Pointe San San Diego Residential Communityv. Procopio, Cory, Hargreaves & Savitch

Filed 6/30/06 Pointe San San Diego Residential Communityv. Procopio, Cory, Hargreaves & Savitch CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, John S. Meyer, Judge. Order affirmed; appeal by Pointe SDMU, L.P. dismissed.

Plaintiffs Pointe San Diego Residential Community, L.P. (Pointe San Diego), Gosnell Builders Corporation of California (Gosnell) and Pointe SDMU, L.P. (Point SDMU) appeal from an order granting its former counsel, defendant Procopio, Cory, Hargreaves & Savitch, LLP (Procopio) a right of attachment. (Code Civ. Proc., § 904.1, subd. (e).) Plaintiffs sued Procopio and Procopio attorney Steven Strauss for legal malpractice; Procopio cross-complained for breach of contract for unpaid legal fees and then successfully applied for a right to attach order and writ of attachment against Point San Diego and Gosnell. Plaintiffs contend the court erred in granting a right to attach order because Procopio did not demonstrate it performed or was excused from performing its obligation to provide competent legal services, and therefore did not establish a probability of prevailing on its cross-complaint. We reject this contention and affirm the order. We dismiss the purported appeal of Point SDMU for lack of standing.

FACTUAL AND PROCEDURAL BACKGROUND

The Underlying Actions

In 1997, Gosnell retained Procopio to represent it in matters arising out of its attempt to develop certain land in the Spring Valley area of San Diego County. Eventually, Gosnell and Pointe San Diego filed suit against Palomba Weingarten, W.W.I Properties, LLC (WWI) and other entities (the underlying defendants) for breach of a development management agreement, breach of fiduciary duties and breach of a so-called "set-aside" letter agreement. (Point San Diego Residential Community L.P. et al. v. W.W.I. Properties, LLC et al., Super. Ct., S.D. County, 2004, No. 726145 (the Pointe San Diego action).) In that action, Gosnell alleged in part it had been wrongfully terminated in breach of the development management agreement and that WWI failed to make certain ongoing payments and bond premiums under the set-aside letter agreement. Procopio represented Pointe San Diego and Gosnell in that matter.

The Pointe San Diego action was tried to the court in two phases. The first phase encompassed Pointe San Diego and Gosnell's equitable causes of action for breach of fiduciary duty, constructive trust and accounting. The court found in Gosnell and Pointe San Diego's favor in the first phase, and ordered a constructive trust and accounting to determine the amount of their damages.

Before the second phase of trial, the trial court consolidated the Pointe San Diego action with a second action brought by Pointe SDMU (Pointe SDMU L.P. v. Atlas Homes, LLC et al., Super. Ct., S.D. County, 2004, No. 753184 (the Pointe SDMU action)), in which Pointe SDMU alleged Atlas Homes, a homebuilding entity created by Weingarten, engaged in various trespasses and removed fill dirt from a site without permission. Attorney Michael Vivoli represented Pointe SDMU in the second phase of trial. In addition to Pointe SDMU's claims, the second phase encompassed the remaining causes of action in the Pointe San Diego action (Gosnell's claim for breach of the development management agreement and Pointe San Diego's and Gosnell's claims for breach of the set-aside letter as well as certain cross-claims) and the punitive damage phase in the Pointe San Diego action. The court found in Gosnell's favor on its claims of WWI's breach of the development management agreement and awarded damages to Gosnell on that cause of action. However, it found for WWI on the claim for breach of the set-aside letter, ruling that Pointe San Diego and Gosnell had no standing to pursue that cause of action because Pointe SDMU, not Pointe San Diego, had made payments as a result of WWI's breach; that there had been no assignment of that claim by Pointe SDMU; and that the statute of limitations had run on that claim, barring any proposed amendment to add Pointe SDMU as the proper plaintiff. In the Pointe SDMU action, the court found in favor of Pointe SDMU on its conversion of fill-dirt and trespass claims.

The Malpractice Action

Pointe San Diego, Gosnell and Pointe SDMU sued Procopio for negligence and breach of contract in connection with Procopio's representation in the underlying matters. Among other things, they alleged Procopio was negligent for failing to prosecute a claim on Pointe SDMU's behalf for breach of the set-aside agreement. Procopio cross-complained against Pointe San Diego and Gosnell to recover fees for its legal services, asserting causes of action for breach of contract, foreclosure of contractual lien, open book account, account stated and for the "reasonable value" of its services.

Thereafter, Procopio applied for right to attach orders and orders for writ of attachment against cross-defendants Gosnell and Pointe San Diego.^[1] It argued Gosnell and Pointe San Diego did not pay Procopio under their original engagement agreement; that after they claimed an inability to pay, Gosnell and Pointe San Diego entered into a supplemental agreement with Procopio in September 2002 in which they acknowledged they owed Procopio $689,839 and expressly waived any right they had to contest Procopio's fees or costs billed to them up to that time in any proceeding.^[2] According to Procopio, it continued to represent Gosnell and Pointe San Diego and thereafter incurred another $525,565.97 in fees and costs, but was paid only $201,691.57. Procopio argued its claim met all the statutory requirements for a prejudgment attachment in that it was (1) for more than $500 based on a contract where the claim amount was readily ascertainable; (2) not secured by any interest in real property; and (3) not brought against a natural person. Procopio further argued its claim had probable validity because it established all four elements of breach of contract: the contract's existence, Procopio's performance, breach by cross-defendants, and damage to Procopio as a result of cross-defendants' failure to pay. It sought an attachment order for a total of $1,271,997.26, consisting of the indebtedness and interest on the underlying debt both before and after September 2002.

In opposition, cross-defendants Gosnell and Pointe San Diego, as well as Pointe SDMU, argued Procopio could not demonstrate its claim had probable validity under the statutory prejudgment attachment scheme because Procopio assertedly breached its retainer agreement as well as the standard of practice of attorneys in its representation of cross-defendants in the underlying actions. Pointing out the $7 million in damages sought in their malpractice action well exceeded Procopio's claim; cross-defendants and Pointe SDMU argued Procopio fell below the standard of care by failing to obtain an assignment of Pointe SDMU's claim under the set-aside letter, present damages for conversion of fill dirt on the cross-defendants' behalf, and set out sufficient substantiation of its attorney fees so as to permit cross-defendants to recover them against the defendants in the underlying actions. They argued that, as a consequence, Procopio could neither establish all of the elements of its breach of contract claim nor disprove cross-defendants' affirmative defenses. Cross-defendants and Pointe SDMU further argued they could prove they were entitled to offsets that would override Procopio's damages.

After considering and rejecting cross-defendants' and Pointe SDMU's arguments, the court granted Procopio's applications for a right to attach order and writ of attachment in the sum of $1,271,997.25. It found Procopio had shown its claim was one on which attachment could issue, its claim had probable validity, and it did not seek attachment for any other reason other than to secure recovery on the claim. Pointe San Diego and Gosnell appeal.^[3]

DISCUSSION

I. Prejudgment Attachment Standards and Standard of Appellate Review

Code of Civil Procedure sections 481.010 et seq.^[4] govern orders permitting prejudgment writs of attachment. Unless the statute provides otherwise, an order of attachment may be issued only in an action on a claim of money that is based upon an express or implied contract where the total amount of such claim is a fixed or "readily ascertainable" amount not less than $500. (§ 483.010 subd. (a)). Before an attachment order is issued, the court must find (1) the claim on which the attachment is based is one on which an attachment may be issued; (2) the applicant has established "the probable validity" of the claim on which the attachment is based; (3) the attachment is not sought for a purpose other than the recovery on the claim on which the request for attachment

is based; and (4) the amount to be secured by the attachment is greater than zero.

(§ 484.090.) The plaintiff bears the burden of demonstrating that the claim is one on which an attachment may be issued and the claim's probable validity. (Legis. Com. com., § 484.090.) A claim has "probable validity" within the meaning of the attachment statute where it is more likely than not the plaintiff (or cross-complainant) will obtain a judgment against the defendant (or cross-defendant) on its claim. (§ 481.190.) Statutory attachment procedures are subject to " 'strict construction.' " (Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 79, citing Vershbow v. Reiner (1991) 231 Cal.App.3d 879, 882; see also Nakasone v. Randall (1982) 129 Cal.App.3d 757, 761.) "The declarations in the moving papers must contain evidentiary facts, stated 'with particularity,' and based on actual personal knowledge with all documentary evidence properly identified and authenticated." (Hobbs, at pp. 79-80, citing § 482.040.) "In contested applications, 'the court must consider the relative merits of the positions of the respective parties and make a determination of the probable outcome of the litigation.' " (Hobbs, at p. 80, quoting Loeb & Loeb v. Beverly Glen Music, Inc. (1985) 166 Cal.App.3d 1110, 1120; Lorber Industries v. Turbulence (1985) 175 Cal.App.3d 532, 535.)

The parties assert that this court reviews the trial court's determination of probability of prevailing for substantial evidence. We agree in part. As stated, Procopio's motion raised the probable validity of its claims for recovery of its fees, i.e., whether it was more likely than not it would obtain a judgment against Gosnell and Pointe San Diego on the merits. Given that this inquiry is analogous to the "likelihood of success" standard for issuance of a preliminary injunction, in determining the standard of review we may be guided by the standard applicable to the grant or denial of such remedy. (Accord Howard S. Wright Construction Co. v. Superior Court (2003) 106 Cal.App.4th 314, 319-320 [using likelihood of success standard for motion to expunge lis pendens, noting Legislature had intended to make the probable validity standard under the lis pendens statutory scheme equivalent to the probable validity standard under attachment law].) "The decision to grant or deny a preliminary injunction rests in the sound discretion of the trial court. [Citation.] The trial court's interlocutory decision on the likelihood that the plaintiff will prevail at trial reflects nothing more than the court's evaluation of the controversy based on the record before it at the time of its ruling. [Citation.] On review of the trial court's ruling, the appellate court does not reweigh conflicting evidence or determine the credibility of witnesses. The reviewing court's task is simply to ensure that the trial court's factual determinations are supported by substantial evidence. [Citations.] If, however, the material facts are not disputed, then the issue becomes a question of law for our de novo review." (Id. at p. 320.)

To the extent the underlying facts were in dispute and the trial court made implicit credibility determinations when reaching its decision about probable validity based on the parties' sworn declarations, our power " ' "begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted," to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor . . . .' " (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053, superseded by statute on other grounds as noted in DeBerard Properties, Ltd. v. Lim (1999) 20 Cal.4th 659, 668.) Where the essential underlying facts are undisputed, we independently assess the probable validity of Procopio's claims.

II. Probable Validity

Cross-defendants Gosnell and Pointe San Diego contend Procopio did not establish a probability of prevailing on its breach of contract claim because it did not establish it performed legal services in a competent manner, and therefore cannot meet an essential element of its breach of contract claim, namely that it performed its contractual obligations or was excused from performing them. They maintain Procopio abandoned valuable legal claims relating to the set-aside letter agreement by missing the statute of limitations on that claim, failed to obtain an assignment of Pointe SDMU's rights to pursue that claim or add Pointe SDMU as a plaintiff, and abandoned valuable claims based on the underlying defendants' conversion of fill dirt. Cross-defendants argue Procopio's malpractice caused over $7 million in damages, assertedly negating any claim that Procopio performed under its contract, or alternatively showing Procopio would not obtain any net judgment even if it could prevail on its claim.

Because cross-defendants' arguments focus only on the evidence and arguments they presented in opposition to Procopio's application and not on Procopio's supporting evidence, it has virtually ignored the applicable standard of review. In particular, cross-defendants do not address or challenge Procopio's argument, made below and again on appeal, that they expressly forfeited their right to challenge $689,839 of Procopio's fees by executing the September 2002 agreement, effectively conceding Procopio's performance under the terms of their engagement agreement and eliminating any defense on cross-defendants' behalf. Because the evidence as to that forfeiture was undisputed below and cross-defendants do not challenge it on appeal, we conclude as a matter of law that Procopio's claim to fees of $689,839 incurred before September 2002 has probable validity within the meaning of the attachment statutes.

Nor do cross-defendants challenge the underlying evidence of Procopio's fees incurred after September 2002, set out in the declarations of Cathy Locke, Procopio's credit and collection manager and Steven Strauss, the partner primarily responsible for representing Pointe San Diego and Gosnell. Locke averred without objection that the amount of Procopio's attachment claim was readily ascertainable from contemporaneous billing statements and accounting records showing Procopio had submitted itemized bills from October 2002 to August 2003 in the amount of $525,565.97, and had received payments from Gosnell and Pointe San Diego in the total amount of $201,691.57. According to Locke, Gosnell and Pointe San Diego had not made any other payments since September 2002. Steven Strauss, who was responsible for reviewing all the billing statements sent to Gosnell, explained Procopio's billing and record-keeping procedures, and averred that Procopio sent monthly billing statements to Gosnell accompanied by a cover sheet reflecting the total amount due and a computer printout detailing the services rendered. According to Strauss, while Gosnell and Procopio resolved occasional disputes about specific billing entries, neither Gosnell nor Pointe San Diego questioned, disputed or objected to Procopio's billing procedures during its representation.^[5]

Under an almost identical showing, the appellate court in Loeb & Loeb v. Beverly Glen Music, Inc., supra, 166 Cal.App.3d 1110 found substantial evidence supporting the probable validity of a law firm's claim for unpaid fees for professional services rendered to an individual, Otis Smith, and his corporation, Beverly Glen Music. (Id. at pp. 1118-1120.) In applying for a right to attach order in that case, the applicant law firm submitted the declaration of the attorney primarily responsible for the firm's legal representation, who described the two litigation matters in which the firm was involved. (Id. at p. 1118.) The court of appeal summarized the evidence: "At the time respondent was retained, Smith was advised that he and appellant corporation would be billed for legal services on the basis of time expended by respondent law firm, and respondent was retained under this fee arrangement. Appellant and Smith were sent monthly billing statements by respondent, each accompanied by a transmittal letter and a computer printout detailing the services rendered. These billing procedures were not questioned, disputed or otherwise objected to by Smith or appellant at any time during the representation. In January 1984, several months after favorable judgment in the trial de novo and after various postjudgment hearings in that action, Smith and appellant terminated their representation by respondent. Despite repeated billings, neither Smith nor appellant made any payment of the outstanding fees and costs owed to respondent subsequent to August, 1983; the amount outstanding is $110,094.87." (Id. at p. 1119.) The Loeb court observed that the firm had attached the billing statements as exhibits to its application, and that the attorney's declaration was uncontradicted. (Ibid.) It held the declaration provided sufficient evidence of the probable validity of its claim to support the trial court's decision to grant the application for right to attach order. (Id. at pp. 1119, 1120.) "It is well settled that when an issue is tried on affidavits and there is a substantial conflict in the facts stated, a determination of the controverted facts by the trial court will not be disturbed." (Id. at p. 1120.) Gosnell and Pointe San Diego neither cite nor discuss Loeb in their brief before us and they do not otherwise explain why it is not dispositive on Procopio's showing for an attachment order on its breach of contract claim. Having viewed the evidence in the light most favorable to Procopio, disregarding contrary evidence, we conclude there is substantial evidence of the probable validity of its claim for recovery of attorney fees against Gosnell and Pointe San Diego. Cross-defendants' showing does not change this conclusion. They reargue the merits of their cross-complaint for malpractice, which the trial court considered and rejected (Part III, post). The merits of cross-defendants' tort claims are relevant to show an offset or

reduction of the attachment amount under section 483.015.^[6] But cross-defendants have not established, as they must under that section, that their tort claims were reduced to judgment or that their claims were ones on which an attachment could properly issue. They have not persuaded us that the trial court's finding of probable validity lacks support by substantial evidence.

III. The Trial Court Considered and Rejected Cross-defendants' Malpractice Claims on the Merits

Cross-defendants contend the "trial court should have considered Appellants' defense that [Procopio], in essence, ha[d] already been found to have allowed the statute of limitations expire on a $2,482,982.76 claim, and abandoned a $4,774,500 conversion claim, and thus clearly failed to fulfill their contractual obligation to provide competent legal services." In making this argument, cross-defendants suggest the trial court ignored its obligation in ruling on a contested application for a right to attach order to consider the relative merits of the parties' positions, including the merits of its own claims. They are incorrect.

In its order granting Procopio's requested right to attach order, the trial court expressly addressed the merits of cross-defendants' claims pertaining to Procopio's alleged malpractice and rejected them in part based on credibility determinations. The court reasoned as follows: "The Court has considered the merits of the position asserted by cross-defendants. [¶] According to the allegations of the First Amended Complaint, the claim for malpractice based on the failure to name Pointe SDMU as a plaintiff as a plaintiff in the underlying litigation belongs to Pointe SDMU, and not Pointe San Diego or Gosnell. In light of Judge May's determination that the claim was barred by the statute of limitations, assignment of the claim would not have benefited Pointe San Diego or Gosnell. Pointe SDMU is not a cross-defendant and is not subject to the current applications.

"Cross-defendants contend that the evidence at trial in the underlying case supported a finding of damage to Gosnell for the diversion of dirt, and that [Procopio] breached the contract/committed malpractice by failing to argue this element of damages at closing argument. Cross-defendants rely upon the declaration of attorney Vivoli to support this claim. Mr. Vivoli confirms that there was evidence presented in support of this claim for damages, but implies that Judge May could not differentiate between evidence and closing argument in reaching his decision in the bench trial. The implication is not convincing.

"Cross-defendants have not shown that [Procopio] was negligent or breached the contract by failing to obtain an award of attorney' fees. The evidence presented indicates that Mr. Vivoli brought the motion for fees and not [Procopio].

"Cross-defendants contend that they are entitled to offset pursuant to Code of Civil Procedure section 483.015 [subdivision] (b)(2) and (b)(3). Cross-defendants' claims against [Procopio] are for negligence/malpractice and breach of an oral contract. Cross-defendants have not established that their own claim for breach of contract is one upon which an attachment could be issued." On this record, the trial court met its obligation to consider the merits of both parties' positions in determining probable validity.

As for cross-defendants' contention that the trial court ignored their assertedly meritorious statute of limitations defense, we reject it for several reasons. First, cross-defendants contention is premised on the notion that the trial court in the Pointe San Diego action made a finding that Procopio was responsible for, but missed, the statute of limitations on Pointe SDMU's set-aside letter claim. The record does not support such a premise. The trial court merely ruled that the statute of limitations had run; it did not make any finding of responsibility, nor did it find negligence on Procopio's part, as cross-defendants suggest. Second, as Procopio points out, cross-defendants only mentioned in passing that Procopio "dropped the ball" on the statute of limitations for the first time at oral argument on Procopio's applications, but they nevertheless advised the court that they disputed the statute had run on their set-aside letter claim. Having no developed argument supported by authority before it on the question of Procopio's asserted negligence on the statute of limitations issue at the time of oral argument, the trial court was well within its discretion to disregard the issue.

Procopio maintains any effort by cross-defendants to raise the missed statute of limitations is further barred by judicial estoppel, because cross-defendants have taken the position in a different law suit against Weingarten and others (Pointe San Diego Residential Community, LP et al. v. Palomba Weingarten et al., Super. Ct., S.D. County, No. GIC 809277 (Pointe II)) that the statute of limitations had not run on that claim. Procopio's argument, however, is unavailing. "The concept of judicial estoppel prevents a party from asserting a position in a judicial proceeding that is contrary or inconsistent with a position previously asserted in a prior proceeding. The purpose is to protect the integrity of the judicial process and not the parties of the lawsuit." (International Engine Parts, Inc. v. Feddersen & Co. (1998) 64 Cal.App.4th 345, 350.) An essential element of judicial estoppel is that the tribunal adopt the party's first position. (See id. at p. 351; Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183; Kelsey v. Waste Management of Alameda County (1999) 76 Cal. App.4th 590, 598.) Further, the positions taken must be "totally inconsistent." (Jackson, at p. 183.) Here, Procopio has not shown that judicial estoppel applies to the entirety of cross-defendants' claim; the record shows only that the trial court in the Pointe II action determined that, because the set-aside letter included a continuing obligation, the statute of limitations "ha[d] not accrued as to all the obligations in the Set-Aside Letter."^[7] Without a showing that the court's order encompassed the entirety of the set-aside letter claims asserted in the Pointe San Diego or Pointe SDMU actions, we cannot conclude judicial estoppel applies.

DISPOSITION

The order is affirmed. The purported appeal by Pointe SDMU is dismissed.

O'ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.

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^[1] Only the Procopio firm applied for the writ. Attorney Strauss was not an applicant. Procopio is the sole respondent in this appeal.

^[2] The September 19, 2002 agreement, attached to attorney Strauss's declaration submitted in support of Procopio's application for a right to attach order, provides in part: "As to Pointe [San Diego]/Gosnell, there is currently outstanding and owed to [Procopio] the amount of $689,839. This includes both the WWI and Pointe SDMU cases. Pointe [San Diego]/Gosnell expressly waives any right which it may have to contest the fees or costs heretofore billed to Pointe [San Diego]/Gosnell in any proceedings, including proceedings to enforce any lien granted hereunder. Pointe [San Diego]/Gosnell agrees to pay this amount plus interest at the rate of 10% per annum and future fees and costs as set forth in the Engagement Agreement between [Gosnell] and Procopio dated July 8, 1997."

^[3] Pointe SDMU also purported to appeal the trial court's order, even though it was not named in Procopio's notice of application and application for a right to attach order. Procopio sought attachment only against Gosnell and Pointe San Diego, and the court's attachment order was directed to those two entities. As Procopio points out, Pointe SDMU is not a party to Procopio's cross-complaint for breach of its fee agreement and is not a party to the attachment. We asked the parties to brief the question of whether Pointe SDMU has standing to appeal the trial court's attachment order. Only Procopio responded, and after considering its arguments and taking judicial notice of the court's right to attach order and writ of attachment, we conclude Pointe SDMU is not legally aggrieved and thus lacks standing to appeal. (Code Civ. Proc., § 902; United Investors Life Ins. Co. v. Waddell & Reed, Inc. (2005) 125 Cal.App.4th 1300, 1304 [requirement of standing is jurisdictional]; see Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2005) ¶ 2:270, p. 2-133 [same].) We shall dismiss Pointe SDMU's purported appeal.

^[4] All statutory references are to the Code of Civil Procedure unless otherwise indicated.

^[5] On appeal, Procopio points out it further showed that Pointe San Diego and Gosnell admitted in discovery responses that they owed Procopio unpaid attorney fees and that the interest on past due amounts was calculated at 10 percent simple annual interest.

^[6] Section 483.015 provides that the amount to be secured by an attachment shall be reduced by the sum of (1) the amount of any money judgment in favor of the defendant and against the plaintiff that remains unsatisfied and is enforceable; (2) The amount of any indebtedness of the plaintiff that the defendant has claimed in a cross-complaint filed in the action if the defendant's claim is one upon which an attachment could be issued; (3) the amount of any claim of the defendant asserted as a defense in the answer pursuant to section 431.70 if the defendant's claim is one upon which an attachment could be issued had an action been brought on the claim when it was not barred by the statute of limitations; and (4) the value of any security interest in the property of the defendant held by the plaintiff to secure the defendant's indebtedness claimed by the plaintiff, together with any the amount by which the value of the security interest has decreased due to the act of the plaintiff or a prior holder of the security interest. (§ 483.015, subd. (b).) The subdivision "makes clear . . . that the amount to be secured by the attachment is not reduced by a tort claim that has not been reduced to judgment." (Legis. Com. com., § 483.015.)

^[7] Procopio requested we take judicial notice of two pleadings filed by the defendants in the Point II action and the trial court's ruling on the parties' motions for summary judgment and adjudication in that action. However, Procopio did not explain the relevance of these documents in their request. We take judicial notice of the trial court's ruling because we find it is relevant to Procopio's judicial estoppel argument, however, we decline to judicially notice the remaining documents. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 [only relevant matters may be judicially noticed].)