Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. 3702009-00070288- CU-PN-EC, Randa Trapp, Judge.
O'ROURKE, J.
Plaintiff Rolf Siegen represents himself in this appeal from a judgment entered after the trial court sustained a demurrer to Siegen's first amended complaint without leave to amend. That operative complaint alleged that Siegen's former attorney, Carl Lewis, breached a contract and committed legal malpractice in representing Siegen in a lawsuit against Leland Mench. Siegen contends: his failure to specify the contractual terms in the first amended complaint was immaterial because Lewis has a copy of the contract; he had alleged facts showing Lewis breached a duty to him by not requesting the trial court set a case management conference in the Mench case; and he had pleaded facts alleging Lewis had caused him damages. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Siegen filed his original complaint, and Lewis successfully demurred. Siegen then filed a first amended complaint, and Lewis moved to strike certain allegations on grounds they failed to show a breach of duty or damages; referred to issues like Mench's deposition, and Lewis's purported failure to require an accounting, which were barred by the statute of limitations, specifically Code of Civil Procedure section 340.6; and, the allegations did not incorporate the exact contractual terms or address the contract's legal effect. Lewis also demurred to the first amended complaint on those same grounds. Siegen, in opposing both the motion to strike and the demurrer, withdrew as moot his contentions regarding Mench's deposition and Lewis's purported failure to require an accounting.
Although the record contains no copy of it, the parties' papers supporting and opposing the demurrer refer to the original complaint.
The trial court granted Lewis's motion to strike and sustained the demurrer without leave to amend, ruling, "With respect to the setting of the trial date, there are no allegations that Lewis breached any duty or that the breach caused any damage." The trial court noted that Siegen had withdrawn his other allegations, which appeared to be barred by the statute of limitations.
We grant Lewis's December 10, 2010 motion for judicial notice of matters pending in the trial court. We also grant Lewis's May 4, 2011 motion for judicial notice of the trial court's decision rejecting Siegen's claims in his lawsuit against Mench. We grant Siegen's May 19, 2011 motion for judicial notice of his appeal of that decision.
DISCUSSION
I. Motion to Dismiss Siegen's Appeal
Lewis contends this court should dismiss Siegen's appeal because he failed to support his arguments with record citations.
California Rules of Court, rule 8.204(a)(2)(C), states that each appellant's opening brief must "[p]rovide a summary of the significant facts limited to matters in the record." "And the leading California appellate practice guide instructs about this: 'Before addressing the legal issues, your brief should accurately and fairly state the critical facts (including the evidence), free of bias, and likewise as to the applicable law. [¶] Misstatements, misrepresentations and/or material omissions of the relevant facts or law can instantly "undo" an otherwise effective brief, waiving issues and arguments; it will certainly cast doubt on your credibility, may draw sanctions [citation], and may well cause you to lose the case!' " (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507.)
We agree that Siegen in his briefs has not presented a proper statement summarizing all "significant facts, " as required by California Rules of Court, rule 8.204(a)(2)(C). (See also Ajaxo Inc. v. E*Trade Group, Inc. (2005) 135 Cal.App.4th 21, 50.) In the context of this appeal, Siegen's factual statement should set forth a summary of all material and properly pleaded allegations of his complaint, which, on review of the judgment of dismissal following Lewis's successful demurrer, this court would assume to be true. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) Usually, an appellant's failure to state all of the facts fairly in his brief forfeits any alleged error. (See In re S.C. (2006) 138 Cal.App.4th 396, 407; Ajaxo Inc., at p. 50; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; County of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1274.) Here, Siegen's statement of facts in his opening brief refers only to matters in the underlying Mench case. He does not mention the allegations in his first amended complaint, or the trial court's ruling on the demurrer.
However, California Rules of Court, rule 8.204 does not authorize this court to dismiss Siegen's appeal for these rules violations; it indicates that an order striking a brief must be combined with leave to file a new brief in compliance with the rules. We did not order Siegen to refile a new, conforming brief or advise him that without one he risked dismissal of his appeal. (E.g., Berger v. Godden (1985) 163 Cal.App.3d 1113, 1117.) If we struck Siegen's brief for the above-mentioned rules violations, we would be compelled to permit him another opportunity to file a conforming brief. Such an order is unnecessary, however, because we may deem Siegen's appellate claims forfeited for the same reasons Lewis urges their dismissal.
California Rules of Court, rule 8.204(e) provides in part: "If a brief does not comply with this rule:... If the brief is filed, the reviewing court may, on its own or a party's motion, with or without notice: [¶] (A) Order the brief returned for corrections and refiling within a specified time; [¶] (B) Strike the brief with leave to file a new brief within a specified time; or [¶] (C) Disregard the noncompliance."
Lewis requests dismissal of Siegen's appeal on the alternative ground that after briefing was finished in this appeal, Siegen lost his case against Mench in the trial court. We decline to dismiss on this particular ground because at this point the trial court's ruling has not achieved finality.
II. Standard of Review
"The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer..., to the pleading on any one or more of the following grounds: [¶]... [¶] (e) The pleading does not state facts sufficient to constitute a cause of action." (Code Civ. Proc., § 430.10.) "The absence of any allegation essential to a cause of action renders it vulnerable to a general demurrer. A ruling on a general demurrer is thus a method of deciding the merits of a cause of action on assumed facts without a trial." (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 437, fn. 4.) "Neither trial nor appellate courts should be distracted from the main issue, or rather, the only issue involved in a demurrer hearing, namely, whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action." (Griffith v. Department of Public Works (1956) 141 Cal.App.2d 376, 381.)
When "reviewing a demurrer that is sustained without leave to amend, an appellate court assumes the truth of (1) all facts properly pleaded by the plaintiff, (2) all facts contained in exhibits to the complaint, (3) all facts that are properly the subject of judicial notice, and (4) all facts that reasonably may be inferred from the foregoing facts." (Neilson v. City of California City (2005) 133 Cal.App.4th 1296, 1305.) We may not accept the truth of legal contentions, conclusions of law, or deductions drawn from those legal contentions or conclusions when reviewing the sufficiency of the allegations. (Ibid.)
Further, an appellate court presumes that the judgment appealed from is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) We adopt all intendments and inferences to affirm the judgment unless the record expressly contradicts them. (See Brewer v. Simpson (1960) 53 Cal.2d 567, 583.) An appellant has the burden of overcoming the presumption of correctness. (Hearn v. Howard (2009) 177 Cal.App.4th 1195, 1207.) Even an appellate de novo review "is limited to issues which have been adequately raised and supported in the appellant's brief." (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.) Siegen's election to act as his own attorney does not entitle him to any leniency as to the rules of practice and procedure. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Lombardi v. Citizens Nat. Trust Etc. Bank (1955) 137 Cal.App.2d 206, 208-209.)
When a demurrer is sustained without leave to amend, we also must determine whether there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) If it can be cured, the trial court has abused its discretion in sustaining the demurrer without leave to amend and we reverse. (Ibid.) If it cannot be cured, there has been no abuse of discretion and we affirm. (Ibid.) The plaintiff bears the burden of proving there is a reasonable possibility of amendment, and may make this showing for the first time on appeal. (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43-44.)
III. Applicable Law
The elements of a breach of contract claim are "the existence of the contract, performance by the plaintiff or excuse for nonperformance, breach by the defendant and damages." (First Commercial Mortgage Co. v. Reece (2001) 89 Cal.App.4th 731, 745.) To state a cause of action for legal malpractice, a plaintiff must allege: (1) breach of the attorney's duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a proximate causal connection between the negligent conduct and the resulting injury; and (3) actual loss or damage resulting from the negligence. (Thompson v. Halvonik (1995) 36 Cal.App.4th 657, 661.)
IV. Analysis
As previously stated, Siegen's arguments are forfeited because his briefing is inadequate. He concedes that under California Rules of Court, rule 3.722, the trial court has the responsibility to comply with the statutory requirement to set an initial case management conference. Nonetheless, he claims Lewis had two available remedies: Lewis could have petitioned for a writ of mandate or, alternatively, simply telephoned the trial court clerk for assistance in scheduling the case management conference. But Siegen does not ground his arguments in the allegations remaining in the first amended complaint. He does not explain what basis exists for a writ, or cite to any case in which a writ petition was successful in analogous circumstances. Nor does Siegen specify the legal standard to be applied to his contention that Lewis's conduct fell below professional standards. This court is not required to make an independent search of the record for facts that support Siegen's claims, or make his arguments for him. (In re S.C., supra, 138 Cal.App.4th at p. 407; Nwosu v. Uba (2004)122 Cal.App.4th 1229, 1246.)
California Rules of Court, rule 3.722, states: "In each case, the court must set an initial case management conference to review the case. At the conference, the court must review the case comprehensively and decide whether to assign the case to an alternative dispute resolution process, whether to set the case for trial, and whether to take action regarding any of the other maters identified in rules 3.727 and 3.728. The initial case management conference should generally be the first case management event conducted by court order in each case, except for orders to show cause."
Siegen does not appeal from the trial court's decision to strike the first amended complaint. Accordingly, the causes of action in the first amended complaint are based exclusively on these remaining facts: "On or about October 2, 2007, at San Diego County, California, [Siegen] and Lewis entered into a written agreement, a copy of which is not attached because [Siegen] has lost it. [¶] [Siegen] has performed all conditions, covenants, and promises required on his part to be performed in accordance with the terms and conditions of the contract. [¶] Lewis had agreed to perform legal services in a prompt and proper fashion without causing excessive costs or using excess [sic] time in the Rolf Siegen v. Leland Mench case.... As a result of Lewis's... conduct, [Siegen] has been damaged in an amount to be proved at time of trial."
Siegen relies on local San Diego court rules — to the effect that a case management conference must be held within 150 days after the complaint is filed — for his contention that Lewis could have telephoned the clerk of court for assistance in scheduling a case management conference. Although Siegen does not provide us with a current copy of the local rule, we have reviewed it, and conclude it does not create an obligation for Lewis to contact the court. Rather, it states the trial court has discretion to schedule case management conferences.
San Diego Local Rules, rule 2.1.9 states that "[c]ivil cases (excluding unlawful detainers) may, in the court's discretion, be set for a case management conference approximately 150 days after the complaint is filed. The court will give notice of the case management conference to all parties. Further, parties must serve by mail within 10 days of the date of the notice a copy of such notice on all parties who have been brought into the action who were not included in the court's proof of service. Proofs of such service must be filed simultaneously with the court and accompanied by a declaration stating the name of the party served; the name, address and phone number of the party's counsel of record, if any; and the nature and status of the party's involvement in the case."
Siegen's appellate briefing is deficient in other ways. The scope of Lewis's duty is central to both the contract and malpractice causes of action. Besides failing to identify in the first amended complaint the contractual provision encompassing Lewis's duty, Siegen also did not explain any interplay between Lewis's purported duty and the trial court's exclusive authority to set the case management calendar under the California Rules of Court.
The appellant's burden includes: providing an adequate record that affirmatively demonstrates error; supporting all appellate arguments with legal analysis and appropriate citations to the material facts in the record; and, showing exactly how the error caused a miscarriage of justice. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785; Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4; Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1050.) If an appellant fails to comply with these rules, the contentions are forfeited. (Badie v. Bank of America, at pp. 784-785; Opdyk v. California Horse Racing Bd., at pp. 1830-1831, fn. 4; Sprague v. Equifax, Inc., at p. 1050.) Siegen's appellate brief fails to raise a legally cognizable claim of error. Therefore, Siegen has failed to overcome the presumption that the trial court's ruling was correct.
Although an appellant, for the first time on appeal, may make a showing of a reasonable possibility of amendment, Siegen has not even attempted to meet his burden. To satisfy that burden, Siegen " 'must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.' [Citation.] The assertion of an abstract right to amend does not satisfy this burden. [Citation.] The plaintiff must clearly and specifically set forth the 'applicable substantive law' [citation] and the legal basis for amendment, i.e., the elements of the cause of action and authority for it. Further, the plaintiff must set forth factual allegations that sufficiently state all required elements of that cause of action. [Citations.]... [¶] The burden of showing that a reasonable possibility exists that amendment can cure the defects remains with the plaintiff; neither the trial court nor this court will rewrite a complaint. [Citation.] Where the appellant offers no allegations to support the possibility of amendment and no legal authority showing the viability of new causes of action, there is no basis for finding the trial court abused its discretion when it sustained the demurrer without leave to amend." (Rakestraw v. California Physicians' Service, supra, 81 Cal.App.4th at p. 43-44.)
Siegen limits his entire argument regarding amendment to one sentence in his opening brief: "In the alternative, plaintiff respectfully requests that he have leave of court to amend the first amended complaint to remedy any defects of that pleading." We conclude Siegen has not shown any basis for amending his first amended complaint, and the trial court did not err in sustaining the demurrer without leave to amend.
This statement in Siegen's reply brief undercuts his request for leave to amend: "[Siegen] did respectfully request that he have leave of court to amend the first amended complaint to remedy any defects of that pleading. However, it is his position, that the contract cause of action is well pled, as is the malpractice claim."
DISPOSITION
The judgment is affirmed. Carl Lewis is awarded costs on appeal.
WE CONCUR: McCONNELL, P.J., IRION, J.