Al-Hakim v. Cook

Filed 9/28/06 Al-Hakim v. Cook CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

ABDUL-JALIL AL-HAKIM,

Plaintiff and Appellant, A108728

v. (Alameda County

Super. Ct. No. 811337-3)

RONALD J. COOK et al.,

Defendants and Respondents.

______________________________________/

Appellant Abdul-Jalil al-Hakim carried homeowners insurance through California State Automobile Association Inter-Insurance Bureau (CSAA). When appellant asserted various claims under his CSAA policy for roof leak damages and for clean-up of sewage and mold damages to his home and personal property, CSAA retained San Jose attorney Ronald J. Cook, an attorney with the firm Willoughby, Stuart & Bening, to assist it in the adjustment of appellant’s claims. In the complaint which is the subject of this appeal, appellant contends attorney Cook and his law firm committed various torts when helping to adjust his claim. The attorney and his firm filed a motion for summary judgment arguing they were entitled to prevail as a matter of law. The trial court agreed and granted the motion. In this appeal, appellant argues the trial court erred when it granted the motion. We disagree and will affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant owns a home located in Oakland. In February 1997, appellant called a

plumber to clear a drain that was clogged. According to appellant, some sewage spilled during the course of the work. The plumber sent a carpet cleaner to clean the affected area a few days later.

Appellant believed the carpet had not been cleaned properly. He filed a claim with his insurer, CSAA. CSAA assigned an adjuster, Kenneth C. George, to appellant’s claim.

In February 1998, the roof on appellant’s home leaked. Appellant submitted another claim with CSAA.

In March 1998, George hired attorney Cook to help him adjust appellant’s claim. Cook contacted appellant to let him know he would be assisting CSAA.

CSAA paid more than $150,000 on appellant’s behalf based on his claims. Appellant believed that was not enough. In April 1999, he filed the complaint that is at issue in this appeal. As amended and as is relevant here, it named Cook and his law firm as defendants and alleged causes of action for fraud, negligent misrepresentation, intentional infliction of emotional distress, and unfair business practices.^[1]

In January 2000, appellant filed another complaint against the plumber and the carpet cleaner alleging they had acted negligently. CSAA intervened in that suit seeking reimbursement for the amount it had paid to appellant as a result of the 1997 spill. The case was tried to jurors who returned a defense verdict. Appellant appealed the ensuing judgment to this court. We affirmed in an unpublished decision.

Meanwhile the case against Cook and his law firm, (hereafter collectively respondents) proceeded. Respondents filed a motion for summary judgment arguing they were entitled to prevail as a matter of law on each of the causes of action appellant had alleged. The trial court conducted a hearing on respondents’ motion and granted it. Judgment was entered in favor of respondents.

II. DISCUSSION^[2]

A. Standard of Review

Appellant contends the trial court erred when it granted respondents’ motion for summary judgment.

The standard we use to evaluate this argument is settled. On appeal, we review the record de novo to determine whether the party moving for summary judgment has met its burden of proving that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Where, as here, the defendants are the moving parties, they must show either (1) that the plaintiff cannot establish one or more elements of his cause of action, or (2) that there is a complete defense. If that burden of production is met, the burden shifts to the plaintiff to show the existence of a triable issue of fact with respect to that cause of action or defense. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; Code Civ. Proc., § 437c, subds. (c) & (p)(2).)

With this standard in mind, we turn to the causes of action alleged.

B. The Challenged Causes of Action

1. Fraud and Negligent Misrepresentation

Appellant alleged causes of action for fraud and negligent misrepresentation. Although his complaint is not a model of clarity it appears appellant is relying on four alleged misrepresentations:

--that Cook said he would need to personally inspect appellant’s home;

--that Cook told appellant he need not hire an attorney to represent his interests;

--that Cook misrepresented the type of coverage appellant’s policy provided;

--that Cook falsely told appellant CSAA was not going to pursue a subrogation claim against the plumber and carpet cleaner who damaged his home.

An essential element of causes of action for fraud and negligent misrepresentation is justifiable reliance. (Home Budget Loans, Inc. v. Jacoby & Meyers Law Offices (1989) 207 Cal.App.3d 1277, 1285.) The plaintiff must show that he relied on statements made by the defendant and that it was reasonable for him to do so. (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 812, p. 1173.) Normally whether a party justifiably relied on a defendant’s statements is a question of fact. However, the issue may be decided as a matter of law where reasonable minds could only reach one conclusion. (Blankenheim v. E.F. Hutton & Co. (1990) 217 Cal.App.3d 1463, 1475.)

Applying that standard, we conclude the trial court properly granted respondents’ motion.

While Cook told appellant he wanted to inspect appellant’s home, the record shows appellant did not permit the inspection. There was no reliance.

Cook denied that he told appellant he did not need to hire an attorney. However, even if Cook made that statement, it is undisputed that one day later, Cook sent his letter dated March 6, 1998, to appellant telling him he would welcome his attorney’s involvement in the dispute. Thereafter, appellant assured Cook by telephone he felt perfectly comfortable discussing his insurance claim with Cook, and appellant later faxed an acknowledgment of Cook’s letter. Again there was no reliance.

Cook admitted that he originally misstated the scope of coverage provided by appellant’s insurance policy. However, Cook identified the mistake and sent appellant a letter that correctly described the terms of appellant’s insurance policy. We fail to see how appellant could justifiably rely on a misstatement that was corrected.

Finally, Cook admitted that he told appellant and his attorney they should not rely on CSAA to file suit against the plumber who allegedly caused the spill at appellant’s home. Moreover, the record shows appellant did not rely on CSAA to file suit. He filed his own suit against the plumber and carpet cleaner. Appellant has failed to present any evidence that he justifiably relied on Cook’s statement to his detriment.

In sum, we conclude appellant could not and did not justifiably rely on any of the statements he has identified.

2. Intentional Infliction of Emotional Distress

Appellant also alleged a cause of action for intentional infliction of emotional distress. He alleged, as the foundation for his claim, the same statements that supported his causes of action for fraud and negligent misrepresentation.

In order to state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883.) Conduct, to be “outrageous” must be so extreme as to exceed all bounds of that usually tolerated in a civilized society. (Ibid.) While the outrageousness of a defendant’s conduct normally presents an issue of fact to be determined by the trier of fact, the court may decide as an issue of law where reasonable minds could only reach one conclusion on the facts presented. (Ibid.)

This is such a case. The misstatements appellant had identified, even if true, are not egregious and certainly are not so outrageous that they exceed the bounds usually tolerated in a civilized society. We conclude, as a matter of law, that they are insufficient to state a cause of action for intentional infliction of emotional distress.

3. Unfair Business Practices

Appellant alleged a cause of action for unfair business practices under Business and Professions Code section 17200, et seq. As is permitted under the statutory scheme, he sought restitution from respondents.

To obtain restitution under Business and Professions Code section 17200, the “offending party must have obtained something to which it was not entitled and the victim must have given up something which he or she was entitled to keep.” (Day v. AT&T Corp. (1998) 63 Cal.App.4th 325, 340, italics in original.)

Here, appellant failed to present any evidence that indicated he was entitled to restitution. Respondents were hired by CSAA to help the insurer in adjusting appellant’s claim. They did their job and presumably were paid for their work. However, appellant failed to present any evidence that indicates respondents received anything they were not entitled to keep, or that appellant gave up anything he was entitled to keep. Appellant could not prevail on this cause of action.

C. Defenses

Appellant does not address any of these issues in his opening brief.^[3] Instead, he focuses almost exclusively on two extraneous factors.

First appellant contends, in various ways, that other attorneys who represented him in the trial court were incompetent. He urges us to reverse the trial court’s ruling because of that alleged incompetence.

Even if we were to assume that the attorneys who represented appellant were incompetent^[4], appellant would not be entitled to relief in this appeal. While a defendant

in a criminal case has a constitutional right to adequate assistance of counsel, there is no similar right in civil cases. (Chevalier v. Dubin (1980) 104 Cal.App.3d 975, 978-979.) The only remedy available to a civil litigant who contends he has received inadequate representation is a malpractice claim. (Wiley v. County of San Diego (1998) 19 Cal.4th 532, 543.) We have no such claim before us.

Second, appellant complains the judgment should be reversed because the trial judge, the Honorable James Richman, was biased against him. However, appellant fails to acknowledge that he raised the issue in the trial court, that the Chief Justice of our Supreme Court appointed the Honorable John W. Kennedy to investigate the matter, and that Judge Kennedy prepared a 17-page decision that rejected appellant’s allegations of bias. We see no reason to question the conclusions of that decision which is, in any event, not reviewable on appeal. (See Code Civ. Proc., § 170.3, subd. (d).)

We conclude the trial court properly granted respondents’ motion for summary judgment.

III. DISPOSITION

The judgment is affirmed.

_________________________

Jones, P.J.

We concur:

________________________

Simons, J.

________________________

Bruiniers, J.*

*Judge of the Superior Court of Contra Costa County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by San Diego County Property line attorney.

^[1] The complaint also named CSAA and George as defendants. Appellant alleged CSAA had failed to pay his insurance claims properly.

^[2] While this case was being briefed, appellant and respondents each filed a request for judicial notice. The court deferred ruling on the requests until the merits of the appeal. Having now considered the requests, we rule as follows:

Respondents’ request, filed on April 13, 2006, is denied. The document respondents have identified, a declaration stating that appellant has not filed a malpractice action against his former attorneys, was never presented to the court below. An appellate court can, but is not required to, take judicial notice of materials that were not presented to the trial court in the first instance. (Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325.) The court declines to take judicial notice of the document respondents have identified.

Appellant’s request was made as part of his opening brief that was filed on February 24, 2006. The court denies it as procedurally improper. (See Cal. Rules of Court, rule 22(a)(1).) Furthermore, appellant has failed to explain how the documents he has identified are relevant to this appeal. The court denies the request on that basis also. (See Helene Curtis, Inc. v. Los Angeles County Assessment Appeals Bds. (2004) 121 Cal.App.4th 29, 36, fn. 7; see also First District Local Rules, rule 10(a).)

The court notes that while it has denied appellant’s request, it has in fact reviewed many of those same documents because they are also part of the record in this case.

^[3] Appellant addresses some of these issues in his reply brief. As a matter of policy, we do not address arguments that are made for the first time in a reply brief. (See, e.g., Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.)

^[4] We hasten to add that we are making this assumption for purposes of argument only. We see nothing in the record that indicates appellant’s counsel in fact was inadequate.