Forbes v. Spencer
Filed 3/27/07 Forbes v. Spencer 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Lassen)
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JAMES G. FORBES, Plaintiff and Appellant, v. EILEEN SPENCER et al., Defendants and Respondents. | C051573 (Super. Ct. No. 40000) |
James Forbes sued Eileen Spencer and Jack Helsel (Spencer, except as context indicates), alleging breach of a contract to pay attorney fees. Spencer moved for judgment on the pleadings. The trial court converted the motion to a summary judgment motion to consider evidence not embraced by the pleadings, granted summary judgment and sanctioned Forbes and his counsel. Forbes prematurely appealed; his counsel did not appeal. Although a motion for judgment on the pleadings is distinct from a motion for summary judgment, in this case the trial court gave Forbes ample notice of the procedural change of posture and nowhere in the trial court or on appeal does Forbes identify any prejudice caused by the change. In such circumstances, even if we concluded the trial court erred, reversal would not be required. (Cal. Const., art. VI, 13; see Cal. Code Proc., 475.) Although Spencer concedes the statutory procedures to obtain sanctions were not followed, the record on appeal does not indicate Forbes raised procedural objections in the trial court and we decline to consider them for the first time on appeal. Again, no prejudice is shown. We shall affirm.
PROCEDURAL BACKGROUND
A. The Complaint
The complaint alleged Forbes was the chief officer of Kan We Help or KWH, an unincorporated association, composed of non-dues paying members[.] Defendants were executive officers of KWH.
1. Counts I and II: Latini Contract
In October 2002 Forbes, Spencer and Helsel entered into an oral agreement for each to pay one-third the costs of hiring attorney John Latini to file a petition for writ of mandate. (Spencer v. Lassen Mun. Util. Dist., Lassen Co. Super. Ct. No. 36791.) For a time all three paid their shares of Latinis billing statements. However, from March 2003 to March 2004, defendants intentionally withheld the monthly statements and have failed and refuse to advance their one third payments. Accordingly, Forbes paid Latini more than his share, to cover the payments due from Spencer and Helsel.
These same basic facts were alleged under a claim of breach of a written retainer agreement between the three KWH officers and Latini. In his action against defendants seeking contribution, Forbess theory was that the joint and several liability provision of the agreement between Latini and KWH ran in Forbess favor as well.
2. Count III: Cooper, White & Cooper contract
In November 2003 defendants pressured Forbes into signing an agreement with the law firm of Cooper, White & Cooper LLP (Cooper), to continue the litigation, without revealing that Spencer had already incurred some fees with Cooper; further, after the agreement was signed defendants ran up the bills without consulting Forbes, and Cooper took litigation steps without consulting him, all in breach of contract or ethical rules. Forbes sought a declaration that the Cooper agreement was void.
3. Verification & exhibits
Forbes personally verified the complaint under penalty of perjury on August 4, 2004. One of the exhibits attached to the complaint is a photocopy of the front of a check from Forbes for $6,132.15, payable to John M. Latini, Atty. dated July 1, 2004. It was this payment which Forbes advanced to Latini and for which defendants were two-thirds responsible.
B. The Motion for Judgment on the Pleadings
In July 2005 Defendants moved for judgment on the pleadings and for sanctions.
The motion as to count III was based on the failure to name Cooper as a necessary party. (See Code Civ. Proc., 389, subd. (a); Hartman Ranch Co. v. Associated Oil Co. (1937) 10 Cal.2d 232, 262.)
As to counts I and II, the motion asserted that although the complaint had been filed on August 5, 2004, during discovery it was revealed that the check was never cashed and when Latini first attempted to cash the check on June 21, 2005(i.e., many months after the complaint was filed) it was returned for insufficient funds.
If it was true that the check was never cashed, this would defeat Forbess claim for reimbursement. Thus, defendants viewed the verified complaint as worthy of sanctions because Forbes must have known, or on reasonable diligence would have known, that he had not actually paid Latini the amount of the uncashed check.
However, whether the check had been cashed was a factual issue not amenable for resolution on a motion for judgment on the pleadings. (See 6 Witkin, Cal. Procedure (4th ed. 1997) Proceedings without Trial, 164 [confined to the face of the pleading under attack, and the plaintiffs allegations are accepted as true].)
Spencer argued that because Forbes tendered the obverse of the check as an exhibit, the reverse of the check (showing it was not cashed) should be deemed to be within the complaint.
C. Opposition
Forbes opposed the motion, pointing out that the check issue fell outside the pleadings and arguing the first two counts were good. Further, counsel asserted that the check had been timely tendered to Latini and Forbes reissued a new check upon learning of the problems associated with the old one. The opposition made no reply to the contention that Cooper was a necessary party as to count III.
D. Reply
In reply Spencer emphasized that Forbes did not deny the check was never cashed, and asserted leave to amend should be denied, even assuming, arguendo, that Forbes issued a subsequent check to Latini.
E. Trial Court Hearings
An August 24, 2005 minute order states that a hearing was held with both counsel present, and the matter was continued with Both parties to file Declarations no later than 9-20-05. Forbes has not provided a reporters transcript or settled statement of this hearing.
Spencer filed a declaration captioned Declaration of Eileen Spencer in support of motion for judgment on the pleadings, or alternatively, summary judgment. Spencer alleged KWH became frustrated with Latinis services, particularly after KWH was sanctioned $54,076 for a petition the trial court found clearly frivolous, a ruling currently on appeal. (Spencer v. Lassen Mun. Util. Dist., consolidated cases C047584 [merits] & C048829 [fees].) Her declaration also alleged that in January 2004 defendants and Forbes met and agreed to insist that Latini reduce his billings, demanding an adjustment of $6,132.15 due to his substandard work on the Writ Petition matter. That is the exact amount of the check Forbes allegedly sent Latini. Her letter to Latini demands the adjustment and indicates copies were sent to Helsel and Forbes.
Forbes opposed sanctions by defending the merits of his claim and asserting the complaint was brought and prosecuted in good faith. Forbes submitted a declaration by Latini, stating that because Latini felt Forbes should not have had to pay the entire amount of the outstanding bill, Latini placed the un-cashed check in my desk drawer and never thought another thing about it untilat some unstated dateForbes asked about it. Latini deposited the then-stale check, and when it was returned from the bank I received the replacement check from Mr. Forbes, immediately deposited it into my account and have received the funds. Forbess counsel filed a declaration stating he acted in good faith based on information given to him by Forbes.
Defendants filed a reply asserting that at the earlier court hearing the trial court wanted to find out if the check had been returned for insufficient funds or as stale; the check itself indicated it was returned for insufficient funds. They also alleged this suit was in retaliation for a prior small claims suit that defendants won against Forbes for his failure to pay his share of Coopers fees.
A minute order dated October 5, 2005, indicates the matter was on for a hearing regarding Judgment on the Pleadings/Summary Adjudication. Forbess counsel did not attend, having had his office call with a claim of illness. The court granted the motion, w/prejudice, and granted sanctions of over $5,000, joint and several as to Forbes and his attorney, David Williams.
F. Trial Court Order and Appeal
The Order Granting Motion for Judgment on the Pleadings, or alternatively, Summary Judgment and Request for Sanctions states in substance as follows: The complaint does not state a claim for breach because the check was not deposited for nearly one year after the complaint was filed and it was not honored when presented, due to insufficient funds; the claim to void the Cooper contract failed for lack of a necessary party; sanctions were warranted because although the complaint was clearly frivolous, neither Forbes nor his counsel tried to fix the complaint.
On December 16, 2005, Forbes filed a notice of appeal, and checked the box stating the appeal was from a Judgment after an order granting a summary judgment motion, but no judgment had been entered as of that date. There is no appeal from an order granting summary judgment. (Modica v. Merin (1991) 234 Cal.App.3d 1072.) However, the court on its own motion checked with the Lassen County Superior Court clerk and found that a judgment was entered on March 14, 2006. We decline to dismiss the appeal.
DISCUSSION
Forbes contests the granting of summary judgment and sanctions, asserting that procedural irregularities infect both rulings. We conclude that Forbess own failure to adhere to procedural rules defeats his contentions of error.
First, Error is never presumed. It is incumbent on the plaintiff to make it affirmatively appear that error was committed by the trial court. [Citations.] Points not urged in the trial court may not be urged for the first time on appeal. [Citations.] This is a general rule of appellate review. [Citation.] A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent
. . . . (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712, no longer good law on another point, Wilson v. Garcia (1985) 471 U.S. 261 [85 L.Ed.2d 254]; see Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11, 23, fn. 17 [Generally, points not urged in the trial court cannot be raised on appeal]; Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333, 371, fn. 8; Mountain Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d 1043, 1051, fn. 9 [if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed] (Mountain Lion).) In particular, we have recently reiterated that points not raised in opposition to summary judgment will not be considered on appeal. (See Saville v. SierraCollege (2005) 133 Cal.App.4th 857, 873.)
Second, merely proving a procedural irregularity is not enough to obtain reversal on appeal.
No judgment shall be set aside . . . in any cause
. . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. (Cal. Const., art. VI, 13.)
No judgment . . . shall be reversed or affected by reason of any error . . . unless it shall appear from the record that such error . . . was prejudicial, and also that by reason of such error . . . the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error . . . had not occurred or existed. There shall be no presumption that error is prejudicial, or that injury was done if error is shown. (Code Civ. Proc., 475.)
Few errors are reversible per se and therefore it must be shown that an alleged error is prejudicial in each case. (See Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800-802.) [O]ur duty to examine the entire cause arises when and only when the appellant has fulfilled his duty to tender a proper prejudice argument. Because of the need to consider the particulars of the given case, rather than the type of error, the appellant bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 105-106, italics added; see Vaughn v. Jonas (1948) 31 Cal.2d 586, 601 [to presume in favor of error or prejudice would be directly contrary to the policy of this state]; Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833-834; Santina v. General Petroleum Corp. (1940) 41 Cal.App.2d 74, 77 [it is not sufficient for appellant to point to the error and rest there].)
I. Attack on Judgment on the Pleadings
Although he knows full well that the trial court entered a summary judgment, Forbes argues that judgment on the pleadings was inappropriate. The record sufficiently shows that this was not the relief granted.
Buried within this argument in violation of appellate rules (see Cal. Rules of Court, rule 14(a)(1)(B); Landa v. Steinberg (1932) 126 Cal.App. 324, 325), Forbes mentions in passing that he could have amended to name Cooper as a defendant, and therefore judgment on the pleadings was inappropriate as to count III. Forbes fails to head a developed argument, fails to explain why he did not try to amend in the trial court and fails to explain under what circumstances leave to amend a complaint is proper in response to a summary judgment motion, which was the motion granted. Because he has failed adequately to head or develop his claim, he has forfeited it. (See Alameida v. State Personnel Bd. (2004) 120 Cal.App.4th 46, 59-60.)
II. Attack on Summary Judgment
Forbes professes ignorance of how the motion came to be treated as a summary judgment motion, but this overlooks the fact that the decision so to treat the motions, with the addition of further declarations, was made at a hearing in open court with counsel present and Forbes chose not to include the reporters transcript or a settled statement of that hearing in the appellate record. Further, nothing later in the record reflects any objection by Forbes.
We presume Forbes consented to or at least acquiesced in the procedural change and therefore he cannot complain about it now. We decline to overlook the lack of a trial court objection and consider his claims on the merits.
Further, Forbes makes no effort to demonstrate that the trial court was wrong to conclude that no triable issue of fact existed. Nor does he argue that his ability to oppose the motion was impaired by any irregularity. Even on summary judgment appeals, which we review de novo, the appellant must demonstrate prejudice. (Uriarte v. United States Pipe & Foundry Co. (1996) 51 Cal.App.4th 780, 791.) Therefore, Forbess failure to articulate prejudice is fatal to his claim of reversible error. (See Paterno, supra, 74 Cal.App.4th at p. 106.)
Although Forbes cursorily asserts he was not afforded the notice that due process demands, he does not articulate that he had any other evidence to offer on the issue of the checks validity, nor does he articulate that he did not actually consent to or acquiesce in the procedures employed by the trial court. His bald claim of lack of notice of what he was supposed to respond to is belied by the record, which shows that he knew the case would turn on the check and the circumstances surrounding its delivery and presentation.
In the reply brief Forbes states the record does not show what happened at the critical hearing, but, as stated, the inadequate record is read against him. (Mountain Lion, supra, 214 Cal.App.3d at p. 1051, fn. 9)
III. Attack on Sanctions
Forbes asserts the trial court imposed sanctions under Code of Civil Procedure section 128.7 ( 128.7), and asserts the trial court thereby erred because no separate motion was filed and the safe harbor provisions of section 128.7 were not followed. According to Forbes, this compels reversal. Not so.
First, nowhere in this portion of the brief does Forbes argue the record did not support sanctions because of the frivolity of the complaint, nor does he argue that he was prevented by the claimed procedural errors from responding adequately to the motion. He does not claim that a miscarriage of justice has taken place. Therefore, his claims fails for failure to make a prejudice argument. (Paterno, supra, 74 Cal.App.4th at p. 106.)
Second, the trial courts order imposing sanctions does not specify any code section, although section 128.7 was cited in the initial motion for sanctions. We could assume that was the trial courts basis for the award, but Forbes made no effort to clarify the basis of the award, such as by objecting to the form of the proposed order.
Third, Forbes never objected to the procedure employed. As to this point, Forbes asserts he raises a pure issue of law thereby excusing his failure to object in the trial court. We set out the following quote from a case also involving an award of sanctions, and the claim that the section 128.7 procedures were not followed:
Initially we address respondents claim that appellant is precluded from raising this issue because he failed to raise it in the trial court. It is true that the general rule is that failure to raise an issue below will waive that claim on appeal. [Citation.] However, this rule does not apply when the new theory on appeal is a pure question of law with no factual disputes. [Citation.] Assuming appellant failed to raise the issue below, the issue before this court is one of statutory interpretation, which is a pure question of law. (Barnes v. Department of Corrections (1999) 74 Cal.App.4th 126, 129-130 (Barnes).)
But unlike Barnes, we do not have a pure issue of law because we do not know what took place at the hearing setting the briefing schedule regarding sanctions and other issues. Given Forbess failure to lodge any objections after that hearing, it is not reasonable to conclude he acquiesced in the procedure. Further, as indicated above, we do not know which law governing sanctions to interpret, inasmuch as Forbes failed to secure a ruling specifying the basis of the award. Therefore, we decline to excuse his lack of objection at trial on the ground it presents a pure issue of law.
Further, between the date of the hearing where the court converted the matter into a summary judgment proceeding and requested declarations (August 24, 2005), and the date sanctions were imposed (October 5, 2005), well over a month elapsed. Therefore, Forbes had more time in which to withdraw or seek to amend the complaint than the 21-day safe harbor period provided by section 128.7.
On this record, particularly where Forbes does not contest Spencers substantive entitlement to sanctions due to the filing of a frivolous complaint, and does not explain how the alleged procedural errors hampered his ability to oppose sanctions, we see no miscarriage of justice and decline to reverse the award of sanctions. (Cal. Const., art. VI, 13.)
IV. Belated Attacks
Forbes purports to raise new issues in the reply brief. We decline to address these late claims. (Kahn v. Wilson (1898) 120 Cal. 643, 644; Utz v. Aureguy (1952) 109 Cal.App.2d 803, 807-808.)
DISPOSITION
The judgment is affirmed in its entirety.
MORRISON , J.
We concur:
DAVIS, Acting P.J.
NICHOLSON , J.
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