Reddi v. Zwick

Full title: SATYA V. REDDI, Plaintiff and Appellant, v. STEVEN ZWICK et al.…

Court: California Court of Appeals, Fourth District, Third Division

Date published: Jul 7, 2011

No. G044385 (Cal. Ct. App. Jul. 7, 2011)

Opinion

NOT TO BE PUBLISHED

Appeal from two postjudgment orders of the Superior Court of Orange County No. 30-2008-00111224 Ronald L. Bauer, Judge.

Satya V. Reddi in pro. per. for Plaintiff and Appellant.

Steven Zwick in pro. per. and James Alquist in pro. per. for Defendants and Respondents.

OPINION

RYLAARSDAM, ACTING P. J.

This is the third appeal to reach this court as a result of the divorce of Satya and Lakshmi Reddi. The first appeal, In re Marriage of Reddi (July 31, 2003, G029401) [nonpub. opn.] [2003 WL 21771983] (Reddi I) involved Satya Reddi’s challenge to the trial court’s denial of his request for a statement of decision in his divorce case. This court held that Satya Reddi had effectively waived his right to a statement of decision because he had acquiesced to the trial court’s issuance of a tentative opinion in chambers. (See Reddi I, supra, 2003 WL 21771983 at p. 3.)

Satya Reddi (from now on, “Reddi”) was more successful in his second appeal, In re Marriage of Reddi (Dec. 30, 2009, G040864) [nonpub. opn.] [2009 WL 5153847] (Reddi II). There, like the present case, Reddi represented himself on appeal. Reddi II involved a challenge to two family law court orders: One was an order denying a motion to set aside an attorney fee order made after several postjudgment hearings in which he had attempted to lower or eliminate entirely his spousal support payments. The second was an order that Reddi pay $50,000 for the attorney fees of his ex-wife Lakshmi for all her work in the family law case over the previous year, including work occasioned by his multiple attempts to lower his spousal support payments. (Reddi II, supra, 2009 WL 5153847 at p. 2.) This court reversed both orders. The panel was unanimous that the $50,000 attorney fee order had to be reversed because the trial judge did not properly take into account the factors bearing on such an order. (See id. at p. 8 (maj. opn.) and at pp. 9-10 (conc. opn. of Aronson, J.)) The majority also believed that reversal of both orders was compelled because the record “evidenced a distinct bias” on the part of Judge Pollard against Reddi that affected her evaluation of both orders. (Id. at p. 2.) The record supplied by Reddi in that “pro per” appeal was adequate for the court to evaluate his contention that the trial judge was biased against him, as evidenced by the majority’s lengthy quotation of the trial judge’s remarks in announcing the fee order. (Id. at pp. 6-8, fn. 13.)

This third appeal also arises from the family law proceeding, but less directly. Specifically, this appeal arises out of the judgment in a legal malpractice action against two attorneys, Steven Zwick and James Alquist, who represented Reddi in a previous malpractice action against the firm of Meserve, Mumper & Hughes, the lawyers who represented him at the trial of his family law case. This case is, literally, a malpractice action based on a previous malpractice action. Interestingly enough, the lawyers being sued, Zwick and Alquist, had managed, by settlement with Meserve, Mumper & Hughes, to obtain some significant relief for Reddi: They not only got Meserve, Mumper & Hughes’ $104,000 legal bill reduced to zero, but also got the firm to pay Reddi an extra $160,000 to drop the malpractice case against them.

Even so, Reddi didn’t think Zwick and Alquist had done quite good enough, so he sued them for legal malpractice. Judge Bauer, in posttrial proceedings in the case against Zwick and Alquist, opined that Zwick and Alquist were “miracle workers” for having reduced a $104,000 bill to zero and obtained $160,000 on top of that, and yet “they got sued for their troubles.”

Reddi’s basic theory in his malpractice case against Zwick and Alquist, as presented to the jury, can be summarized this way: Reddi wanted to go to trial against Meserve, Mumper & Hughes, and had hired Zwick and Alquist to go to trial, but their lack of preparation forced him to settle for the dropped $104,000 bill (which was not worth all that much anyway, since Meserve, Mumper & Hughes had grossly overcharged him) plus a paltry $160,000 on top of the withdrawn bill. The jury apparently saw things the same way as Judge Bauer and returned a defense verdict.

Reddi has now filed this appeal, in pro per. By virtue of his own drafting of the notice of appeal and preparation of the appellate record, he has restricted this court’s appellate jurisdiction to only two matters: (1) a motion for reconsideration, based on the alleged “positive misconduct” of his trial attorney, and (2) a motion to tax costs.

As we explain below, Reddi’s arguments as to these two matters are unavailing. Positive misconduct is a doctrine that applies when an attorney goes “awol” -- absent without leave -- that is, ceases to represent a client entirely but does not obtain leave of court to withdraw from the case. Here, by contrast, Reddi’s trial attorney stuck by his client’s side throughout the trial, right up to closing arguments to the jury. Ergo the “positive misconduct” doctrine does not apply. And the motion to tax costs cannot be considered on the merits because Reddi, now acting as his own appellate attorney, has failed to provide a sufficient record to this court to allow it to evaluate the trial court’s decision on the costs motion. So both orders are affirmed.

FACTS

While Reddi was represented by counsel at the trial level, he began to represent himself after the jury verdict. He is now his own appellate attorney. The record he has provided on appeal consists entirely of the following:

(1) Two volumes of an appellant’s appendix consisting mostly of his own posttrial pleadings and documents. Here is what Reddi has provided beyond the papers which he filed on his own behalf: (1) The Superior Court’s record of its own docket; (2) a notice of ruling from Zwick and Alquist documenting the denial of Reddi’s motion for “further trial”; (3) a notice of ruling from Zwick and Alquist documenting the denial of Reddi’s motion for reconsideration and for an order striking or reducing costs; (4) a set of what appear to be the instructions given the jury; (5) a Code of Civil Procedure section 998 offer from Zwick and Alquist, documenting that they had offered to settle the case for $35,000; (6) a copy of one volume of the deposition of Zwick; and (7) a joint exhibit list and copies of those exhibits. (The exhibit copies take up the entirety of the second volume of the appellant’s appendix.)

(2) One volume of a reporter’s transcript consisting of: (a) the testimony of only one of Reddi’s experts, Christopher Rolin; (b) the argument to the jury of Reddi’s own trial attorney (not including the closing argument of Zwick or Alquist); (c) the transcript of a chambers conference held between the judge, all counsel, and a particular juror who seemed frustrated with the course of jury deliberations (the juror’s words: “Just, to me, they’re not abiding by the rules”); (d) the hearing on the motion for new or further trial; and (e) the hearing on the motion for reconsideration. The trial was clearly a long one, and involved many witnesses other than just Rolin.

And that’s all.

The appellant’s appendix does not contain a separate copy of the complaint or the judgment. It does contain a copy of Reddi’s first amended complaint filed November 24, 2008, but only because the complaint was attached as an exhibit to his motion for new or further trial. The same may be said for the copy of the original judgment, filed June 14, 2010, and the copy of an amended judgment, filed September 29, 2010. Both are present merely because they were attached as exhibits.

The Superior Court docket shows that notice of entry of judgment was filed on June 22, 2010. This court has obtained a copy of that notice of entry of judgment from the Superior Court (because it was not included in the appellant’s appendix provided by Reddi). The notice of entry of judgment has a proof of service showing the notice of entry of judgment was mailed to Reddi’s trial attorney (who was yet to be substituted out of the case) on June 21, 2010. The notice of entry of judgment physically includes a file-stamped copy of the original judgment filed June 14, 2010.

A comparison of the original judgment filed June 14, 2010 with the amended judgment, filed September 29, 2010, shows the two documents are identical except for one thing: The original judgment had a provision that Zwick and Alquist would recover costs “in an amount to be determined, ” while the amended judgment provided that Zwick and Alquist would recover costs of about $48,000 and $4,000 respectively.

The basis of the new or further trial motion was this: Reddi had alleged seven causes of action in his complaint, but only five of them had been submitted to the jury. Two causes of action did not reach the jury:

-- Cause of action number three, for actual fraud based on two alleged misrepresentations, namely (1) that a previous attorney’s failure to designate an expert who could testify at trial as to damages was “fatal” to Reddi’s case and (2) that without a damages expert, Reddi would not be able to prove any damages and would “face non-suit.”

-- And, cause of action number seven, for breach of contract, based on alleged malpractice and the misrepresentations in cause of action number three.

It should be noted here that one of Reddi’s causes of action, number six for negligent infliction of emotional distress, was dismissed in earlier proceedings and Reddi does not attempt in this appeal to argue that that dismissal was error.

The basis for the reconsideration motion was the theory that Reddi’s trial attorney had engaged in “positive misconduct” by “failing to submit all the causes of action to the jury, ” plus the trial attorney had failed in various ways to present Reddi’s case. That is, Reddi claims that his trial attorney did not make certain arguments that Reddi thinks he should have made. In that regard, Reddi’s supporting declaration attached to the motion for reconsideration set forth a litany of assertions of malpractice on the part of his trial attorney. Just to name a few examples: The trial attorney should have argued “but for” and “substantial factor” causation but didn’t. The trial attorney didn’t counter defense testimony that causation was the province of expert testimony. He didn’t try to shift the burden of “disproving undue influence” to the defense. Et cetera.

Without recounting all of his trial attorney’s alleged errors and omissions, we may simply note there is no evidence in Reddi’s declaration that his trial attorney was trying to lose, or did anything that affirmatively sabotaged the case, such as knowingly failing to file a response to a dispositive motion. There is no evidence Reddi’s trial attorney tried, in effect, to “throw” the contest.

Nor, most importantly, is there any indication, even on this abbreviated record, that Reddi’s trial attorney absented himself from actual representation of Reddi without proper leave of court. The most that Reddi even arguably shows is that his trial attorney might have forgone arguments which Reddi, in retrospect, thinks would have produced a different result.

As noted, both the motions for new or further trial and the motion for reconsideration were denied. The record prepared by Reddi does not even contain a copy of the notice of appeal. However, our own clerk’s file shows a notice of appeal was filed October 25, 2010, so we may overlook Reddi’s failure to include a copy in his appellant’s appendix.

The notice of appeal filed by Reddi in propria persona is a form notice, which provides various boxes to check. Conspicuously, the box for “An order after judgment under Code of Civil Procedure section 904.1(a)(2)” is not checked. In the form preamble to the notice (the text just before the various boxes are listed) there is language which says that Reddi “appeals from the following judgment or order in this case, which was entered on (date)” and then Reddi typed in “27-Sept-2010.” On the next line, there is a check besides the words “Judgment after jury trial.”

The Superior Court docket indicates that on September 27, the minutes were finalized as to the “Motion for Reconsideration” and as to a motion to tax costs. By contrast, the posttrial order on the motion for new or “further” trial was on August 16, 2010, and the order reflecting the denial of that motion shows that the minutes recording that denial were “finalized” that same day.

DISCUSSION

1. What Is, and Is Not, Properly Before the Court

As in Reddi’s prior “pro per” appeal, Reddi II, supra, 2009 WL 5153847 at page 1, footnote 1, our first task is to sort out what precise matters this court has jurisdiction to consider, and what matters it does not have jurisdiction to consider.

First there is the original judgment, filed June 14, 2010. We cannot consider that because the notice of appeal was filed too late -- more than four months later on October 25. Rule 8.104(a)(2) of the California Rules of Court provides that a notice of appeal must be filed before the earliest of “60 days after the party filing the notice of appeal... is served by a party with a document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment, accompanied by proof of service.” In this case there is no question that Reddi’s trial attorney was served on June 21, 2010 with a file-stamped copy of the judgment (contained within the document entitled “Notice of Entry of Judgment). Indeed, Reddi’s trial attorney was served with “a document” entitled notice of entry of judgment in that very mailing as well.

The time for Reddi to appeal the original judgment of June 14, 2010 thus began running on June 21, 2010. That judgment is now clearly final and cannot be considered in this appeal.

Second there is the amended judgment, filed September 29, 2010. Even if we could ignore the clear September 27, 2010 date set forth in Reddi’s notice of appeal -- that is, ignore the statement that indicates Reddi is really appealing from something else -- we still have no jurisdiction to consider any challenges to the substance of the defense verdict set forth in that amended judgment.

As noted above, the time has already run on the time to appeal from the original judgment, and the original judgment is identical in its merits to the amended judgment. When a judgment is modified “‘merely to add costs, attorney fees and interest, the original judgment is not substantially changed and the time to appeal it is therefore not affected.’” (Torres v. City of San Diego (2007) 154 Cal.App.4th 214, 222, quoting Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2006) ¶ 3:56:3, p. 3-26.)

Thus even if the notice of appeal had specified the amended judgment of September 29, 2010, the most that this court would have jurisdiction to consider would be the added costs. By the time of the notice of appeal, the merits of the both the original and amended judgments were long final. (See Torres, supra, 154 Cal.App.4th at p. 222.)

On top of that, we cannot ignore the plain September 27, 2010 date set out in Reddi’s own notice of appeal. That notice of appeal is clear that any “judgment” or “order” being appealed from was one “entered on” September 27, 2010. While the Court of Appeal is required to liberally construe notices of appeal, such notices must still identify the judgment or order which the appellant seeks to challenge on appeal. Rule 8.100(a)(2) of the California Rules of Court provides: “The notice of appeal must be liberally construed. The notice is sufficient if it identifies the particular judgment or order being appealed. The notice need not specify the court to which the appeal is taken; the appeal will be treated as taken to the Court of Appeal for the district in which the superior court is located.” (Italics added.)

The rule of liberal construction cannot save the challenge to a judgment or order which is plainly not included in the notice of appeal. (See Conservatorship of Edde (2009) 173 Cal.App.4th 883, 889 [because notice of appeal was “very limited in scope” and arose only out of a certain conservatorship action, appellate court did not have jurisdiction to review any order from related probate action]; Morton v. Wagner (2007) 156 Cal.App.4th 963, 967 [because notice of appeal only mentioned order denying the reconsideration motion and vexatious litigant order, but did not mention underlying judgment, appellate court could not consider matters attacking that judgment].)

The only orders that actually fit what Reddi specified in his notice of appeal are the orders made September 27, 2010, namely the order denying Reddi’s motion for reconsideration based on asserted positive misconduct, and the order denying Reddi’s motion to tax costs.

2. Positive Misconduct

Almost all the time, the malpractice of an attorney is imputed to his or her client. (See generally Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 898 (Carroll v. Abbott) [“‘the negligence of the attorney... is imputed to his client and may not be offered by the latter as a basis for relief’”].)

The one time that an attorney’s malpractice isn’t imputed to the client is under the “positive misconduct” doctrine, which was originally developed in Daley v. County of Butte (1964) 227 Cal.App.2d 380, 388-395. As our Supreme Court has explained, though, the positive misconduct doctrine only applies where the attorney has de facto withdrawn from all representation entirely. It does not apply to ordinary malpractice where the attorney continues to represent the client. Said the Supreme Court in Carroll v. Abbott: “What [the positive misconduct cases] have in common is a total failure on the part of counsel to represent the client: each attorney had de facto substituted himself out of the case. Under such circumstances it would have been unconscionable to apply the general rule charging the client with the attorney’s neglect.” (Carroll v. Abbott, supra, 32 Cal.3d at p. 900, italics added.)

In the present case, the truncated record that Reddi has provided this court shows that, whatever else might be said about his trial attorney’s representation, Reddi’s trial attorney stuck around through closing arguments to the jury. There is not a shred of evidence that his trial counsel “de facto substituted himself out of the case.” He was clearly present to make arguments to the jury, and there is nothing to indicate he physically absented himself at any time prior. The positive misconduct doctrine thus cannot apply.

Moreover, Reddi’s theory of positive misconduct appears to equate positive misconduct simply with gross malpractice or attorney incompetence. If Reddi’s theory were correct, he himself would clearly have committed “positive misconduct” on his own behalf in his handling of his own appeal. Reddi’s own errors in handling this appeal, mostly in failing to provide an adequate record and his further failure to summarize the evidence against him, have precluded direct consideration of the substance of most of the arguments he makes in his opening brief. (See Cypress Security, LLC v. City and County of San Francisco (2010) 184 Cal.App.4th 1003, 1014 [“First, it is the burden of an appellant -- not the respondent -- to show error by an adequate record.”]; McCauley v. Howard Jarvis Taxpayers Assn. (1998) 68 Cal.App.4th 1255, 1266 [“If one is going to make a ‘the-facts-compel-that-I-win-as-a-matter-of-law’ argument, one’s brief must fairly state all the evidence”].)

Most of Reddi’s arguments as set forth in his opening brief can be organized into two groups sets of contentions: (1) that he was entitled to win his malpractice case against Zwick and Alquist because the malpractice of Meserve, Mumper & Hughes was so bad he was bound to win more than the more than $250,000 that Zwick and Alquist had gained for him, and (2) that the omission of causes of action three and seven in the verdict forms somehow left the trial incomplete.

Even if these contentions did have some merit, these contentions cannot be considered by this court, because of Reddi’s own handling of his appeal. The most we can do is to consider these arguments as they indirectly incorporated into his attacks on the denials of his motions to reconsider and to tax costs.

3. The Motion to Tax Costs

Headings and subheadings in an appellate brief play an important role in appellate procedure. They allow an appellate court to have some closure as to what, precisely, a party is arguing on appeal. A litigant has no right, for example, to assume that the Court of Appeal must respond to every single declarative statement found in a brief. The California Rules of Court thus require that all points be organized into intelligible headings and subheadings. (Cal. Rules of Court, rule 8.204 [“Each brief must:... [¶] State each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority....”]; e.g., Conservatorship of Hume (2006) 139 Cal.App.4th 393, 395, fn. 2 [“While Hume’s brief also makes reference to a number of specific objections beyond the noninclusion of the Tennessee property to the accounting, the failure to explain specifically how the trial court’s overruling of these objections was error and the further failure to identify them in a separate headings or subheadings also means these issues are waived on appeal.”].)

Here, the one heading in Reddi’s brief which is directed at the motion to tax costs is this: “The court has no authority to award costs to Respondents on the basis of partial Jury verdict.” Reddi’s theory is that because causes of action three and seven were omitted from the jury verdict form, part of his case was left untried, hence no cost bill could be filed against him. (Cf. Cobb v. University of Southern California (1996) 45 Cal.App.4th 1140 (Cobb) [dismissing appeal from an order granting a new trial because there were causes of action still outstanding].)

Reddi’s argument is not persuasive. Reddi has failed to provide an adequate record on appeal to show error by the trial court. Specifically, the record he has supplied fails to show that he requested instructions and a jury verdict form based on causes of action three and seven, and then the trial court erroneously denied his request. For all he has shown by this record, he or his trial attorney voluntarily abandoned causes of action numbers three and seven after all the evidence was heard.

We may also observe that to the degree Reddi has presented anything on the substance of causes of action three and seven in connection with his attack on the cost award, all he has presented us shows that those causes of action were clear “losers” anyway.

Cause of action number three, was denominated “actual fraud” and based on two alleged “misrepresentations”: (1) That Zwick and Alquist told Reddi that a yet previous attorney’s failure to designate a damages expert against Meserve, Mumper & Hughes (the previous attorney’s name was Lotta), was “fatal” to Reddi’s case as it was being prosecuted against Meserve, Mumper & Hughes, and hence Reddi had to settle for the mere quarter of a million dollars that in fact he did settle for. (2) That Zwick and Alquist told Reddi that without a damage expert, Reddi would not be able to prove any damages and would “face non-suit.” And cause of action number seven was based solely on the misrepresentations in cause of action number three.

The basic, underlying theory that Reddi asserts is that the statements made to him by Zwick and Alquist were “misrepresentations” because, in fact, they might have proven his damages in the case against Meserve, Mumper & Hughes by use of either Reddi’s own testimony, or by cross-examination of Meserve, Mumper & Hughes’ own experts, or both.

The theory fails because these “misrepresentations” do not, in substance, constitute “actual fraud.” They were, at most, nothing worse than bad legal advice. As such, the substance of Reddi’s claim was already put forward to the jury in his various claims for malpractice.

These so-called “misrepresentations” were, in fact, not bad legal advice at all. If Reddi had not presented any expert evidence of damage in his case-in-chief, Meserve, Mumper & Hughes could easily have declined to call their own experts and his case would have been subject to a motion for nonsuit for lack of evidence of damages. And even if Reddi had tried to act as his own expert on damages, any competent attorney would recognize that it would not count for much with a jury.

Indeed, Reddi’s apparent voluntary abandonment of his claims for “actual fraud” or “misrepresentation” in causes of action three and seven was quite sensible: To have tried to convince the jury that Reddi should receive damages for “misrepresentation” when Zwick and Alquist simply got their law wrong would only have antagonized the jury and lessened Reddi’s own credibility in their eyes. Reddi’s trial attorney was already facing an uphill battle trying to convince the jury that there had been malpractice on Zwick and Alquist’s part despite what appeared to have been a very good result obtained for him against Meserve, Mumper & Hughes. To have pressed claims for “fraud” and “misrepresentation” based on what was, in substance, merely bad legal advice would have easily been considered frivolous and only underscored the very easy perception that Reddi was an unreasonable man who would seize on any reason to sue his former attorneys, even when they had obtained a miraculous result for him. After all, in another context one member of this court expressed the view that Reddi’s suit of Zwick and Alquist showed that he was indeed being unreasonable. (See Reddi II, supra, 2009 WL 5153847 at pp. 10, fn. 2 & p. 11 (conc. & dis. opn. of Aronson, J.) [fact that Reddi “sued his trial attorney for malpractice, and later sued for malpractice the lawyers he hired to sue his trial attorney” supported family court judge’s evaluation of Reddi as “unreasonable”].)

Reddi’s trial attorney in this case recognized the danger from the defense argument that Reddi was “sue-happy.” To quote from Reddi’s trial attorney’s closing argument: “Now, I know there have been a lot of attempts in this trial to impugn Mr. Reddi, to make him seem like he lack credibilityor that he’s sue-happy. That’s an easy one to go after, right? The guy loves lawsuits.”

Trying to assert that bad advice was “actual fraud” would only have played into the hands of the defense on that very point.

CONCLUSION

The orders denying Reddi’s motions for reconsideration and to tax costs are affirmed. Respondents are to recover their costs on appeal.

WE CONCUR: O’LEARY, J., MOORE, J.