the right to a jury trial because we assume a party had the benefit of a fair and impartial court trial. (See Gann, supra, 231 Cal.App.3d at p. 1704; McIntosh, supra, 151 Cal.App.3d at p. 363; Byram, at p. 653.) This assumption, however, arises from cases that were tried to a jury instead of the court after the plaintiffs had waived their right to a jury trial. (See Gann, at p. 1704 [citing Byram and McIntosh]; Byram, at p. 653; Oakes v. McCarthy Co. (1968) 267 Cal.App.2d 231, 265; McIntosh, at p. 363, citing Glogau v. Hagan (1951) 107 Cal.App.2d 313, which cited Harmon v. Hopkins (1931) 116 Cal.App. 184, which in turn cited Doll v. Anderson (1865) 27 Cal. 248.) These cases, which involved claimed error in having a jury trial rather than a court trial, required a showing of prejudice. In contrast, “‘[d]enial of the right to a jury trial is reversible error per se, and no showing of prejudice is required of a party who lost at trial.’” (Rincon EV Realty LLC v. CP III Rincon Towers, Inc. (2017) 8 Cal.App.5th 1, 18 (Rincon); Valley Crest Landscape Development, Inc. v. Mission Pools of Escondido, Inc. (2015) 238 Cal.App.4th 468, 493 [same]; Van de Kamp v. Bank of America, supra, 204 Cal.App.3d at p. 862 [“Denial of the right to trial by jury is an act in excess of the court’s jurisdiction and is reversible error per se.”].)

Second, Gann, McIntosh, and Byram all presume that, if courts do not require a showing of actual prejudice, parties will play “‘Heads I win, Tails you lose’” and wait until after judgment to challenge a trial court’s denial of relief from a jury waiver. (See Gann, supra, 231 Cal.App.3d at p. 1704 [citing McIntosh]; McIntosh, supra, 151 Cal.App.3d at p. 363 [citing Byram]; Byram, supra, 74 Cal.App.3d at p. 653.) Byram quoted this coin-tossing language from Tyler v. Norton (1973) 34 Cal.App.3d 717, where the trial court held a court trial after a different judge denied the defendants’ motion for a jury trial and instructed them to renew the motion in the “trial department,” which the defendants failed to do. (Id., at pp. 721-722.) The court in Tyler held the defendants could not argue “any error in the assignment of the case” after proceeding, without objection, to try the case for two days to the court. (Id. at p. 722.)

Where, as here, the party makes a timely request for relief from a jury trial waiver and neither the other party nor the court would suffer prejudice as a result of that request, the concerns expressed by the court in Tyler do not exist. The Supreme Court has made clear that such improper gamesmanship arises when a party loses a case after proceeding with a court trial without objecting to the absence of a jury and then complains the case was erroneously tried to the court. (See Taylor v. Union Pac. R.R. Corp. (1976) 16 Cal.3d 893, 900-901 [citing Tyler and stating “it is well established that ‘. . . a party cannot without objection try his case before a court without a jury, lose it and then complain that it was not tried by jury’”]; see also Conservatorship of Joseph W. (2011) 199 Cal.App.4th 953, 967-968.) That did not happen here. Mackovski (and, when the court initially set the case for trial, Viewcrest) wanted a jury trial, thought he had one (as did Viewcrest), and only lost it because Viewcrest filed an ex parte application to continue the trial and the court, in granting the ex parte application, “re-set” the case for a court trial. There is no suggestion in the record Mackovski was playing games with his right to a jury trial, and Viewcrest does not argue he was. Indeed, Mackovski and Viewcrest did not even know who their trial judge was going to be until the morning of the first day of trial, when Judge Meiers transferred the case to Judge Alarcon for trial. At that point there was no time to file a petition for writ of mandate.

Concluding that the erroneous denial of the right to a jury trial in this case is reversible per se comports with both the inviolate nature of the right to a jury trial (see Shaw v. Superior Court (2017) 2 Cal.5th 983, 994; Grafton Partners v. Superior Court, supra, 36 Cal.4th at p. 958) and the revocability of jury trial waivers under section 631 (see Byram, supra, 74 Cal.App.3d at pp. 650-651 [“[t]he purpose of section 631 is to provide a means whereby the parties may waive a jury but not to impose conditions constituting an irrevocable waiver”]; Cowlin v. Pringle (1941) 46 Cal.App.2d 472, 476; Duran v. Pickwick Stages System (1934) 140 Cal.App. 103, 109). The construct created (in dicta) by cases like Gann, McIntosh, and Byram to distinguish between the erroneous denial of a jury trial “in the first instance,” before there has been any waiver, and the erroneous denial of a jury trial in the “second instance,” after an unsuccessful motion for relief from a jury trial waiver, undermines these principles. (See Rincon, supra, 8 Cal.App.5th at p. 18 [describing a supposed “‘split of authority’” in the two situations].) Indeed, the consequence is the same in either instance: The court has wrongfully denied a party its constitutional right to a jury trial. And in either situation, the aggrieved party has the same choice: challenge the constitutional violation (however it occurred) by writ of mandate or by appeal. Where the aggrieved party has not attempted to game the system by failing to object to a trial by the court, there is no reason to apply a stricter standard on appeal.

Moreover, as stated, courts have recognized how difficult, if not impossible, it is to show prejudice from the denial of the constitutional right to a jury trial. (Gann, supra, 231 Cal.App.3d at p. 1704; see Beasley v. Wells Fargo Bank (1991) 235 Cal.App.3d 1383, 1398 [the “task of proving actual prejudice on appeal” is “daunting (perhaps impossible)”].) Thus, requiring an appellant challenging an order denying a motion for relief from a jury trial waiver to show actual prejudice would essentially leave discretionary mandate review as the only practical remedy, hardly adequate protection for a constitutional right that is such “‘a basic and fundamental part of our system of jurisprudence [it] should be zealously guarded.’” (Stofer v. Shapell Industries, Inc. (2015) 233 Cal.App.4th 176, 189; see Villano v. Waterman Convalescent Hospital, Inc. (2010) 181 Cal.App.4th 1189, 1205 [“If [the appellant] had sought review by writ, she would not have been required to show a miscarriage of justice; however, we would have had the option of denying the writ and waiting to see whether she prevailed at trial.”]; see also People v. Miller (N.Y. Sup. Ct. 1990) 149 Misc.2d 554, 561 [“The historic background of constitutional provisions establishing the jury mode of trial would appear to secure to the citizen who, upon reflection and in due course, seeks in good faith and without prejudice to retrieve it after waiver. And where there is no objective basis to justify denial of such a petition, the discretionary withholding of the right can only equate with its abridgement.”].) When addressing “a right so fundamental as to be characterized by our Constitution as one which should ‘remain inviolate,’ the court should only deny the privilege thus accorded” where “some adverse consequence will flow” from a party’s change of heart. (People v. Osmon (1961) 195 Cal.App.2d 151, 154].)

Finally, more recent cases have expressed concern about the dicta in cases like Gann, McIntosh, and Byram and have affirmed that a party appealing from an order denying a jury trial need not show prejudice. (See, e.g., Brown v. Mortensen, supra, 30 Cal.App.5th at p. 938 [“Unwarranted denial of the right to a jury trial is in excess of the trial court’s jurisdiction and constitutes reversible error per se.”]; Rincon, supra, 8 Cal.App.5th at p. 18 [“when a trial court erroneously deprives a party of a jury trial on a cause of action the party was entitled to submit to a jury, reversal of the judgment on that cause of action is required”]; Valley Crest Landscape Development, Inc. v. Mission Pools of Escondido, Inc., supra, 238 Cal.App.4th at p. 493.) We therefore follow the line of authority created by Boal, Simmons, and Bishop and conclude Mackovski does not have to show prejudice.

E. The Trial Court’s Order Imposing Sanctions Must Be Vacated
F.
As stated, before the trial court issued its final statement of decision, Viewcrest filed a motion under section 128.5 seeking monetary sanctions against Mackovski, Mackovska, and Albert. The court granted the motion and awarded Viewcrest $70,540.95 in sanctions. The trial court’s order imposing sanctions under section 128.5 was based “primarily” on the court’s finding, “after conducting the court trial,” that the action was frivolous and that the plaintiffs and their attorney prosecuted it in bad faith. Because the court should not have conducted the trial it did, its findings must be vacated and cannot be the basis of a sanctions order under section 128.5. Therefore, the order imposing sanctions is vacated.

DISPOSITION

The judgment is reversed. The order awarding sanctions is vacated. Albert’s request for sanctions is denied. The parties are to bear their costs on appeal.

SEGAL, J.

We concur:

PERLUSS, P. J.

ZELON, J.

Filed 9/18/19 Conforti v. El Dorado/Diamond Springs Fire Protection Dist. CA3

NOT TO BE PUBLISHED

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

THIRD APPELLATE DISTRICT

(El Dorado)

—-

JOHN CONFORTI et al.,

Plaintiffs and Respondents,

v.

EL DORADO/DIAMOND SPRINGS FIRE PROTECTION DISTRICT,

Defendant and Appellant.

C086226

(Super. Ct. No. PC20160509)

Respondents John Conforti and Catherine Pearl own property that contained two large, permitted propane tanks. A tenant removed the tanks. After the tenant vacated the property, Conforti applied for and received from appellant El Dorado/Diamond Springs Fire Protection District (Diamond Springs) a building permit to rebuild the tanks. Subsequently, Diamond Springs denied Conforti final approval for the one rebuilt tank. The trial court granted Conforti’s petition for administrative writ of mandamus. Diamond Springs appeals. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The Parties

Respondents John Conforti and Catherine Pearl own property in El Dorado County. Respondent Ferrellgas is a company that leases the property to store and sell propane gas from a large propane tank on the property.

Appellant Diamond Springs provides fire protection and emergency services in El Dorado County.

Initial Construction of the Tanks

In 1998 Conforti applied for a special use permit to install two 30,000-gallon propane tanks on the property. In January 2000, following a hearing, Conforti received a special use permit allowing installation of the tanks.

Conforti applied to El Dorado County for a construction permit. In support, Conforti submitted construction and grading plans, certified by an engineering firm. All the county agencies, including Diamond Springs approved the plan.

As part of the installation of the propane storage tanks, Conforti graded the property and installed paving, fencing, lighting, and a transformer. The project cost $161,397.

Conforti operated the storage tanks as Main Street Gas until 2008. In 2008 Conforti sold the business, including the propane tanks, and leased the property to Titan Propane. Between 2008 and 2010 Titan Propane sold propane from the property.

2010 Fire Code Changes

The National Fire Protection Association’s Liquefied Petroleum Gas Code (NFPA 58) is the primary source for the regulations regarding storage, handling, transportation, and use of petroleum gas. In 2010 Diamond Springs adopted several amendments to the 2010 California Fire Code. The California Fire Code is part of the California Code of Regulations, title 24, part 9. The 2010 California Fire Code adopted NFPA 58. (Former Cal. Code Regs., tit. 24, § 3804.1.)

One amendment within Ordinance 2010.02, the ordinance adopting the 2010 Fire Code, increased the required setback distance between large-scale propane facilities and multi-residential developments from 50 feet to one-half mile. The propane tanks on Conforti’s property were approximately 200 feet from an apartment building.

Conforti Rebuilds the Propane Tanks

In 2010 AmeriGas purchased Titan Propane and assumed the lease on the property. In August 2012 AmeriGas, without notice, removed the two propane tanks. The removal damaged the infrastructure, making it impossible to reconnect the tanks. Later in 2012 AmeriGas terminated the lease.

Conforti and Pearl leased the propane business to a new tenant, Ferrellgas. Conforti and Ferrellgas decided to replace the tanks.

In October 2012 Conforti submitted a construction permit application to all the appropriate agencies, including Diamond Springs. Along with the application, Conforti submitted plans identical to those used in 2000, since he intended to restore the facility to its original state.

What happened next forms the core of this appeal. According to Conforti, Diamond Springs’s employee Gary Baldock “found the plans were satisfactory and approved the permit on behalf of the fire district.” Diamond Springs states: “Baldock reviewed the original plans, and then, mistakenly assuming that because they had been approved over a decade before in 2000 they were acceptable for a new project in 2012, signed off on them directly with the county. [¶] Baldock’s approval was erroneous for a variety of reasons, but chief among them was that the proposed construction violated the 2010 Fire Code Provision requiring a half-mile setback from multi-residential development.”

El Dorado County issued a construction permit to Conforti in October 2012. The following month, Conforti and Ferrellgas began construction. They decided to replace only one of the 30,000-gallon tanks. The construction and installation ultimately cost $154,000.

In January 2013 Robert Combs, then Diamond Springs’ Assistant Fire Chief wrote to Conforti. Combs told Conforti that “The proximity to populated or congested areas and the proposed housing projects in the area, including the geographic elevations of these populations require that a fire safety analysis be submitted to the District before a decision can be rendered.”

The construction of the tank was complete in July 2013. As when the two original tanks were built, the new tank is 200 feet from neighboring residences.

Denial of Final Approval

In July 2013 Conforti applied for a final inspection and approval as required by the permit. Only Diamond Springs refused to approve the completed project.

Diamond Springs retained Interwest Consulting Group (Interwest) to perform a fire safety analysis. On September 3, 2013, Christopher Hall, Ferrellgas’ Operations Manager, met with Diamond Springs Fire Chief Combs and Vernon Brown of Interwest. Combs told Hall the tank was approximately 200 feet from an apartment building, in violation of the fire code. Hall believed that Combs would approve the project “after certain actions were taken to remediate the Chief’s concerns, such as the construction of a berm, perhaps another fire hydrant or gas sensors,” and planned to work to accommodate him.

That same day, Diamond Springs Prevention Inspector Scott Thorne sent an email to Hall. Thorne stated, “it is not our goal to jeopardize the project but to help protect or at least mitigate issues that could develop for those that live in our district.”

On September 5, 2013, Brown emailed Thorne, with a copy to Combs, noting “I am suggesting that we get Gary [Baldock, the employee who approved the permit] to put in writing his recollection of the facts so that base is covered.” In his response, Baldock stated “that Rob advised that they were installing another tank in the same location as the previous tank. I drove to the site and saw nothing on the site except 2 existing saddles with no tank. I spoke with John Confort[i] who told me that they weren’t doing anything different than the existing use permit. What happened before or after I don’t have any knowledge of. Sorry.”

Later that month, Interwest advised Combs that Baldock’s approval was issued in error and that Diamond Springs should revoke the permit’s approval and require plans and specifications be submitted to the agency for review. Combs noted in the official records that Conforti’s permit was approved in error. In November 2013 Interwest informed Conforti of 11 actions needed in order for the permit to be given final approval.

In January 2014 Interwest sent a memo to Combs stating the plans submitted by Ferrellgas were of “very poor quality” because they failed to accurately reflect the site and facilities. Interwest also noted Baldock approved the plans but in error. Interwest recommended that Ferrellgas be ordered to disconnect the tank immediately. Later that month Combs issued a stop work notice for the propane installation.

Conforti and Ferrellgas appealed to the Diamond Springs board of directors, arguing Conforti had a vested right to maintain and operate two propane tanks on the property.

Conforti and Ferrellgas also provided a report on the project by a fire protection engineering firm. The report stated, “The current installation meets the setback distances established in the California Fire Code . . . .” In addition, the report concluded, “From our analysis it is unclear what conditions are present in El Dorado County which would justify the unique requirements to provide a level of safety above the acceptable level of safety established throughout the rest of California and the United States.” The report also suggested four safety upgrades beyond the code requirements: tank modifications, adding a berm, adding gas leak detectors, and increasing security. Conforti and Ferrellgas informed Diamond Springs that they were willing to implement the safety upgrades recommended in the report.

Interwest wrote to Conforti that, on behalf of Diamond Springs, they had reviewed the report. Interwest denied Conforti’s request, concluding the report “does not adequately address any mitigation for the location of the propane facility located within ½-mile of residential property with density greater than 1-dwelling unit per acre.” Conforti, through counsel, responded, stating he did not agree that the one-half mile restriction was reasonably necessary, but was willing to implement the mitigation measures set out by the engineering firm.

On behalf of Diamond Springs, Interwest replied to Conforti, rejecting the proposed mitigation measures because they did not “offer any reasonable solution to the placement and location of a LPG tank that is greater than 2,000-gallons and located within ½-mile of residential property.” “[B]ecause you have refused to resubmit plans that conform to the requirements of the California Building and Fire Codes and the site does not meet the requirements of . . . Diamond Springs . . . for the installation of LPG tank greater than 2000-gallons, there can be no approval of the project.”

Petition for Writ of Mandate

Respondents filed a petition for writ of mandate and declaratory relief. The first cause of action sought to order Diamond Springs to approve the work performed under the permit. The second cause of action sought declaratory relief finding that “the 2010 version of the fire code adopted by [Diamond Springs] is unenforceable to the extent it extends the 50’ setback to one-half a mile.”

In support of the petition, Respondents argued Conforti had acquired a vested right to install the tanks under the 2000 permit. Conforti also acquired a vested right when he obtained all necessary permits and relied on these permits by doing substantial work and expending substantial sums. Finally, they argued under the California Fire Code, Diamond Springs lacked the authority to extend the setback requirement to one-half mile.

In opposition, Diamond Springs stated that Ordinance 2010.02 was neither arbitrary nor capricious and was based on a reasonable analysis of the local environment. Therefore Diamond Springs was entitled to deference. Diamond Springs also argued Conforti did not have a vested right because the 2012 approval by Baldock was in error and administrative error cannot create a vested right.

Following oral argument, the trial court adopted its tentative ruling granting the petition. The court found “Nonconforming uses that were lawful when approved may continue long after the law is changed to prohibit the use of the subject property in that manner, provided the nonconforming use has not been intentionally abandoned by the property owner.” Therefore, the 2012 approval of the second permit was “valid and not unlawful.” The court also noted the expenditure of $154,000 “amounts to performance of substantial work and incurring substantial liabilities in good faith reliance on the permit.” The court concluded Diamond Springs was not entitled to refuse to provide final approval.

Diamond Springs filed a timely notice of appeal.

DISCUSSION

I

The parties agree that we review questions of fact under the substantial evidence test and questions of law de novo. Under the substantial evidence standard of review, we consider whether the evidence, viewed in the light most favorable to the prevailing party, supports the trial court’s findings, resolving any reasonable doubt in favor of those findings. Under the de novo standard of review, we consider the evidence independently. (HPT IHG-2 Properties Trust v. City of Anaheim (2015) 243 Cal.App.4th 188, 200.)

II

Where a permit has been issued and the landowner has relied on it to its detriment, the landowner acquires a vested right. (HPT IHG-2 Properties Trust v. City of Anaheim, supra, 243 Cal.App.4th at p. 199.) “If a property owner has performed substantial work and incurred substantial liabilities in good faith reliance on a permit issued by the government, he acquires a vested right to complete construction in accordance with the terms of the permit.” (Avco Community Developers, Inc. v. South Coast Regional Com. (1976) 17 Cal.3d 785, 791, superseded by statute as stated in Santa Margarita Area Residents Together v. San Luis Obispo County Bd. of Supervisors (2000) 84 Cal.App.4th 221, 229-230.) A party who in good faith relies on a building permit and performs substantial work and incurs substantial liability in connection with the permit acquires a vested right to complete construction notwithstanding an intervening change in the law that would otherwise preclude construction. (Aries Dev. Co. v. California Coastal Zone Conservation Com. (1975) 48 Cal.App.3d 534, 543.)

When zoning laws change, this right is known as a “nonconforming use.” “A legal nonconforming use is one that existed lawfully before a zoning restriction became effective and that is not in conformity with the ordinance when it continues thereafter.” (Hansen Brothers Enterprises, Inc. v. Board of Supervisors (1996) 12 Cal.4th 533, 540, fn. 1 (Hansen).)

Respondents argue that the special use permit and approval of all other permits to operate the propane storage facility, which were issued in 2000, and the approximately $161,000 spent to construct the original facility created a vested right in the property. Conforti subsequently obtained a construction permit to reconstruct the tanks in 2012 after they were removed by a lessee and expended $154,000 to reinstall one of them, actions which did not abrogate his vested right in maintaining the property.

Diamond Springs contends the 2012 permit was invalid since “there is no dispute that the permit was issued in violation of the half-mile setback provision of the Fire Code” which made the “permit invalid from the moment it was issued.” According to Diamond Springs, the invalid construction permit cannot create a vested right.

The trial court considered both arguments: “The arguments fairly raise the issue of whether or not a lawfully approved special use became an unlawful nonconforming use when a lessee of the property removed storage tanks and damaged other infrastructure at the termination of the lease, thereby making invalid the issuance of a construction permit to repair and replace the facility to the same condition it was when the now nonconforming special use was fully approved by all required governmental entities.”

After reviewing applicable case law, the court noted: “Nonconforming uses that were lawful when approved may continue long after the law is changed to prohibit the use of the subject property in that manner, provided the nonconforming use has not been intentionally abandoned by the property owner.” Applying this principle, the court concluded: “The removal of the storage tanks and damage to the infrastructure of the nonconforming propane storage facility was not done by the property owner, therefore mere removal of the tanks and the need to repair the facility in order to continue to use it as a propane storage facility does not constitute an overt act that implies the owner intends to abandon his interest in his right to continue the nonconforming use under the previously approved special use permit.”

We agree with the trial court’s analysis and conclusion. The Supreme Court explained: “ ‘[A]bandonment of a nonconforming use ordinarily depends upon a concurrence of two factors: (1) An intention to abandon; and (2) an overt act, or failure to act, which carries the implication the owner does not claim or retain any interest in the right to the nonconforming use [citation]. Mere cessation of use does not of itself amount to abandonment.’ ” (Hansen, supra, 12 Cal.4th at p. 569.)

The facts before us reveal no such abandonment. Conforti never intended to abandon the use of the tanks. After discovering the tanks had been removed by the tenant, Conforti immediately applied for a building permit and submitted plans to reconstruct the tanks. After approval of the permits, Conforti began construction and spent $154,000 to replace the tank. Nor did Conforti commit any act implying an intent to abandon the nonconforming use. The tanks were removed by Amerigas; Conforti moved swiftly to replace them. Contrary to the position taken by Diamond Springs at oral argument, the removal of the tanks did not extinguish the lawful nonconforming use. “A legal nonconforming use is one that existed lawfully before a zoning restriction became effective and that is not in conformity with the ordinance when it continues thereafter. [Citations.] The use of the land, not its ownership, at the time the use becomes nonconforming determines the right to continue the use. Transfer of title does not affect the right to continue a lawful nonconforming use which runs with the land.” (Hansen, supra, 12 Cal.4th at p. 540, fn. 1.) Diamond Springs could not refuse to provide final approval of the repairs and replacement of the tank, despite the 2010 amendment.

DISPOSITION

The judgment is affirmed. Respondents shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

RAYE , P. J.

We concur:

BUTZ , J.

MURRAY , J.

Filed 9/18/19 Mitchell v. Regional Trustee Services Corp. CA1/3

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

FIRST APPELLATE DISTRICT

DIVISION THREE

BERNARD MITCHELL,

Plaintiff and Appellant,

v.

REGIONAL TRUSTEE SERVICES CORPORATION et al.,

Defendants and Respondents.

A150263, A150419, A150730, A153747

(Alameda County

Super. Ct. Nos. HG12639675, HG12658439, RG14718395)

In this consolidated appeal, Bernard Mitchell appeals from several judgments in favor of respondent Deutsche Bank National Trust Company (Deutsche Bank). The cases arise out of the foreclosure sale of property formerly owned by Mitchell. After the foreclosure, a deluge of litigation ensued, including an unlawful detainer action filed by Deutsche Bank against Mitchell, two federal court actions and three state court actions filed by Mitchell against Deutsche Bank and others, and a cross-action by Deutsche Bank against Mitchell for trespass and tenancy at sufferance.

On appeal, Mitchell contends the trial court erred in sustaining the demurrer of Deutsche Bank and respondent CIT Bank, N.A. f/k/a OneWest Bank, N.A., f/k/a OneWest Bank, FSB (OneWest) to several causes of action in Mitchell’s first amended complaint based on the res judicata effect of the unlawful detainer judgment. Mitchell further contends he should have been given leave to amend in order to allege a new theory of liability that respondents relied on a void note and deed of trust to foreclose on the property. Mitchell also raises several challenges to the judgment on the cross-complaint, including that the cross-complaint failed to sufficiently allege whether the trespass was permanent or continuing, that the jury awarded excessive damages, that Deutsche Bank’s assertion of a new theory of liability at trial denied Mitchell due process, and that insufficient evidence supported the judgment. We find no merit in these contentions and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2007, Mitchell entered into a loan agreement and executed a deed of trust in favor of IndyMac Bank, FSB (IndyMac), encumbering his house in San Leandro (the subject property). Mitchell alleges he made payments on the loan until an IndyMac employee advised him to default so that he could be considered for a loan modification. After going into default, Mitchell submitted a loan modification application in May 2009.

In August 2009, Mitchell accepted IndyMac’s offer of a loan modification. However, despite making payments pursuant to the loan modification agreement, Mitchell received a notice of default from Regional Service Corporation (RSC). In November 2009, a notice of trustee’s sale was recorded, scheduling the sale for December 3, 2009.

In December 2009, OneWest sent Mitchell a letter stating that it was servicing his loan “on behalf of the securitization trust RAST 2007-A8, Deutsche Bank National Trust Company, as Trustee/Master Servicer.” Mitchell alleges he was never given documentation verifying that OneWest was assigned the note prior to RSC initiating foreclosure.

The trustee’s sale was eventually held in August 2010. Deutsche Bank, as trustee, acquired the subject property.

The First Federal Action

In September 2010, Mitchell sued respondents in federal court for violations of the Fair Debt Collections Act (15 U.S.C., § 1692 et seq.) and other claims. The district court eventually granted respondents’ motion to dismiss Mitchell’s federal claim, declined to exercise supplemental jurisdiction over his state law claims, and entered judgment against Mitchell. Mitchell’s appeal from the remand order was dismissed for lack of jurisdiction.

The Unlawful Detainer Action

In October 2010, Deutsche Bank served Mitchell with a three-day notice to vacate the subject property. In December 2010, Deutsche Bank filed an unlawful detainer action against Mitchell.

Deutsche Bank moved for summary judgment. In opposition, Mitchell argued that Deutsche Bank had not complied with the deed of trust or Civil Code section 2924 et seq. in proceeding with and noticing the 2010 foreclosure sale, and that the sale had been postponed without the statutorily required notice. The trial court granted the motion, and judgment was entered in Deutsche Bank’s favor in 2012. Mitchell’s appeal from the unlawful detainer judgment was dismissed as untimely, and his petitions for rehearing and application for certification to transfer to the Court of Appeal were denied.

Mitchell’s State Court Actions and Deutsche Bank’s Cross-Action

In July 2012, Mitchell filed a lawsuit in state court against respondents and RSC. After respondents removed the case to federal court, Mitchell and Raye Mitchell, his sister and attorney, filed a separate state court action against Deutsche Bank seeking to set aside the 2012 unlawful detainer judgment.

Upon remand of the removed federal suit back to state court, Mitchell filed a first amended complaint (FAC) alleging 18 causes of action, including fraud, wrongful foreclosure, quiet title, and related claims. In March 2013, Deutsche Bank filed a cross-complaint against Mitchell for tenancy at sufferance and trespass. The cases were eventually consolidated for all purposes.

In 2013, the trial court sustained respondents’ demurrer to several causes of action in the FAC without leave to amend. The court ruled, in relevant part, that the first, fourth, fifth through eighth, tenth, eleventh, and thirteenth through fifteenth causes of action were barred by collateral estoppel due to the judgment in the unlawful detainer action.

In March 2016, Mitchell’s remaining claims and Deutsche Bank’s cross-complaint came on for trial. At the outset, the trial court granted Deutsche Bank’s motion in limine no. 1, precluding any evidence challenging the 2010 foreclosure sale or the validity of the underlying loan. After the court made several more in limine rulings against Mitchell, he elected to voluntarily dismiss his remaining claims.

Deutsche Bank presented four witnesses at trial, including real estate agent Shawna Jorat. Mitchell presented no evidence. The jury returned special verdicts unanimously in favor of Deutsche Bank’s claims for trespass and tenancy at sufferance and awarded $102,900 in damages on each claim. In October 2016, the trial court entered judgment in favor of Deutsche Bank in the amount of $102,900, plus allowable costs.

Mitchell filed several post-trial motions for judgment notwithstanding the verdict, a new trial, and vacatur of the judgment, which the trial court denied. After Mitchell filed notices of appeal from the October 2016 judgment and post-trial orders (case Nos. A150263, 150419), the court entered an amended judgment that included a cost award to Deutsche Bank. Mitchell filed a notice of appeal from the cost order as well (case No. A150730).

The Game Chanjers Case

Meanwhile, in March 2014, Mitchell, Raye, and several entities including Game Chanjers LLC (Game Chanjers) and The New Reality Foundation, Inc. (New Reality Foundation) filed another state court action against Deutsche Bank and other defendants. The plaintiffs alleged, in relevant part, that they were owners and tenants in possession of the subject property, and that the unlawful detainer judgment was void for lack of compliance with the federal Protecting Tenants at Foreclosure Act of 2009 (PTFA) (Pub.L. No. 111-22, div. A, tit. VII, §§ 702–704 (May 20, 2009) 123 Stat. 1660). The trial court sustained demurrers to some of the causes of action without leave to amend and to others with leave to amend. Because the plaintiffs failed to amend within the time given, the case was dismissed. The plaintiffs appealed (case No. A153747).

The Second Federal Action

In yet another action related to the subject property, Mitchell filed a complaint in federal court in August 2015 seeking to enforce his rescission rights under the federal Truth In Lending Act (TILA) (15 U.S.C. § 1601 et seq.). The crux of the 2015 federal action was Mitchell’s theory that the note and deed of trust relied upon by Deutsche Bank in foreclosing on the subject property were void because Mitchell had previously exercised his right under TILA to rescind the loan. Mitchell alleged that on May 5, 2007, he obtained a $648,000 loan (“Loan 125”) from IndyMac secured by a deed of trust on the subject property. The next day, Mitchell exercised his right under TILA to rescind Loan 125 by giving IndyMac a written notice of rescission, and IndyMac confirmed receipt of the notice. A few months later, in July 2007, IndyMac provided Mitchell with a new, unsecured loan (“Loan 100”), but Mitchell never agreed and was never notified that the note for Loan 125 was merged into and became the note for Loan 100. Mitchell alleged that Deutsche Bank, as assignee of Loan 125, refused to honor his rescission of the loan documents and then foreclosed on the subject property in reliance on void instruments.

The district court dismissed the suit as barred by res judicata based on the 2012 unlawful detainer judgment. (Mitchell v. Deutsche Bank Nat’l Trust Co. (N.D.Cal., Jan. 22, 2016) 2016 U.S.Dist. Lexis 7848, *5–10.) The court additionally held the suit was untimely under the applicable statute of limitations. (Id. at *10–11, fn. 3.) The Ninth Circuit affirmed the judgment on statute of limitations grounds. (Mitchell v. Deutsche Bank Nat’l Trust Co. (9th Cir. 2018) 714 Fed.Appx. 739, 740–741.)

The Instant Appeal

We consolidated the appeals from the judgments and post-judgment orders in Mitchell’s state cases and Deutsche Bank’s cross-action (case Nos. A150263, A150419, A150730) and the Game Chanjers case (case No. A153747) for briefing, oral argument, and decision.

DISCUSSION

A. Res Judicata/Collateral Estoppel
B.
Mitchell contends the trial court in the remanded state court action erred in concluding that the first, fourth, fifth through eighth, tenth, eleventh, and thirteenth through fifteenth causes of action in the FAC were barred by collateral estoppel due to the unlawful detainer judgment.

Preliminarily, we note the trial court sustained respondents’ demurrer to the first, fourth, fifth, sixth, and thirteenth causes of action on additional grounds besides collateral estoppel, and Mitchell has not attempted to demonstrate the court’s error in doing so. By failing to provide any argument showing error on these additional grounds, Mitchell has waived any challenges thereto. (Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277 (Hernandez).) Thus, even if the collateral estoppel ruling was erroneous, the decision sustaining the demurrer as to the first, fourth, fifth, sixth, and thirteenth causes of action still stands.

We now turn to the seventh, eighth, tenth, eleventh, fourteenth, and fifteenth causes of action, which were dismissed solely on collateral estoppel grounds. “Collateral estoppel, or issue preclusion, ‘precludes relitigation of issues argued and decided in prior proceedings.’ ” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.) Collateral estoppel has five requirements: (1) the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding; (2) this issue must have been actually litigated in the former proceeding; (3) it must have been necessarily decided in the former proceeding; (4) the decision in the former proceeding must be final and on the merits; and (5) the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.)

Because an unlawful detainer action is a summary proceeding ordinarily limited to resolution of the question of possession, any judgment arising therefrom generally has “limited res judicata effect and will not prevent one who is dispossessed from bringing a subsequent action to resolve questions of title.” (Vella v. Hudgins (1977) 20 Cal.3d 251, 255 (Vella).) There is, however, a “qualified exception” to this rule based on Code of Civil Procedure section 1161a, subdivision (b), which provides that an unlawful detainer action may be filed “[w]here the property has been sold in accordance with Section 2924 of the Civil Code, under a power of sale contained in a deed of trust executed by such person, or a person under whom such person claims, and the title under the sale has been duly perfected.” (Vella, supra, at p. 255.) Because title may be litigated in an unlawful detainer “to this limited extent” (Cheney v. Trauzettel (1937) 9 Cal.2d 158, 159), an unlawful detainer judgment bars subsequent fraud or quiet title suits founded upon allegations of irregularities in the trustee’s sale. (Vella, supra, at p. 256.) Conversely, claims based on “activities not directly connected with the conduct of the sale” are not barred by res judicata or collateral estoppel. (Ibid.)

In the unlawful detainer action, Mitchell opposed Deutsche Bank’s summary judgment motion by arguing, in relevant part, that the 2010 foreclosure sale was void as a matter of law because Deutsche Bank failed to strictly comply with Civil Code sections 2920 through 2924 and the requirements of the deed of trust. Mitchell also argued there were material issues of fact as to whether Deutsche Bank was the authorized trustee with the power to litigate the unlawful detainer, and whether the foreclosure sale was postponed “according to statutory requirements” because there was purportedly no announcement of the postponement or notice given to Mitchell or his counsel of the foreclosure sale. In granting summary judgment, the court found that Deutsche Bank had purchased the subject property “at [a] duly noticed and validly conducted Trustee’s Sale” and submitted evidence “which established the foreclosure sale [was] in compliance with [Civil Code section] 2924 and perfection of title,” and that Mitchell had proffered no evidence to raise a triable issue of fact.

The eighth, eleventh, fourteenth, and fifteenth causes of action sought to relitigate the foregoing issues. The eighth cause of action for breach of oral agreement alleged that respondents breached an agreement to postpone the foreclosure sale and give notice of the new sale date. The eleventh cause of action for breach of the covenant of good faith and fair dealing alleged that Deutsche Bank and its agents falsely promised the foreclosure sale was on hold and both concealed and failed to provide notice of the actual date of the foreclosure sale. The fourteenth cause of action for slander of title alleged that Deutsche Bank’s claim of title to the subject property was false because RSC, purporting to act as respondents’ agent, wrongfully recorded the notice of default, notice of trustee’s sale, and trustee’s deed upon sale. And the fifteenth cause of action to void the foreclosure sale and cancel the substitution of trustee and trustee’s deed alleged that the sale was based on unsigned and forged documents assigning the deed of trust and note to OneWest and substituting Deutsche Bank as trustee. Because these claims were founded upon allegations of wrongdoing directly connected with the conduct of the 2010 foreclosure sale and Deutsche Bank’s perfection of title, they are barred by the prior unlawful detainer judgment. (Vella, supra, 20 Cal.3d at p. 256.)

Mitchell unpersuasively contends this application of collateral estoppel does not comport with fairness and public policy. Whether collateral estoppel is fair and consistent with public policy depends in part upon the character and judicial nature of the forum that first decided the issue later sought to be foreclosed, i.e., its legal formality, its jurisdictional scope, and its procedural safeguards, including the opportunity for judicial review of adverse rulings. (Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 829, 835.) Here, the prior forum was a court, so Mitchell had a full and fair opportunity to litigate his claims challenging the regularity of the foreclosure proceedings (Vella, supra, 20 Cal.3d at p. 256) and to appeal adverse rulings (Code Civ. Proc., § 904.2, subd. (a)).

We reach a slightly different conclusion on the seventh cause of action for breach of the note/deed of trust and the tenth cause of action for deceit/concealment. Although these causes of action were largely based on allegations of wrongdoing connected with the conduct of the foreclosure sale, they also alleged that Deutsche Bank as owner of the note, and respondents as “foreclosing defendants,” failed to give Mitchell notice of where to send payments and how much to send. The alleged failure to provide payment notices was not directly connected to the conduct of the sale, and nothing in the record indicates that such alleged wrongdoing was actually and necessarily litigated on the merits in the unlawful detainer. Nor does Deutsche Bank cite any authority for the position that a claim against a lender or loan servicer for failing to provide payment notices could have been raised within the limited scope of the unlawful detainer proceeding. (Hong Sang Market, Inc. v. Peng (2018) 20 Cal.App.5th 474, 491.) Because a demurrer does not lie to only a part of a cause of action (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 163), the trial court could not properly sustain the demurrer to the seventh and tenth causes of action based only on the portions actually barred by collateral estoppel.

Nevertheless, Mitchell has not adequately demonstrated grounds for reversal. The non-collaterally-estopped portions of the seventh and tenth causes of action mirrored the allegations of the fourth cause of action for violation of Civil Code section 2937, and the trial court separately ruled that Mitchell failed to state a cause of action under that statute because the failure to send payment notices did not prevent Mitchell in any way from curing the default. Mitchell waived any challenge to this ruling by failing to present any argument or authority showing error. (Hernandez, supra, 37 Cal.App.5th at p. 277.) This same rationale applies to the remaining allegations in the seventh and tenth causes of action. To state a claim for breach of contract or fraudulent concealment, the alleged damages must causally result from the contractual breach or suppression of fact. (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402; Linear Technology Corp. v. Applied Materials, Inc. (2007) 152 Cal.App.4th 115, 131.) The only resulting harms alleged in the seventh and tenth causes of action were that Mitchell was prevented from reinstating the mortgage and/or filing for bankruptcy to prevent the foreclosure, but Mitchell alleges no causal nexus between the lack of payment notices and these harms. Meanwhile, he admits elsewhere in the FAC that he received the notice of default in August 2009, and he does not allege that the notice failed to set forth the amount needed to cure the default (Civ. Code, §§ 2924, subd. (a)(1)(D), 2924c, subd. (b)(1)) or that he paid such amount. Thus, Mitchell’s non-collaterally-estopped claims for breach of note/deed of trust and deceit/concealment fail for the same reasons his claim under Civil Code section 2937 failed, and he has waived any perceived error in this regard.

For these reasons, we conclude the trial court properly sustained Deutsche Bank’s demurrer to the first, fourth, fifth through eighth, tenth, eleventh, and thirteenth through fifteenth causes of action.

C. Leave to Amend
D.
Mitchell contends the trial court erred in denying leave to amend because he can state viable claims on the second and eighteenth causes of action (void judgment, violation of the UCL) as well as additional causes of action for conversion and wrongful foreclosure, by alleging that he successfully rescinded Loan 125, and that Deutsche Bank wrongfully relied on the rescinded note and deed of trust to conduct the foreclosure sale.

We review a trial court’s decision to sustain a demurrer without leave to amend for abuse of discretion. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Generally, leave to amend is liberally granted (Scott v. City of Indian Wells (1972) 6 Cal.3d 541, 549), and a plaintiff may propose new facts or theories on appeal to show the complaint can be amended to state a cause of action. (Connerly v. State of California (2014) 229 Cal.App.4th 457, 460.) However, the court’s power to permit amendments is not unlimited, and a plaintiff may not introduce by amendment “ ‘ “a wholly different cause of action” ’ ” or “a wholly different legal liability or obligation from that originally stated.” (Klopstock v. Superior Court (1941) 17 Cal.2d 13, 20 (Klopstock).)

We find no abuse of discretion. The proposed amendments do not arise out of Deutsche Bank’s obligations under the loan agreement and deed of trust, its legal duty to provide notices, or its concealment of the foreclosure sale date, as alleged in the FAC. Rather, they arise out of Mitchell’s rescission of Loan 125 and Deutsche Bank’s use of the deed of trust on the rescinded loan to foreclose on the subject property—which constitute wholly different legal liabilities and obligations from those originally stated. (Klopstock, supra, 17 Cal.2d at p. 20.) Mitchell recognized this distinction in his federal TILA complaint, which asserted the same theory of liability as the proposed amendments, stating, “this case is not a wrongful foreclosure case or an attack on the validity of the notice requirements under California non-judicial statutes. . . . [¶] This case addresses a very simple issue of enforcement of a loan rescission right vested on May 6, 2007 under the Truth in Lending Act[.]” Because the proposed amendments went beyond the permissible scope of amendment, leave to amend was properly denied.

E. Trespass Damages
F.
Mitchell argues that the judgment on Deutsche Bank’s cross-complaint is void and that he was denied constitutional notice because the cross-complaint did not allege what type of trespass (permanent or continuing) was at issue. Mitchell further contends that even if a continuing trespass was sufficiently alleged, Deutsche Bank was not legally entitled to damages incurred after the filing of the cross-complaint in March 2013 because a continuing trespass is assessed for present and past damages only, and any claim for post-filing damages was time-barred.

We find no pleading deficiency in the cross-complaint. A permanent trespass involves a permanent injury in which damages are assessed “once for all,” while a continuing trespass can be discontinued at any time. (Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 868–869 (Baker).) Here, Deutsche Bank alleged that the cross-defendants “continued to occupy” the property and that Deutsche Bank was entitled to damages until it “recovers possession.” Reasonably construed, the cross-complaint alleged a continuing trespass.

We next turn to Mitchell’s contention that the trespass damages award was excessive because it included amounts incurred after the filing of the cross-complaint. As mentioned, Deutsche Bank issued a notice to vacate the subject property in October 2010 and filed its cross-complaint for trespass and tenancy at sufferance in March 2013. Deutsche Bank finally obtained possession of the subject property in July 2014, when the sheriff executed a writ of possession. At trial, Deutsche Bank asked the jury to award monthly rental value damages for the 45 months between October 2010 and July 2014.

Deutsche Bank relies on Renz v. 33rd Dist. Agricultural Assn. (1995) 39 Cal.App.4th 61 (Renz) for the position that damages incurred between the commencement and conclusion of a continuing trespass action are recoverable in that action. Notably however, Renz came to this conclusion in spite of language in Baker, supra, 39 Cal.3d 862, indicating that recovery in a continuing nuisance or trespass suit is limited to injuries “suffered prior to the commencement” of the action, and that “ ‘[p]rospective damages are unavailable,’ ” which Renz concluded was non-binding dicta. (Renz, supra, at p. 65, citing Baker, at p. 869.) In a case subsequent to Renz, the California Supreme Court quoted the relevant language from Baker with approval (Mangini v. Aerojet-General Corp. (1996) 12 Cal.4th 1087, 1103), but the case did not mention Rentz or involve post-filing damages. Federal courts disagree on the correctness of Renz’s holding. (Compare California v. Kinder Morgan Energy Partners, L.P. (S.D.Cal., Mar. 24, 2016) 2016 U.S.Dist. Lexis 40551, at *25–27, with Orange County Water Dist. v. Unocal Corp. (C.D.Cal., Nov. 3, 2016) 2016 U.S.Dist. Lexis 193938, at *31–35.)

At any rate, we need not reach the merits of this issue, for any perceived error was harmless. The jury awarded Deutsche Bank the same amount of damages ($102,900) on its other claim for tenancy at sufferance, and Deutsche Bank ultimately recovered a single award of $102,900. Mitchell does not challenge the tenancy at sufferance award on appeal, and we find that it properly included amounts incurred after the March 2013 filing of the cross-complaint. A tenancy at sufferance arises when a person goes into possession of land lawfully and thereafter occupies without any title at all, and the tenant at sufferance is liable for the value of the use and occupation of the premises during the time of holding over. (Stephens v. Perry (1982) 134 Cal.App.3d 748, 757, fn. 4.) Because the time of holding over continued until July 2014, Deutsche Bank was properly awarded tenancy at sufferance damages that accrued between March 2013 and July 2014. Accordingly, Mitchell cannot show a reasonable probability of obtaining a more favorable result absent the claimed error of excessive trespass damages. (People v. Watson (1956) 46 Cal.2d 818, 836.)

G. New Theory of Liability
H.
Mitchell contends he was denied due process and a fair trial because Deutsche Bank introduced a new theory of liability at trial that was not pleaded in the cross-complaint. This purportedly new theory was that Mitchell was liable for intentionally causing third parties to commit trespass on the subject property. Mitchell argues he was “ambushed” by “the late transformation of the theory of liability,” as it was presented for the first time in closing argument.

We find these arguments unpersuasive. Under applicable law, a defendant may be liable in trespass for “causing the entry of some other person” onto the plaintiff’s property. (Martin Marietta Corp. v. Insurance Co. of North America (1995) 40 Cal.App.4th 1113, 1132.) This principle is set forth in CACI No. 2000, which was used to instruct the jury in this case, as well as in the special verdict forms discussed by the parties and the trial court before the presentation of evidence. Mitchell could not have been unfairly surprised that Deutsche Bank’s case rested on this recognized theory of trespass liability.

Furthermore, the record discloses no deprivation of the opportunity to defend against this theory of liability. It appears the only evidence at trial regarding third parties pertained to Raye and, indirectly, two entities she has affiliated herself with—New Reality Foundation and Center for Positive Power. Mitchell provides no reason why he could not have simply testified that he did not cause these third parties to enter onto the subject property, nor does he contend he required additional discovery to uncover other witnesses or evidence on the subject.

Finally, even if Deutsche Bank’s theory of liability was not reasonably clear until it gave its closing argument, Mitchell could have moved to reopen the evidence so as to present a defense. (People v. Memro (1995) 11 Cal.4th 786, 869.) His failure to do so waived any claim of error. (Ibid.)

I. Sufficiency of the Evidence
J.
Mitchell argues Deutsche Bank failed to present competent evidence establishing that he occupied the subject property and/or intentionally caused third parties to occupy the premises as his agents or in any other capacity after being given notice to vacate.

In evaluating a sufficiency-of-the-evidence challenge to a verdict, our review “begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)

At trial, Shawna Jorat testified she was a licensed real estate agent hired by OneWest to visit the subject property and assess its condition and occupancy. Jorat first visited the property a few days after the foreclosure sale. Met by Raye, Jorat said she was there to see Mitchell or the owner of the property. Raye claimed to be the attorney for the owner and told Jorat there was a misunderstanding because loan payments had been made. Jorat further testified that Raye said “they were not going to be going anywhere.”

Jorat continued to visit the subject property and document its condition weekly or every other week from August 2010 to the beginning of 2013. During that time, the lawn and shrubbery were well-maintained, the property had functioning gas and electricity, and the property’s appearance did not significantly change. Jorat often saw a white or off-white Lexus vehicle parked in the driveway, and on two occasions, the garage door was open and she observed a Porsche parked inside the garage with personal property arranged in such a way as to make space for the vehicle. Jorat further testified that she once saw a man rolling a garbage can out for trash collection, and in late summer or early fall of 2011, she was confronted by Raye, who brandished a PVC pipe and yelled “stay away from my property, don’t take pictures.”

In addition to Jorat’s testimony, Deutsche Bank submitted trial exhibits containing photographs of the subject project taken by Jorat and Mitchell’s interrogatory responses served in the instant action in which Mitchell stated that he had resided at the subject project and had not released his possessory interest in it.

From this evidence, the jury could have found that Mitchell continued to occupy the subject property and also allowed his sister to occupy it for many years after being given notice to vacate. As recounted by Jorat, Raye purported to speak on behalf of herself and her client, Mitchell, and her statement that “they” were not “going anywhere” reasonably implied that both she and her brother were still occupying the property and were refusing to leave. Meanwhile, the evidence of personal property and multiple vehicles parked in the driveway and garage, the continued maintenance of the property, and the indications of waste pickup and utilities usage further supported the finding that Mitchell and Raye’s occupancy continued for many years. We conclude substantial evidence supported the special verdicts.

K. Remaining Arguments
L.
Mitchell’s remaining arguments are similarly unpersuasive. He contends that despite the trial court’s in limine order excluding evidence challenging the validity of the debt, Deutsche Bank opened the door to this issue when one of its witnesses testified that Mitchell defaulted on his loan obligation. Assuming the issue was not waived, we find no abuse of discretion in the trial court’s decision to allow the testimony. Such testimony simply provided foundational facts establishing Mitchell’s previous ownership and Deutsche Bank’s successor ownership of the subject property, which were necessary for Deutsche Bank to prove its claims for trespass and tenancy at sufferance.

Mitchell further contends that Deutsche Bank’s counsel improperly asked the jury to award a “deficiency judgment” when she told the jury that Deutsche Bank suffered “a $200,000 loss” from Mitchell’s default. Mitchell, however, failed to preserve this argument for appeal by timely objecting and moving for a mistrial or curative admonition. (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 295.) In any event, no impropriety appears. Our review of Deutsche Bank’s closing argument in its entirety discloses that counsel did not expressly or impliedly ask the jury to award a deficiency judgment. Rather, she asked the jury to award damages based on Mitchell’s occupancy of the subject property for 45 months at $2,500 a month based on Jorat’s testimony regarding the fair market rental value for the subject property.

Finally, Mitchell argues that public policy favors a trial on the merits of his TILA-rescission theory. Although he cites a case standing for the proposition that the law disfavors a party’s attempt to take advantage of the mistake, surprise, inadvertence, or neglect of his or her adversary to avoid a trial on the merits (A&B Metal Products v. MacArthur Properties, Inc. (1970) 11 Cal.App.3d 642, 648), he neglects to show that his failure to present the TILA rescission theory stemmed from any such mistake, inadvertence, surprise, or excusable neglect.

M. Game Chanjers Appeal
N.
Mitchell states in his opening brief that the appeal from the judgment in the Game Chanjers case “has been abandoned.” Although Mitchell has not formally dismissed the appeal, he raises no claims of error in the Game Chanjers judgment. Thus, we dismiss the appeal (case No. A153747) as abandoned. (In re Sade C. (1996) 13 Cal.4th 952, 994.)

DISPOSITION

The appeal in case No. A153747 is dismissed. The remaining judgments in this consolidated appeal are affirmed. Deutsche Bank shall recover its costs on appeal.

_________________________

Fujisaki, J.

WE CONCUR:

_________________________

Siggins, P. J.

_________________________

Petrou, J.

A150263, A150419, A150730, A153747

Filed 9/18/19 Sharon v. Porter 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

ELISE SHARON,

Plaintiff and Respondent,

v.

PETER J. PORTER,

Defendant and Appellant.

G056706

(Super. Ct. No. 30-2017-00907396)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Walter P. Schwarm, Judge. Reversed.

Peter J. Porter, in pro. per., for Defendant and Appellant.

Law Offices of Martin F. Goldman and Martin F. Goldman for Plaintiff and Respondent.

* * *

Attorney defendant Peter J. Porter represented plaintiff Elise Sharon in a lawsuit resulting in a 2008 default judgment entered in favor of Sharon. In October 2015, a judgment debtor wrote to Sharon, claiming the judgment was void. In November 2015, Sharon’s new attorney correctly opined that the judgment was indeed void. In September 2016, the debtor filed a motion to vacate the judgment, which was granted the following month. In May 2017, Sharon filed the instant legal malpractice lawsuit against Porter.

During a court trial on stipulated facts, the trial court found the judgment had been valid until it was vacated. The court also found the statute of limitations applicable to Sharon’s lawsuit had been tolled until “actual injury” first occurred in September 2016, when Sharon began incurring hourly attorney fees to oppose the judgment debtor’s motion to vacate the judgment.

We reverse because the default judgment was void independent of it being vacated. Discovery of the void judgment and whatever injury resulted therefrom occurred at least by November 2015 when the judgment debtor wrote to Sharon and her new attorney claiming the judgment was void. The statute ran one year from that date. (Code Civ. Proc., § 340.6, subd. (a).) Sharon’s 2017 lawsuit was time-barred.

I

FACTS AND PROCEDURAL HISTORY

A. The Perot Judgment

In 2007, Porter represented Sharon in a lawsuit filed in the Los Angeles County Superior Court against Pierre Perot and related entities, based upon auto work performed on Sharon’s vehicle. The complaint, which prayed “[f]or damages in an amount to be determined according to proof,” was served and a default judgment in the amount of $17,846.55 was entered in 2008 (Perot judgment). Porter ceased representing Sharon in August 2013.

In 2014, Sharon hired attorney Martin Goldman, on a contingency fee basis, to enforce the Perot judgment. In October 2015, an attorney representing Perot wrote a letter to Goldman arguing the judgment was void and unenforceable because the underlying complaint had not specified the amount of money damages sought against Perot as required by section 580. Goldman promptly forwarded the information to Porter. In November 2015, several e-mails were exchanged between Goldman and Porter wherein Goldman opined to Porter that the judgment was indeed void. However, no material change in the circumstances resulted during this time.

In March 2016, Goldman relied upon the Perot judgment to claim an interest in escrow money being held in connection with a potential sale of real estate owned by Perot. No payment was secured and instead, in September 2016, Perot filed a motion with the superior court to vacate the Perot judgment. Goldman wrote to Porter requesting that Porter appear in court to oppose it. After Porter did not respond, Sharon agreed with Goldman to modify her contingency fee agreement and pay the latter an hourly fee to oppose Perot’s motion. In October 2016, the superior court granted Perot’s motion, based upon section 580, and vacated the Perot judgment. The record is unclear what further action was taken by the superior court with regard to the 2007 lawsuit against Perot.

B. Legal Malpractice Lawsuit

In May 2017, Sharon filed the instant legal malpractice lawsuit against Porter. Porter filed a motion for summary judgment based upon a statute of limitations defense. The trial court denied the motion, finding a triable issue of material fact existed as to whether Sharon had not sustained actual damage until October 2016, when the superior court vacated the Perot judgment. The case proceeded to a court trial on a statement of stipulated facts, which included Porter’s admission that he had committed malpractice. The statement provided that the only issue for the trial court’s determination was whether Sharon’s lawsuit was time-barred under section 340.6.

At trial, the court and counsel agreed the dispositive issue for the court to determine was when Sharon “sustained actual injury” so that the statute of limitations was not tolled pursuant to section 340.6, subdivision (a)(1). Porter argued injury had occurred when the Perot judgment was entered in 2008. Sharon asserted the judgment had been valid until it was vacated in October 2016 and that she first sustained injury in September 2016, when she began to incur attorney fees related to the motion to vacate. Citing to Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 275-276, and Truong v. Glasser (2009) 181 Cal.App.4th 102, 111, the court found the factual issue of when Sharon first began to incur attorney fees connected to Porter’s malpractice was dispositive of when the statute of limitations commenced for Sharon’s malpractice claim against Porter. The court continued the trial and requested the parties to present supplemental briefs and additional evidence in support of their respective positions as to when Sharon sustained “actual injury.”

Sharon included with her supplemental briefing a declaration by her attorney, Goldman, to support her assertion that she sustained actual injury in September 2016 when she began incurring hourly attorney fees to correct Porter’s malpractice. Specifically, Sharon claimed that, in response to Perot’s motion to vacate the judgment, she entered an oral agreement with Goldman to pay hourly fees “to change [Goldman’s] focus from the sole effort of collecting the Perrot [sic] Judgment” to “trying to overcome the motion finally filed by Perrot [sic] in September, 2016.” In contrast, Porter maintained actual injury had occurred earlier and asserted alternative theories to place the date as early as 2008 (when the Perot judgment was entered), but no later than November 2015 (after Goldman learned the judgment was void based upon the communication from Perot’s attorney). Porter argued that, alternatively, Sharon began incurring attorney fees that constituted actual injury either in 2014 (when Sharon first retained Goldman on a contingency basis) but, again, no later than November 2015 (once Goldman knew the judgment was void).

The trial court agreed with Sharon. Specifically, the court found the Perot judgment had been valid until October 2016 and only became invalid once the superior court vacated the judgment based upon Perot’s motion. Citing attorney Goldman’s declaration as persuasive evidence, the court found Sharon had not suffered actual injury until September 2016, when she began to incur hourly attorney fees to directly address the consequences of Porter’s legal malpractice. Based upon this finding of tolling, the court found Sharon’s lawsuit had been timely filed in May 2017 and was not barred by section 340.6’s statute of limitations. Judgment in the amount of $28,641.75 was entered in favor of Sharon and Porter timely appealed.

II

DISCUSSION

A. Standard of Review and Relevant Law

The sole issue on appeal is how the legal malpractice statute of limitations applied to Sharon’s lawsuit in this case. Section 340.6 is the “exclusive scheme for commencing and tolling the legal malpractice limitations periods.” (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 763-764 (Jordache).) The statute reads, in pertinent part: “An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first. . . . [I]n no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist: [¶] (1) The plaintiff has not sustained actual injury. [¶] (2) The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.” (§ 340.6, subd. (a)(1), (2).)

With respect to tolling for lack of “actual injury,” our California Supreme Court reaffirmed the analysis that existed prior to section 340.6, for claim accrual based upon the element of damage: “‘[i]f the allegedly negligent conduct does not cause damage, it generates no cause of action in tort. [Citation.] The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm—not yet realized—does not suffice to create a cause of action for negligence. [Citations.] Hence, until the client suffers appreciable harm as a consequence of [the] attorney’s negligence, the client cannot establish a cause of action for malpractice.’” (Jordache, supra, 18 Cal.4th at pp. 749-750, quoting Budd v. Nixen (1971) 6 Cal.3d 195, 200.) “[D]epending upon the particulars, actionable harm may occur at any one of several points in time subsequent to an attorney’s negligence.” (Adams v. Paul (1995) 11 Cal.4th 583, 588.) For the purposes of analyzing tolling, the first “‘actual injury’” ends the period. (Radovich v. Locke-Paddon (1995) 35 Cal.App.4th 946, 971 [“[T]he first injury of any kind to the plaintiff, attributable to the defendant attorney’s malfeasance or nonfeasance, should suffice [to cease tolling under section 340.6, subdivision (a)(1)]”.)

On appellate review, “determining when actual injury occurred is predominantly a factual inquiry.” (Jordache, supra, 18 Cal.4th at p. 751.) However, “[w]hen the material facts are undisputed, the trial court can resolve the matter as a question of law in conformity with summary judgment principles.” (Ibid.) “There is no bright-line rule to apply in determining when actual injury has occurred within the meaning of section 340.6.” (Truong v. Glasser, supra, 181 Cal.App.4th at p. 111.) Instead, “[t]he facts of each case must be examined in light of the specific attorney errors the plaintiff in each case alleges.” (Jordache, at p. 763.) “[S]ection 340.6, subdivision (a)(1), will not toll the limitations period once the client can plead damages that could establish a cause of action for legal malpractice.” (Id. at p. 743.) In some circumstances, the incurring of attorney fees necessary to address the underlying malpractice marks the “actual injury.” (Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP, supra, 195 Cal.App.4th at pp. 275-276; see Truong, at p. 111.) In other circumstances, “[t]he loss or diminution of a right or remedy constitutes injury or damage.” (Jordache, at p. 744; see Adams v. Paul, supra, 11 Cal.4th at p. 591, fn. 5 [“Although expenditure of attorney fees or other costs in many instances clearly would be sufficient to constitute the requisite injury, nothing in the history of section 340.6(a)(1) or its decisional predicates suggests it is necessary”].) “An existing injury is not contingent or speculative simply because future events may affect its permanency or the amount of monetary damages eventually incurred.” (Jordache, at p. 754.) In other words, “we must distinguish between an actual, existing injury that might be remedied or reduced in the future, and a speculative or contingent injury that might or might not arise in the future.” (Ibid.)

B. The Perot Judgment was Void so “Actual Injury” Occurred Before Sharon Incurred Attorney Fees.

Although we are not convinced the actual injury is the defining issue in this case, we find it occurred by no later than November 2015. By that point, the judgment was already void, as acknowledged by Goldman, and Sharon’s remedy against Perot had been sufficiently diminished as a result. Contrary to Sharon’s unsupported assertion and the trial court’s finding, case law is clear the Perot judgment was void independent of when the superior court confirmed it was so. (Greenup v. Rodman (1986) 42 Cal.3d 822, 826 [“[T]he Courts of Appeal have consistently read the code to mean that a default judgment greater than the amount specifically demanded is void as beyond the court’s jurisdiction”]; see Bennett v. Wilson (1898) 122 Cal. 509, 513-514, quoting 1 Freeman, A Treatise on the Law of Judgments (4th ed. 1892) §117, pp. 177-178 [“‘A void judgment is, in legal effect, no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars any one’”].)

Given that the Perot judgment was void, we find that Sharon’s incurring of Goldman’s attorney fees in September 2016 was not the first instance of actual injury in this case. As he did at trial, Porter cites to the authorities of Worton v. Worton (1991) 234 Cal.App.3d 1638, 1645 (Worton), and Radovich v. Locke-Paddon, supra, 35 Cal.App.4th at page 974, in support of his argument that actual injury occurred in 2008, when the Perot judgment was entered. In response, Sharon also cites to Worton but characterizes the case as standing for a proposition that actual injury requires an “overt act” to end tolling under section 340.6, subdivision (a)(1). Sharon’s argument is unpersuasive, and we find Worton to support Porter’s position in this case.

Worton involved an attorney who had allegedly committed legal malpractice by omission in securing an entry of a marriage dissolution judgment which did not include her community property interest in a certain asset. Specifically, it was alleged the attorney had failed to appreciate and account for pension benefits not disclosed by the opposing party. (Worton, supra, 234 Cal.App.3d at pp. 1643-1644.) In affirming summary judgment in favor of the defendant attorney on a statute of limitations ground, the appellate court found that actual injury had occurred upon entry of the judgment. (Id. at p. 1651.)

Worton and other relevant case law support a finding that the void nature of the Perot judgment sufficiently diminished Sharon’s remedy against Perot and the other judgment debtors by no later than November 2015. (See Croucier v. Chavos (2012) 207 Cal.App.4th 1138, 1149 [actual injury occurred when former client’s ability to enforce a default judgment was diminished]; see also Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 227-228 [actual injury occurred 20 months before discovery of facts, when right to annex real property, which client had retained attorney to secure, expired because of attorney’s alleged failure to advise].) By then, Sharon’s negotiating position against Perot had been weakened, as demonstrated by Perot’s attorney’s initial letter to Goldman warning Sharon of legal liability if she persisted in attempting to enforce a void judgment. (Village Nurseries v. Greenbaum (2002) 101 Cal.App.4th 26, 41-42, citing Jordache, supra, 18 Cal.4th at p. 761 [actual injury occurred when adverse party asserted “‘objectively viable defense’” to lien interest claimed by malpractice plaintiff].) The void judgment also constituted damages in the form of Sharon’s “lost time value of money.” (Croucier v. Chavos, supra, 207 Cal.App.4th at p. 1150.)

By no later than November 2015, the void Perot judgment constituted “an actual, existing injury that might be remedied or reduced in the future,” as opposed to a “speculative or contingent injury that might or might not arise in the future.” (Jordache, supra, 18 Cal.4th at p. 754.) A potential for remedying the effects of the void judgment did not change this conclusion. (Id. at p. 752 [“once the plaintiff suffers actual harm, neither difficulty in proving damages nor uncertainty as to their amount tolls the limitations period”]; see also Croucier v. Chavos, supra, 207 Cal.App.4th at p. 1149 [“‘actual injury’ for purposes of section 340.6 cannot depend on absolute proof as a matter of law that damages were suffered”].) The Worton court explicitly stated that whether the judgment in that case was remediable did not change when injury had been sustained, even though a postjudgment motion was expressly available. (Worton, supra, 234 Cal.App.3d at p. 1652.) We note our California Supreme Court did not criticize any aspect of Worton in discussing it in Laird v. Blacker (1992) 2 Cal.4th 606, 614-617, where the high court rejected an argument that the statute of limitations should have been tolled while an adverse judgment was potentially remediable through an appeal. Accordingly, Porter has shown that entry of a judgment can constitute “actual injury” for purposes of section 340.6 and we find the availability of a remedial measure in the underlying legal matter does not negate a finding of “actual injury.”

Of course, our finding of actual injury does not necessarily determine when the statute of limitations commenced running on Sharon’s legal malpractice claim, as injury only controls its tolling. (§ 340.6, subd. (a)(1).) With regard to commencement, we find, as the trial court did, that in October 2015, Sharon had discovered “the facts constituting the wrongful act or omission,” based upon her attorney’s receipt of written communication from Perot’s attorney. (§ 340.6, subd. (a); see Santillan v. Roman Catholic Bishop of Fresno (2008) 163 Cal.App.4th 4, 10-11 [facts used to determine accrual of a statute of limitations imputed from agent to principal].) The communication effected notice of the Perot judgment’s defect, which was eventually confirmed by the superior court one year later. It was irrelevant whether Sharon knew in 2015 whether the defect definitively constituted negligence attributable to Porter, so long as she knew of “the facts constituting the wrongful act or omission.” (§ 340.6, subd. (a); see Worton, supra, 234 Cal.App.3d at p. 1650 [“[section 340.6’s statute of limitations] is triggered by the client’s discovery of ‘the facts constituting the wrongful act or omission,’ not by his discovery that such facts constitute professional negligence, i.e., by discovery that a particular legal theory is applicable based on the known facts”].)

Since the undisputed facts show the first actual injury was sustained no later than November 2015, at the same time when Sharon discovered the facts supporting her malpractice claim, it follows that her May 2017 lawsuit was filed more than one year after section 340.6’s statute of limitations had commenced. In other words, Sharon’s lawsuit in this case was time-barred independent of when she began to incur Goldman’s hourly fees to address the consequences of Porter’s admitted malpractice.

It is true our legal conclusion, in effect, put Sharon in the awkward position of having to file a malpractice lawsuit based upon a void judgment prior to the superior court confirming the judgment was indeed void. However, such a situation did not justify tolling based upon any of the exclusive grounds under section 340.6. (See, e.g., Gordon v. Law Offices of Aguirre & Meyer (1999) 70 Cal.App.4th 972, 980 [there is no equitable tolling of the statute of limitations created by section 340.6].) To the extent Sharon implicitly claims that Porter’s conduct was inequitable—because Porter initially stated he saw “no problem” with the entry of the Perrot judgment but in litigating this case claims that the statute of limitations lapsed because the judgment was void upon its entry—we do not find Porter can be equitably estopped from asserting a statute of limitations defense in this case. Although case law supports a general proposition that a party may be equitably estopped from asserting a statute of limitations defense, such estoppel requires, among other things, a plaintiff’s ignorance of the true state of facts as well as reliance upon the inequitable conduct. (Evid. Code § 623; Leasequip, Inc. v. Dapeer (2002) 103 Cal.App.4th 394, 403-404.) Again, Goldman’s November 2015 communication with Porter demonstrates that Goldman (and therefore Sharon) was neither ignorant of the true state of facts (that the judgment was void) nor that he relied upon any representation Porter made. In other words, the circumstances of this case do not indicate that Porter could be equitably estopped from asserting a statute of limitations defense in this case.

C. Policy Interests of Section 340.6

Our findings under the particular circumstances of this case comport with the well-recognized policy interest of section 340.6 “to require diligent prosecution of known claims so that legal affairs can have their necessary finality and predictability and so that claims can be resolved while evidence remains reasonably available and fresh.” (Jordache, supra, 18 Cal.4th at pp. 755-756, citing Laird v. Blacker, supra, 2 Cal.4th at pp. 614, 618.) Given that the Perot judgment was void independent of the superior court vacating it, Sharon’s argument that the tolling should have ended when she agreed to incur attorney fees for Porter’s negligence would be at odds with another policy interest to avoid granting a malpractice plaintiff “unilateral control over the limitations period.” (Jordache, at p. 755, citing Laird at p. 618.) Under Sharon’s view, Perot’s motion to vacate the judgment could have been filed 20 years in the future and a legal malpractice claim filed within 21 years would still have been timely as long as no specific attorney fee had been charged to Sharon. No authority supports that outcome. Accordingly, we reverse the judgment against Porter, and direct that judgment be entered in his favor.

III

DISPOSITION

The judgment is reversed. The trial court is instructed to enter a new judgment in favor or Porter. Porter is entitled to his costs on appeal.

MOORE, J.

WE CONCUR:

O’LEARY, P. J.

ARONSON, J.

Case Number: BC719476 Hearing Date: September 19, 2019 Dept: 26

Superior Court of California
County of Los Angeles
Department 26

OGANES SEPUHYAN,

Plaintiff,

vs.

CSE INSURANCE GROUP et al.,

Defendants.

Case No.: BC719476

Hearing Date: September 19, 2019

[TENTATIVE] order RE:

defendanT’S Demurrer to the complaint and MOTION TO STRIKE PORTIONS OF THE COMPLAINT

Background

Introduction

Oganes Sepuhyan (Plaintiff) sues CSE Safeguard Insurance Company[1] (Defendant) for damages arising from failure to pay Plaintiff’s claimed physical damage to his home under Defendant’s homeowner insurance policy (Policy) after the La Tuna brush fires damaged Plaintiff’s home and personal property in September 2017.

Factual Background

Plaintiff alleges that, after conducting a walkthrough at his house on October 13, 2017 with Defendant’s adjuster, Plaintiff received a letter from Defendant in December 2017 in which Defendant estimated Plaintiff’s damages but referenced a different insured, property, claim, and location. (Complaint ¶¶ 11, 13.) After receiving that letter, Plaintiff contacted Defendant to address the error, find out the results of the adjustor’s report for his property, and seek payment on his claim. (Id. ¶ 14.) Although Plaintiff continued to contact Defendant, Defendant never responded, never provided a corrected adjustor’s report, and never paid Plaintiff’s claim. (Id. at ¶ 15.)

Procedural History

On August 28, 2018, Plaintiff filed a complaint asserting causes of action against Defendant and Does 1 through 50 for (1) breach of insurance contract and (2) breach of the implied covenant of good faith and fair dealing.

On May 28, 2019, Defendant filed its demurrer to Plaintiff’s complaint for insufficient facts and uncertainty and motion to strike Plaintiff’s prayer for punitive damages and related allegations. On September 5, 2019, Plaintiff filed his oppositions. On September 12, 2019, Defendant filed its replies.

LEGAL STANDARD

Meet and Confer Requirement

Code of Civil Procedure section 430.41, subdivision (a) requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” The parties are to meet and confer at least five days before the date the responsive pleading is due. (Id. § 430.41, subd. (a)(2).) The demurring party must also file and serve a declaration detailing the meet and confer efforts. (Id., subd. (a)(3).) A similar meet and confer process and declaration is required for motions to strike. (Id., § 435.5.)

Automatic Extension of Time to File a Responsive Pleading

If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer. The 30-day extension shall commence from the date the responsive pleading was previously due, and the demurring party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause. (Id., § 430.41, subd. (a)(2).)

Demurrer Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) No other extrinsic evidence can be considered.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.)

A special demurrer for uncertainty under Code of Civil Procedure section 430.10, subdivision (f) is disfavored and will only be sustained where the pleading is so bad that defendant or plaintiff cannot reasonably respond because it cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616 (Khoury).) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

Motion to Strike Standard

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436, subd. (b).)

DISCUSSION

Meet and Confer Requirement

Defendant’s counsel asserts that he was unable to meet and confer with Plaintiff’s counsel prior to the deadline to file a responsive pleading and was forced to request a 30-day extension. (Mountain Decl., ¶ 4, Exh. A.) Defendant’s counsel further states that in April 2019, he attempted to reach Plaintiff’s counsel several times. Eventually, he left Plaintiff’s counsel a voicemail message and sent a follow-up email requesting to meet and confer on the issues he planned to raise in Defendant’s demurrer and motion to strike. (Id. at ¶ 6.) Although Defendant’s counsel was unable to meet and confer with Plaintiff’s counsel, he attempted to reach Plaintiff’s counsel telephonically. Thus, Defendant’s repeated attempts to meet and confer in compliance with Code of Civil Procedure sections 430.41 and 435.5 are sufficient. The Court considers the merits of Defendant’s demurrer and motion to strike as set forth below.

Demurrer Analysis

First Cause of Action – Breach of Insurance Contract

Defendant contends that the first cause of action fails to state facts sufficient to constitute a cause of action and is uncertain. Defendant further contends that it cannot be ascertained from the pleadings whether the contract is written, oral, or implied by conduct.

To allege a breach of contract, a plaintiff must plead the contract, plaintiff’s performance or excuse for non-performance, defendant’s breach, and damage to plaintiff therefrom. (Acoustics, Inc. v. Trepte Construction Co. (1971) 14 Cal.App.3d 887, 913.) Further, the complaint must indicate on its face whether the contract is written, oral, or implied by conduct. (Otworth v. Southern Pacific Transportation Co. (1985) 166 Cal.App.3d 452, 458.) “If the action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference.” (Ibid.) Although a written contract is usually pled by alleging its making and attaching a copy which is incorporated by reference, a written contract can also be pled by alleging the making and the substance of the relevant terms. (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.) General allegations stating that a defendant violated a contract are insufficient, and instead, pleaders must state with certainty facts showing a breach. (Levy v. State Farm Mutual Automobile Ins. Co. (2007) 150 Cal.App.4th 1, 5-6.); Melican v. Regents of Univ. of Cal. (2007) 151 Cal.App.4th 168, 174.)

Here, Plaintiff alleges that Plaintiff procured a policy of homeowner’s insurance from Defendant bearing policy number CAH1083175 and that the Policy provided coverage for physical losses. (Complaint ¶ 6.) Plaintiff further alleges that the damage sustained to his home and personal property caused by the La Tuna brush fire were covered losses under the Policy. (Ibid.) Accordingly, Plaintiff presented claims for benefits to Defendant under the Policy, which Plaintiff alleges was in full force and effect at the time that the La Tuna brush fire damaged Plaintiff’s home and personal property in September 2017. (Id. at ¶¶ 6, 8.)

Plaintiff Alleges that the Contract Was Made in Writing

Plaintiff’s allegations that the Policy used standard forms which provided coverage for physical losses and that the Policy bore the number CAH1083175 demonstrate that the contract between Plaintiff and Defendant was written. (Complaint ¶ 6.) Further, the letter sent by Defendant in December 2017 is further evidence of a written contract between the parties. Thus, Plaintiff sufficiently alleges that the contract between the parties was written.

Plaintiff Sufficiently Alleges the Making of the Contract and the Substance of the Relevant Terms

Although Plaintiff does not attach the Policy or plead the terms of the Policy verbatim, he sufficiently alleges the making and the substance of the relevant terms of the Policy. Specifically, Plaintiff alleges that he entered into a contract with Defendant to provide coverage for prospective physical damage to his home located at 9739 Sombra Valley Drive, Shadow Hills, California, 91040. (Complaint ¶¶ 5-6.) Plaintiff further alleges that the Policy “used standard forms which provided coverage for physical losses,” was issued by Defendant “after conducting a detailed exterior and interior inspection of the property,” and was in effect at the time of the alleged loss in September 2017. (Id. at ¶¶ 6, 8.) Furthermore, Plaintiff alleges that Defendant’s agent advised Plaintiff “that any claim for damages sustained to his premises would be promptly and fairly inspected, adjusted and paid by Defendant.” (Id. at ¶ 7.) Thus, Plaintiff alleges the relevant terms of the contract.

Plaintiff Sufficiently Alleges Breach and Damages Under the Contract

Plaintiff alleges that following his submission of a claim for property damage to Defendant under the Policy, Defendant sent Plaintiff a letter in December 2017 with an estimate of damages that referenced the incorrect insured, property, claim, and location. (Complaint at ¶ 13.) From that point forward, Plaintiff alleges that Defendant did not respond to Plaintiff’s repeated requests for Defendant to address the error, obtain the results of the adjustor’s report on his property, and seek payment on his claim. (Id. at ¶ 14.) Plaintiff alleges that, although Plaintiff made a timely claim for benefits due under the Policy, Defendant has refused to pay Plaintiff his physical damage benefits. (Id. at ¶ 16.) Thus, Plaintiff alleges Defendant breached the Policy because it failed to pay Plaintiff under the Policy for the damage sustained to Plaintiff’s home and property caused by the La Tuna brush fire.

Thus, Defendant’s demurrer to Plaintiff’s first cause of action is overruled.

Second Cause of Action – Breach of the Implied Covenant of Good Faith and Fair Dealing

Defendant argues that Plaintiff does not plead sufficient facts because Plaintiff fails to specifically allege that (1) Defendant had a contractual obligation to pay Plaintiff under the Policy, (2) Defendant withheld benefits owed to Plaintiff under the Policy, or (3) Defendant’s reason for withholding benefits was unreasonable and without proper cause. Defendant contends that Plaintiff fails to state a viable cause of action for breach of contract, and Plaintiff’s factual allegations do not sufficiently plead that Defendant acted in bad faith.

The law implies a covenant of good faith and fair dealing in every contract, including insurance policies. (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 720.) The obligations imposed by the implied covenant are imposed by law to govern the manner in which the express contractual obligations must be discharged: fairly and in good faith. (Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 573.)

“[T]he essence of the implied covenant of good faith and fair dealing is that ‘[t]he [insurer] must refrain from doing anything that will injure the right of the insured to receive the benefits of the [insurance] agreement, the terms and conditions of which define the duties and performance to which the insured is entitled.” (Brandwein v. Butler (2013) 218 Cal.App.4th 1485, 1514¿1515.) The two requirements for a breach of the implied covenant are that (1) benefits due under the policy must have been withheld, and (2) the reason for withholding benefits must have been unreasonable or without proper cause. (Id. at p. 1515.) Breach of a specific provision of the insurance contract is not a necessary prerequisite to bringing a bad faith claim. (Carson v. Mercury Ins. Co. (2012) 210 Cal.App.4th 409, 429.) Nor is it necessary that the breaching party’s conduct be dishonest so long as improper claims handling causes detriment to the insured. (Ibid.) In short, breach of the implied covenant of good faith and fair dealing is an implied-in-law term of any contract, and its breach will necessarily result in a breach of the contract. (Archdale v. American International Specialty Lines Ins. Co. (2007) 154 Cal.App.4th 449, 468.)

Here, as set forth above, Plaintiff alleges that (1) he made a claim to Defendant under the Policy for damages sustained to his home in the La Tuna brush fire in September 2017 (Complaint ¶¶ 8, 10, 16); (2) Defendant has not paid Plaintiff benefits due under the policy (id. at ¶¶ 15-16); (3) Defendant sent him a letter in December 2017 with an incorrect estimate of damages that referenced a different insured, property, claim, and location (id. at ¶ 13); and (4) Defendant failed to rectify its mistakes despite Plaintiff’s repeated attempts to contact Defendant to address the error, find out the results of the adjustor’s report for his property, and seek payment on his claim. (Id. at ¶ 14.) Plaintiff further alleges that Defendant’s refusal to pay Plaintiff’s claim was “improper, unreasonable, reckless and incompetent” and that Defendant engaged in deceptive practices. (Id. at ¶¶ 39, 43.) These allegations demonstrate bad faith because Defendant failed to justify its refusal to pay full benefits and failed to even properly identify Plaintiff and his property.

Thus, the Court overrules Defendant’s demurrer to Plaintiff’s second cause of action.

Motion to Strike

Defendant moves to strike Plaintiff’s prayer for punitive damages and related allegations on the ground that Plaintiff’s allegations are insufficient to support any award of punitive damages.

Punitive Damages Are Available Under Plaintiff’s Tort Cause of Action for Breach of the Implied Covenant of Good Faith and Fair Dealing

To succeed on a motion to strike punitive damages allegations, it must be said as a matter of law that the alleged behavior was not so vile, base, or contemptible that it would not be looked down upon and despised by ordinary decent people. (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1228-1229.)

Civil Code section 3294 provides punitive damages are available in non-contract actions where the defendant is guilty of malice, oppression, or fraud, defined as follows:

(c) As used in this section, the following definitions shall apply:

(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.

(3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

A demand for punitive damages for the commission of any tort requires more than conclusory allegations, such as allegations that the defendant’s conduct is “intentional, willful and fraudulent.” (Brosseau v. Jarrett (1977) 73 Cal.App.3d 864.) The allegations of fact must, in their totality, describe a state of mind and a motive that would sustain an award of punitive damages. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6-7.) The mere allegation that an intentional tort is committed is insufficient to warrant an award of punitive damages. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) Not only must there be circumstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a claim. (Ibid.)

The availability of tort damages is the primary reason for proceeding in tort against an insurer in a bad faith action. (Silberg v. California Life Ins. Co. (1974) 11 Cal.3d 452, 462.) Further, because punitive damages are not authorized in contract actions, where both contract and tort damages are sought in insurance claims for breach of the implied covenant of good faith and fair dealing, punitive damages are only available for the tort cause of action. (See Major v. Western Home Ins. Co. (2009) 169 Cal.App.4th 1197, 1224.) “In particular, unlike other contractual relationships, an insurance contract permits an insured to recover tort damages when in bad faith the benefits of an insurance contract have been deprived.” (Rattan v. United Services Auto. Association (2000) 84 Cal.App.4th 715, 721.)

Here, Plaintiff alleges that Defendant knowingly avoided its obligations to pay him benefits pursuant to the Policy by relying on erroneous information about Plaintiff’s identity and Plaintiff’s property as set forth above. (Complaint ¶¶ 13-14.) Thus, Plaintiff alleges that Defendant acted in conscious disregard of Plaintiff’s rights under the Policy.

Accordingly, Defendant’s motion to strike Plaintiff’s prayer for punitive damages and related allegations is denied.

Conclusion and ORDER

Defendant’s demurrer to Plaintiff’s complaint is overruled in its entirety. Defendant’s motion to strike Plaintiff’s prayer for punitive damages and related allegations is denied in its entirety.

Defendant is to file an answer within 10 days.

Defendant is to give notice and file proof of service of such.

DATED: September 19, 2019 ___________________________

Elaine Lu

Judge of the Superior Court

[1] Erroneously sued as CSE Insurance Group

Lawzilla Additional Information: The case number posted by the court for this action may be incorrect.

Case Number: BC705610 Hearing Date: September 19, 2019 Dept: 31

MOTION TO COMPEL DEPOSITION IS GRANTED.

Background

This case arises out of allegations that Plaintiff’s predecessor in interest, Rabi Setareh, loaned Defendants $500,000.00 pursuant to a written promissory note which was secured by a Deed of Trust on real property commonly known as the 4600 Block of Klamath Street, Los Angeles, CA 90032. The First Amended Complaint (“FAC”) filed by Plaintiff Kavyan Setareh, as trustee of the Pacific Capital Trust, against Monterey Bay View Estates, LLC; South Bay Contractors, Inc.; Avraham Hassid; Mike Amidnamin; and Does 1 through 25, also alleges Defendants Hassid and Amidnamin executed written personal guarantees for the debt. The FAC alleges Defendants have failed to make the agreed upon payments and misrepresented that they would not sell the Klamath Street property without notifying Rabi Setareh ahead of time so he could protect his lien on the property. Plaintiff named Defendants Hassid and Amidnamin in their individual capacities as well as their capacities as officers for their respective entities, Defendants Monterey Bay View Estates, LLC (“Monterey”) and South Bay Contractors, Inc. (“SBC”). The FAC asserts causes of action for:

Breach of Contract – Promissory Note;

Breach of Contract – Personal Guarantee;

Common Count: Open Book Account;

Common Count: Account Stated;

Money Lent;

Breach of the Implied Covenant of Good Faith and Fair Dealing; and

Fraud.

On May 16, 2018, Plaintiff filed a Request for Dismissal, dismissing without prejudice the 7th cause of action for fraud against Defendants Monterey Bay View Estates, LLC and Avraham Hassid. Plaintiff seeks an order compelling the deposition of Avraham Hassid.

Legal Standard

Any party may obtain discovery, subject to restrictions, by taking the oral deposition of any person, including any party to the action.¿(Code of Civ. Proc., § 2025.010.)¿A properly served deposition notice is effective to require a party or party-affiliated deponent to attend and to testify, as well as to produce documents for inspection and copying.¿(Code of Civ. Proc., § 2025.280, subd. (a).)¿¿

“If, after service of a deposition notice, a party . . . fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving notice may move for an order compelling deponent’s attendance and testimony, and the production . . . of any document . . . described in the deposition notice.”¿¿(Code of Civ. Proc., § 2025.450, subd. (a).)¿The motion must set forth both facts showing good cause justifying the demand for any documents and a meet and confer declaration.¿(Code of Civ. Proc., § 2025.450, subds. (b)(1), (b)(2).)

A court shall impose monetary sanctions if the motion to compel is granted, unless the one subject to sanction acted with substantial justification or other circumstances would make the imposition of the sanction unjust. (Code of Civ. Proc., § 2025.450(g)(1).)

Discussion

Plaintiff moves the Court for an order compelling Defendant Hassid, individually and as the designated Person Most Qualified for Defendant Monterey to appear for the completion of his deposition.

Plaintiff argues that she initially noticed Defendants’ deposition for November 12 and 13, 2018. (Siciliano Decl. ¶ 4.) Plaintiff asserts that on January 24, 2019, the combined deposition of Defendants commenced and proceeded for a total time of just under 3 hours. (Siciliano Decl. ¶ 10-11.) On May 1, 2019, session two of the combined deposition of Defendants commenced and proceeded for an additional 5 hours and 1 minute. (Siciliano Decl. ¶ 19, 21.) Plaintiff argues that at the close of session two, Plaintiff attempted to secure a date for the completion of the deposition to no avail. Plaintiff contends that the parties were advised that Defendant Hassid did not keep his calendar with him and would have to get back to Plaintiff, despite the deposition notice requiring the deposition to take place day to day. Plaintiff argue that Defendant Hassid and his counsel refused to return on May 2. (Siciliano Decl. ¶ 22.) Plaintiff asserts that since then, Defendant Hassid has failed to appear on agreed-upon deposition dates. (Siciliano Decl. ¶ 26, 28.)

Plaintiff asserts that all parties agreed that the conclusion of Defendants’ deposition would take place on June 26, 2019. (Siciliano Decl. ¶ 27.) Plaintiff contends that no objections to the deposition were filed or communicated as to this agreed upon date. Plaintiff argues that nevertheless, at 11:16 am on June 25, 2019, less than 24 hours before the deposition was scheduled to commence, counsel for Defendants sent an email refusing to produce Defendant Hassid for his scheduled deposition. (Siciliano Decl. ¶ 28.)

Plaintiff finally asserts that she has attempted to meet and confer with Defendants as required by section 2025.450. Plaintiff attaches the declaration of Nicholas A. Siciliano as an indication of Plaintiff’s counsel’s attempts to informally resolve the issues now before the Court. (Siciliano Decl. ¶ 29.)

Seven Hour Deposition Limit

The Code of Civil Procedure provides in relevant part:

(a) Except as provided in subdivision (b), or by any court order, including a case management order, a deposition examination of the witness by all counsel, other than the witness’ counsel of record, shall be limited to seven hours of total testimony. The court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.

(b) This section shall not apply under any of the following circumstances: . . .

(5) To any deposition of a person who is designated as the most qualified person to be deposed under Section 2025.230.

(Code of Civil Procedure § 2025.290(a)-(b).)

In opposition, Defendants argue that Plaintiff has exceeded the seven-hour individual deposition limit in violation of Code of Civil Procedure section 2025.290. Defendants assert that here, the parties have not stipulated to extend the seven-hour time limit. Defendants contend that they are not aware of any authority for the proposition than an individual who agrees to a “combined” deposition that is binding on both a corporate defendant and the individual defendant has waived his right to a seven-hour deposition.

In reply, Plaintiff argues that Defendants provide no calculation as to how Plaintiff exceeded the 7-hour limit. Plaintiff asserts that Defendants agreed to the combined nature of the deposition, in effect, waiving the statutory time limit, and have not offered any evidence to show the Court what amount of testimony should have been designated as solely to Defendant Hassid in his individual capacity as a Defendant. Plaintiff contends that by failing to do so, Defendants cannot demonstrate that Plaintiff somehow exceeded the 7-hour limit for the deposition which also was meant to encompass the PMQ deposition.

The Court finds that Plaintiff has not exceeded the seven-hour individual deposition limit in violation of section 2025.290. As noted above, the seven-hour limit does not apply to any deposition of a person designated as the most qualified person to be deposed under section 2025.230. Here, Defendant Hassid agreed to a deposition in his individual capacity and in his capacity as the person most qualified under section 2025.230. Accordingly, the seven-hour limitation provided by 2025.290 does not apply to Defendant Hassid as the PMQ designee under these circumstances.

Section 2025.450 & Meet and Confer Requirement

Defendants further argue that the section relied upon by Plaintiff as authority for the instant motion are inapposite. Defendants assert that section 2025.450 requires that a proper deposition notice be served in order to bring a motion, but Plaintiff has not provided one for the date he claims the deponent failed to appear – June 26, 2019. Additionally, Defendants assert that Plaintiff has not satisfied the meet and confer requirement.

In reply, Plaintiff argues that the notices served on Defendants for the initial January 24, 2019 deposition date compelled Defendants’ attendance at deposition and required that the depositions continue day to day until completed. (Reply Siciliano Decl., Exh. 20, 21.) Plaintiff asserts that those notices, which require Defendants’ day-to-day attendance, were amended by agreement of the parties on the record to accommodate the schedules of the deponents and counsel. Plaintiff contends that when Defendants unilaterally cancelled the deposition for June 26, 2019 on June 25, they did so in violation of the operative notices as amended by agreement of the parties. Plaintiff argues that by failing to proceed with the depositions, Defendants failed to comply with the duly served notices and an order compelling the deposition is authorized pursuant to section 2025.450.

The Court finds that the deposition notices served on Defendants noticing deposition for January 24, 2019 form the proper basis for the instant motion. The Court further finds that Plaintiff has satisfied the meet and confer requirements of section 2025.450. It is undisputed by the parties that Defendant Hassid has not appeared for deposition despite the properly served notices and agreements of counsel to a firm deposition date.

Based on the foregoing, Plaintiff’s motion to compel the deposition of Defendant Hassid in his individual capacity and in his capacity as the person most knowledgeable for Defendant Monterey is GRANTED.

Sanctions

Plaintiff seeks sanctions against Defendants and their counsel of record in the amount of $6,906.60, consisting of: (a) 7 hours spent meeting and conferring and drafting the instant motion, an anticipated 2 hours drafting a reply brief, and an anticipated 3 hours spent travelling to and from, and attending the hearing on the motion, billed at a rate of $495 per hour; (b) the $61.65 filing fee; (c) a One Legal fee of $9.95; and (d) $895.00 in cancellation fees for the interpreter scheduled for the June 26, 2019 deposition date.

At the time of the filing of this motion, former counsel, Mainak D’Attaray of the Law Office of Mainak D’Attaray was counsel of record. Accordingly, the Court construes the request for sanctions as against Defendants’ counsel of record at the time the motion was filed.

Plaintiff is not entitled to fees for the amount of time spent meeting and conferring prior to the filing of the instant motion. Plaintiff may only recover reasonable attorney fees for the preparation of the motion itself. Further, the Court finds the amount of time allotted to attending and traveling to the hearing is unreasonable. Accordingly, the Court awards reduced sanctions in the amount of $3,936.60 for 3 hours spent preparing the instant motion, 2 hours spent preparing the reply, and 1 hour for the hearing billed at a rate of $495 per hour plus costs in the amount of $966.60.

Conclusion

Based on the foregoing, Plaintiff’s motion to compel completion of deposition of Defendant Hassid, individually and as person most qualified for Defendant Monterey Bay View Estates, LLC is GRANTED. Defendant Hassid is ordered to appear for deposition on October 7, 2019. Defendants Hassid and Monterey and their former counsel of record, Mainak D’Attaray of the Law Office of Mainak D’Attaray, are ordered to pay sanctions to Plaintiff in the amount of $3,936.60 within thirty (30) days.

Moving party to give notice.

Case Number: BC698875 Hearing Date: September 19, 2019 Dept: 58

Judge John P. Doyle
Department 58

Hearing Date: September 19, 2019

Calendar No.: 13

Case Name: Jennifer Elfenbein v. Mercedes-Benz USA LLC

Case No.: BC698875

Motion: Motion for Protective Order

Moving Party: Plaintiff Jennifer Elfenbein

Responding Party: Defendant Mercedes-Benz USA LLC

Tentative Ruling: The Motion for Protective Order is granted in part.

BACKGROUND

This is a lemon law case involving Plaintiff Jennifer Elfenbein (“Plaintiff”). On March 23, 2018, Plaintiff filed her complaint against Defendant Mercedes-Benz USA LLC (“Defendant”) alleging causes of action for (1) breach of implied warranty under the Song-Beverly Warranty Act and (2) breach of express warranty under the Song-Beverly Warranty Act.

Plaintiff brought the subject vehicle to three different Mercedes-Benz authorized dealers for repairs between September 18, 2017 and December 15, 2017.

On January 11, 2019, Defendant served a designation of experts that contained 1 retained expert and 12 non-retained experts that Defendant intends to call at trial. (Barry Decl. Ex. 1.) That designation did not identify five of them by name, instead naming that as “Tech” with their designated numbers.

On March 8, 2019, Defendant served an amended expert designation with the same 1 retained expert and 12 non-retained experts that Defendant intends to call at trial. (Barry Decl. Ex. 3.) That designation identified all the individuals by name.

On August 27, 2019, Plaintiff filed this motion for a protective order limiting Defendant’s designation of 12 non-retained experts. Plaintiff argues that Defendant does not need 12 dealer witnesses to address the subject vehicle’s defects and it is highly unlikely that Defendant will need or intend to call all of these witnesses. Plaintiff also seeks monetary sanctions in the amount of $6,852.50 against Defendant and its counsel.

On September 6, 2019, Defendant opposed. Defendant argues that no good cause exists for issuance of the protection order or monetary sanctions. Specifically, Defendant argues that Plaintiff had knowledge of the witnesses because they worked on her car’s repairs, and Plaintiff should have noticed their depositions or moved for this protective order earlier.

On September 12, 2019, Plaintiff filed her reply.

LEGAL STANDARDS

Any party served with a demand for exchange of expert witness information may promptly seek a protective order to limit or excuse the exchange of expert witness information demanded. (Code Civ. Proc., § 2034.250, subd. (a).)

Such orders may be granted to protect any party or expert from “unwarranted annoyance, embarrassment, oppression, or undue burden and expense.” (Id., subd. (b).)

Good cause must be shown for the protective order, and the issuance and formulation of the protective order is in the Court’s discretion. (See, e.g., Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 106-7; Raymond Handling Concepts Corp. v. Superior Court (1995) 39 Cal.App.4th 584, 588.)

“A party seeking the protective order must show by a preponderance of the evidence that the issuance of a protective order is proper.” (Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1145.)

If “good cause” is shown, the court may grant whatever relief is just, including: (1) quashing the demand because it was not timely served; (2) changing the date or place for the exchange of expert witness information; (3) specifying terms and conditions for the exchange to proceed; (4) dividing the parties into sides on the basis of their interests in the action, and designating which retained experts shall be deemed employed by each side; and (5) ordering any party or side to reduce the number of expert witnesses designated by that party or side. (Code Civ. Proc., § 2034.250, subd. (b).)

DISCUSSION

The 12 non-retained expert witnesses contain the following titles: 3 are “Service Managers;” 4 are “Service Advisors;” and 5 are “Techs.” (Barry Decl. Ex. 3.) Because this is a simple lemon law case, the Court agrees that the testimony of these non-retained experts appear to be duplicative. Additionally, the Court notes that Defendant retained an expert who was a former field technical specialist. Therefore, the testimony of additional technicians and service managers/advisors seems to add little to a fact-finder’s understanding of the issues in this case.

Finally, Defendant argues that these designated expert witnesses serve more as fact witnesses whose testimony may spill over into the expert domain because of their skill and training. However, the designation of these witnesses as “experts” means more than just that they are fact witnesses who might use their expert knowledge to testify about the facts of the subject vehicle’s alleged defects and repairs. Therefore, this designation is improper.

Accordingly, the Court agrees with Plaintiff that Defendant should serve a second amended expert witness disclosure indicating which of its identified non-retained experts it needs to defend its case and which it intends to call at trial. This protective order is necessary to minimize redundant testimony. Defendant is to serve this amended expert witness disclosure by mail and email by September 27, 2019.

The Court at this time declines to set a limit of Defendant’s non-retained experts. To the extent Plaintiff objects to Defendant’s second amended expert disclosure, Plaintiff, after properly meeting and conferring, can file a motion seeking similar relief at that time if appropriate.

MONETARY SANCTIONS

Plaintiff seeks monetary sanctions in the amount of $6,852.50 against Defendant and its counsel.

A monetary sanction “shall” be imposed against the losing party unless the court finds “substantial justification” for that party’s position or other circumstances make the sanction “unjust.” (Code Civ. Proc., § 2034.250, subd. (d).)

Here, the notice of motion is defective. The notice of motion (as filed) contains only one page and contains the request for monetary sanctions only in the caption. That request also is not specified whether it is sought against Defendant or Defendant’s counsel. Accordingly, the Court denies the request for monetary sanctions. (See Code Civ. Proc., § 2023.040 [“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. . . . .”].)

Even if the Court were to grant monetary sanctions, Plaintiff’s requested amount is unreasonable considering the motion’s simplicity. Additionally, Plaintiff cites no supporting authority why the Court should grant attorney fees for her counsel’s meet and confer efforts. Finally, Plaintiff’s counsel does not provide any explanation why his hourly rate is $450.

Accordingly, if the Court were to award monetary sanctions, the Court would reduce the hourly rate and hours incurred to find that $1,200 in monetary sanctions would be appropriate representing 4 hours expended at $300 per hour.

CONCLUSION

The Court grants Plaintiff’s motion for a protective order as set forth herein.

The Court denies Plaintiff’s request for monetary sanctions.

2017-00224160-CU-OR

Ronnie Davis vs. Nationstar Mortgage, LLC

Nature of Proceeding: Motion for Judgment on the Pleadings

Filed By: Burnett, Timothy A.

Defendant Nationstar Mortgage, LLC’s (“Nationstar”) Motion for Judgment on the Pleadings is GRANTED with leave to amend.

Nationstar’s request for judicial notice is GRANTED. However, the Court does not assume the truth of matters stated in court documents other than Orders. In taking judicial notice of these documents, the Court accepts the fact of their existence, not the truth of their contents. (See Professional Engineers v. Dep’t of Transp. (1997) 15 Cal.4th 543, 590; Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120-121; Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97, 113; 1 Witkin, Cal. Evid. (5th ed.) Judicial Notice, § 21 at p. 128 [“Judicial notice of the authenticity and contents of an official document does not establish the truth of all recitals therein”] [collecting authorities].

Overview

On September 19, 2006, Plaintiff Ronnie Davis (“Plaintiff”) obtained a loan from Nationstar in the principal amount of $475,072.50 (the “Loan”). (See Request for Judicial Notice (“RJN”), Ex. I.) The Loan was secured by a deed of trust (“DOT”) recorded against the property located at 121 Alcantar Circle, Sacramento 92834 (the “Property”). (Id.) The DOT lists Nationstar as the beneficiary of the DOT. (Id.) Plaintiff defaulted on the Loan, and as a result, Nationstar and Plaintiff entered into a Home Affordable Modification Agreement on July 29, 2016. (Id.) In September 2016, Plaintiff against defaulted on the Loan. (Compl. ¶12.) On January 26, 2017, Nationstar assigned the DOT to The Bank of New York Mellon f/k/a The Bank of New York as Trustee for Nationstar Home Equity Loan Trust 2007-A (“BONYM.”) (RJN Ex. 3.) A notice of default (“NOD”) was recorded on April 13, 2017 and a notice of trustee’s sale (“NOS”) was recorded on July 18, 2017. (RJN Exs. 4, 5.)

On May 8, 2017, Defendant West H&A caused an Assignment of Mortgage/Deed of Trust (“Fraudulent Assignment) to be recorded against the Property. (RJN, Ex. 6.) The Fraudulent Assignment falsely purported to convey the beneficial interest in the DOT from Nationstar to West H&A, although at that time, the holder of the beneficial interest was BONYM. (Id.) On June 27, 2017, West H&A caused a Deed of Trust to be recorded against the Property, purporting to secure repayment of a $300,000.00 loan to West H&A (“Fraudulent DOT”). (See RJN, Ex. 7.)

On August 4, 2017, shortly before the foreclosure sale of the Property was scheduled to occur, Plaintiff filed a Chapter 13 bankruptcy petition in the Eastern District of California. (Compl. ¶¶16-17; RJN Ex. 8.) Plaintiff’s schedules stated that Nationstar has a secured claim against the Property, which Plaintiff does not dispute, and that Plaintiff does not have any claims against third parties. (RJN Ex. 9.) Plaintiff’s petition was dismissed for failure to make plan payments. (RJN Ex. 10.)

West’s actions were part of West’s mortgage fraud scheme, which has since come to

light, in which West recorded assignments of distressed borrowers’ deeds of trusts and then tricked the borrower into making their mortgage payments directly to West. (RJN Ex. 11.) As a result of West’s actions, in related litigation brought by Nationstar, the Central District of California has enjoined West in Nationstar Mortgage LLC v. Patrick Joseph Soria, et al., Central District Case No. 2:18-cv-03041, from continuing to record fraudulent deeds of trust. (RJN Exs. 12-14.) Further, an equity receiver has been appointed over their assets. (RJN Ex. 15.) Additionally, in the Central District Action, Nationstar obtained the Court-ordered cancellation of the fraudulent recordings made by West, including those made against Plaintiff’s Property. (RJN Exs. 16-18.)

Plaintiff’s Complaint alleges four causes of action against Nationstar for (1) violation of Civil Code § 2923.6, (2) violation of Civil Code § 2924.17, (3) negligent misrepresentation, and (4) declaratory relief. Plaintiff alleges that (1) Nationstar recorded a notice of default on the Property on April 13, 2017, while his complete loan modification application was under review, (2) Nationstar failed to review competent and reliable evidence to substantiate its right to foreclose, and (3) Nationstar negligently misrepresented its right to foreclose on the loan when it recorded the NOS on July 18, 2017.

Nationstar argues that Plaintiff lacks standing to pursue his claims against Nationstar, Plaintiff’s claims are barred by judicial estoppel, and all of Plaintiff’s claims fail to state facts sufficient to state a cause of action.

Standing & Judicial Estoppel

Nationstar first argues that Plaintiff lacks standing to prosecute the claims in this action because he did not disclose his claims against Nationstar as assets in his bankruptcy filing. Here, Plaintiff filed his bankruptcy petition on August 4, 2017, after both the NOD and NOS were recorded, on April 13, 2017 and July 18, 2017, respectively. Nationstar argues that Plaintiff’s claims against Nationstar therefore accrued prior to him filing his petition, and that Plaintiff had an affirmative duty to schedule those claims. (RJN Ex. 9.) Thus, because Plaintiff’s claims against Nationstar arose pre-petition, Nationstar contends they are property of the bankruptcy estate and remain its property now, as Plaintiff has not obtained an abandonment of these claims from the trustee.

Nationstar further argues that the claims are barred by judicial estoppel because Plaintiff asserted two contrary positions: (1) in his bankruptcy filing, he stated under penalty of perjury that he had no claims against third parties, and (2) in his Complaint, Plaintiff alleges four causes of action against Nationstar. Because Plaintiff obtained the benefit of an automatic stay on the foreclosure of his Property, Nationstar asserts Plaintiff was successful in asserting his first position in his bankruptcy petition (i.e., that he has not claims against third parties) and is therefore estopped from asserting claims against Nationstar now.

Plaintiff appears to concede in his opposition that he lacks standing to pursue his claims and that he may also be judicially estopped from asserting them. Thus, Plaintiff requests leave to amend to allow Plaintiff time to reopen his bankruptcy, amend the schedules, request that the trustee abandon the claims, and then close the bankruptcy, in an effort to fix the standing and estoppel issues. Plaintiff anticipates this will take 60-90 days.

It is well established that California courts have a policy of great liberality in allowing amendments at any stage of the proceeding so as to dispose of cases upon their substantial merits where the authorization does not prejudice the substantial rights of others. (Board of Trustees v. Super. Court (2007) 149 Cal.App.4th 1154, 1163.) Moreover, Section 473 of the Code of Civil Procedure authorizes the trial court, in its discretion, to allow amendments in furtherance of justice. The policy of great liberality in permitting amendments at any stage of the proceeding has been declared by our courts. (Klopstock v. Superior Court (1941) 17 Cal.2d 13, 19-20.)

As Plaintiff does not oppose Nationstar’s assertion that Plaintiff lacks standing and is judicially estopped from asserting his claims against Nationstar, the Court construes Plaintiff’s position as a concession on the merits and grants the motion for judgment on the pleadings. However, given the deficiencies noted and Plaintiff’s proposed solution, the Court will allow Plaintiff additional time for leave to amend to attempt to correct these defects.

Failure to State a Cause of Action

Nationstar further argues that Plaintiff’s causes of action are all defectively pled. Specifically, Nationstar argues that Plaintiff failed to allege facts demonstrating that he submitted a complete loan modification prior to the recordation of the NOD. Nationstar further argues that the judicially noticeable documents contradict Plaintiff’s claims, specifically, the finding from the Central District of California that the assignment was fraudulent.

Again, Plaintiff concedes to Nationstar’s position, but seeks leave to amend his Complaint. He acknowledges that facts have changed or come to light in the past two years since the Complaint was filed, particularly given the pending case in the Central District of California. Thus, Plaintiff seeks leave to amend to incorporate the findings and orders from the Central District. Plaintiff further asserts that if given leave to amend, he can alleged that he submitted a complete loan modification application to Nationstar before Nationstar recorded the NOD.

The Court again construes Plaintiff’s failure to oppose Nationstar’s arguments here as a concession on the merits. However, leave to amend is granted to permit Plaintiff to incorporate new information derived from the Central District action and to correct any defects in Plaintiff’s Complaint.

In reaching this ruling, the Court has considered Nationstar’s arguments on reply that Plaintiff will be unable to amend the Complaint to successfully state a cause of action. However, given the policy to liberally permit amendments, the fact that Plaintiff’s Complaint is impacted by new information and outcomes from the related Central District action, and the fact that Plaintiff has not had any opportunity to amend, the Court finds it proper to grant leave to amend here.

The validity of a proposed amendment is generally not considered in deciding whether to grant leave to amend. (California Casualty General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280-281.) Such challenges to the pleadings are more properly addressed in a demurrer or a motion to strike rather than in an opposition to a motion to amend. It is axiomatic that “the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.” (California Casualty

Gen. Ins. Co., supra, 173 Cal.App.3d at 281.) Nationstar is free to challenge the amended pleading by way of appropriate motion.

Based on the foregoing, the motion for judgment on the pleadings is GRANTED.

Leave to amend is also GRANTED.

Plaintiff to file and serve its First Amended Complaint no later than November 15, 2019. Although not required by Court rule or statute, Plaintiff is directed to present a copy of this order when the amended complaint is presented for filing.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.

2018-00229490-CU-PO

Cameron Campbell vs. Arunious Gay

Nature of Proceeding: Motion to Compel 1. Form 2. Special 3. Production

Filed By: Smith, Thomas H.

Defendant Arunious Gay’s (“Defendant”) Motion to Compel Responses to (1) Form Interrogatories, (2) Special Interrogatories, and (3) Requests for Production is GRANTED as follows.

This is a personal injury action arising from Plaintiff Cameron Campbell falling through a ramp leading into a box truck on Defendant’s property. On May 18, 2018, Defendant served form interrogatories, special interrogatories, and requests for production (“RFPs”) on Plaintiff’s counsel. (Smith Decl. Exs. A, B., C.) On June 4, 2019 (over one year later), Defendant’s counsel sent Plaintiff a meet and confer letter, stating responses were due June 22, 2019. (Id. Ex. D.) On June 28, Plaintiff’s counsel served unverified response to the form interrogatories, special interrogatories, and RFPs. (Id. Ex. E.) Further, many of the responses were left blank or were objections only. (Id.) On July 31, Defendant sent a second meet and confer letter, requesting verified substantive responses to the discovery requests. (Id. Ex. F.) Defendant has not received verified responses, and thus has filed this motion to compel. (Id. ¶8.)

Plaintiff filed an opposition, though does not substantively oppose the motion. Plaintiff’s counsel explains that the discovery was served on May 18, 2018, such that responses were due on June 22, 2018, yet the matter was dormant until June 4, 2019, nearly a year later. During that time, Plaintiff had moved to Nebraska and fell out of touch with Plaintiff’s original counsel, Michael Maloney, who had been handling the file in May 2018 and has since left the firm. Plaintiff’s firm has now made tentative contact with Plaintiff and is attempting to obtain verifications for the discovery responses. In the interim, Plaintiff has served amended substantive responses, and acknowledges that they are not complete until the verification is provided. (Serrano Decl. ¶¶2-13, Ex. A.)

On reply, Defendant asks that the Court still grant the motion, as the responses remain overdue and legally deficient.

The Court agrees, and Plaintiff appears to concede, that it has not served timely and legally adequate responses to the discovery. “Unsworn responses are tantamount to no responses at all.” (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) Moreover, even if the responses were legally sufficient (which they are not), service of responses after the motion was filed does not moot the motion. Defendant is still entitled to an order. To be clear, a motion is “made” when it is filed and served. (CCP § 1005.5.) At the time the motion was filed Plaintiff had not served responses.

The motion is accordingly GRANTED. Plaintiff is to serve verified responses to the form interrogatories, special interrogatories, and RFPs, without objections, no later than October 4, 2019.

Sanctions are denied as the motion is substantively unopposed.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.

2018-00242422-CU-PA

Kayla Rumble vs. Lyft, Inc.

Nature of Proceeding: Motion to File Amended Complaint

Filed By: Piering, Robert A.

Plaintiff Kayla Rumble’s (“Plaintiff”) Motion for Leave to Amend is GRANTED.

This is a personal injury action arising from a motor vehicle accident on February 12, 2017. Plaintiff alleges that at the time of the accident, she was being driven by defendant Lyft, Inc. (“Lyft”) driver defendant Clother Dockery, Jr. (“Mr. Dockery”), when he rear-ended a car on the highway at a high rate of speed, causing Plaintiff injuries. Plaintiff’s Complaint alleges one cause of action for negligence against Lyft, Mr. Dockery, and defendant Hertz Vehicle, LLC.

Plaintiff now seeks leave to amend to add a second cause of action for gross negligence against Mr. Dockery. (Piering Decl. Ex. A [proposed First Amended Complaint].) Plaintiff asserts that in the course of discovery, she obtained Mr. Dockery’s medical records from the night of the accident, which state: “Tox Screen: Pos THC and Opiates,” and further note that his “medication list do not have THC and opiates listed.” (Id. Ex. B.) Mr. Dockery’s medical records from that night also state that he has had three syncopal (fainting) episodes in the last five years and “was seen by PCP for Holter monitor but never followed up.” (Id.) Plaintiff deposed Mr. Dockery on May 7, 2019, who stated that it would have been reckless to drive with opiates or THC in his system. (Id. Ex. C.) Plaintiff also deposed eyewitness David Wise on June 11, 2019, who testified that Mr. Dockery was driving at least 90 miles per hour and was weaving in and out of traffic. (Id. Ex.D.)

Based on this information, Plaintiff asserts that she has a sufficient factual basis to allege a cause of action for gross negligence against Mr. Dockery, for driving Plaintiff in a Lyft under the influence of opiates and THC and with a history of untreated fainting spells. Plaintiff also seeks to add a prayer for punitive damages.

Mr. Dockery opposes the motion, arguing that the cause of action for gross negligence is not supported by evidence. He contends that a positive toxicity screen is not the same as being under the influence at the time of the accident. He notes that Plaintiff does not contend the accident was the result of a fainting spell. Mr. Dockery further argues that Mr. Wise has contradicted himself previously as to how fast Mr. Dockery was driving and his testimony lacks credibility. Finally, Mr. Dockery argues that Plaintiff fails to allege extreme conduct on the part of Mr. Dockery, which is required for gross negligence.

Lyft and defendant The Hertz Corporation (“Hertz”) both filed joinders to Mr. Dockery’s opposition.

It is well established that California courts have a policy of great liberality in allowing amendments at any stage of the proceeding so as to dispose of cases upon their substantial merits where the authorization does not prejudice the substantial rights of others. (Board of Trustees v. Super. Court (2007) 149 Cal.App.4th 1154, 1163.) Moreover, Section 473 of the Code of Civil Procedure authorizes the trial court, in its discretion, to allow amendments in furtherance of justice. The policy of great liberality in permitting amendments at any stage of the proceeding has been declared by our courts. (Klopstock v. Superior Court (1941) 17 Cal.2d 13, 19-20.) However, courts should not permit an amendment “where it would not serve any useful purpose.” ( Maple Properties v. Harris (1984) 158 Cal.App.3d 997, 1012.)

The validity of a proposed amendment is generally not considered in deciding whether to grant leave to amend. (California Casualty General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280-281.) Such challenges to the pleadings are more properly addressed in a demurrer or a motion to strike rather than in an opposition to a motion to amend. It is axiomatic that “the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.” (California Casualty Gen. Ins. Co., supra, 173 Cal.App.3d at 281.) Defendants are free to challenge the amended pleading by way of appropriate motion.

Plaintiff has presented substantive evidence, obtained in discovery, that Mr. Dockery may have been under the influence of THC and opiates at the time of the accident, that he was driving erratically, and that he had a known but untreated history of fainting spells. For purposes of a motion for leave to amend, this is sufficient to entitle Plaintiff to leave to amend her complaint to add a cause of action for gross negligence against Mr. Dockery. Moreover, punitive damages may be awarded in negligence cases involving despicable conduct done with a conscious disregard of the safety of others. ( Taylor v. Superior Ct. (1979) 24 Cal. 3d 890.) As set forth above, Mr. Dockery may challenge the legal sufficiency of Plaintiff’s First Amended Complaint by way of an appropriate motion if he believes the new allegations are deficient.

Plaintiff to file and serve its First Amended Complaint no later than September 27, 2019. Although not required by Court rule or statute, Plaintiff is directed to present a copy of this order when the amended complaint is presented for filing.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.

Filed 9/23/19 Prosser v. Cole CA1/3

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

FIRST APPELLATE DISTRICT

DIVISION THREE

KENNETH A. PROSSER,

Plaintiff and Respondent,

v.

JEFF COLE,

Defendant and Appellant.

A154072

(Napa County

Super. Ct. No. 18CV000281)

Defendant Jeff Cole appeals from a civil harassment restraining order entered against him. Cole argues: (1) the court failed to provide him, an indigent party, with an official court reporter and therefore deprived him of equal access to justice; (2) the court violated his due process rights by not allowing him to present evidence in support of his claims and defenses and by not allowing him to confront and cross-examine his accuser; and (3) the court relied upon an inadmissible video recording. Cole requests that the order be vacated and the case remanded for a new hearing with a court reporter provided at no cost to him. Because the restraining order expired by its terms on March 22, 2019, we dismiss the appeal as moot.

BACKGROUND

On March 5, 2018, Kenneth Prosser filed a request for civil harassment restraining orders. Prosser declares under penalty of perjury that Cole, who lives next door to Prosser, has acted aggressively and irrationally for nearly a year. Prosser details disputes regarding Cole’s use of power tools after 7:00 p.m. and multiple incidents during which Cole yelled at and threatened him, including one occasion when Cole yelled “he could kill [Prosser] if he wanted” and another in which he “display[ed] [a] firearm . . . .” Prosser declares that the police were called on multiple occasions and that he has video recordings of some of Cole’s behavior. The request seeks personal conduct orders for Cole to stop harassing, threatening and disturbing the peace of Prosser, his son and his girlfriend; to stop using power tools after 7:00 p.m.; to stop littering Prosser’s property with cigarette butts; and to focus his camera system only on Cole’s property. On March 5, 2018, the court entered a temporary restraining order and set a hearing for March 22, 2018. Cole did not file a response to the request.

A hearing was held on March 22, and the court entered the requested civil harassment restraining order effective through March 22, 2019. On April 6, 2018, Cole filed a notice of appeal.

DISCUSSION

California Code of Civil Procedure section 527.6, subdivision (a)(1) provides that “[a] person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an order after hearing prohibiting harassment in this section.” The statute was enacted “ ‘to protect the individual’s right to pursue safety, happiness and privacy as guaranteed by the California Constitution,’ ” and “[i]t does so by providing expedited injunctive relief to victims of harassment.” (Brekke v. Wills (2005) 125 Cal.App.4th 1400, 1412.)

Cole argues the restraining order against him should be reversed and remanded to conduct a new hearing with a court reporter provided at no cost to him. According to Cole, reversal and remand are required because the Napa County local rules in effect at the time of the hearing below forced litigants, including those with fee waivers, to pay for court reporter services. Thus, he was deprived of equal access to justice. Cole relies upon Jameson v. Desta (2018) 5 Cal.5th 594 (Jameson), which holds, “[I]n order to satisfy the principles underlying California’s in forma pauperis doctrine and embodied in the legislative public policy set forth in [Government Code] section 68630, subdivision (a), when a superior court adopts a general policy under which official court reporters are not made available in civil cases but parties who can afford to pay for a private court reporter are permitted to do so, the superior court must include in its policy an exception for fee waiver recipients that assures such litigants the availability of a verbatim record of the trial court proceedings, which under current statutes would require the presence of an official court reporter.” (Id. at p. 623.)

It is undisputed that the restraining order expired by its own terms on March 22, 2019. As a general rule, “a case becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief.” (Lincoln Place Tenants Assn. v. City of Los Angeles (2007) 155 Cal.App.4th 425, 454.) “ ‘It is well settled that an appellate court will decide only actual controversies and that a live appeal may be rendered moot by events occurring after the notice of appeal was filed. We will not render opinions on moot questions . . . .’ ” (Building a Better Redondo, Inc. v. City of Redondo Beach (2012) 203 Cal.App.4th 852, 866.)

A reviewing court may exercise its discretion to hear a case that is otherwise moot if (1) the case raises an issue of broad public interest that is likely to recur, (2) there may be a recurrence of the controversy between the parties, or (3) a material question remains for the court’s determination. (Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479–480.) We asked Cole to submit a supplemental brief addressing the issue of whether the appeal should be dismissed as moot because the restraining order expired by its own terms on March 22, 2019. Cole’s counsel submitted a letter stating he is unaware of any law favorable to Cole on this issue.

We find there is no basis for the court to exercise its discretion to hear Cole’s appeal. The restraining order is now expired, and there is no material question for this court to decide. We note that following our high court’s decision in Jameson, Napa County Local Rules, rule 2.14, was amended effective January 1, 2019, to state: “For case types where an official court reporter is generally not provided by the court and electronic recording is not available, parties with a current fee waiver on file with the court may still request the services of an official court reporter. The court will waive the official court reporter fees for this service . . . .” (Super. Ct. Napa County, Local Rules, rule 2.14(B), amend. eff. Jan. 1, 2019.)

DISPOSITION

We dismiss the appeal as moot.

_________________________

Wick, J.*

WE CONCUR:

_________________________

Siggins, P. J.

_________________________

Fujisaki, J.

A154072/Prosser v. Cole

Filed 9/23/19 Roman v. Kim CA2/8

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 EIGHT

GABRIEL L. ROMAN,

Plaintiff and Appellant,

v.

SARAH H. KIM et al.

Defendants and Respondents.

B276067

(Los Angeles County

Super. Ct. No. EC058421)

APPEAL from the judgment and order of the Superior Court of Los Angeles County, William D. Stewart, Judge. Affirmed.

Gabriel L. Roman, in pro. per., for Plaintiff and Appellant.

Peterson •Bradford •Burkwitz, Avi Burkwitz, and Gil Burkwitz for Defendant and Respondent Sarah H. Kim.

Schmid & Voiles, Rodney G. Tomlinson, and Adam R. James for Defendant and Respondent Armen A. Kassabian.

_________________________

INTRODUCTION

This is the second appeal taken in Los Angeles Superior Court case No. EC058421. In the first appeal, we reversed the finding that plaintiff and appellant Gabriel L. Roman was a vexatious litigant. We reversed and remanded the dismissal of the case as to defendant and respondent Sarah H. Kim, M.D.

On remand, Roman brought a second amended complaint against Dr. Kim, alleging medical malpractice, lack of informed consent, and ordinary negligence. The trial court granted Dr. Kim’s motion for summary judgment as to all causes of action, and declared Roman a vexatious litigant.

On appeal, Roman contends the trial court erred in granting Dr. Kim’s motion for summary judgment. Roman also argues the trial court abused its discretion when it 1) granted protective orders related to the taking of depositions; 2) ordered Roman to pay one of the witness’s deposition fees; 3) overruled one of his evidentiary objections; 4) denied his request for a continuance or denial of Dr. Kim’s motion for summary judgment; and 5) declared him a vexatious litigant.

We conclude Roman’s allegations have no merit and affirm the judgment.

FACTUAL BACKGROUND

In February 2011, Roman was diagnosed with prostate cancer by his urologist, Dr. Kassabian. Dr. Kassabian referred Roman to Dr. Kim, a radiation oncologist with staff privileges at Glendale Adventist Medical Center (GAMC), who informed Roman of a new experimental cancer treatment called Cyberknife radiation. Roman met with Dr. Kim, signed an informed consent, and enrolled in the Cyberknife clinical study. Roman was informed that four gold seeds, known as fiducials, would be implanted into his prostate by Dr. Kassabian to guide the Cyberknife machine to the area to be radiated. He was also informed that he may experience some discomfort during the procedure, but would receive local anesthesia.

On March 7, 2011, Roman underwent the fiducial placement procedure at Dr. Kassabian’s office. Dr. Kim was present at Roman’s request. According to Roman, Dr. Kim brought “huge and pretty thick” needles into the procedure room. Roman alleged Dr. Kassabian had informed himself how to conduct the procedure, but had never performed it as of that date. According to Roman, Dr. Kim was guiding Dr. Kassabian on where to implant the fiducials. Dr. Kim stated she did not participate in the placement of the fiducials other than to be present for the procedure.

During the procedure, Roman moaned in pain. Roman alleged he received no anesthesia during the procedure and “felt everything.” Roman experienced excruciating pain, and felt like he had been raped and tortured.

After the procedure, Dr. Kim remained in the room briefly. While lying prone, naked from the waist down, Roman asked her twice to kiss him on the cheek. Dr. Kim refused and felt very uncomfortable; she told Roman his requests were inappropriate and left the room. Dr. Kim was stunned and had never experienced this with another patient. She eventually spoke about the incident with colleagues. A female African-American health care provider told Dr. Kim that Roman had told her he “ ‘never had sex with a black woman before.’ ” Dr. Kim was very conflicted—Roman was her patient, yet he acted very inappropriately toward her. Ultimately, Dr. Kim decided she could not continue to be involved with Roman’s treatment, but she did have further communications with him about the steps he needed to take following the fiducial implant procedure.

On March 17, 2011, 10 days after the implant procedure, Dr. Kim informed Roman the fiducials were not implanted in the right location and he would have to undergo another implant procedure to proceed on with the Cyberknife treatment. On March 21, 2011, Dr. Kim informed Roman that Dr. Fuller, the director of the Cyberknife study, had reviewed the CT scan images and confirmed the fiducials were not in the right location. Roman asked Dr. Kim whether she or Dr. Kassabian had committed malpractice, and whether she had malpractice insurance.

On March 21, 2011, Dr. Mak from the Pasadena Cyberknife office also confirmed the fiducials were not implanted properly, and offered to conduct the procedure himself under full anesthesia in a hospital setting.

In April 2011, Dr. Kim followed up with Dr. Fuller, who also agreed to perform another fiducial implant procedure. Dr. Kim asked a member of her staff to inform Roman that Dr. Fuller would perform another procedure to place the fiducials in the proper location.

Roman alleged he went through an “emotional rollercoaster” because of Dr. Kim and Dr. Kassabian. As a result, he mistrusted all doctors and decided not to do any treatment for his prostate cancer.

PROCEDURAL HISTORY

I. Procedural History Through the First Appeal
II.
On May 31, 2012, Roman, in pro. per., filed a complaint against Dr. Kassabian, Dr. Kim, and GAMC, alleging medical malpractice and lack of informed consent. Roman’s claims against GAMC were predicated on an agency theory of liability based on Dr. Kim’s alleged negligence.

Dr. Kim filed a motion for an order declaring Roman a vexatious litigant. The court denied the motion without prejudice, concluding there were only four previous actions decided adversely to Roman.

GMAC filed a motion for summary judgment alleging, among other grounds, that Dr. Kim was not an agent of GAMC. The trial court granted the motion, concluding there were no disputed facts on the issue of whether Dr. Kim was an agent of GAMC, and Roman’s claims against the hospital were barred by the applicable statute of limitations.

Dr. Kassabian also filed a motion for summary judgment supported by an expert witness declaration that Dr. Kassabian’s treatment of Roman met the standard of care. The trial court granted the motion on the ground Roman failed to present an expert witness declaration in support of his opposition to the motion.

Dr. Kim moved for summary judgment. The motion was supported by the expert declaration of Dr. Christopher King, a radiation oncologist, concluding Dr. Kim complied with the standard of care and did not cause Roman any harm. Dr. Kim also argued Roman’s action was barred by the applicable statute of limitations.

Dr. Kim also renewed her motion to declare Roman a vexatious litigant based on the four previous actions decided against Roman, as well as two more recent cases decided adversely to Roman. On April 11, 2013, the trial court concluded Roman was a vexatious litigant and granted the motion, finding there had been five lawsuits decided adversely in the prior seven years, and that he had no probability of success in his action against Dr. Kim. The court ordered Roman to post bond in the amount of $10,000, or face dismissal of the action. Roman failed to post bond, the trial court dismissed the action against Dr. Kim, and the trial court did not entertain Dr. Kim’s motion for summary judgment.

In August 2013, Roman appealed the judgments against him. On July 27, 2015, we affirmed the judgment in favor of GAMC. We concluded Roman failed to bring the action within the applicable statute of limitations and Dr. Kim was not an agent of GAMC. We also determined GAMC’s expert witness declaration established Dr. Kim did not breach the standard of care because she did not perform the procedure, Roman failed to show that Dr. Kim’s directions to Dr. Kassabian were deficient, and Roman did not present any expert testimony to create a dispute on his claim that Dr. Kim was responsible for the improper placement of the fiducials.

We also concluded the trial court erred in finding Roman a vexatious litigant because not all five of the actions identified by Dr. Kim had been finally determined against him at the time of the court’s vexatious litigant finding on April 11, 2013. In our decision, we noted the reversal of the judgment in favor of Dr. Kim did not foreclose her from raising the vexatious litigant motion again upon a proper showing of predicate facts. We also noted reversal did not preclude the trial court from addressing Dr. Kim’s motion for summary judgment on the merits.

We reversed the judgment in favor of Dr. Kassabian as to medical malpractice, concluding there remained a triable issue of material fact as to whether Roman received any anesthesia during the fiducial placement procedure. We found no disputed facts regarding Roman’s cause of action for failure to obtain informed consent because the record showed Roman was informed he would experience discomfort as a possible side effect of the fiducial implant procedure. We also rejected Roman’s lack of informed consent cause of action which was based on his argument that he should have been warned he would receive no anesthesia. We determined his argument was merely an element of his cause of action for medical malpractice rather than a separate cause of action for lack of informed consent.

III. Procedural History on Remand
IV.
In November 2015, Dr. Kim filed a renewed motion for an order declaring Roman a vexatious litigant based on additional adverse determinations entered against him, and requested an order requiring Roman to post a $20,000 bond. Dr. Kassabian joined in the motion. The trial court determined Roman was a vexatious litigant because he had at least five adverse determinations against him within the meaning of Code of Civil Procedure section 391. The court only granted the motion in part, however, finding Drs. Kim and Kassabian had not established the evidence foreclosed Roman from prevailing on the issue of whether he received anesthesia. Therefore, the court did not order Roman to furnish the security bond. The court also entered a prefiling order against Roman pursuant to section 391.7 prohibiting him from filing new litigation as a self-represented litigant without first obtaining leave of the court. The final order declaring Roman a vexatious litigant issued on February 19, 2016.

In January 2016, the court granted Roman leave to file a second amended complaint (SAC), which is the operative complaint in this appeal. In the SAC, Roman realleged his causes of action for medical malpractice and lack of informed consent. He also alleged a cause of action for negligence, which is subject to a two-year statute of limitations. The cause of action for lack of informed consent was based on his allegation that he was not informed he would receive no anesthesia or that the procedure would involve huge needles that would increase the risk his prostate cancer would spread.

In January 2016, Roman noticed the depositions of Dr. Kim and Dr. Mak to take place at his personal residence. He also asked that his wife, Luminita Roman, be allowed to pose questions at the deposition. On February 3, 2016, Dr. Kim filed a motion for a protective order precluding her deposition or, in the alternative, setting parameters to avoid being subjected to harassment. Dr. Mak, a nonparty witness, also filed a motion for a protective order on similar grounds; in the motion, he requested the court order Roman to either pay an hourly deposition fee or limit the subject matter of the questioning to “ ‘the reading of words and symbols contained in the relevant medical record’ ” under sections 2025.420, subdivision (b)(5), 2034.430, subdivision (a)(2), and 2034.430, subdivision (b).

On March 11, 2016, the court granted Dr. Kim’s and Dr. Mak’s protective orders as to the place and manner of the deposition based on Roman’s conduct throughout the proceedings. The court determined the deposition should not take place in Roman’s home and that Roman’s wife could not pose the questions at an oral deposition because doing so would constitute the unauthorized practice of law. The court indicated it would issue an order that the deposition be performed through written questions if Roman was not able to ask them orally. The court also ordered Roman to pay Dr. Mak $450 per hour in deposition fees.

On June 14, 2016, Dr. Kim filed a motion for summary judgment (MSJ) supported by her declaration and that of her expert, Dr. King. Roman opposed the motion and requested a continuance, arguing the protective orders precluded him from obtaining evidence. The court denied the request for continuance and granted Dr. Kim’s MSJ in its entirety on September 15, 2016.

As to the cause of action for medical malpractice, the court found it barred by res judicata and the applicable statute of limitations. It also found Roman failed to meet his burden to show Dr. Kim’s treatment fell below the standard of care because he did not offer an expert opinion on the standard of care.

As to the cause of action for lack of informed consent, the court found Roman’s allegation that he was not informed he would receive no anesthesia was barred by res judicata because this court had already determined this was an issue of medical malpractice, not lack of informed consent. The court also determined Roman did not establish he should have been informed that the needles used in the fiducial placement procedure would increase the risk his cancer would spread because he failed to provide an expert opinion on the issue.

As to the cause of action for negligence, the court found it was based on alleged acts or omissions by Dr. Kim when she rendered professional services. The court determined the allegations against Dr. Kim were therefore not governed by the two-year statute of limitations for negligence, but were barred by the one-year statute of limitations for medical malpractice.

Roman filed two appeals. One challenged the vexatious litigant and prefiling orders, and the other challenged the judgment in favor of Dr. Kim. We issued an order to show cause on August 11, 2016, directing Roman to show his appeal had merit pursuant to section 391.7, subdivision (b). We received Roman’s response on September 30, 2016. On January 30, 2017, we issued an order ruling Roman met his burden of showing his appeal has merit and was not made for purposes of harassment or delay, granting his request for a prefiling order, and consolidating the appeals.

Dr. Kassabian did not file a respondent’s brief but joined in Dr. Kim’s respondent’s brief on the vexatious litigant issues.

DISCUSSION

On appeal, Roman alleges the trial court erred by granting summary judgment in favor of Dr. Kim because: 1) ordinary negligence applies to Dr. Kim’s actions during the fiducial placement procedure and is therefore not barred by the one-year statute of limitations (Section II, post); 2) Dr. Kim committed medical malpractice by failing to inform Roman the needles used in the procedure might cause his cancer to spread and that he could have undergone the procedure under full anesthesia (Section III(A), post); 3) the court did not address his allegation that Dr. Kim committed medical malpractice when she abandoned him as a patient (Section III(B), post); 4) the court abused its discretion by overruling his evidentiary objections to Dr. King’s expert declaration (Section IV, post); 5) the court abused its discretion in granting Dr. Kim’s protective orders and granting expert witness fees to Dr. Mak (Section V, post); 6) the court should have granted his request to deny or continue the hearing on the MSJ due to his inability to depose Dr. Kim and Dr. Mak (Section VI, post); 7) and the evidence was insufficient to justify declaring Roman a vexatious litigant and to enter a prefiling order against him (Section VII, post).

I. Standard of Review
II.
We review a trial court’s grant of summary judgment de novo, “considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) We review the trial court’s rulings on evidentiary objections in connection with a summary judgment motion for abuse of discretion. (Tindell v. Murphy (2018) 22 Cal.App.5th 1239, 1254.) We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.)

In a medical malpractice case “where the conduct required of a medical professional is not within the common knowledge of laymen, a plaintiff must present expert witness testimony to prove a breach of the standard of care.” (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 509; Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001.)

Finally, we review a trial court’s order declaring a party a vexatious litigant for substantial evidence. (Goodrich v. Sierra Vista Regional Medical Center (2016) 246 Cal.App.4th 1260, 1265.) “We are required to presume the order declaring a litigant vexatious is correct and imply findings necessary to support that designation.” (Id. at pp. 1265-1266.) Reversal is required only where there is no substantial evidence to imply findings supporting the designation that a party is a vexatious litigant. (Id. at p. 1266.)

III. Ordinary Negligence
IV.
In the SAC, Roman alleged a cause of action for negligence in addition to realleging the cause of action for medical malpractice. Roman contends the fiducial implant surgery was not a part of Dr. Kim’s training and expertise and was therefore not within the scope of her medical practice. Accordingly, he argues, “ ‘ordinary’ ” negligence applies to Dr. Kim’s actions during the surgery, not “ ‘professional’ ” negligence. Additionally, he argues, since the statute of limitations for negligence is two years, he was not time-barred from bringing the action for ordinary negligence.

Roman cannot have it both ways. A plaintiff “cannot, on the same facts, state causes of action for ordinary negligence as well as professional negligence, as a defendant has only one duty that can be measured by one standard of care under any given circumstances.” (Bellamy v. Appellate Department (1996) 50 Cal.App.4th 797, 804.) Labeling a cause of action as negligence does not distinguish it as separate and independent from medical malpractice. (See Flowers v. Torrance Memorial Hospital Medical Center, supra, 8 Cal.4th at p. 998 [denominating cause of action professional negligence does not transmute its underlying character, nor does it distinguish it as separate from other forms of negligence].) Only one standard of care applies to a set of facts, “even if the plaintiff attempts to articulate multiple or alternate theories of liability.” (Ibid.)

Dr. Kim owed Roman one duty of care while treating him, not two. That duty was to use the reasonable degree of skill, knowledge, and care “ordinarily possessed and exercised by members of the medical profession” under similar circumstances. (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 470.) The “primary consideration” for the court in determining whether a medical professional’s allegedly negligent act or omission constitutes ordinary negligence or medical malpractice is whether the physician’s conduct occurred while rendering professional services. (So v. Shin (2013) 212 Cal.App.4th 652, 661; Bellamy v. Appellate Department, supra, 50 Cal.App.4th at p. 808.)

Here, there is no doubt Dr. Kim was rendering professional medical services on March 7, 2011, when Roman had surgery. Roman acknowledges that courts have “broadly interpreted” the phrase “in the rendering of professional services,” to mean those services for which the health care provider is licensed. (So v. Shin, supra, 212 Cal.App.4th at p. 663.) Yet, he maintains that because Dr. Kim was not trained in fiducial implant surgery, she was not rendering services for which she was licensed.

However, Roman presented no evidence establishing what professional services fall within the scope of Dr. Kim’s license. According to Dr. Kim, California’s medical providers are licensed to practice medicine in any capacity without restriction. Roman does not refute this claim and has not provided any evidence to the contrary. We therefore have no basis upon which to determine what treatment Dr. Kim may offer or which procedures she may conduct according to the terms of her medical license.

Roman failed to establish Dr. Kim could be held liable for ordinary negligence; the only cause of action Roman could bring against Dr. Kim was one for medical malpractice. Accordingly, the trial court did not err in granting summary judgment on his cause of action for negligence.

III. The Court Properly Granted Dr. Kim’s Motion for

Summary Judgment on Roman’s Cause of Action

for Medical Malpractice

A. Informed Consent

On appeal, Roman asserts the court erred in granting summary judgment on his claims that Dr. Kim did not inform him that prostate cancer could be spread by the needles used in the fiducial placement surgery, or that he would receive no anesthesia during the procedure. He alleged that he learned in September 2012 that his prostate cancer “might have spread” and that his oncologist at the time informed him that his prostate cancer was spread by the thick needles Dr. Kassabian used to implant the fiducials in a process called “needle tracking.” He also alleged he was informed by Dr. Mak that the fiducial implant procedure is done under full anesthesia.

As a preliminary matter, Roman contends his cause of action for medical malpractice based on his alleged discovery that his prostate cancer might have spread is not time-barred because he was unaware of this information until September of 2012. Assuming Roman is correct, his claim nevertheless fails because he never provided an expert declaration in his opposition to the MSJ.

When a procedure inherently involves a known risk of serious bodily injury, a physician has a duty to disclose to a patient the risk of death, serious injury, and other significant complications associated with a procedure; and any additional information a skilled practitioner would provide under similar circumstances. (Jambazian v. Borden (1994) 25 Cal.App.4th 836, 845; Cobbs v. Grant (1972) 8 Cal.3d 229, 244.) Whether the fiducial implant surgery increased the risk Roman’s prostate cancer would spread, and whether the surgery required full anesthesia are not within the common knowledge of a layperson. Accordingly, Roman was required to provide the court with expert opinion on these matters to prove a breach of the standard of care based on lack of informed consent. (Bushling v. Fremont Medical Center, supra, Cal.App.4th at p. 509; Flowers v. Torrance Memorial Hospital Medical Center, supra, 8 Cal.4th at p. 1001.)

The trial court noted that Roman offered no expert opinion that the needles used in the fiducial placement surgery increased the risk that his prostate cancer would spread. Nor did Roman offer an expert opinion that the fiducial implant procedure should be done under general anesthesia. The failure to provide expert opinions on these matters is fatal to Roman’s claim. Accordingly, the trial court did not err in granting summary judgment on Roman’s cause of action based on lack of informed consent.

B. Patient Abandonment

Roman claims Dr. Kim abandoned him on March 21, 2011, when she informed him she would no longer treat him. Because he served his 90-day notice of intent to sue on March 12, 2012, he alleges, this claim is not time-barred. Again, even if he timely filed his action with respect to patient abandonment, his cause of action nevertheless fails.

Patient abandonment is not a separate cause of action; rather, it is one of medical malpractice. (See CACI No. 509, BAJI No. 6.05.) It therefore must be supported by an expert declaration, as a layperson would not know what Dr. Kim’s professional and ethical responsibilities were to Roman after the fiducial implant surgery. Nor would a layperson know what a physician’s responsibilities are to a patient once he or she decides to withdraw from the doctor-patient relationship. Roman declares Dr. Kim was required to give him at least 30 days’ written notice; however, he provides no citations to the record or other evidence to support this assertion.

Dr. King stated in a sworn declaration that Dr. Kim communicated to Roman the further steps Roman needed to take to proceed with the Cyberknife treatment. Dr. Kim’s expert stated she terminated the relationship with Roman due at least in part to Roman’s sexually inappropriate behavior toward her. Ultimately, Dr. Kim’s expert stated her services to Roman fell at all times within the applicable standard of care, including her communications with Roman postsurgery.

The issue of patient abandonment was argued in the trial court at the hearing on the MSJ. The trial court noted Roman had not provided an expert declaration “that would make [it] find a question of fact.” The trial court was correct in concluding Roman’s failure to provide an expert declaration on the issue of patient abandonment was fatal to his claim. Accordingly, we conclude the court did not err in granting Dr. Kim’s MSJ as to the medical malpractice claim.

IV. Evidentiary Objections

Roman made several evidentiary objections to the declaration supplied by Dr. King in support of Dr. Kim’s MSJ. Roman argues the court abused its discretion in overruling his objection to Dr. King’s claim that an anesthetic gel was used on Roman during the fiducial implant procedure because there was no evidence in the record Roman received any anesthesia.

Any error by the trial court in overruling this objection is harmless. Even if the trial court had sustained the objection, Roman was required to bring the cause of action for alleged negligence occurring during the surgery on March 7, 2011, within the applicable one-year statute of limitations for medical malpractice. As discussed above, Dr. Kim was rendering professional services to Roman during the fiducial implant procedure on March 7, 2011. Roman alleged he suffered excruciating pain during the procedure; accordingly, he discovered the injury on March 7, 2011. Yet, Roman did not file his 90-day notice of intent to sue upon Dr. Kim until March 12, 2012.

Any alleged error by the trial court in overruling Roman’s objection to Dr. Kim’s statement is harmless.

V. Protective Orders

Roman alleges the court abused its discretion when it granted Dr. Kim’s and Dr. Mak’s motions for protective orders on March 11, 2016. Specifically, Roman contends the court erred by precluding his wife from posing prewritten questions at oral depositions. Roman ultimately chose not to conduct any depositions and now argues the court’s ruling deprived him of his ability to depose any witness in his case.

Roman filed an ex parte request for accommodation in December 2015 pursuant to California Rules of Court, rule 1.100, asking that his wife be allowed to ask prewritten questions of the deponents rather than simply deposing the witnesses by written questions under section 2028.010. Roman attached a letter from his psychiatrist attesting to Roman’s emotional disabilities, and suggesting Mrs. Roman be allowed to ask prewritten questions at the deposition rather than Roman himself. The court granted the request for accommodation as follows: “plaintiff may engage in any and all discovery devices pursuant to Code of Civil Procedure and associated Rules of Court, so long as Luminita Roman or any other person does not engage in the unauthorized practice of law.”

In her motion for protective order, Dr. Kim argued allowing Mrs. Roman to pose questions at an oral deposition would constitute the unauthorized practice of law. Dr. Mak, in his motion for protective order, noted Mrs. Roman was not an attorney or a party to the case, and also argued Mrs. Roman’s taking of the deposition would constitute the unauthorized practice of law. Dr. Mak also attached a sworn declaration alleging Mr. and Mrs. Roman were aggressive with his staff when they came to serve the deposition subpoena. Dr. Mak alleged they called his staff liars when they said Dr. Mak was not in the office and that the following day, Mrs. Roman called his office and again accused them of lying about his availability for service. Dr. Mak’s staff informed Mrs. Roman if she came to the office, they would call the police.

In its order granting Dr. Kim’s and Dr. Mak’s requests for protective orders on March 11, 2016, the court barred Mrs. Roman from asking any questions, but also stated it would order the depositions be performed through written questions if Roman was unable to ask the questions himself.

The “ ‘issuance and formulation of protective orders are to a large extent discretionary.’ ” (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 316.) “ ‘The trial court is in the best position to weigh fairly the competing needs and interests of parties affected by discovery.’ ” (Id. at p. 317.) Here, the record reflects that Mrs. Roman had been hostile and aggressive toward one of the witnesses Roman sought to depose. It was entirely within the court’s discretion to weigh the need for an accommodation for Roman’s disability with the interest of the witnesses in being free from harassment. We find no abuse of discretion in the court’s determination that it was unacceptable to allow Mrs. Roman to pose questions at the depositions.

Even if the court had allowed Mrs. Roman to pose the questions, however, we would still find no error. As discussed above, any claim alleging Dr. Kim committed medical malpractice at the fiducial implant procedure was barred by the statute of limitations. With respect to both Dr. Kim and Dr. Mak, Roman never provided an expert declaration supporting his allegations of abandonment and lack of informed consent. Even if the court had allowed Mrs. Roman to pose questions at the deposition, his failure to timely file his complaint and to provide an expert declaration would still have been fatal to his claims. Roman has not explained on appeal how these deficiencies would have been overcome had his wife been allowed to depose Dr. Kim and Dr. Mak. Accordingly, we affirm the grant of Dr. Kim’s and Dr. Mak’s protective orders.

Roman also argues the court erred when it ordered Roman to pay Dr. Mak expert witness deposition fees. The court’s order stated Roman shall tender the equivalent of three hours of fees to Dr. Mak at his hourly rate of $450 per hour 48 hours in advance of the deposition. Roman never deposed Dr. Mak. Accordingly, we reject Roman’s allegation as moot.

VI. Motion for Denial or Continuance

Next, Roman contends the court abused its discretion in denying his motion for a continuance or in refusing to deny Dr. Kim’s MSJ. Not so.

In his opposition to Dr. Kim’s MSJ, Roman asked to continue the motion or that the court deny the motion because he was unable to depose Dr. Kim and Dr. Mak due to the protective orders. Section 437c, subdivision (h) provides: “[i]f it appears from the affidavits submitted in opposition to a motion for summary judgment . . . that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.”

With respect to Dr. Kim, Roman failed to state in his motion that facts essential to justify his opposition had to be obtained by deposition. Roman claimed he needed to depose Dr. Kim to ascertain Dr. Kim’s contribution to the placing of the fiducials, to determine whether she insisted Roman be given anesthesia, whether she received his 90-day notice of intent to sue on March 12, 2012, whether she heard Dr. Kassabian say he never performed the fiducial implant procedure before, and whether Dr. Kassabian appeared intoxicated. As the court noted in its order granting Dr. Kim’s MSJ, Roman was on notice of his injury on the date of the procedure on March 7, 2011. All of the above questions go directly to the alleged injuries Roman received on that date. None of the posed issues go to the claims that might have survived the statute of limitations challenge had he provided an expert declaration: whether Dr. Kim provided adequate informed consent or abandoned Roman as a patient. As Roman failed to timely file his complaint within one year of his alleged injuries, none of the answers to the questions he wanted to pursue would have successfully supported his opposition to the MSJ.

Roman also claimed in his motion that he needed Dr. Mak to testify under oath at a deposition that Dr. Mak performed the same fiducial implant procedure under full anesthesia, and to ask Dr. Mak whether Dr. Kassabian placed the fiducials in the wrong location under Dr. Kim’s guidance. Roman failed to provide any reason why the facts he sought to elicit from Dr. Mak through a deposition could not have been provided through a sworn expert declaration.

We find no error in the court’s denial of Roman’s motion for continuance or refusal to deny Dr. Kim’s MSJ.

VII. Vexatious Litigant Claim

A. Applicable Law

“The vexatious litigant statutes (§§ 391–391.7) are designed to curb misuse of the court system by those persistent and obsessive litigants who, repeatedly litigating the same issues through groundless actions, waste the time and resources of the court system and other litigants.” (Shalant v. Girardi (2011) 51 Cal.4th 1164, 1169.) “ ‘The constant suer . . . becomes a serious problem to others than the defendant he dogs. By clogging court calendars, he causes real detriment to those who have legitimate controversies to be determined and to the taxpayers who must provide the courts.’ ” (In re Kinney (2011) 201 Cal.App.4th 951, 958.)

Section 391 sets forth the definitions applicable to the vexatious litigant statutes. The definitions relevant to Roman’s appeal are:

“(a) ‘Litigation’ means any civil action or proceeding, commenced, maintained or pending in any state or federal court.

“(b) ‘Vexatious litigant’ means a person who does any of the following:

“(1) In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing.”

B. The Vexatious Litigant Statutes Are Constitutional

Roman alleges California’s vexatious litigant statutes violate the supremacy clause and are unconstitutional under the First, Fifth, Seventh, Eighth, and Fourteenth Amendments. Despite repeated challenges on these grounds, the vexatious litigant statutes have consistently been upheld as constitutional. (Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1170-1171; In re R.H. (2009) 170 Cal.App.4th 678, disapproved on other grounds in John v. Superior Court (2016) 63 Cal.4th 91; Wolfe v. George (9th Cir. 2007) 486 F.3d 1120; Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43; Muller v. Tanner (1969) 2 Cal.App.3d 445; Taliaferro v. Hoogs (1965) 236 Cal.App.2d 521.) Accordingly, we reject Roman’s challenges to the constitutionality of California’s vexatious litigant statutes.

C. The Security Bond

Drs. Kim and Kassabian also asked for a security bond in the amount of $20,000. Roman argues on appeal the motion should have been denied. The trial court did not order the requested security bond, therefore Roman’s challenge to the request for the bond is moot.

D. The Hearing

Roman alleges the trial court abused its discretion by failing to hold a “proper” hearing when it declared him a vexatious litigant. Roman’s argument is that Dr. Kim’s counsel was given more than 10 minutes to argue his vexatious litigant motion whereas “when it came [to] Roman’s turn, the trial court would not have it.” The record reflects that, at the hearing on the motion, Roman asked the court to go through its tentative ruling to clarify which five cases formed the basis of the court’s conclusion. The court replied that the ruling was “as clear as it needs to be” and would not allow Roman to be heard on the matter.

The relevant statute governing a hearing on a vexatious litigant motion provides the court shall “consider any evidence, written or oral, by witnesses or affidavit, as may be material to the ground of the motion.” (§ 391.2.) Here, the court allowed Roman to argue that he would prevail in the underlying litigation; the court agreed with Roman on this issue and accordingly denied Dr. Kim’s request for a security bond. The court also considered Roman’s opposition to the motion, which thoroughly challenged the sufficiency of the alleged prior adverse litigations for the purposes of declaring him a vexatious litigant. And, the court’s tentative ruling makes clear which five cases it deemed sufficient for the purposes of declaring Roman a vexatious litigant. Yet, the court did not allow Roman to challenge the prior litigation orally in open court.

As to the question whether this rendered the hearing unfair, we agree with Roman that the court should have allowed him to make an oral record on the issue at the hearing. However, we find any error harmless. Reversal is only warranted if there is no substantial evidence to imply findings a party is a vexatious litigant. (Goodrich v. Sierra Vista Regional Medical Center, supra, 246 Cal.App.4th at p. 1266.) As discussed below, we conclude there was substantial evidence supporting the court’s determination Roman was a vexatious litigant.

E. The Trial Court Properly Concluded Roman Had Five

Actions Finally Determined Adversely to Him in the

Seven Years Prior to the Filing of Dr. Kim’s Motion

In her renewed motion to declare Roman a vexatious litigant, Dr. Kim submitted evidence of 12 actions she alleged had been determined against Roman in the seven-year period preceding her motion. The trial court concluded nine of the 12 were adversely determined against Roman. On appeal, we conclude the following five actions were determined adversely to Roman in the applicable seven-year period, rendering him a vexatious litigant.

1. Roman v. Jefferson at Hollywood LP
2.
We concluded in Rosman’s first appeal that this case had not been determined adversely to him because a writ of certiorari was pending in the United States Supreme Court as of the date of the trial court ruling on the vexatious litigant motion on April 11, 2013. Dr. Kim submitted evidence in her November 2015 motion that the United States Supreme Court had since denied Roman’s petition for writ of certiorari on May 13, 2013.

Roman argues the denial of his petition for writ of certiorari in the United States Supreme Court does not satisfy the requirements of the vexatious litigant statute under Fink v. Shemtov, supra, 180 Cal.App.4th 1160, because the writ was summarily denied.

Roman misconstrues the holding in Fink. There, the court concluded that summary denial of a writ petition “does not necessarily constitute a litigation that has been ‘finally determined adversely to the person’ ” within the meaning of section 391, subdivision (b)(1). (Fink v. Shemtov, supra, 180 Cal.App.4th at p. 1172, italics added.) Specifically, the court in Fink observed that summary denial of a pretrial writ petition on an issue that could also be reviewed on appeal from the judgment is not final within the meaning of the vexatious litigant statute. (Ibid.) On the other hand, where a writ petition is the only authorized mode of appellate review, summary denial of the petition is necessarily on the merits, and qualifies as a final judgment adversely determined to the petitioner. (Ibid.)

In Roman v. Jefferson at Hollywood LP, the Ninth Circuit Court of Appeals upheld the district court’s determination that Roman failed to state a claim. (Roman v. Jefferson at Hollywood LP (9th Cir. 2012) 495 Fed.Appx. 804, 805.) The only way to obtain review of the Ninth Circuit’s ruling was in the United States Supreme Court via petition for writ of certiorari, which was denied. (Roman v. Jefferson at Hollywood LP (2013) 2013 U.S. Lexis 3550.) Accordingly, the case was determined adversely to Roman and is properly included among the five actions supporting the trial court’s conclusion that Roman was a vexatious litigant.

Roman next contends the litigation was not determined adversely to him because he and the opposing party reached a settlement. Roman broadly asserts that if a settlement directly results from the litigation, that case cannot count against a party for the purposes of the vexatious litigant statutes. His reliance on Villa v. Cole (1992) 4 Cal.App.4th 1327 and Tokerud v. Capitolbank Sacramento (1995) 38 Cal.App.4th 775 are misplaced at best. Villa v. Cole merely declared that a settlement is generally not deemed a favorable termination of the proceedings precisely because “the purpose of a settlement is to avoid a determination on the merits.” (Villa v. Cole, at pp. 1335-1336.) Tokerud v. Capitolbank Sacramento agreed with the holding in Villa v. Cole. There, the court stated that where a dismissal is part of a negotiated settlement, the dismissal will not be deemed a termination favorable to the defendant. (Tokerud v. Capitolbank Sacramento, at pp. 779-780.) In other words, the fact that a settlement arose from an action, or some portion of it, does not automatically support the conclusion that the litigation was resolved favorably to the alleged vexatious litigant.

In Roman v. Jefferson at Hollywood LP, the settlement agreement was reached in the state court action on September 19, 2013, after the United States Supreme Court denied Roman’s petition for writ of certiorari on May 13, 2013. Whatever settlement may have been reached does not cure the fact that the federal litigation had already been decided against him on the merits.

3. Roman v. BRE Properties, Inc.
4.
Roman unsuccessfully makes the same arguments with respect to Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040. In that case, the trial court granted defendants’ motion for summary judgment. Division Seven affirmed the judgment on the merits and our Supreme Court summarily denied his petition for review. The only way to obtain review of a ruling by the California Court of Appeal in the California Supreme Court is via petition for review; summary denial of that petition is therefore a determination adverse to Roman and was properly included in the actions supporting the trial court’s determination that Roman was a vexatious litigant.

Roman also alleges because he reached a settlement with BRE, the litigation was not decided adversely to him. The record reflects, however, the settlement resolved only the claims related to illegal voice recordings. The remaining claims, which were decided adversely to Roman, involved disability discrimination. Those claims were resolved unfavorably to Roman. Accordingly, the settlement reached on the illegal voice recording claim does not negate the adverse determination on the disability discrimination claims.

5. Roman v. Kotoyan
6.
We also concluded in the first appeal that Roman v. Kotoyan, Super. Ct. L.A. County, 2009, No. BS118557, had been finally determined adversely to Roman. Dr. Kim included this case in her postremand vexatious litigant motion. In the instant appeal, Roman alleges the trial court erred by including this case because it became final more than seven years prior to February 19, 2016, which is the date the trial court issued its final ruling declaring him a vexatious litigant. However, the point from which the seven-year period of section 391, subdivision (b)(1) is retroactively measured is the date the motion is filed. (Garcia v. Lacey (2014) 231 Cal.App.4th 402, 406, fn. 4; Stolz v. Bank of America (1993) 15 Cal.App.4th 217, 220, 224.) Dr. Kim filed her motion declaring Roman a vexatious litigant on November 20, 2015, and Roman v. Kotoyan became final on February 9, 2009. We therefore conclude the trial court properly included this case among the five actions determined adversely to Roman in the seven years preceding the filing of Dr. Kim’s motion.

7. Roman v. Fair Housing Council
8.
Roman makes the same argument with respect to Roman v. Fair Housing Council, BC393932, which was dismissed on December 22, 2008, after the trial court granted one defendant’s special motion to strike pursuant to section 425.16 (anti-SLAPP) and another defendant’s demurrer. Roman argues this case was adversely determined to him more than seven years prior to the final ruling on the vexatious litigant motion. As discussed above, however, the operative date is the date the vexatious litigant motion was filed. Here, Dr. Kim filed her motion on November 20, 2015, and the Fair Housing Council case was dismissed on December 22, 2008. Accordingly, this case was properly included among the actions determined adversely to Roman in the seven years prior to the filing of Dr. Kim’s motion.

9. Roman v. Smithwick
10.
Roman challenges the use of Roman v. Smithwick (Nov. 22, 2013, B240736) (nonpub. opn.) on two grounds: (1) the jury ruled in favor of Roman; and (2) the appeal is not a “separate case” from the underlying jury trial. In Smithwick, Roman brought a lawsuit for injuries he sustained in a car accident with the defendant. The defendant stipulated she was negligent, but challenged the nature and extent of Roman’s injuries. The jury returned a verdict for Roman in the amount of $14,352. Although Roman prevailed in this litigation, he nevertheless appealed, alleging: “(1) the jury’s verdict was not supported by substantial evidence; (2) the trial court erred in denying his new trial motion; (3) the court erred in granting Smithwick’s motion in limine to preclude Roman from claiming medical malpractice against Smithwick’s expert witness; (4) Roman should have been permitted to submit evidence relating to liability insurance; (5) Smithwick’s attorney committed misconduct in closing argument; (6) the trial judge’s so-called ‘mental impairment’ requires a retrial; and (7) the court erred when it taxed Roman’s expert witness costs.” Not only did we affirm the judgment, we awarded costs to the defendant and respondent.

The vexatious litigant statutes do not apply solely to the trial courts. “Each writ petition and appeal constitutes ‘litigation.’ ” (In re Kinney, supra, 201 Cal.App.4th at p. 958.) Accordingly, “any civil action or proceeding” includes “any appeal or writ proceeding.” (Fink v. Shemtov, supra, 180 Cal.App.4th at p. 1170.) Accordingly, the fact that Roman prevailed in the trial court does not preclude the subsequent appeal, which was determined adversely to him, from being counted as one of the five actions determined adversely to Roman within the seven- year period. We affirm the court’s order declaring Roman a vexatious litigant.

DISPOSITION

The judgment and order are affirmed. Costs are awarded to respondents.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, J.

We concur:

GRIMES, Acting P. J.

WILEY, J.

Filed 9/23/19 Marriage of Bramhall and Melvoin CA2/7

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 SEVEN

In re the MARRIAGE of DOYLE BRAMHALL and SUSANNAH MELVOIN.

DOYLE BRAMHALL,

Plaintiff and Respondent,

v.

SUSANNAH MELVOIN,

Defendant and Appellant.

B288129

(Los Angeles County

Super. Ct. No. BD537264)

APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce G. Iwasaki, Judge. Reversed and remanded with directions.

Law Offices of James R. Eliaser and James R. Eliaser for Defendant and Appellant.

Law Offices of Vicki J. Greene and Vicki J. Greene for Plaintiff and Respondent.

INTRODUCTION

Susannah Melvoin appeals from the judgment awarding her spousal and child support, ordering her to reimburse her former husband Doyle Bramhall for a watch she stole from him, and denying her request for attorneys’ fees. She argues the family law court erred under California Rules of Court, rule 3.1590 by issuing a statement of decision without considering the principal controverted issues specified in her request for a statement of decision. Melvoin also argues the family law court erred in denying her request for attorneys’ fees because the parties had stipulated the court would hear and decide that issue at a later time. We find no prejudice in any procedural error the court may have committed in issuing its statement of decision, find reversible error in the court’s decision to rule on Melvoin’s request for attorneys’ fees, and reverse the judgment with directions to allow the parties to have a hearing on the attorneys’ fees issue.

FACTUAL AND PROCEDURAL BACKGROUND

A. Bramhall and Melvoin Divorce

Bramhall and Melvoin were married for 13 years, until their divorce in September 2013. Bramhall is a guitarist and singer songwriter and Melvoin is a singer and performer. According to the family law court, the two of them “have often stood twenty feet from stardom, writing and performing with major attractions,” Bramhall with Eric Clapton and Melvoin with Prince.

But times have changed. Melvoin is now a teacher’s aide and, in the words of the family law court, “sells Prince tchotchkes.” Bramhall is still in the music business, but he now “travels by van from town to town for one-night [shows].” At the time of trial, however, the parties had other sources of income. Bramhall lived rent-free with his girlfriend, Renee Zellweger, who also paid his monthly credit card charges of $4,000 to $5,000, including almost $60,000 in 2015. Melvoin received “significant gifts” from family and friends, including $80,000 ($25,000 in 2016) from her sister.

B. The Family Law Court Issues Its Tentative Decision

In 2017 the family law court conducted a trial on spousal and child support. The issues at trial included whether the court should include as income the gifts the parties had received, whether certain royalty payments were income, what sample period to use for evaluating the fluctuating income of professional musicians, and how to treat certain foreign business tax credits. Bramhall also claimed Melvoin stole and sold an expensive watch.

The court ruled in its tentative decision that the amounts Bramhall and Melvoin received from third parties were not income for purposes of calculating child support and retroactive pendente lite spousal support, but that the court would consider them for purposes of calculating permanent spousal support and attorneys’ fees. The court also ruled that, under the terms of a prior stipulation between the parties, it would not include a $50,000 advance against royalties in Bramhall’s income. The court also ruled that, “because of the inherently fluctuating nature” of the parties’ income, the court would average Bramhall’s income over 46 months and that it would not include Bramhall’s foreign business tax credits as income to him.

For child support, the court rejected the opinions of Melvoin’s expert witness, ruled Zellweger’s expenditures on behalf of Bramhall were not income to him, and ordered Bramhall to pay Melvoin $1,066 in monthly child support. For permanent spousal support, the court, after analyzing the factors in Family Code section 4320, ordered Bramhall to pay Melvoin $200 in monthly spousal support through June 2018 and $100 each month after that. The court also ordered Melvoin to reimburse Bramhall $11,000 for the stolen watch and denied her request for attorneys’ fees. In connection with the latter ruling, the court found that, although the disparity in access to funds to retain counsel favored Bramhall, Bramhall did not have the money to pay Melvoin’s attorneys’ fees and that Melvoin had “pursued several issues that lacked merit.”

C. Melvoin Files a Request for a Statement of Decision and Specifies Principal Controverted Issues

The family law court filed its tentative decision on September 1, 2017, and the clerk served the parties with the tentative decision on September 5, 2017. Of particular relevance to this appeal, the family law court stated in its tentative decision: “This is the Court’s Tentative Decision (Cal. Rules of Court, rule 3.1590(a)) and Proposed Statement of Decision (Cal. Rules of Court, rule 3.1590(c)). This tentative decision will become the statement of decision unless, within ten days after service of the tentative decision, a party specifies those principal controverted issues as to which the party is requesting a statement of decision or makes proposals not included in this tentative decision. (Cal. Rules of Court, rule 3.1590(c)(4).) The Court reminds the parties that the ‘purpose of an objection to a proposed statement of decision is not to reargue the merits . . . .’”

On September 15, 2017 Melvoin complied with the court’s directive in the tentative decision and filed a document titled “Respondent’s Request for Statement of Decision.” This document stated Melvoin was requesting “that a Statement of Decision be prepared and filed in this action explaining the factual and legal basis for the Court’s decision as to each of the principal controverted issues at the bifurcated Trial on the issue of spousal support and child support and related issues . . . .” Melvoin identified four principal controverted issues she wanted the court’s statement of decision to address: (1) the “circumstances of the parties supporting the award of spousal support from [Bramhall] to [Melvoin], including, but not limited to, [Bramhall’s] cash flow available for support, earning capacity, earned and unearned income, for each of the three calendar years . . . and all the other Family Code section 4320 factors”; (2) a similar question for child support; (3) the “ability of [Bramhall] to pay [Melvoin’s] attorney’s fees and costs, and [Melvoin’s] need for same, taking into consideration that this issue was not even before the Court, and as a result nothing was presented by [Melvoin] to the Court from which the Court could make a determination as to whether [Bramhall] should be obligated to pay a contributive share of [Melvoin’s] attorney’s fees and costs and if so the amount thereof”’; and (4) the “circumstances resulting in [Melvoin] reimbursing [Bramhall] in the amount of $11,000 for the . . . watch.” On September 26, 2017 Melvoin filed an objection to Bramhall’s proposed judgment on the ground that, in light of Melvoin’s request for a statement of decision, entering judgment was “premature.”

D. The Tentative Decision Becomes the Statement of Decision, and the Family Law Court Enters Judgment

On November 27, 2017 the family law court overruled Melvoin’s objection to the proposed judgment and signed the judgment. The court ruled: “On September 1, 2017, the Court issued its Tentative Decision and Proposed Statement of Decision in this matter. The Tentative Decision stated that it would become the Statement of Decision unless, within ten days after service, a party specifies those principal controverted issues as to which the party is requesting a statement of decision or makes proposals not included in the Tentative Decision. ([R]ule 3.1590(c)(4).) The Court received no such specifications from either party. Nor did the Court receive objections to the Proposed Statement of Decision. ([R]ule 3.1590(g).) On September 15, 2017 [Melvoin] requested a Statement of Decision. But because the Court had on September 1, 2017 served and filed its Proposed Statement of Decision, the request was unnecessary. The Tentative Decision is deemed the Court’s Statement of Decision in this matter.”

E. Melvoin Files a Request for an Order Vacating the Judgment, Which the Family Law Court Denies

On December 7, 2017 Melvoin filed a request for an order vacating the November 27, 2017 judgment and “reopening for further proceedings concerning [Melvoin’s] request for statement of decision.” Melvoin argued she followed the court’s direction and rule 3.1590 by timely filing on September 15, 2017 a request for a statement of decision “in which she specifically set forth those principal controverted issues as to which she is requesting a statement of decision.” The court, however, stated in its November 27, 2017 order that it did not receive any specification of principal issues (even though it had).

The family law court denied the motion. The court reviewed its November 27, 2017 order and stated, “I don’t believe there is anything more to be done.” The court stated neither side specified, within 10 days of service of the tentative decision, any principal issues as to which the party was requesting a statement of decision. Counsel for Melvoin told the court he did exactly that. The court stated, “The statement of decision sets forth the reasoning of the court. You can agree with it or disagree with it. And you’re welcome to disagree with it. I think what all this does is provide you an argument in the Court of Appeal that implied findings cannot be made. And that’s all it does. So you can certainly say at the Court of Appeal, if you’re there, that the doctrine of implied findings does not apply because you raised controverted issues. But other than that, that takes care of it.” The court stated it had received and considered Melvoin’s September 15, 2017 request. The following exchange occurred:

“[Counsel for Melvoin]: But there was no proposed statement of decision.”
“The Court: No, there was.

“[Counsel for Melvoin]: There was a tentative decision.

“The Court: No. It said it. It said, ‘On September 1, 2017 the court issued its tentative decision and proposed statement of decision.’”

On January 26, 2018 Melvoin filed a timely notice of appeal from the judgment and the order denying her motion to vacate.

DISCUSSION

A. The Judgment Is Appealable

Bramhall argues that, “as a preliminary matter, [Melvoin] is not appealing an appealable order.” But she is. She is appealing from the judgment, which is appealable. (See Code Civ. Proc., § 904.1, subd. (a)(1).)

Bramhall argues “the Statement of Decision is not an appealable order.” True enough. (See Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 901 [“a statement of decision is not treated as appealable when a formal order or judgment . . . follow[s]”]; Estate of Sapp (2019) 36 Cal.App.5th 86, 100 [“a statement of decision is usually not appealable”]; see also Hernandez v. Rancho Santiago Community College District (2018) 22 Cal.App.5th 1187, 1192 [“‘[t]he rule’s practical justification is that courts typically embody their final rulings not in statements of decision but in orders or judgments’”].) But Melvoin is not appealing from the family law court’s statement of decision. She is appealing from the judgment that followed.

B. Any Error in the Family Law Court’s Preparation of the Statement of Decision Was Harmless

Code of Civil Procedure section 632 provides that, following a court trial, the “court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial.” Rule 3.1590 prescribes the procedure for preparing and filing the statement of decision. Rule 3.1590(a) provides that, “[o]n the trial of a question of fact by the court, the court must announce its tentative decision by an oral statement, entered in the minutes, or by a written statement filed with the clerk.” Rule 3.1590(c)(4) allows the court’s tentative decision to “[d]irect that the tentative decision will become the statement of decision unless, within 10 days after announcement or service of the tentative decision, a party specifies those principal controverted issues as to which the party is requesting a statement of decision or makes proposals not included in the tentative decision.”

The parties have 10 days from the announcement or service of the tentative decision, whichever is later (here, the latter), to request a statement of decision and to specify controverted issues that party wants the court to address. (Cal. Rules of Court, rule 3.1590(d).) The request must specify the controverted issues. (Ibid.; see Code Civ. Proc., § 632 [“The request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision.”].) If a request is made, any other party may, within 10 days, make proposals for the content of the statement of decision. (Cal. Rules of Court, rule 3.1590(e).)

After the court, or a party designated by the court, prepares the statement of decision and proposed judgment, the parties may file objections. (Cal. Rules of Court, rule 3.1590(g).) Only after the court and the parties have followed this procedure, or the parties have waived their right to request a statement of decision or make objections, may the court enter judgment. (Cal. Rules of Court, rule 3.1590(l).)

There may have been some procedural hiccups in the statement of decision process here. The family law court issued a written tentative decision under rule 3.1590(a). As authorized by rule 3.1590(c)(4), the family law court’s tentative decision stated it would become the statement of decision unless Bramhall or Melvoin specified principal controverted issues or made proposals not included in the tentative decision. Ten days later, Melvoin filed a request for a statement of decision and specified four principal controverted issues she was requesting the court to address: (1) spousal support, (2) child support, (3) attorneys’ fees, and (4) reimbursement for the watch.

On November 27, 2017 the family law court stated it had not received from either side a specification of principal controverted issues or proposals not included in the tentative decision under rule 3.1590(c)(4), even though Melvoin had filed one. The court acknowledged Melvoin had filed a request for a statement of decision, but found “the request was unnecessary” because the court believed it “had on September 1, 2017 served and filed its Proposed Statement of Decision.” That document, however, was the court’s tentative decision, which stated that, if Melvoin filed a request for a statement of decision on the principal controverted issues specified in her request (which she did), it would not become the court’s statement of decision. Melvoin argues that the court “ignored and disregarded” her specification of principal controverted issues and that she “was precluded from following . . . rule 3.1590(g) and from serving and filing objections to the proposed statement of decision . . . .”

Any error in the court’s preparation of the statement of decision, however, was harmless. (See F.P. v. Monier (2017) 3 Cal.5th 1099, 1116 [procedural errors in the statement of decision preparation procedure, including those that deprive a party of “the requisite time to file objections,” are “subject to harmless error review”]; Heaps v. Heaps (2004) 124 Cal.App.4th 286, 292 [“the premature signing of a proposed statement of decision does not constitute reversible error unless actual prejudice is shown”]; In re Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519, 524 [no prejudice where the trial court failed to comply with the deadlines in predecessor to rule 3.1590]; Estate of Cooper (1970) 11 Cal.App.3d 1114, 1121 [“While a Rule of Court phrased in mandatory language is generally as binding on the courts and parties as a procedural statute, it is seldom jurisdictional and ordinarily departure from it is not reversible error unless prejudice is shown.”].) Melvoin’s request for a statement of decision specified four principal controverted issues she wanted the court to address, and the court’s statement of decision essentially addressed all of them.

In her September 15, 2017 request for a statement of decision, Melvoin asked the family law court to explain the basis for the court’s spousal support award. The court’s statement of decision did just that. The court, after discussing relevant case authority, ruled the gifts and alleged loans both parties had received did not qualify as income for purposes of calculating retroactive spousal support, and the court awarded Melvoin $2,784 in retroactive spousal support. The court considered the testimony of Melvoin’s expert on the appropriate sample for determining Bramhall’s income, rejected that opinion, and decided to average Bramhall’s income over 46 months. The court ruled it would not include Bramhall’s foreign tax credits as income to him. The court, after determining that Bramhall and Melvoin “had a middle class standard of living,” analyzed the factors under Family Code section 4320, including the parties’ marketable skills (finding both had “significant talent, but few marketable skills beyond that”), their ability to pay spousal support, their assets and royalty income, the balance of hardships, and the goal of becoming self supporting (finding that “Melvoin has failed to make adequate efforts to become self-supporting” and that she “should be seeking full time employment”). After a comprehensive analysis and weighing of these factors, the court ordered Bramhall to pay Melvoin $200 in monthly spousal support through June 2018 and $100 in monthly spousal support after that.

Melvoin also asked in her September 15, 2017 request for a statement of decision for an explanation of the court’s child support award. The court’s statement of decision provided that explanation. Referring to the amounts Bramhall and Melvoin received from their family and friends, the court ruled that, “for purposes of child support, the third party payments both parties received . . . are not considered income.” The court rejected the opinion of Melvoin’s expert that Zellweger’s payments on Bramhall’s behalf, Bramhall’s royalty advances, and Bramhall’s foreign tax credits were income to Bramhall. The court calculated that Bramhall’s income in 2015 was $50,350, that his income for the first six months of 2016 was $22,198, and that his average monthly income over this period was $4,030. The court also calculated Melvoin’s average monthly income in 2016 was $1,791. The court ordered Bramhall to pay Melvoin $34,624 in retroactive child support and $1,066 in monthly prospective child support.

Melvoin also asked, in her request for a statement of decision, the court to explain the circumstances of the $11,000 watch reimbursement. The court’s statement of decision covered that issue too. The court explained, “Melvoin took a . . . watch that had been given to [Bramhall] as a gift and sold it. She expresses no remorse for this theft and seeks to justify it by claiming, without evidence, that she used it for family needs. Even if she did, this does not justify what was a breach of fiduciary duty. The Court orders . . . Melvoin to reimburse . . . Bramhall $11,000 for the watch.”

Finally, Melvoin’s request for a statement of decision asked the court to explain its reasoning concerning Bramhall’s ability to pay Melvoin’s attorneys’ fees and to explain why the court had decided the issue when the parties had reserved the issue. The court, in its statement of decision, found that “there is a disparity in access to funds to retain and maintain counsel that favors . . . Bramhall,” but that Bramhall “does not have the means to pay the attorney’s fees of both parties.”

Therefore, because the family law court’s statement of decision addressed the principal controverted issues identified in Melvoin’s request for a statement of decision, any failure by the court in complying with the requirements of rule 3.1590 was harmless. The only issue the court’s statement of decision did not address was whether the court should have decided the issue of attorneys’ fees at that time.

C. The Family Law Court Erred in Deciding the Issue of Attorneys’ Fees

As discussed, the court filed its tentative decision, which included its ruling on Melvoin’s request for attorneys’ fees, on September 1, 2017. In her September 15, 2017 request for a statement of decision, Melvoin argued the court should not have decided the attorneys’ fees issue because the parties had stipulated to bifurcate it. Because the court on November 27, 2017 adopted as its statement of decision the tentative decision it had filed on September 1, 2017, the statement of decision could not have addressed, and did not address, Melvoin’s subsequent (to the tentative decision) objection.

Bramhall does not dispute his attorney stipulated to bifurcate the issue of attorneys’ fees, and the record makes clear his attorney did. During the trial, counsel for Melvoin stated, “[W]ith the court’s permission, counsel . . . have stipulated we’re going to bifurcate the issue of attorneys’ fees and litigation expenses from all other issues . . . .” Counsel for Bramhall did not deny she had entered into this stipulation, and instead participated in a discussion about whether the case would return to the “home court” to decide which party would pay the other party’s attorneys’ fees. The court stated its “view [was] that the home court is in a better position to evaluate” attorneys’ fees. Later in the trial, counsel for Melvoin raised the issue again, stating, “What about the attorney fee? Should we do that on declarations too?” The court again stated, “The court’s inclination is that that’s a home court issue.” When counsel for Melvoin stated, “I just want to make sure the court reserves jurisdiction over the issue,” the court stated, “Yes. Nothing is going to get lost. And nobody is going to pull a fast one and say, ‘Too bad, you waived it.’ That is definitely not the case. No one is going to do that.” Given the stipulation, and the court’s statements indicating it would transfer the case to a different (the “home”) court to decide the issue, the family court erred in ruling in its statement of decision that Melvoin was not entitled to attorneys’ fees.

Bramhall argues that the family law court “had all of the evidence it needed to decide the issue” and that the court’s “findings still exist and will not support a request for fees and costs even if the issue were to be remanded for retrial.” He also argues, incorrectly, Melvoin “never objected to the trial court’s statement of decision on this topic,” when this is exactly what Melvoin did in her request for an order vacating the judgment.

Certainly the court heard testimony about the parties’ financial circumstances. But Melvoin (and, to be fair, Bramhall) did not have an opportunity to present argument and evidence specifically on the issue of attorneys’ fees. The parties did not address attorneys’ fees in their initial or supplemental closing briefs. Indeed, Melvoin stated she was submitting her “written closing argument on the bifurcated issues of child support and spousal support.” Nor did counsel address attorneys’ fees during closing argument. Bramhall may be able to cite evidence he contends supports the family law court’s essentially surprise ruling, but Melvoin should have had the opportunity to argue the law and factors under Family Code sections 2030 and 2032 and why they weigh in favor of awarding her attorneys’ fees. The opportunity to present argument and evidence on a disputed issue is fundamental to our system of justice, and Melvoin should have that opportunity. (See People v. Superior Court (Vasquez) (2018) 27 Cal.App.5th 36, 56 [“‘The fundamental requirement of due process is the opportunity to be heard “at a meaningful time and in a meaningful manner.”’”]; Monarch Healthcare v. Superior Court (2000) 78 Cal.App.4th 1282, 1286 [“fundamental principles of due process . . . call for those with an interest in the matter to have notice and the opportunity to be heard, so that the ensuing order does not issue like a ‘bolt from the blue out of the trial judge’s chambers’”]; Tokio Marine & Fire Ins. Corp. v. Western Pacific Roofing Corp. (1999) 75 Cal.App.4th 110, 121 [“‘Notice and a chance to be heard are essential components to the trial court’s jurisdiction and for due process.’”].)

D. Bramhall’s Request for Sanctions Is Denied

Bramhall argues Melvoin’s appeal “is not well developed, is frivolous, and is subject to monetary sanctions, which should be awarded to [Bramhall] for having to engage counsel to respond to it in order to protect his rights.” Part of Melvoin’s appeal, however, has merit. (See Contreras v. Dowling (2016) 5 Cal.App.5th 394, 421 [“‘reversal of the trial court’s ruling establishes that [the appellant’s] appeal is meritorious and obviates any need to discuss the issue of sanctions’”].)

Moreover, some of the positions Bramhall has taken on appeal are, well, frivolous. For example, Bramhall, in arguing Melvoin’s appeal should be dismissed, asserts Melvoin “did not appeal the judgment.” This assertion is false. Melvoin’s notice of appeal stated she was appealing from a “[j]udgment after court trial.” In arguing forfeiture, Bramhall asserts Melvoin “did not properly perfect her right for review by first taking her complaints to the trial court.” False. Melvoin objected by filing a request to vacate the judgment soon after she received the court’s statement of decision. Bramhall argues Melvoin “did not fully or accurately explain anything” or “cit[e] to any legal precedent.” False again. Melvoin explained what she contended the trial court did wrong in preparing its statement of decision, including incorrectly stating Melvoin had not specified any principal controverted issues, and she cited to the provisions of rule 3.1590 she contended the trial court violated. And Bramhall asserts Melvoin did not file any objections to his proposed judgment, when Melvoin, on September 26, 2017, filed those objections. Bramhall is not entitled to sanctions on appeal.

DISPOSITION

The judgment is reversed. The family law court is directed to conduct a new hearing on Melvoin’s request for attorneys’ fees and costs, after giving the parties an opportunity to present argument and evidence on the issue, and to comply with rule 3.1590(a) regarding statements of decision and judgments in a bifurcated court trial. Bramhall’s request for sanctions is denied. Melvoin is to recover her costs on appeal.

SEGAL, J.

We concur:

PERLUSS, P. J.

FEUER, J.

Case Number: BC708748 Hearing Date: September 24, 2019 Dept: 2

Cannon v. Bieber

Plaintiff’s Motion to Compel Deposition of Defendant, Justin Bieber; Request for Sanctions is GRANTED. Defendant, Justin Bieber is ordered to appear for his deposition on a date duly noticed by Plaintiff without objection. Cal Code Civil Procedure § 2025.450.

A party can move to compel a party’s deposition where the deponent fails to proceed with the examination or to produce for inspection any document described in the deposition notice. Cal. Code Civ. Proc. § 2025.450.

Plaintiff has shown good cause for the Defendant’s deposition given he is a party to this action. Plaintiff attempted to meet and confer with defense counsel who anticipates that Plaintiff would move to compel Defendant’s deposition. Declaration of Tyler B. Borchard, Ex. E. Cal. Code Civ. Proc. 2025.450(b)(2).

The court imposes sanctions of $560.00 against Defendant, Justin Bieber, for the failure to proceed with the examination without substantial justification. Cal Code Civil Procedure §2025.450(g).

Moving party is ordered to give notice.

Case Number: BC709946 Hearing Date: September 24, 2019 Dept: 3

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

SHANE MOSLEY, SR., an individual,

Plaintiff(s),

vs.

GARY BRAZINA, M.D., an individual; D.I.S.C. MD GROUP; DISC SURGERY CENTER; MARINA DEL REY HOSPITAL; PLAYA VISTA URGENT CARE; and DOES 1 through 100, inclusive,

Defendant(s).

CASE NO: BC709946

[TENTATIVE] ORDER GRANTING DEFENDANTS’ UNOPPOSED MOTIONS TO COMPEL

Dept. 3

1:30 p.m.

September 24, 2019

Defendants, Diagnostic and Interventional Spinal Care, AMC (erroneously sued as “D.I.S.C. MD Group”) (“DISC”) and Diagnostic and Interventional Surgical Center, LLC (erroneously sued as “DISC Surgery Center”) (“Surgery Center”) propounded special interrogatories and RPDs on Plaintiff on 12/11/18. To date, despite attempts to meet and confer, Plaintiff has not served responses. Defendants therefore seek an order compelling Plaintiff to respond, without objections, to the outstanding discovery and to pay sanctions.

Defendants’ motions are granted. Plaintiff is ordered to serve verified responses, without objections, to Defendants DISC’s and Surgery Center’s special interrogatories and RPDs, without objections, within ten days. CCP §§2030.290(a),(b), 2031.300(a),(b).

Sanctions are mandatory. §§2030.290(c), 2031.300(c). Defendants seek sanctions in the amount of $3,005/motion – representing 31.5 hours on pursuing DISC’s and Surgery Center’s concurrently filed motions, at $215/hour for Defense counsel William A. Miller and $190/hour for Defense counsel Ross Bautista. As Defense counsel Ross Bautista prepared the motions, the Court awards one hour to prepare each motion to compel at $190/hour. The Court finds reasonable and awards the requested three hours to appear as Defense counsel is in San Diego, but only awards the time once at Defense counsel Ross Bautista’s rate of $190/hour. The Court therefore awards a total of seven hours of attorney time at the requested rate of $190/hour, or $1,330 in attorneys’ fees.

Sanctions are sought and imposed against Plaintiff and his attorney of record, jointly and severally; they are ordered to pay sanctions to Defendants, by and through his counsel of record, in the total amount of $1,330, within twenty days.

Defendants are ordered to give notice.

Case Number: BC686980 Hearing Date: September 24, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEFENDANT’S MOTIONS FOR ORDER COMPELLING DISCOVERY RESPONSES

Defendant Gelson’s Markets (“Defendant”) moves for orders compelling plaintiff Paula D’Andrea (“Plaintiff”) to respond to its Form Interrogatories, Set One (“Form Interrogatories”) and Demand to Produce for Inspection and Copying, Set One (“Demands for Inspection”). Defendant’s counsel served Plaintiff’s counsel with the Form Interrogatories on April 10, 2019 via mail. Plaintiff’s responses were due on May 16, 2019. On May 21, 2019, Defendant’s counsel inquired as to the status of discovery responses; Plaintiff’s counsel said they intended to work on them over the holiday weekend and would provide them by Tuesday or Wednesday. On June 3, 2019, Defendant’s counsel sent another email asking about the status of the discovery responses. Plaintiff’s counsel responded on June 6 and informed Defendant’s counsel that he had been ill and promised to have the responses by June 14, 2019.

Defendant sent a meet and confer letter on July 18, 2019 demanding responses without objections by July 25, 2019. The parties met and conferred and Plaintiff promised to provide responses shortly. On August 6, 2019, Defendant sent another meet and confer and requested responses without objections by August 13, 2019. No responses were provided. There is no opposition to the motions

Where a party fails to serve timely responses to discovery requests, the court may make an order compelling responses. (Code Civ. Proc., §§ 2030.290, 2031.300; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.) A party that fails to serve timely responses waives any objections to the request, including ones based on privilege or the protection of attorney work product. (Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a).) Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45-day time limit and the propounding party has no meet and confer obligations. (Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at p. 404.)

Defendant’s Motions to compel are GRANTED. Plaintiff is to provide complete verified responses, without objections, within twenty days of the date of this order.

Where the court grants a motion to compel responses, sanctions shall be imposed against the party who unsuccessfully makes or opposes a motion to compel, unless the party acted with substantial justification or the sanction would otherwise be unjust. (Code Civ. Proc., § 2030.290, subd. (c), 2031.300, subd. (c).) The request for sanctions is GRANTED and imposed against Plaintiff and Plaintiff’s counsel, jointly and severally, in the amount of $570.00, comprising of 2.5 hours of attorney time at $180 per hour and $120 in filing fees for the two motions, to be paid within twenty days of the date of this order.

Moving party to give notice.

Filed 9/24/19 Walker v. Ghazal CA4/1

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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

NATASHA WALKER,

Plaintiff and Appellant,

v.

RONNY GHAZAL et al.,

Defendants and Respondents.

D075548

(Super. Ct. No. CIVDS1417853)

APPEAL from a judgment and postjudgment order of the Superior Court of San Bernardino County, Thomas S. Garza, Judge. Affirmed.

Hunt & Adams and John C. Adams III for Plaintiff and Appellant.

Cole Pedroza, Kenneth R. Pedroza and Matthew S. Levinson; Davis, Grass, Goldstein & Findlay and Jeffrey W. Grass for Defendants and Respondents.

Natasha Walker appeals a judgment and related postjudgment order in favor of Ronny Ghazal and San Bernardino Medical Orthopaedic Group, Inc. (collectively, Ghazal) following a jury trial on Walker’s cause of action for medical battery. In a special verdict, the jury found that Ghazal had performed a medical procedure without Walker’s consent, but that the procedure did not cause Walker any harm.

On appeal, Walker contends the jury’s findings are inconsistent and irreconcilable. She claims the trial court’s judgment should be reversed and the matter remanded for a new trial limited to damages. We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

“As required by the rules of appellate procedure, we state the facts in the light most favorable to the judgment.” (Orthopedic Systems, Inc. v. Schlein (2011) 202 Cal.App.4th 529, 532, fn. 1.) Additional facts will be discussed where relevant in the following section.

In September 2013, Walker injured her right knee while dancing. The next morning, her knee was very painful and swollen. It was difficult for her to stand or walk. Walker was a cashier assistant at Costco. Because her job required her to stand, kneel, and lift heavy objects, her injury left her unable to work. Walker went twice to a hospital emergency room, but her condition did not improve.

Three or four weeks after her injury, Walker was still unable to work. Because she was not using her quadriceps muscle, it was beginning to atrophy. Walker consulted Ghazal, who is a board-certified orthopedic surgeon with more than 20 years of experience. Ghazal’s initial examination revealed that Walker had a tilted or misaligned patella. He recommended an MRI to determine whether there were any other issues with her knee.

Based on the MRI, it appeared Walker had a small tear of the anterior horn of the lateral meniscus. She had also sprained a ligament in her knee. Ghazal suggested physical therapy, but Walker did not want to do physical therapy. She wanted surgery, which she believed would quickly fix her knee issues. Walker and Ghazal discussed two potential surgical options: (1) meniscus surgery to repair the tear and (2) a lateral release procedure to correct her misaligned patella. Walker understood that the lateral release procedure would require more recovery time, so she told Ghazal she did not want that surgery. They planned for meniscus surgery only.

Walker signed two consent forms that specifically identified only the meniscus surgery, although one form had language authorizing Ghazal to perform any additional procedure he deemed necessary in the event of unexpected or unforeseen conditions during surgery. Despite this language, Walker believed she had not consented to a lateral release procedure.

Ghazal performed arthroscopic surgery on Walker’s knee in December 2013. During surgery, Ghazal discovered that Walker’s meniscus was not torn. The only thing wrong with Walker’s knee was her misaligned patella. This misalignment was likely causing Walker’s symptoms because it was rubbing her femur and wearing away the cartilage. Ghazal could not realign the patella manually, and he concluded that physical therapy was unlikely to be helpful based on the severity of Walker’s condition. The only thing that would help Walker was the lateral release procedure. Ghazal therefore performed that procedure. After the surgery, he told Walker that her meniscus was not torn and that he had done the lateral release procedure.

Walker wore a knee brace for several weeks and went to 12 or 15 physical therapy sessions. Her knee remained in pain, however, and she said it spread to her upper thigh. She felt her leg muscles become weaker. In Ghazal’s assessment, however, Walker did not try hard enough to strengthen her quadriceps muscle after the surgery.

Soon after the surgery, Walker went to another physician because she was confused about why she did not have a torn meniscus. That physician told Walker that Ghazal had performed the correct surgical procedure based on her condition and he did not recommend any course of treatment other than what Ghazal had prescribed.

Walker continued to see Ghazal regularly over the course of the next year. He provided her with doctor’s notes informing Costco that she could not return to work. Ghazal testified that he let his patients determine when they felt able to return to work; he does not force them to go back.

Eventually, just prior to a year after her injury, Walker returned to work because otherwise Costco would have the option of terminating her employment. But she felt she could not comfortably do the job and stopped working approximately a year later. At trial, she explained, “I can’t stand long, it’s hard for me to sit long, my sciatic nerve kills me continually. The front of both sides of my knee, when I’m walking, sometimes mid-stride, my knee will give out.” On cross-examination, however, Walker admitted that she stopped working because of depression, which she documented in a doctor’s note from a psychiatrist. She said her depression was caused by “what was going on,” i.e., her difficulty working.

Approximately a year before trial, Walker was involved in a car accident and injured her neck. She consulted a different orthopedic surgeon, David Petersen. He diagnosed her with two ruptured disks in her spine and a significant foraminal stenosis. He also examined her right knee. He found some subpatellar roughness, irritation, and muscle atrophy. He suggested physical therapy to help Walker strengthen her quadriceps muscle. Petersen wrote a note to excuse Walker from jury duty based on her ruptured disks. At trial, however, Petersen asserted that he “wrote the note because of her knee, but [he] felt that it would work better if [he] put ruptured disk.” Walker went to another doctor, who also recommended physical therapy, but no additional treatment. Walker did not do additional physical therapy because she felt it was not helpful.

By the time of trial, Walker believed her condition had not improved. She reported additional pain in her lower back, her hip, her sciatic nerve, her Achilles tendon, and her feet. But she could do most everyday activities, including showering, driving, shopping, and housework.

At trial, Walker presented testimony from a vocational rehabilitation counselor. The counselor assumed for purposes of her testimony that Walker could not return to her job at Costco. She concluded that Walker would only be able to do sedentary work in the future and that she would need technical classes to obtain the skills necessary for such work.

Walker also presented testimony from an economist, who calculated her past and future economic losses. The economist calculated past economic damages based on the loss of Walker’s income and benefits as a Costco employee, offset by the income she actually earned. These damages totaled approximately $109,000. She calculated future economic damages based on the same loss of Costco income and benefits, offset by the income and benefits Walker would be able to earn doing sedentary work. The present value of these damages ranged from $395,000 to $438,000, depending on various assumptions.

For his defense case, Ghazal retained an orthopedic surgeon, Thomas Grogan, to testify as a medical expert witness. Grogan reviewed Walker’s medical records and examined her in his orthopedic clinic. Based on his review, he agreed with Ghazal that Walker’s misaligned patella was causing the bulk of her knee symptoms at the time of her surgery. Ghazal’s lateral release procedure corrected this misalignment. Based on x-ray images taken after surgery, Grogan opined that Walker had a good result from the lateral release procedure. Without the procedure, Walker would have continued to have discomfort and pain in her knee.

Grogan believed that Walker should have been able to return to work at Costco within four to six weeks after the surgery. It normally takes patients three to six months to feel back to normal, but Grogan has never had a patient take more than six months to recover, unless something else was wrong.

Grogan’s physical examination did not reveal any abnormalities in Walker’s knee. The ligaments in her knee were stable, her gait was normal, and she had a normal range of motion. She had no swelling in her knee, and her cartilage appeared smooth and functional. She had normal strength in her quadriceps and no significant atrophy. An MRI taken six months before trial was normal. Based on his examination, Grogan did not see any reason why she could not return to her job at Costco immediately. He could not discern any medical reason why she was not working. He did not attribute any injury to the lateral release procedure.

While Walker did complain of right knee pain and discomfort, Grogan believed it may have been caused by abnormalities in her right hip. Her hip showed signs of a cartilage tear. Because the lining of the hip joint is connected to the same nerve root as the knee joint, patients can feel pain in their knee that is actually caused by an issue with the hip.

Ghazal also presented testimony from an economist, who disputed Walker’s damages calculations, and a private investigator, who conducted surveillance of Walker and recorded videos of her activities. These videos showed Walker unloading bags of groceries, carrying them into her home, and walking quickly in bare feet.

In its jury instructions, the trial court set out the elements comprising Walker’s cause of action for medical battery: (1) that Ghazal performed a medical procedure without Walker’s consent, or that Walker consented to one medical procedure but Ghazal performed a substantially different medical procedure; (2) that Walker was harmed; and (3) that Ghazal’s conduct was a substantial factor in causing Walker’s harm. (See CACI No. 530A.) The court told the jury, “A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. [¶] Conduct is not a substantial factor if the same harm would have occurred without that conduct.” (See CACI No. 430.)

The parties agreed to present a special verdict form to the jury, which covered the elements of medical battery in two questions. The first question asked, “Did [Ghazal] obtain the consent of [Walker] to perform the lateral retinacular release procedure to her right knee on December 2, 2013?” The second question asked, “If your answer to Question No. 1 was ‘no,’ was [Ghazal’s] failure to obtain consent to perform the lateral retinacular release procedure to [Walker’s] right knee a substantial factor in causing injury to [her]?”

After closing arguments and deliberations, the jury returned its verdict. It answered “No” to the first question (on consent) by a vote of 12 to 0. It answered “No” to the second question (on causation and harm) by a vote of 11 to 1.

Walker filed motions for a partial new trial and for partial judgment notwithstanding the verdict. Both motions argued that the jury’s finding of no consent was inconsistent with its finding of no causation or harm. Walker claimed that the jury’s finding of no consent, as well as the evidence presented at trial, compelled a finding that Walker had been harmed. Walker requested judgment notwithstanding the verdict on the issue of harm and a new trial limited to damages. The trial court denied both motions, and Walker appeals.

DISCUSSION

Walker contends the jury’s finding of no consent is irreconcilably inconsistent with its finding of no causation or harm. She primarily argues that the jury’s finding of no consent requires a finding of harm as a matter of law. We disagree that the jury’s findings are irreconcilably inconsistent. The jury could reasonably have found that Walker did not consent to the lateral release procedure, but that she had not proved that the procedure caused her any appreciable harm.

“A special verdict is inconsistent if there is no possibility of reconciling its findings with each other. [Citation.] If a verdict appears inconsistent, a party adversely affected should request clarification, and the court should send the jury out again to resolve the inconsistency. [Citation.] If no party requests clarification or an inconsistency remains after the jury returns, the trial court must interpret the verdict in light of the jury instructions and the evidence and attempt to resolve any inconsistency.” (Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 357-358 (Singh).)

“On appeal, we review a special verdict de novo to determine whether its findings are inconsistent.” (Singh, supra, 186 Cal.App.4th at p. 358.) ” ‘ “A verdict should be interpreted so as to uphold it and give it the effect intended by the jury . . . .” ‘ [Citation.] Where special verdicts appear inconsistent, if any conclusions could be drawn which would explain the apparent conflict, the jury will be deemed to have drawn them.” (Wysinger v. Automobile Club of Southern Cal. (2007) 157 Cal.App.4th 413, 424 (Wysinger).)

“With a special verdict, unlike a general verdict or a general verdict with special findings, a reviewing court will not infer findings to support the verdict. [Citations.] ‘ ” ‘Where the findings are contradictory on material issues, and the correct determination of such issues is necessary to sustain the judgment, the inconsistency is reversible error.’ ” [Citations.]’ [Citation.] ‘The appellate court is not permitted to choose between inconsistent answers. [Citations.]’ [Citation.] The proper remedy for an inconsistent special verdict is a new trial.” (Singh, supra, 186 Cal.App.4th at p. 358.)

As noted, Walker contends the jury’s findings were inconsistent as a matter of law. She bases her contention on the law of medical battery. “A battery is an intentional and offensive touching of a person who has not consented to the touching. [Citations.] Although typically a battery is a violation of a person’s wishes to avoid bodily contact that is hostile, aggressive or harmful, the tort is committed if there is unwanted intentional touching of any kind.” (Conte v. Girard Orthopaedic Surgeons Medical Group, Inc. (2003) 107 Cal.App.4th 1260, 1266 (Conte).) “A typical medical battery case is where a patient has consented to a particular treatment, but the doctor performs a treatment that goes beyond the consent. ‘When an action is based upon the theory of surgery beyond consent, the gist of such action is the unwarranted exceeding of the consent. This is a theory of medical battery.’ ” (Id. at p. 1267; accord, Cobbs v. Grant (1972) 8 Cal.3d 229, 239 (Cobbs).) This theory of medical battery is distinguishable from medical negligence because it does not require proof that the physician deviated from the standard of care. “[A] physician who performs a medical procedure without the patient’s consent commits a battery irrespective of the skill or care used.” (Conte, at pp. 1266-1267.)

A patient must prove more than lack of consent, however. She must prove she was harmed as a result of the unwanted procedure. (So v. Shin (2013) 212 Cal.App.4th 652, 669 (So); Barouh v. Haberman (1994) 26 Cal.App.4th 40, 46, fn. 4 (Barouh); Ashcraft v. King (1991) 228 Cal.App.3d 604, 611; see Aas v. Superior Court (2000) 24 Cal.4th 627, 646 [“[A]ppreciable, nonspeculative, present injury is an essential element of a tort cause of action.”].) The court’s jury instructions here told the jury that Walker must separately prove she “was harmed” and Ghazal’s conduct “was a substantial factor in causing [her] harm.” (See CACI No. 530A.) The verdict form likewise separated the elements of Walker’s cause of action into two questions: “Did [Ghazal] obtain the consent of [Walker] to perform the lateral retinacular release procedure to her right knee on December 2, 2013?” and “If your answer to Question No. 1 was ‘no,’ was [Ghazal’s] failure to obtain consent to perform the lateral retinacular release procedure to [Walker’s] right knee a substantial factor in causing injury to [her]?” The jury answered “No” to both questions.

Because lack of consent, on one hand, and causation and harm, on the other, are separate elements that Walker must prove, the jury’s disparate findings on these issues were not necessarily inconsistent. As one court explained, in the context of a conventional negligence action, “In a broad sense, the jury’s findings are easy to reconcile: the jury found [defendant] breached his duty of care in some way . . . that was not a substantial factor in causing harm to [plaintiff]. This [was] not a case in which the jury made inconsistent findings when answering two essentially identical factual questions pertaining to different theories of liability.” (Bermudez v. Ciolek (2015) 237 Cal.App.4th 1311, 1320.)

Walker maintains that medical battery is different. She asserts, “[E]very surgical (bodily) ‘touching’ entailed in the physician actually performing the entire unconsented to procedure (as well as all of its related resulting post-surgical contacts and residuals) constituted ‘harm’ upon Ms. Walker’s person as a matter of law.” (Bold and underlining omitted.) Walker would collapse the separate elements of battery (unwanted touching, harm, causation) into a single element (unwanted touching) where medical battery is at issue. Walker cites no authority for this legal proposition, and we are aware of none. The authorities Walker does cite either confirm the traditional elements of battery apply in the medical context (So, supra, 212 Cal.App.4th at p. 669; Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1495; Barouh, supra, 26 Cal.App.4th at p. 46, fn. 4) or do not address the elements of harm and causation at all (Stewart v. Superior Court (2017) 16 Cal.App.5th 87, 105-106; Conte, supra, 107 Cal.App.4th at pp. 1266-1268; Rains v. Superior Court (1984) 150 Cal.App.3d 933, 938). While courts commonly describe an unwanted medical procedure as battery to distinguish it from mere negligence (see, e.g., Cobbs, supra, 8 Cal.3d at p. 239), these courts do not state or imply that the fact of the unwanted procedure is all that must be proved.

While in many cases, even most, a patient subjected to an unwanted surgery will easily be able to prove causation and harm to some extent, they remain factual questions for the jury to decide on the specific evidence presented. (See, e.g., Smith v. Lockheed Propulsion Co. (1967) 247 Cal.App.2d 774, 780 [“Cause in fact, as well as proximate cause, is ordinarily a fact question for the jury.”].) The jury here found that Walker had not proved either causation or harm. Our role in this appeal is simply to determine whether there is any possibility of reconciling that finding with the jury’s finding of no consent. (See Singh, supra, 186 Cal.App.4th at p. 357; see also Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 540-541.) “[I]f any conclusions could be drawn which would explain the apparent conflict, the jury will be deemed to have drawn them.” (Wysinger, supra, 157 Cal.App.4th at p. 424.)

Based on our review of the record, the jury could reasonably have found that Walker had not proved the lateral release procedure caused her any harm. It could have concluded that the harm claimed by Walker (various medical ailments and consequent inability to work) was not caused by the lateral release procedure. The jury could have believed the testimony of Grogan, the defense medical expert, that the lateral release procedure was a success, Walker’s knee was normal, nothing prevented her from working, and any pain in her leg was caused not by her knee but by her hip. Indeed, Walker admitted that she had pain and could not work before the surgery, which discredited her assertion that the lateral release procedure caused those conditions. She also admitted having pain and discomfort apart from her knee, including her sciatic nerve, that impacted her ability to work.

While there was evidence that the lateral release procedure generally required more recovery time than meniscus surgery, the jury was not required to believe that Walker’s recovery time was any longer as a result of the lateral release procedure, especially given Grogan’s testimony described ante. Walker did not present any medical expert testimony linking the procedure itself to her lack of recovery, and the jury had ample reason to disbelieve Walker’s own testimony in total. She worked at Costco for a substantial period after the procedure, and she later told Costco she could not work because of depression, rather than knee issues. She admitted she could and did engage in normal, everyday activities. Petersen, her more recent treating physician, mentioned certain knee issues, but the jury had reason to disbelieve his testimony as well. He admitted misrepresenting the true reason for excusing Walker from jury service, so the jury could reasonably find his testimony unpersuasive on other topics.

At the very least, the record reveals conflicting evidence and inferences regarding the existence of the harm claimed by Walker and whether it was caused by the lateral release procedure, as well as significant credibility questions. Under these circumstances, “[i]t was within the jury’s prerogative to disbelieve plaintiff and [her] witnesses, to believe defendant, and to conclude plaintiff had failed to sustain [her] burden of proof by a preponderance of the evidence.” (Barouh, supra, 26 Cal.App.4th at p. 44.)

Walker argues that the jury’s finding that she did not suffer harm could only be justified where there was “conclusive medical evidence establishing that there was absolutely no significant difference in impact upon Ms. Walker between performing just a ‘meniscus surgery’ versus a ‘lateral release procedure’ . . . .” This argument improperly shifts the burden to the defendants on an essential element of her cause of action. It is unpersuasive.

Walker also appears to argue that the issue of “harm” should be seen as distinct from the issue of “injury,” the former being inherent in the unwanted medical procedure and the latter being a question of damages only. We have already explained that it was Walker’s burden to show harm caused by the unwanted medical procedure as an element of her cause of action for medical battery. But, even assuming Walker’s distinction has any validity, her argument is unpersuasive here because the special verdict form uses the word “injury” only. Thus, even assuming there would be an inconsistency between a finding of no consent and a finding of no harm, the jury here did not find no “harm”—it found no “injury.” Walker does not argue there is any inconsistency between a finding of no consent and a finding of no “injury,” as she defines it. And, to the extent there is any ambiguity in this language of the special verdict form, Walker waived any claim of error on appeal by failing to object. (See Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1093, fn. 6.)

Finally, we note that Walker’s requested relief in this appeal (a new trial limited to damages) would not be available even if we agreed that the jury’s findings were irreconcilably inconsistent. ” ‘Where there is an inconsistency between or among answers within a special verdict, both or all the questions are equally against the law.’ [Citations.] ‘The appellate court is not permitted to choose between inconsistent answers.’ ” (Zagami, supra, 160 Cal.App.4th at p. 1092.) If there were an irreconcilable inconsistency, neither finding could stand. The entire action would need to be retried. (See Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1345-1346.)

DISPOSITION

The judgment is affirmed. Respondents are entitled to their costs on appeal.

GUERRERO, J.

WE CONCUR:

HUFFMAN, Acting P. J.

IRION, J.