Sidaros v. Professional Engineers

Filed 10/26/06 Sidaros v. Professional Engineers CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Charles W. Stoll, Judge. Affirmed.

Triangle Civil Lawyers and Wayne S. Dryden for Plaintiff and Appellant.

Gerald James for Defendant and Respondent.

Appellant Monique Sidaross appeals from a judgment entered in favor of respondent Professional Engineers in California Government - Los Angeles Section, a labor union, after a court trial. We affirm.

CONTENTIONS

Appellant contends that: (1) she did not receive a fair trial due to inadequate representation by counsel; (2) the trial court did not afford her due process; (3) the trial court abused its discretion and committed prejudicial error in ruling that she had not been deprived of her right to counsel; (4) the trial court abused its discretion and committed prejudicial error in failing to find that respondent discriminated against her on the basis of gender or national origin under Government Code section 12940; (5) the trial court abused its discretion in ruling that appellant suffered no economic loss in her removal as president-elect and that emotional distress damages were not recoverable; and (6) the trial court abused its discretion and committed prejudicial error in failing to recuse itself.

FACTS AND PROCEDURAL HISTORY

Appellant filed a first amended complaint on January 26, 2004, alleging causes of action against respondent and Art Salazar, Safwat Salahieh, Gay Norris, and Kamal Abdul-Karim for: (1) breach of contract (against respondent); (2) civil conspiracy (against all defendants); (3) violation of civil rights under Civil Code section 52.1, subdivision (a) and Government Code section 12940, subdivision (b) (against all defendants); (4) defamation (against all defendants); (5) breach of covenant of good faith and fair dealing (against respondent); and (6) intentional infliction of emotional distress (against all defendants).

At trial, appellant’s counsel dismissed the causes of action for civil conspiracy, defamation, and intentional infliction of emotional distress. Counsel also dismissed the individual defendants. The trial court dismissed the causes of action for breach of contract and breach of the covenant of good faith and fair dealing. After the trial court outlined the requirements for violation of civil rights based on Civil Code section 52.1, subdivision (a), appellant’s counsel conceded that appellant could not meet her burden of proof and dismissed that cause of action. Appellant proceeded to trial on the cause of action for violation of civil rights based on Government Code section 12940, subdivision (b).

Appellant testified at trial that on September 18, 2002, appellant was elected to the office of president-elect for respondent for the 2002-2003 term which was to commence in September 2003.

Immediately prior to a February 13, 2003 executive committee meeting, and behind closed doors, Norris and Salahieh asked appellant to resign from the position of president-elect, and to sign a prepared letter of resignation. Appellant refused. At that executive committee meeting, the executive committee members voted to amend the bylaws to allow removal of an officer by a majority of the executive committee or by a petition signed by at least 20 percent of the section members. Norris then made a motion to remove appellant as president-elect. The motion was withdrawn until a special executive committee meeting could be convened on February 27, 2003. At a subsequent special executive committee meeting on March 5, 2003, the executive committee members were given a binder containing e-mails from appellant questioning the necessity to abide by the bylaws;^[1] pointing out wrongdoing by executive committee members; and complaining of gender and cultural bias. The executive committee voted to remove appellant as president-elect. A female president was subsequently elected by the members of respondent.

Salazar testified that the executive committee removed appellant from the position of president-elect because she had stated that: (1) she would not follow the policies and bylaws of respondent; (2) she intended to disregard the actions and decisions of the executive committee; and (3) she intended to usurp the position of director. At least four or five women were on the 34-person executive committee at the time appellant was voted out.

The trial court granted respondent’s motion for judgment, entering judgment against appellant and in favor of respondent on March 30, 2005.

This appeal followed.

DISCUSSION

I. Inadequate representation by counsel

Appellant argues that the judgment of the trial court should be reversed and the matter remanded for a new trial due to inadequate representation by her counsel. We disagree.^[2]

Unlike a criminal prosecution where the defendant has the right to competent representation at trial based on the constitutional right to the assistance of counsel, the due process clause guarantees only the right of a party to a civil action to appear by counsel retained at his own expense. (Kim v. Orellana (1983) 145 Cal.App.3d 1024, 1027.) “Due process does not include the further requirement that competent representation be furnished by counsel in a civil action.” (Ibid.) While the client may have recourse against his attorney in a civil action for legal malpractice, an asserted failure to exercise requisite skill and care does not furnish a basis for the reversal of a judgment entered against the client. (Id. at p. 1028.)

Therefore, appellant cannot rely on a constitutionally based argument that she was inadequately represented because her counsel failed to vigorously pursue her claim; improperly withdrew the breach of contract cause of action for lack of evidence of economic damages; improperly dismissed the civil conspiracy claim; failed to try the case in accordance with the allegations pled by her prior counsel; and failed to examine the individual defendants regarding national origin discrimination.

II. The trial court accorded appellant due process

Appellant’s argument that she was denied due process because the trial court did not recuse itself is meritless.

A litigant may make a motion to disqualify a judge. (Code Civ. Proc., § 170.1.)^[3] In order to contest a denial of a request for disqualification, the litigant must file a writ of mandate within 10 days of the notice of the decision. (§ 170.3, subd. (d).) Appellant failed to seek timely writ review of her request for the trial court’s disqualification, and her statutory judicial disqualification claim is not properly before us. (People v. Panah (2005) 35 Cal.4th 395, 444.)

In any event, appellant’s claim, based on a comment by the trial court that if appellant did not succeed she would be responsible for costs, lacks substantive merit. The record shows no indication that the trial court had prejudged the matter, and instead, reveals that it gave appellant every opportunity to present her case. For example, the trial court asked appellant if she wished to present additional evidence to the trial court prior to its ruling.

We conclude that appellant was not deprived of her due process rights by the trial court’s failure to recuse itself.

III. The trial court did not abuse its discretion in ruling that appellant had not been deprived of her right to the advice of counsel as provided for in Civil Code section 52.1

Appellant’s next contention that she was deprived of her right to advice of counsel under Civil Code section 52.1 fails.

Civil Code section 52.1, subdivision (a), provides that if a person interferes by threats, intimidation, or coercion, with the exercise or enjoyment of an individual’s rights secured by the Constitution of the United States, or the Constitution or laws of California, the Attorney General, or any district or city attorney may bring a civil action for equitable or injunctive relief. (Venegas v. County of Los Angeles (2004) 32 Cal.4th 820, 841.)

First, appellant’s counsel conceded at trial that appellant could not carry her burden of proof under Civil Code section 52.1, and dismissed the cause of action for violation of civil rights based on that code section. Thus, she has waived her right to appeal the dismissal of that cause of action. (Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158, 166 [an appellant waives his right to attack error by expressly or implicitly agreeing or acquiescing at trial to the ruling or procedure objected to on appeal].)

Regardless, the evidence supports the trial court’s decision. Appellant complains that she was intimidated when the individual defendants handed her a resignation letter and sent her harassing e-mails and that defendants and respondent interfered with her constitutionally protected right to seek the advice of counsel. However, the record shows that appellant was permitted counsel at the February 27, 2003 and March 5, 2003 executive committee meetings at which her removal was considered. Thus, her claim that the defendants and respondent interfered with her right to seek counsel is meritless.

Furthermore, appellant did not request a statement of written decision pursuant to section 632, and cannot now complain she was prejudiced because the trial court did not prepare such a statement. In any event, the record shows that the trial court read a detailed statement of decision into the record, and appellant has failed to show how she was prejudiced.

We conclude that the Civil Code section 52.1 action was properly dismissed.

IV. Substantial evidence supports the trial court’s finding that appellant was not discriminated against on the basis of gender or national origin under Government Code section 12940

We disagree with appellant’s next contention that the trial court abused its discretion in failing to find that respondent discriminated against her on the basis of gender or national origin.

Government Code section 12940, subdivision (b) provides that it shall be an unlawful employment practice for a labor organization to discriminate against any person because of race, religious creed, color, national origin, ancestry, or sex of such person in the election of officers of the labor organization.

“In order to prevail under a disparate treatment employment discrimination theory, a member of a protected class must show the employer harbored discriminatory intent.” (Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 129.)

The evidence supports the trial court’s finding that appellant did not establish by a preponderance of the evidence that respondent, acting through the individual defendants, discriminated against appellant on the basis of national origin, ancestry, or gender.

Appellant’s testimony that Salazar and Abdul-Karim harassed and insulted appellant through e-mail messages, ignored her, and were instrumental in her removal, simply does not prove that she was discriminated against on the basis of her national origin, ancestry, or gender. Rather, the evidence tended to show that the executive committee removed appellant from the office of president-elect on a nonprohibited basis. Salazar testified that the executive committee removed appellant because she stated she would not follow the policy and the bylaws of respondent; she intended to disregard the actions and decisions of the executive committee; and she intended to usurp the office of director. He denied that the executive committee ever made disparaging remarks regarding appellant’s gender or national origin. Indeed, appellant’s e-mails were written in fluid English and did not reveal her national origin. Appellant’s complaint of being left out of decisionmaking is not evidence of gender or national origin discrimination.

We conclude that substantial evidence supports the trial court’s decision.

V. The trial court’s dismissal of appellant’s claim for breach of contract and breach of covenant of good faith and fair dealing was supported by substantial evidence

Appellant next contends that the trial court erred in dismissing the cause of action for breach of contract and breach of covenant of good faith and fair dealing. We disagree.

The trial court ruled that appellant could not recover emotional distress damages in her breach of contract and breach of covenant of good faith and fair dealing causes of action. Damages are not recoverable for mental suffering resulting from a breach of contract, except where “‘the terms of a contract relate to matters which concern directly the comfort, happiness, or personal welfare of one of the parties, or the subject matter of which is such as directly to affect or move the affection, self-esteem, or tender feelings of that party.’” (Wynn v. Monterey Club (1980) 111 Cal.App.3d 789, 800.) In that circumstance, damages may be recovered for physical suffering or illness caused by the breach. (Ibid.; Wilson v. Houston Funeral Home (1996) 42 Cal.App.4th 1124, 1133-1134 [contract in which a mortician agreed to prepare body for burial is one in which it is reasonably foreseeable that breach may cause mental anguish to the decedent’s bereaved relations].)

Here, appellant was not able to show that the terms of her contract with respondent related to matters directly concerning her emotional state or that the subject matter of the contract directly affected her emotional state. Appellant admitted she had sustained no financial damages from the alleged breach of contract. She presents no factual evidence of job sanctions she claims she suffered. She merely makes the conclusory argument, not supported by facts, that her removal from the office of president-elect directly concerned her emotional state because it affected her basic right to work and right of privacy.

We conclude that the trial court’s decision was supported by substantial evidence.

DISPOSITION

The judgment is affirmed. Respondent shall receive costs of appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________, J.

CHAVEZ

We concur:

____________________, Acting P. J. ____________________, J.

DOI TODD ASHMANN-GERST

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^[1] One e-mail stated that appellant “[did] not understand the details of abiding by all PECG goals, policies and bylaws, why should I abide if something is not appealing to me. As a president I have the right to run the section as I see it the best, not to follow and abide by previous goals, policies, and bylaws.”

^[2] Respondent has requested we strike portions of appellant’s opening brief pursuant to California Rules of Court, rule 14(a)(1)(C), due to appellant’s failure to adequately cite to the record. However, we have disregarded appellant’s noncompliance as permitted under rule 14(e)(2)(C) and considered all of appellant’s arguments as presented on the merits.

^[3] All subsequent code section references are to the Code of Civil Procedure unless otherwise indicated.