Opinion
D072933
09-21-2018
WEBB & CAREY, APC, Plaintiff and Appellant, v. SUPPA TRUCCHI & HENEIN et al., Defendants and Respondents.
Webb & Carey and Patrick D. Webb for Plaintiff and Appellant. Suppa, Trucchi & Henein and Samy S. Henein for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2011-00098036-CU-BT-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Richard E.L. Strauss, Judge. Affirmed. Webb & Carey and Patrick D. Webb for Plaintiff and Appellant. Suppa, Trucchi & Henein and Samy S. Henein for Defendants and Respondents.
I.
INTRODUCTION
In a first amended complaint, Webb & Carey, APC (Webb & Carey) brought claims for conversion, money had and received, and breach of fiduciary duty against law firm Suppa Trucchi & Henein, and two of the firm's principals, Teresa Trucchi and Samy Henein (collectively Suppa). All three causes of action were premised on Webb & Carey's contention that Suppa acted wrongfully in accepting $284,672.10 from Suppa's clients, and Webb & Carey's former clients, James and Judy Keenan. Webb & Carey contended that it was wrongful for Suppa to accept the $284,672.10 because Suppa knew, at the time it accepted the payment, that the Keenans' property was subject to Webb & Carey's liens, including two judgment liens, premised upon judgments that Webb & Carey had obtained against the Keenans.
A fourth cause of action for declaratory relief is not relevant for purposes of this appeal.
For ease of reference, we generally refer to the defendants collectively as "Suppa." We use the defendants' individual names in the few places in this opinion in which their individual identities are relevant.
During a bench trial on the first amended complaint, the court heard undisputed evidence that the Keenans had fully satisfied the judgments. After Webb & Carey rested, the trial court granted Suppa's motion for judgment. In granting the motion, the court found that Suppa's alleged torts had not proximately caused Webb & Carey to suffer any damages. The trial court specifically ruled that Webb & Carey was not entitled to recover damages pursuant to the tort of another doctrine for attorney fees that it incurred, above those fees awarded to Webb & Carey in its action against the Keenans, to collect the Keenan judgments. The court reasoned that Webb & Carey had not pled its entitlement to such damages in the operative complaint, as required. The court also found that Webb & Carey had waived its right to seek such damages at trial by indicating on multiple occasions that it was not seeking attorney fees as damages. The court also ruled that the doctrine was "inapplicable," in any event.
Under that doctrine, a plaintiff may recover attorney fees incurred if the plaintiff is "required to employ counsel to prosecute or defend an action against a third party because of the tort of the defendant." (Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 505 (Gray).)
Webb & Carey's principal contention on appeal is that the trial court erred in determining that Webb & Carey was not entitled to recover damages pursuant to the tort of another doctrine. We conclude that the trial court properly determined that Webb & Carey is not entitled to recover any damages pursuant to this doctrine, for all of the reasons outlined by the trial court. We reject the remainder of Webb & Carey's claims and affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Our factual background is drawn from the section of the trial court's statement of decision entitled "Findings of Fact," as supplemented with additional facts contained in the record. (Some capitalization omitted.)
Webb & Carey began to represent the Keenans in 1998 in connection with proceedings related to the Keenans' bankruptcy. The firm represented the Keenans for approximately three years.
There have been numerous prior appeals in this court involving related proceedings. (See, e.g., Webb & Carey, APC v. Keenan (Feb. 22, 2013, D060338) [nonpub. opn.] at p. 1 ["This is another step in long-running litigation in which plaintiff and respondent Webb & Carey . . ., formerly the law firm for defendants and appellants [the Keenans], seeks enforcement of million dollar judgments against the Keenans for attorney fees."].) Our factual and procedural background is limited to that which is necessary for our resolution of the present appeal.
Webb & Carey alleged that Suppa represented the Keenans with respect to various matters beginning in approximately 2000.
In 2005, Webb & Carey obtained judgments against the Keenans. In September 2009, Webb & Carey filed a notice of judgment lien with the Secretary of State as to the judgment against Judy Keenan. Webb & Carey filed a similar notice with respect to the judgment against James Keenan in January 2010.
While the judgments were entered against the Keenans individually, the judgment against James provided, "This judgment includes the monies awarded as against Judy Keenan on January 11, 2005, such that any amount collected on that judgment shall be deducted from the amount of this judgment."
We do not describe all of the various mechanisms by which Webb & Carey attempted to secure their right to collect money from the Keenans, since we can resolve this appeal without determining the validity of such security interests.
In August 2010, Webb & Carey retained Attorney Bryan Sampson for the purpose of enforcing the judgments against the Keenans, and entered into a contingency fee agreement with him. Attorney Sampson testified that the scope of his representation for Webb & Carey contemplated "creating liens and enforcing a judgment against the Keenans." Attorney Sampson explained that he agreed to a contingent fee equal to one-third of the gross amount recovered "in the enforcement of the judgment."
At various times in the record, the Keenan judgments are referred to as a single judgment.
On September 21, 2010, James Keenan received a check in the amount of $1,030,061.49 in connection with the closing of the Keenans' bankruptcy case.
Approximately two days later, the Keenans paid attorney fees in the sum of $284,672.10 to Suppa Trucchi & Henein. Suppa Trucchi & Henein then paid Trucchi and Henein $55,000 each.
In January 2012, Webb & Carey filed the operative first amended complaint against Suppa.
Martin Goldberg, a receiver appointed to manage the Keenans' property, fully satisfied Webb & Carey's judgments against the Keenans in 2013, by making a payment to Webb & Carey in the amount of $1,918,908.14. The satisfaction of the judgments included the payment of all principal on the judgments, interest at 10 percent per annum, and payment of approximately $314,956 in attorney fees awarded by Judge Taylor in the collection against the Keenans.
Webb & Carey paid a total of $593,000 attorney fees to Attorney Sampson pursuant to its contingency attorney fee agreement with him.
In April 2017, the trial court held a bench trial on Webb & Carey's first amended complaint. After Webb & Carey presented its evidence and rested, Suppa filed a motion styled as a motion for nonsuit, which the trial court granted.
The reporter's transcript clearly indicates that Suppa filed a written motion. The reporter's transcript states:
"The court: . . . I have had a chance to read [Suppa's counsel's] filing and think about it a little bit and I assume you have done the same, [Webb & Carey's counsel]?
"[Webb & Carey's counsel]: That's correct, Your Honor."
A few days after the trial court granted Suppa's motion, Webb & Carey filed a motion for a new trial and/or new judgment. After briefing and argument, the trial court denied the motion.
As discussed in detail in part III.A, post, the trial court subsequently issued a second amended statement of decision (statement of decision). In the statement of decision, the court stated that it construed Suppa's motion for nonsuit as a motion for judgment (Code Civ. Proc., § 631.8, subd. (a)) and ruled that Suppa was entitled to judgment, for numerous reasons. Among those reasons was that Suppa had not caused Webb & Carey to suffer any damages.
As did the trial court, we construe Suppa's motion as a motion for judgment pursuant to Code of Civil Procedure section 631.8, subdivision (a). (See Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 315 [construing motion styled as a motion for nonsuit as a motion for judgment].)
The court entered judgment in favor of Suppa.
Webb & Carey timely appeals from the judgment.
III.
DISCUSSION
The trial court properly granted Suppa's motion for judgment
Webb & Carey claims that the trial court erred in granting Suppa's motion for judgment. Webb & Carey's primary contention on appeal is that the trial court erred in concluding that Webb & Carey had not suffered any damages as a result of Suppa's alleged torts. Specifically, Webb & Carey argues that the trial court erred in concluding that Webb & Carey is not entitled to recover, pursuant to the tort of another doctrine, $94,881.21 in attorney fees that it contends it incurred as a result of Suppa's torts, which Webb & Carey did not recover in its action against the Keenans. In addition, Webb & Carey contends that the trial court's failure to award it such damages violates public policy and improperly deprived it of "its right to punitive damages." Webb & Carey further claims that the trial court erred in granting Suppa's motion for judgment, on various procedural grounds. A. The trial court properly concluded that Webb & Carey is not entitled to recover damages on any of its causes of action
Webb & Carey contends that the trial court erred in determining that it failed to demonstrate that it suffered any cognizable damages on any of its three causes of action.
1. Webb & Carey's theory of damages on appeal
In its brief, Webb & Carey argues that it suffered consequential damages when it was required to pay $94,881.21 in attorney fees to Attorney Sampson to collect the underlying judgment from the Keenans, and that it would not have incurred those fees but for Suppa's torts. Specifically, Webb & Carey argues:
This is the sole theory of damages that Webb & Carey pursues on appeal. (See fn. 22, post.)
"But for [Suppa's] torts, it is undisputed that [Webb & Carey] would not have had to pay the $94,881.21 to [Attorney] Sampson. Had the $284,672.10 been turned over by [Suppa] on September 23, 2010, [Webb & Carey] would not have incurred the $94,881.21 in consequential damages, because [Attorney] Sampson was not entitled to any payment for any recovery from third party creditors of the Keenans, pursuant to his fee agreement."
Webb & Carey explains the manner by which it calculates the $94,881.21 in damages as follows:
"[Webb & Carey] . . . reasonably and for[e]seeably incurred $94,881.21 in contingent attorney[']s fees, which were ultimately paid to [Bryan] Sampson to collect $189,790 of the $284,672 wrongfully taken. However, the $94,881.21 was never recovered from the Keenans. ([One-third] of $284,672= [$]94,881.21[.)]"
Webb & Carey contends that such damages are recoverable pursuant to the tort of another doctrine established in Prentice v. North American Title Guaranty Corp (1963) 59 Cal.2d 618 (Prentice) and its progeny.
2. The relevant portions of the trial court's ruling
In its statement of decision, the trial court ruled in relevant part:
"[A]fter Mr. Sampson was excused and after [Webb & Carey] rested, [Webb & Carey] argued that it should recover the difference between the attorney[']s fees it paid to Mr. Sampson and the amount that Judge Taylor[] awarded.[] [¶] . . . [¶] The Court . . . finds that [Webb & Carey] waived any claim for damages based on attorney fees paid to Mr. Sampson. [¶] . . . [¶] Moreover, [Webb & Carey] did not suffer any damages proximately caused by [Suppa]. [¶] . . . [¶] [Webb & Carey's] fee agreement with Mr. Sampson pre-dated the alleged conversion and it required [Webb & Carey] to pay Mr. Sampson 1/3 of the amounts collected pursuant to the judgment, whether by litigation, settlement, or otherwise. The court finds the payment to [Suppa] did not proximately [cause Webb & Carey] any loss or damages."
Judge Taylor presided over Webb & Carey's collection action against the Keenans.
The record indicates that this amount was $278,325.24, which is based on the $593,281.24 in attorney fees that Webb & Carey paid to Sampson, minus $314,956 in attorney fees awarded to Webb & Carey by Judge Taylor in the collection action.
On appeal, Webb & Carey seek damages of $94,881.21, which is comprised of one third of the $284,672.10 that it contends Suppa improperly accepted from the Keenans. (See pt. III.A.1, ante.)
With respect to Webb & Carey's argument that it was entitled to damages pursuant to the tort of another doctrine, the trial court stated, "Another unplead [sic] theory, which was waived is [Webb & Carey's] claim based on the 'tort of another.' Even if it had been plead [sic], it is inapplicable."
3. Governing law
a. Motion for judgment
Code of Civil Procedure section 631.8, subdivision (a) provides in relevant part:
"(a) After a party has completed his presentation of evidence in a trial by the court, the other party, without waiving his right to offer evidence in support of his defense or in rebuttal in the event the motion is not granted, may move for a judgment. The court as trier of the facts shall weigh the evidence and may render a judgment in favor of the moving party, in which case the court shall make a statement of decision . . . or may decline to render any judgment until the close of all the evidence. The court may consider all evidence received, provided, however, that the party against whom the motion for judgment has been made shall have had an opportunity to present additional evidence to rebut evidence received during the presentation of evidence deemed by the presenting party to have been adverse to him, and to rehabilitate the testimony of a witness whose credibility has been attacked by the moving party."
b. Attorney fees as consequential damages pursuant to the tort of another doctrine
In Prentice, supra, 59 Cal.2d 618, the California Supreme Court adopted the following rule: "A person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney's fees, and other expenditures thereby suffered or incurred. [Citations.]" (Id. at p. 620.) In Prentice, the sellers of real property sued their escrow agent, alleging that the agent's negligence required them to bring an action to quiet title against the buyers of the property and the beneficiary of a deed of trust on the property. (Id. at p. 620.) The Prentice court concluded that the sellers could recover, as damages from the escrow agent, the amount of attorney fees that the sellers incurred in prosecuting the action against the buyers and the trust deed beneficiary. (Id. at p. 621.)
The law is clear that in order for a party to collect attorney fees pursuant to this doctrine, the need to incur attorney fees must have been "proximately and foreseeably caused by [the] tortfeasor." (Sooy v. Peter (1990) 220 Cal.App.3d 1305, 1312 (Sooy); see, e.g., Gray, supra, 35 Cal.3d at p. 505.) Thus, where the attorney fees incurred were not a "natural and probable consequence," of the alleged tortfeasor's act, no recovery under the doctrine is permitted. (Electrical Electronic Control, Inc. v. Los Angeles Unified School Dist. (2005) 126 Cal.App.4th 601, 617 (Electrical Electronic Control).)
4. The trial court properly determined that Webb & Carey failed to plead its entitlement to damages for tort of another
Whether the trial court properly determined that Webb & Carey failed to plead its entitlement to attorney fees pursuant to the tort of another doctrine is a question of law that we review de novo. (See Saunders v. Superior Court (1994) 27 Cal.App.4th 832, 837 ["The sufficiency of a complaint is, of course, a question of law which we review de novo."].)
The California Supreme Court has held that, "a claim for attorney fees under the 'tort of another' doctrine . . . must be pleaded and proved to the trier of fact." (Hsu v. Abbara (1995) 9 Cal.4th 863, 869, fn. 4, italics added; accord, Prentice, 59 Cal.2d at pp. 622, 621 [characterizing as "error," the fact that "[t]he pleadings contain no allegations that attorney's fees had been, or would be, incurred" as a result of defendants' tort].)
While the Prentice court concluded that this pleading "error" (Prentice, supra, 59 Cal.2d at p. 622) was not prejudicial in that case because "the issue was thoroughly tried and understood by counsel and by the court," (id. at p. 621), the same cannot be said in this case. (See pt. III.A.4, post.) Not only did Webb & Carey fail to plead that it suffered tort of another damages in its first amended complaint, Webb & Carey affirmatively disclaimed any intent to collect attorney fees as damages during the trial.
Attorney fees sought pursuant to the tort of another doctrine is a form of special damages, since the fees are "out-of-pocket losses that can be documented." (Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App.4th 141, 156 [defining special damages]; see, e.g., Beeman v. Burling (1990) 216 Cal.App.3d 1586, 1599 (Beeman) [" ' "Special damages" refers to out-of-pocket losses that can be documented by bills, receipts, cancelled checks, and business and wage records.' "].)
Attorney fees incurred pursuant to the tort of another doctrine are akin to medical expenses incurred as a result of a defendant's tort. (See Sooy, supra, 220 Cal.App.3d at p. 1310 [discussing the tort of another doctrine and explaining that "attorney fees are recoverable as damages resulting from a tort in the same way that medical fees would be part of the damages in a personal injury action"].) It is well established that medical expenses are a form of special damages. (See, e.g., Licudine v. Cedars-Sinai Medical Center (2016) 3 Cal.App.5th 881, 892 ["Special damages include medical and related expenses"]; Walton v. Guinn (1986) 187 Cal.App.3d 1354, 1361; Beeman, supra, 216 Cal.App.3d at p. 1599.)
A party must allege its entitlement to special damages with certainty and particularity. (See, e.g., Shook v. Pearson (1950) 99 Cal.App.2d 348, 352 ["The facts as to special damages must be stated with particularity. The amount of such damages must be stated with particularity."]; Jones v. Wachovia Bank (2014) 230 Cal.App.4th 935, 952 ["special damages . . . must be pleaded with specificity"]; see generally 5 Witkin, Cal. Proc. (5th ed. 2008) Pleading, § 934, Special Damages Must Be Pleaded, p. 349 ["The items of damage and the amounts must be pleaded in detail and with certainty."].)
The first amended complaint contains no reference to the tort of another doctrine. Nor does the first amended complaint allege that Webb & Carey incurred attorney fees as a result of Suppa's actions, or that Webb & Carey incurred a particular amount of attorney fees as damages. Indeed, the first amended complaint contains no reference to attorney fees whatsoever.
Webb & Carey argues that it properly pled its entitlement to tort of another damages. However, the paragraphs of the first amended complaint to which it cites allege merely that Suppa's actions damaged it in an amount exceeding the $284,672.10 that Suppa accepted from the Keenans. For example, with respect to its conversion cause of action, Webb & Carey allege:
"As a proximate result of [Suppa's] conversion [Webb & Carey] has been damaged in an amount in excess of $284, 672.10 and Webb & Carey has sustained, and will continue to sustain, monetary damages, including the loss of compound interest, in an amount to be determined according to proof at time of trial."
This allegation does not sufficiently allege, with particularity and certainty, that Suppa's actions caused Webb & Carey to incur $94,881.21 in attorney fees.
Accordingly, we conclude that the trial court properly determined that Webb & Carey failed to plead its entitlement to damages for tort of another.
5. The trial court properly determined that Webb & Carey waived its entitlement to seek damages for tort of another
We assume for purposes of this decision that we review de novo the trial court's ruling that Webb & Carey waived its entitlement to seek attorney fees as damages pursuant to the tort of another doctrine.
For the reasons that follow, we conclude that, even assuming that Webb & Carey had adequately pled its entitlement to attorney fees as tort of another damages, it waived any such request by not only failing to seek such damages during the trial, but by affirmatively representing in the trial court that it was not seeking to recover as damages attorney fees that it had paid to Attorney Sampson.
In its trial brief, and in its motion in limine briefing, Webb & Carey did not assert that it was entitled to $94,881.21 in attorney fees that it had paid to Attorney Sampson as consequential damages pursuant to the tort of another doctrine. Rather, Webb & Carey argued that it was entitled to recover the $284,672.10 that Suppa accepted from the Keenans, notwithstanding that the Keenans had satisfied their judgment to Webb & Carey. Webb & Carey argued that that the collateral source rule applied and that it was thus entitled to recover $284,672.10 from the Keenans and an additional $284,672.10 from Suppa. Webb & Carey argued that it was equitable to permit such recovery (i.e., there would be no double recovery) because such recovery would offset fees that Webb & Carey had to pay Attorney Sampson.
The collateral source rule states that "if an injured party receives some compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor." ' " (Pebley v. Santa Clara Organics, LLC (2018) 22 Cal.App.5th 1266, 1273.)
In contrast to the position that it advocated at trial, Webb & Carey expressly disavows any reliance on the collateral source rule in this appeal.
For example, in its trial brief, Webb & Carey argued:
"[Suppa] remain[s] liable for the $284,672.10 that [it] wrongfully took and continue to wrongfully possess, including the $278,325.24 of Bryan Sampson's total contingent fees of $593,281.24, which were never recovered from the Keenans, since only $314,956 in hourly fees was added to the judgments and recovered from the Keenans[] ($593,281.24 - $314,956 = $278,325.24). This also includes the $94,881.21, in additional one-third contingent fees paid to Bryan Sampson (33 1/3% of $284,672.10 = $94,881.21), when [Suppa] failed to pay the $284,672.10 to [Webb & Carey], and the Keenan judgments were not thereby reduced.
"[Webb & Carey's] out of pocket loss was never recovered from the Keenans, as a direct result of [Suppa's] illegal taking of the $284,672.10 in violation of the trial court's September 23, 2010 restraining order and [Webb & Carey's] judgment lien. [Webb & Carey's] out of pocket loss would not have been incurred, and would have been completely offset pursuant to the collateral source rule, had the $284,672.10 not been wrongfully taken by [Suppa], since Sampson's contingent fee agreement only applied to recovery of the amount of the judgments from the Keenans, and did not provide for any attorneys' fees to be incurred for recovery from any third party tortfeasors, like [Suppa]."
Similarly, at the outset of the trial, Patrick Webb, acting as counsel for Webb & Carey, did not argue that Webb & Carey was entitled to recover $94,881.21 in consequential damages pertaining to attorney fees that it had incurred pursuant to the tort of another doctrine. Rather, Webb articulated the same argument that Webb & Carey raised in its trial brief, namely, that Webb & Carey was entitled to recover $284,672.10, which would have offset money that Webb & Carey had to spend on attorney fees:
"So under the measure of damages under Civil Code [section] 3336,[] I believe it is, the value of the property taken on the day it was taken was this [$]284,672.10 amount. That code section also provides for any consequential loss that arises out of the taking of that. The consequential loss is the loss of the offset that we would have had. Had we had the 284-, we wouldn't be out of pocket [$]278,000 at the end of all of the addition and subtraction off of the judgment at the end of the day.
"The Keenan satisfaction of the 1.4 million or the [$]1,459,000 and change judgment never paid any of that out-of-pocket loss, because we were not allowed to collect that $278,000 portion of the contingent fees under the EJL, the enforcement of judgments law."
Civil Code section 3336 provides:
"The detriment caused by the wrongful conversion of personal property is presumed to be:
"First—The value of the property at the time of the conversion, with the interest from that time, or, an amount sufficient to indemnify the party injured for the loss which is the natural, reasonable and proximate result of the wrongful act complained of and which a proper degree of prudence on his part would not have averted; and "Second—A fair compensation for the time and money properly expended in pursuit of the property."
Webb, who also testified as a witness during the trial, unequivocally indicated that Webb & Carey was not seeking attorney fees as damages at trial:
Webb testified that he, together with cocounsel Kevin Carey, formed Webb & Carey in 1994.
"[Suppa's counsel:] Mr. Webb, I want to address the issue of the attorney's fees that you have claimed we should have to compensate you for. [¶] So as I understand your damage theory, Suppa . . . should have to pay Webb & Carey some portion of the fee that you paid to Mr. Sampson; is that correct?
"[Webb:] No. What we are seeking is the value of the property that was taken on the day of the conversion on September 23rd, 2010, which happens to be $284,672.10 plus compound interest running thereafter. Had we recovered that that day it would have been
money ahead, if you would, that would have offset what we ultimately had to pay Mr. Sampson to collect on the judgment, the [$]278,000, that we were not allowed to get under the EJL [enforcement of judgments law] from Judge Taylor.
"[Suppa's counsel:] So I just want to try and understand, you are not asking the judge to give you a verdict that in any way reimburses you for some or all of Mr. Sampson's fees?
"[Webb:] It would provide us an offset. Had you done what we think the law says you should have done, we would be $284,000 ahead of the game on September 23rd. So by the end of the case, when we paid [$]593,000 to Sampson, [$]278,000 of which we didn't get under the EJL, we would have had that 284 offset that 278. It's just simple math."
Webb further clarified that Webb & Carey was not seeking attorney fees as damages in responding to Suppa's counsel's questions concerning the absence of allegations pertaining to such fees in the first amended complaint:
"[Suppa's counsel:] You are just looking for the 284 that was paid to our firm plus interest?
"[Webb:] Correct.
"[Suppa's counsel:] Okay. Because I was going to point out that nowhere in your first amended complaint do you make a request for attorney's fees, and I guess you are now confirming that you are making no request for attorney['s] fees. Your only allegation of damage is to—is the return of the 284 plus—
"[Webb:] I believe—I believe that's correct in the first amended complaint. . . . We are not seeking attorney's fees now."
Thus, throughout the trial, Webb & Carey repeatedly asserted that it was seeking to recover $284,672.10 from Suppa, and affirmatively represented that it was not seeking to recover attorney fees as damages. Indeed, even in arguing against the motion for judgment, Webb continued to press the theory that Webb & Carey's damages consisted of the value of the money that Suppa took (i.e., $284,672.10) and that the attorney fees that Webb & Carey incurred were relevant only because the $284,672.10 in damages that Webb & Carey believed should be awarded to it would have offset attorney fees that it had incurred. It was only after the court granted Suppa's motion for nonsuit, in its motion for new trial and/or new judgment, that Webb & Carey first argued that it was entitled to recover a portion of the attorney fees that it had paid to Attorney Sampson as consequential damages, pursuant to the tort of another doctrine.
Attorney Webb argued in relevant part:
"[I]f you suffer attorney's fees that I had to pay over here, because I didn't get the money that they [Suppa] took, I get the value of the money they took plus interest to offset what I had to pay over here because they didn't give me the money when they should have. That's where the [$]94,000 becomes relevant." (Italics added.)
Under these circumstances, we conclude that the trial court properly determined that Webb & Carey waived its entitlement to seek attorney fees as consequential damages pursuant to the tort of another doctrine.
6. There is substantial evidence to support the trial court's findings that Suppa did not proximately cause Webb & Carey to suffer any damages and that the tort of another doctrine is "inapplicable"
In discussing Attorney Sampson's fees, the trial court expressly found that, "the payment to [Suppa] did not proximately [cause Webb & Carey] any loss or damages." In addition, in discussing the tort of another doctrine, the court found that this theory was "inapplicable," and that "[Webb & Carey] did not suffer any damages."
We review for substantial evidence the trial court's factual finding that Suppa did not proximately cause Webb & Carey to suffer any damages. (See Orange County Water Dist. v. MAG Aerospace Industries, Inc. (2017) 12 Cal.App.5th 229, 239 (Orange County Water Dist.) [" ' "The standard of review after a trial court issues judgment pursuant to Code (Civ. Proc., §) 631.8 is the same as if the court had rendered judgment after a completed trial—that is, in reviewing the questions of fact decided by the trial court, the substantial evidence rule applies." ' "].)
"While proximate cause ordinarily is a question of fact, it may be decided as a question of law if ' " ' "under the undisputed facts, there is no room for a reasonable difference of opinion." ' " ' " (Grotheer v. Escape Adventures, Inc. (2017) 14 Cal.App.5th 1283, 1303.)
In this case, we need not determine whether, as a matter of law, Suppa's acts did not proximately cause Webb & Carey to suffer any damages. Rather, we need only determine whether there is substantial evidence to support the trial court's finding, in ruling on Suppa's motion for judgment, that Suppa did not proximately cause Webb & Carey to suffer any damages.
In support of its finding that Suppa did not proximately cause Webb & Carey to incur damages related to Attorney Sampson's attorney fees, the trial court relied on the undisputed fact that "[Webb & Carey's] fee agreement with Mr. Sampson pre-dated the alleged conversion." (Italics added.) This fact constitutes substantial evidence upon which the trial court could reasonably find that it was Webb & Carey's own, independent decision to enter into the contingency fee agreement with Attorney Sampson, and not Suppa's subsequent acceptance of payment from the Keenans, that caused Webb & Carey to incur attorney fees in seeking to enforce Webb & Carey's judgments against the Keenans. (Compare with Prentice, supra, 59 Cal.2d at p. 619 ["When a paid escrow holder has . . . negligently made it necessary for the vendor of land to file a quiet title action against a third person, attorney's fees incurred by the vendor in prosecuting such action are recoverable as an item of the vendor's damages in an action against the escrow holder."].) Evidence that Webb & Carey had entered into a contingency based attorney fee agreement with Attorney Sampson before Suppa accepted money from the Keenans also supports the trial court's finding that the tort of another doctrine was inapplicable, since Webb & Carey did not suffer damages as a result of Suppa's acts. (See Electrical Electronic Control, supra, 126 Cal.App.4th at p. 616 [attorney fees must be the " 'natural and probable consequence,' " of the alleged tortfeasor's act to be recoverable as damages under the tort of another doctrine]; Flyer's Body Shop Profit Sharing Plan v. Ticor Title Ins. Co. (1986) 185 Cal.App.3d 1149, 1157 [concluding that plaintiff was not entitled to recover attorney fees pursuant to the tort of another doctrine because connection between third party's actions leading to incursion of fees and defendant's negligence was "too attenuated" to be a "proximate result"].)
In light of our conclusion, we need not determine whether Webb & Carey is correct that Attorney Sampson would not have been entitled to attorney fees on "any recovery from third party creditors of the Keenans," such as Suppa.
Accordingly, we conclude that the trial court properly granted Suppa's motion for judgment because Webb & Carey failed to demonstrate that it suffered any cognizable consequential damages as a result of Suppa's alleged torts. B. The trial court's conclusion that Webb & Carey is not entitled to recover $94,881.21 in damages for tort of another does not violate public policy
While Webb & Carey argues that Suppa is liable on each of its three causes of action, it does not present any argument that it suffered consequential damages apart from the $94,881.21 that we have concluded the trial court properly determined it is not entitled to recover. Indeed, in the conclusion of its brief, Webb & Carey makes clear that the $94,881.21 is the sole amount of consequential damages that it continues to seek, arguing, "For all of these reasons, based upon [Suppa's] conversion, money had and received, and breach of fiduciary duty, the trial court's judgment should be reversed, and a new judgment entered, awarding [Webb &Carey] consequential damages in the amount of $94,881.21 . . . ." (Italics added.) Nor has Webb & Carey argued that it is entitled to prevail on any of its three causes of action in the absence of a demonstration of damages. Accordingly, in light of our conclusion that Webb & Carey is not entitled to recover the $94,881.21 that it seeks to recover on each of its three causes of action, we need not consider Webb & Carey's remaining arguments on the merits of the additional elements of each of its causes action listed as arguments 3, 4, and 5 in its brief.
Webb & Carey also contends that the trial court erred in failing to award it "10% interest from September 23, 2010," on the $94,881.21 in consequential damages that it contends that it suffered. In light of our conclusion that the trial court properly determined that Webb & Carey was not entitled to recover the $94,881.21 in damages, this claim necessarily fails.
Webb & Carey claims that the trial court's "failure to award [Webb & Carey] $94,881.21 in consequential damages, violates public policy by allowing [Suppa] to profit from its[] unlawful conversion and breach of fiduciary duty." (Capitalization omitted.) In addition, within this same section of its brief, Webb & Carey argues that the trial court's judgment "erroneously deprives [Webb & Carey] of its right to punitive damages."
We concluded in part III.A, ante, that the trial court properly determined that Webb & Carey is not entitled to recover the $94,881.21 damages, for multiple reasons. It does not violate public policy to decline to award tort damages to which a party is not entitled. Further, Webb & Carey is not entitled to punitive damages since it failed to demonstrate that it suffered any damages as a result of Suppa's actions. (See, e.g., Werschkull v. United California Bank (1978) 85 Cal.App.3d 981, 1002 ["It is settled law in California that punitive damages cannot be awarded unless actual damages are suffered."].) C. Webb & Carey's procedural arguments are without merit
Webb & Carey contends that the trial court erred in granting Suppa's motion, on two procedural grounds. First, Webb & Carey argues that Suppa's motion for judgment constituted an improper motion for reconsideration of two prior summary judgment motions that Suppa filed, which the trial court denied. We disagree. A party is entitled to summary judgment only where it establishes that it is entitled to judgment as a matter of law. (See Towns v. Davidson (2007) 147 Cal.App.4th 461, 466.) In ruling on such a motion, the "court does not weigh evidence." (Newport Harbor Offices & Marina, LLC v. Morris Cerullo World Evangelism (2018) 23 Cal.App.5th 28, 42, italics added.) In contrast, in ruling on a motion for judgment under Code of Civil procedure section 631.8, the trial court "shall weigh the evidence," and, after " ' "evaluat[ing] the evidence as a trier of fact," ' " (Orange County Water Dist., supra, 12 Cal.App.5th at pp. 238, 239, italics added), the court may "enter judgment in favor of the defendant if the court concludes that the plaintiff failed to sustain its burden of proof." (Id. at p. 239.) Thus, the fact that the trial court concluded that Suppa failed to establish its entitlement to judgment as a matter of law on its motions for summary judgment clearly did not preclude Suppa from prevailing on its motion for judgment at trial after the court weighed the evidence.
In addition, while Webb & Carey asserts that "the prior summary judgment motion was made and denied on exactly the same grounds as the motion for judgment," it fails to demonstrate that this is so through reasoned argument. We reject Webb & Carey's implicit suggestion in its reply brief that we should, unassisted by briefing or argument, review the summary judgment materials that it has included in the appellant's appendix and compare the evidence presented during the summary judgment proceedings with that presented at trial. (See Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [" 'Issues do not have a life of their own: If they are not raised or supported by argument or citation to authority, [they are] . . . waived.' "].) Further, given our conclusion that Webb & Carey failed to assert its claim to damages for tort of another until after the trial court had granted Suppa's motion for nonsuit at trial, it is clear that the trial court's summary judgment rulings did not preclude the trial court from determining in its statement of decision that Webb & Carey was not entitled to such damages.
As noted in part II, ante, in its statement of decision, the court construed Suppa's motion as a motion for judgment.
As for its second procedural argument, Webb & Carey relies on the principle that, in ruling on a motion for judgment under Code of Civil Procedure section 631.8, a trial court may "consider all the evidence which has then been received, including defensive matter, provided, however, that the party against whom the motion has been made shall have had an opportunity to rebut and to rehabilitate." (People v. Mobil Oil Corp. (1983) 143 Cal.App.3d 261, 271, italics added and omitted.) Webb & Carey contends that the trial court could not grant Suppa's motion for judgment without permitting Webb & Carey to attempt to rebut "the false implication in Mr. Goldberg's[] testimony as to whether [Webb and Carey] ever recovered any of the $94,881.21 in consequential damages . . . ."
Goldberg testified at the trial of this action that he was appointed as a receiver in 2010 in connection with property owned by the Keenans. --------
This argument fails because the trial court did not rely on defensive matter in ruling on the motion for judgment. To begin with, Goldberg merely testified to the undisputed point, expressly admitted by Webb during Webb & Carey's case-in-chief, that Webb & Carey's judgment against the Keenans had been fully satisfied. Further, the court's ruling that Suppa's actions had not caused Webb & Carey to incur the $94,881.21 in attorney fees that it sought as damages was primarily based on the undisputed fact that "[Webb & Carey's] fee agreement with Mr. Sampson pre-dated the alleged conversion." (Italics added.) Thus, the ruling was not premised on defense evidence. In any event, the trial court's ruling that Webb & Carey was not entitled to damages pursuant to the tort of another doctrine because such damages were "unplead" [sic] and "waived," was entirely independent of any defense evidence.
In sum, Webb & Carey's procedural arguments are devoid of any merit whatsoever.
IV.
DISPOSITION
The judgment is affirmed. Webb & Carey is to bear costs on appeal.
AARON, J. WE CONCUR: BENKE, Acting P. J. O'ROURKE, J.
The appellant's appendix, however, does not include Suppa's motion. It is an appellant's burden to ensure that the appellate record is adequate to review its claims and the failure to provide an adequate record ordinarily results in affirmance of the judgment. (See, e.g., Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416 ["if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed"]; Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502 [concluding appellant failed to provide adequate record to review ruling granting motion to strike where appellant's appendix failed to include motion to strike, among other documents].) Notwithstanding Webb & Carey's failure to include Suppa's motion in its appendix, we are able to ascertain the trial court's reasons for granting the motion from the documents and arguments contained in the record. Accordingly, we exercise our discretion to consider Webb & Carey's claims on their merits.
In responding to this argument, Suppa's counsel stated in part, "I had a whole series of questions to ask Mr. Sampson about that whole argument on the fees and I didn't ask them because Mr. Webb said he wasn't seeking fees."
The trial court interjected, "Clearly."