Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. GIN049342, Thomas P. Nugent, Judge.
McDONALD, J.
Plaintiffs Vanessa Sanzaro Tillman and Tillman's father, Michael G. Sanzaro (together Plaintiffs), appeal a judgment entered after the trial court granted a motion for summary judgment filed by defendants Edmond A. Petrus, Jr., and the law firm of Petrus and Ross (together Petrus). On appeal, Plaintiffs contend there are triable issues of material fact that preclude summary judgment in their action against Petrus alleging legal malpractice and related causes of action. Petrus filed a motion to dismiss the appeal. Petrus also filed a motion requesting imposition of sanctions against Plaintiffs and for award of attorney fees and costs on appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2001, Tillman opened a restaurant in Vista called A Little Taste of Italy (Restaurant). On August 13, AMCO, an affiliate of Allied Property and Casualty Insurance Company (Allied), issued a commercial insurance policy to Tillman for a one-year term. The policy was obtained through insurance broker R. David Bulen Insurance Services (Bulen). The insurance application falsely stated that Tillman had previously owned a restaurant in Scottsdale, Arizona, called A Little Taste of Sicily.
Plaintiffs operated and managed the Restaurant, which never made a profit. Sanzaro was the Restaurant's cook and kitchen manager. On October 21, 2002, Sanzaro started a fire that damaged the Restaurant. Vista's fire marshal and Allied's expert believed the fire had been intentionally set. The Restaurant never reopened.
Allied denied Tillman's claim for insurance coverage of damage caused by the fire. Allied concluded Tillman had not renewed her policy because she did not timely pay the renewal premium.
In August 2003, Tillman retained Petrus to file an action against Allied relating to its denial of her claim. Tillman and Petrus executed an hourly and contingent fee agreement regarding Petrus's legal services for Tillman in that matter. Petrus filed an action against Allied on Tillman's behalf. Allied filed a motion for summary judgment based on Tillman's nonrenewal of the policy. The trial court denied the motion. Thereafter, Petrus discussed with Tillman several weaknesses in her action against Allied.
On December 6, 2004, the parties attended a full-day mediation session with Robert Kaplan, an experienced mediator and insurance litigator. In addition to Petrus, John Denove, an experienced trial attorney, also attended the mediation session on Tillman's behalf. During mediation, Allied stated it would file a Code of Civil Procedure section 998 settlement offer if the matter was not settled that day. The amount of that offer would be between $14,000 (the amount of Tillman's actual damages) and $35,000 (the amount Allied had offered her so far). At the end of the session, Allied offered Tillman $75,000 to settle the case. Kaplan advised Tillman she could not obtain a greater amount from Allied in settlement and recommended she accept the offer. Denove also recommended that Tillman accept the offer, believing the settlement would be excellent and remarkable. Petrus also recommended that Tillman accept the offer. Tillman agreed to accept Allied's settlement offer.
All statutory references are to the Code of Civil Procedure unless otherwise specified.
Shortly after the settlement agreement, Tillman retained new counsel (Mary Kay Jackson) and refused to proceed with the settlement. Allied moved to enforce the settlement agreement. In April 2005, the trial court issued an order enforcing the settlement agreement.
In December 2005, Tillman filed an action against Bulen, alleging Bulen misrepresented in her insurance application that she previously owned a restaurant, causing her to settle her action against Allied for a fraction of her damages.
In March 2006, Plaintiffs filed a first amended complaint against Petrus, alleging seven causes of action: (1) breach of contract; (2) fraudulent misrepresentation; (3) fraudulent deceit; (4) breach of fiduciary duty; (5) negligence; (6) malpractice; and (7) breach of duty of professional care and general standard of care. The complaint sought restitution of attorney fees paid and damages for Petrus's alleged malpractice.
In September, Petrus filed a motion for summary judgment or, alternatively, for summary adjudication of Tillman's claims. Petrus filed a separate statement of undisputed facts in support of the motion. Paragraph 45 of that statement asserted Tillman "has no evidence that Allied would pay more in settlement under different circumstances." In support of the motion, Petrus also filed his declaration, which stated in part:
24. I also spoke to TILLMAN on the phone in November 2004. I explained to her, which I reiterated in my November 22, 2004 letter, that there were weaknesses with her case such that she could lose if it proceeded to trial. I reiterated that much expense would be incurred between then and the trial including depositions and expert fees, which would only serve to decrease her ultimate recovery, if any. I emphasized that if she did not settle then, it was my opinion that there was a strong possibility she would receive less or nothing later. I was concerned, and I explained to TILLMAN, that 1) her out of pocket or contract damages were small ($14,000); 2) that the jury might not believe that she simply had not received multiple notices that Allied claimed were sent . . .; 3) she had the money available after the fire that had been earmarked for improvements, to make repairs to the [R]estaurant but declined to do so, which could be seen as a failure to mitigate damages or worse, that her lawsuit was a sham; [4]) the [R]estaurant had never made a profit and lost future profits were speculative; [5]) Allied would offer proof of arson which was an independent basis for denying coverage; [6]) SANZARO, the only witness to the fire, was the suspect and his credibility was subject to attack because he had a criminal conviction involving a crime of moral turpitude - embezzlement; [7]) the court's ruling on the summary judgment was not as favorable as I had hoped because rather than determining that her policy was in effect, the ruling left open for trial the issue of whether proper notice had been provided and whether she had renewed her insurance[;] and[] [8]) Allied may have more evidence at trial than they presented in the summary judgment motion concerning communications with TILLMAN and that depositions in Sacramento may be necessary."
Petrus lodged 44 exhibits in support of the motion.
Petrus also filed a motion for summary judgment or, alternatively, for summary adjudication of Sanzaro's claims. Petrus filed a separate statement of undisputed facts in support of that motion.
Plaintiffs opposed the motions, filing memoranda of points and authorities and separate statements of disputed facts and additional undisputed facts. Tillman's separate statement disputed paragraph 45 of Petrus's separate statement, quoted above, and cited two exhibits (exhs. 10 and 22) as support for that dispute. Plaintiffs lodged 39 exhibits (including exhs. 10 and 22) in support of their opposition.
In reply, Petrus argued the exhibits (exhs. 10 and 22) cited by Tillman as support for her dispute of paragraph 45 of its separate statement were inadmissible evidence, were speculative, and did not prove to a legal certainty that she would have recovered the amount set forth. Petrus filed evidentiary objections to all of the exhibits lodged by Plaintiffs, including exhibits 10 and 22, based on lack of authentication and other grounds.
On February 21, 2007, the trial court issued an order granting Petrus's motion for summary judgment, stating in part:
"In regard to the fourth, sixth and seventh causes of action, [Tillman] has failed to establish a triable issue of material fact as to whether Allied would have paid more in settlement or [Tillman] would have recovered a greater amount than $75,000 at trial but for attorney Petrus'[s] negligence. Nothing in [Tillman's] separate statement of disputed facts or statement of additional undisputed facts addresses this issue."
The court also sustained Petrus's evidentiary objections to certain exhibits lodged by Plaintiffs (i.e., exhs. 3-4, 6-26, 28-33, and 37-39), including exhibits 10 and 22, on the ground of lack of authentication for those exhibits.
On March 16, 2007, the trial court entered a judgment against Tillman. The court also entered a separate judgment against Sanzaro.
On March 2, Plaintiffs, in propria persona, filed a notice of appeal from the order granting Petrus's motions for summary judgment.
Although that notice of appeal cited an order dated February 14, 2007, that order apparently was not signed by the court. As noted above, the court issued its signed order on February 21.
DISCUSSION
I
Motion to Dismiss Appeal
On June 20, 2007, Petrus filed a motion to dismiss Plaintiffs' appeal on the ground their notice of appeal cited a nonappealable order granting summary judgment and did not clearly identify the appealing party or parties. On July 6, Plaintiffs filed their memorandum opposing Petrus's motion to dismiss. Plaintiffs attached copies of the March 16, 2007, judgments against each of them. They admitted their notice of appeal was premature, but nevertheless requested that we consider it to be an appeal of the subsequently entered judgments against them.
Although Petrus correctly asserts that an order granting a motion for summary judgment is not an appealable order under section 904.1, in the interest of justice and to avoid delay, we exercise our discretion and deem Plaintiffs' notice of appeal to have been from the March 16, 2007, judgments entered against them, which are appealable under section 904.1. (In re Clarissa H. (2003) 105 Cal.App.4th 120, 122, fn. 2; Avila v. Standard Oil Co. (1985) 167 Cal.App.3d 441, 445.) In effect, we consider Plaintiffs' notice of appeal to have been filed after the March 16, 2007, judgments were entered. (Cal. Rules of Court, rule 8.104(e); Mukthar v. Latin American Security Service (2006) 139 Cal.App.4th 284, 288 ["[W]hen the order [granting a motion for summary judgment] is followed by a judgment, the appellate court may deem the premature notice of appeal to have been filed after the entry of judgment."].)
Petrus also argues that because the notice of appeal identifies only the unsigned February 14, 2007, order granting Petrus's motion for summary judgment and that order pertains only to Tillman and not Sanzaro, we should dismiss the appeal as to Sanzaro. However, both Tillman and Sanzaro signed the notice of appeal, which we have now deemed to have been from the March 16, 2007, judgments against them. Therefore, there is no ambiguity regarding who the appellants are in this appeal. In any event, to the extent the trial court's order(s) granting Petrus's motion for summary judgment may have been ambiguous by omitting any express reference to Sanzaro or otherwise, we exercise our discretion to deem that order to have applied to both Tillman and Sanzaro. (Cf. Swain v. California Casualty Ins. Co. (2002) 99 Cal.App.4th 1, 6.)
Accordingly, we deny Petrus's motion to dismiss Plaintiffs' appeal.
II
Summary Judgment Standard of Review
"On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. [Citations.]" (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334; Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) "The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.]" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)
Aguilar clarified the standards that apply to summary judgment motions under section 437c. (Aguilar, supra, 25 Cal.4th at pp. 843-857.) Generally, if all the papers submitted by the parties show there is no triable issue of material fact and the " 'moving party is entitled to a judgment as a matter of law' " (§ 437c, subd. (c)), the court must grant the motion for summary judgment. (Aguilar, at p. 843.) Section 437c, subdivision (p)(2), states:
"A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff . . . may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto."
Aguilar made the following observations:
"First, and generally, from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. . . . There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. . . .
"Second, and generally, the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact. . . . A prima facie showing is one that is sufficient to support the position of the party in question. . . .
"Third, and generally, how the parties moving for, and opposing, summary judgment may each carry their burden of persuasion and/or production depends on which would bear what burden of proof at trial. . . . [I]f a defendant moves for summary judgment against . . . a plaintiff [who would bear the burden of proof by a preponderance of the evidence at trial], [the defendant] must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not--otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact." (Aguilar, supra, 25 Cal.4th at pp. 850-851, fns. omitted.)
Aguilar stated:
"To speak broadly, all of the foregoing discussion of summary judgment law in this state, like that of its federal counterpart, may be reduced to, and justified by, a single proposition: If a party moving for summary judgment in any action . . . would prevail at trial without submission of any issue of material fact to a trier of fact for determination, then he should prevail on summary judgment. In such a case, . . . the 'court should grant' the motion 'and avoid a . . . trial' rendered 'useless' by nonsuit or directed verdict or similar device. [Citations.]" (Aguilar, supra, 25 Cal.4th at p. 855, italics added.)
"On appeal, we exercise 'an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.' [Citation.] 'The appellate court must examine only papers before the trial court when it considered the motion, and not documents filed later. [Citation.] Moreover, we construe the moving party's affidavits strictly, construe the opponent's affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it.' [Citations.]" (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1201-1202.)
III
Summary Judgment for Petrus
Plaintiffs contend that because there are triable issues of material fact, the trial court erred by granting Petrus's motion for summary judgment. In response, Petrus argues that because it submitted evidence showing Plaintiffs could not prove the elements of causation and damages and Plaintiffs submitted no admissible contrary evidence, it carried its burden to show there is no triable issue of fact on at least one element of the causes of action against it and is therefore entitled to summary judgment as a matter of law.
A
The crux of Plaintiffs' action is Petrus's alleged legal malpractice in causing them to settle their action against Allied for an amount less than they would have otherwise obtained in settlement or at trial.
"In a client's action against an attorney for legal malpractice, the client must prove, among other things, that the attorney's negligent acts or omissions caused the client to suffer some financial harm or loss." (Viner v. Sweet (2003) 30 Cal.4th 1232, 1235.) In a litigation or transactional malpractice action, a plaintiff "must show that but for the alleged malpractice, it is more likely than not that the plaintiff would have obtained a more favorable result." (Id. at p. 1244.) In a malpractice action arising out of an attorney's alleged malpractice in causing his or her client (i.e., the plaintiff) to settle a lawsuit against a third party, the "trial-within-a-trial doctrine" applies, requiring the plaintiff to "show a causal relationship between the [alleged] legal malpractice and some 'actual loss or damage' to prevail. [Citation.]" (Jalali v. Root (2003) 109 Cal.App.4th 1768, 1777.) The "trial-within-a-trial" method of proving damages "is based on the premise that, had the attorney[s'] [conduct] not fallen below the applicable standard of care, the client would have obtained a better result. [Citation.]" (Id. at p. 1773.) Therefore, the "plaintiff must prove that the [underlying] action would have resulted in a better outcome had defendant [attorney] recommended that [the plaintiff] reject the settlement offer. Plaintiff must prove what that better outcome would have been." (Marshak v. Ballesteros (1999) 72 Cal.App.4th 1514, 1518 (Marshak).) Accordingly, if a plaintiff in such a legal malpractice action, in opposing the defendant attorney's motion for summary judgment, produces no evidence showing the plaintiff would have obtained more from a third party in settlement or at trial of the underlying case, the defendant attorney is entitled to summary judgment. (Orrick Herrington & Sutcliffe v. Superior Court (2003) 107 Cal.App.4th 1052, 1058; cf. Barnard v. Langer (2003) 109 Cal.App.4th 1453, 1462-1463 [nonsuit granted].) In the context of an attorney's alleged malpractice in negotiating a client's marital settlement agreement, Marshak stated:
This statement assumes that the defendant attorney first satisfied his or her burden of production to make a prima facie showing that the plaintiff cannot establish he or she would have obtained a more favorable result in settlement or at trial. (§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 850-851.)
"[P]laintiff simply alleges that the case was worth more than he settled it for. He proffered no evidence to establish the value of his case, other than his own declaration that the family residence was worth more, and the accounts receivable were worth less, than they were valued at for the purposes of settlement. Even if he were able to prove this, however, he would not prevail. For he must also prove that his ex-wife would have settled for less than she did, or that, following trial, a judge would have entered judgment more favorable than that to which he stipulated. Plaintiff has not even intimated how he would establish one or the other of these results with the certainty required to permit an award of damages." (Marshak, supra, 72 Cal.App.4th at p. 1519.)
Accordingly, Marshak affirmed the summary judgment entered in the defendant attorney's favor. (Marshak, at p. 1519.)
B
In moving for summary judgment, Petrus filed a separate statement of undisputed facts that stated Tillman "has no evidence that Allied would pay more in settlement under different circumstances." In support of that asserted undisputed fact, Petrus cited an excerpt from the transcript of Tillman's deposition, in which she admitted she did not have any evidence Allied would have paid her more than $75,000 to settle the case (e.g., $76,000). Petrus also cited an excerpt from the transcript of Denove's deposition, in which he stated that during the mediation session he did not have any impression Allied was prepared to pay more than $75,000 in settlement and "was kind of surprised [Allied] went to as high as [it] did."
Petrus's separate statement also asserted Denove "believed the settlement was an excellent and remarkable result." In support of that asserted undisputed fact, Petrus cited an excerpt from the transcript of Denove's deposition in which he stated: "I thought, when the dust settled at the time of trial, [Tillman] would probably lose the case and would wind up paying the defense a fortune in terms of [section] 998 costs." Denove explained, although he was not certain that would have been the outcome at trial, "it was very probable. Or, if she did win, it would be with a finding of no bad faith, and she would get her $15,000." Denove thought Allied "was crazy to pay that much money [i.e., $75,000 in settlement]."
In response to Petrus's separate statement of undisputed facts, Tillman conceded the following facts were undisputed:
"40. By the end of the [mediation] day, Allied offered $75,000 to settle the case. The mediator advised TILLMAN she could not get any more in settlement.
"41. Mr. Denove, who had familiarized himself with the case and attended the entire mediation, believed the settlement was an excellent and remarkable result. [¶] . . . [¶]
"43. PETRUS, Mr. Denove and Mr. Kaplan recommended TILLMAN accept the settlement based on [the] risk she could recover less or nothing at all.
"44. TILLMAN agreed to accept the settlement based in part on those risks."
In disputing Petrus's asserted fact that she did not have any evidence Allied would pay more in settlement, Tillman cited Exhibit 10 (four pages therefrom) and Exhibit 22, both of which she had lodged with the trial court. However, as noted above, the court sustained Petrus's evidentiary objections to both of those exhibits as unauthenticated. Therefore, Tillman submitted no admissible evidence to support her dispute of Petrus's asserted fact that she did not have any evidence Allied would pay more in settlement.
Based on Petrus's separate statement and other evidence submitted in support of its motion for summary judgment, we conclude Petrus submitted admissible evidence to support findings that Tillman did not have any evidence to show Allied would have paid more than $75,000 in settlement and that Tillman would not have obtained a better result at trial. Therefore, Petrus carried its initial burden of production to make a prima facie showing there were no triable issues of fact on the elements of causation and damages. (§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 850-851.)
In opposing Petrus's motion for summary judgment, the burden of production then shifted to Tillman to submit admissible evidence to make a prima facie showing there were triable issues of fact on those elements. (§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 850-851.) However, neither Tillman nor Sanzaro submitted any admissible evidence to support a finding they would have obtained a better result in settlement or at trial but for Petrus's alleged malpractice or other conduct. Although Plaintiffs in their opening appellants' brief cite excerpts from their memoranda of points and authorities in opposition to Petrus's motion for summary judgment, their memoranda are not evidence, but only argument, and do not provide evidentiary support for a finding of triable issues of fact on the elements of causation and damages. Furthermore, to the extent those memoranda included citations to a report of an accounting expert retained by Petrus on Tillman's behalf, the trial court sustained Petrus's evidentiary objection to that report and other evidence lodged by Plaintiffs. Because Plaintiffs did not satisfy their burden of production of evidence to show there were triable issues of fact on the elements of causation and damages, the trial court properly granted Petrus's motions for summary judgment. (§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at pp. 850-851.) Plaintiffs did not submit any evidence showing they more likely than not would have obtained a more favorable result in settlement or at trial (much less the amount of that more favorable result) but for Petrus's alleged malpractice or other conduct. (Viner v. Sweet, supra, 30 Cal.4th at p. 1244; Marshak, supra, 72 Cal.App.4th at p. 1518; Jalali v. Root, supra, 109 Cal.App.4th at pp. 1773, 1777; Orrick Herrington & Sutcliffe v. Superior Court, supra, 107 Cal.App.4th at p. 1058.)
Tillman's assertion in her separate statement of additional undisputed facts that Petrus in a letter dated November 22, 2004 (before the mediation session), expressed its belief that she " 'should be able to settle this case and net a six-figure settlement' " is insufficient evidence to support a reasonable inference that Allied would have, in fact, paid more than $75,000 in settling the case.
To the extent Plaintiffs' first amended complaint ostensibly asserted causes of action other than for Petrus's alleged malpractice, we conclude the factual allegations underlying those causes of action show they were, in effect, causes of action for malpractice or other tortious conduct (or inextricably intertwined with their malpractice cause of action). (Cf. Jalali v. Root, supra, 109 Cal.App.4th at p. 1783.) Therefore, Plaintiffs' failure to submit admissible evidence showing it is more likely than not they would have obtained a more favorable result in settlement or at trial but for Petrus's alleged malpractice or other conduct supports summary adjudication of those purported nontort causes of action. The complaint's first cause of action (ostensibly for breach of contract) alleges Petrus told Tillman in November 2004 that it would not advance any more money in her case, thereby breaching their fee agreement.
Paragraph 4 of the fee agreement provided Petrus "will advance all costs and expenses that appear to [Petrus] to be reasonably necessary for the prosecution of [Tillman's] claims (including expert fees, court costs, expenses of investigation, expenses of medical examinations, the costs of obtaining and presenting evidence, and other costs and expenses more fully defined in paragraph 6[(D)]."
However, the complaint does not allege that Petrus did not, in fact, advance additional money for experts and other litigation expenses. Rather, it appears the crux of that allegation is that Petrus's alleged anticipatory refusal, in effect, forced or coerced Tillman to agree to a less favorable settlement than she otherwise could have obtained. That alleged conduct by Petrus is more akin to tortious conduct than a breach of contract. In any event, Plaintiffs' failure to present evidence showing they would have obtained a more favorable result in settlement or at trial but for Petrus's alleged anticipatory refusal to advance additional money for future litigation costs nevertheless supports summary adjudication of that claim.
Likewise, Petrus's alleged failures to give Tillman, before the mediation session, copies of the trial court's summary judgment ruling and the parties' mediation briefs cannot be deemed a breach of contract cause of action. Rather, those alleged failures are more appropriately considered to be negligent conduct or a breach of fiduciary duty, which is subject to the Marshak line of cases discussed above. Accordingly, Plaintiffs' failure to submit evidence showing they would have obtained a more favorable result in settlement or at trial had Petrus timely provided those documents supports summary adjudication of that claim.
Similarly, Petrus's alleged anticipatory threat to discontinue representing Plaintiffs if they did not do what it demanded presumably caused them damage by forcing or coercing them to accept a less favorable settlement. However, because Plaintiffs did not show they would have obtained a more favorable result in settlement or at trial but for that alleged conduct, summary adjudication of that ostensible cause of action for breach of fiduciary duty was appropriate. Because there are no factual allegations in Plaintiffs' complaint that support a breach of contract or other nontort cause of action separate from (or not inextricably intertwined with) the malpractice or other tort causes of action alleged in Plaintiffs' complaint and Petrus met its burden to show there are no triable issues on the elements of causation and damages and is entitled to summary judgment as a matter of law, we conclude the trial court properly granted Petrus's motion for summary judgment.
To the extent the complaint alleges Petrus did not obtain Tillman's consent before retaining outside investigators, consultants, or expert witnesses in breach of the fee agreement, we nevertheless conclude the trial court properly granted summary adjudication on that cause of action. Although the fee agreement provided Petrus would obtain Tillman's consent before retaining outside investigators, consultants, or expert witnesses, Plaintiffs argue on appeal that Petrus's failure to obtain Tillman's written consent for retention of those persons, unlike the written consent Petrus obtained for retention of the accounting expert, shows it did not obtain her required consent. However, Petrus asserted in its separate statement the undisputed facts that Tillman acquiesced in the retention of a damage expert, a fire investigator, a "bad faith" expert, and an outside investigator, and those experts and the investigator were necessary to prosecute Tillman's case against Allied. In response to Petrus's separate statement, Tillman agreed it was "undisputed" those experts and the investigator were necessary to prosecute her case. Furthermore, she did not dispute that she specifically consented to retention of the fire investigator and damages (i.e., accounting) expert. She only disagreed with Petrus's assertion that she had agreed to the retention of David Peterson. However, in support of her purported disagreement with that asserted fact, she cites only a November 22, 2004, letter from Petrus to Tillman, which has not been lodged with this court as part of the record on appeal. Accordingly, we conclude Plaintiffs have not carried their burden on appeal to show they presented sufficient evidence to support a finding Tillman did not consent to Peterson's retention. Therefore, to the extent that allegation in the complaint constitutes a breach of contract cause of action independent of any malpractice or other tort cause of action, Plaintiffs have not carried their burden on appeal to show the trial court erred by granting summary adjudication of that cause of action.
To the extent Plaintiffs contend on appeal that the trial court erred by granting Petrus's motion for summary judgment as to Sanzaro, they have not presented any substantive analysis on that issue, and have not carried their burden on appeal to persuade us that the trial court so erred. Rather, all of Petrus's alleged shortcomings cited in Plaintiffs' brief relate to its representation of, and actions with regard to, Tillman and not Sanzaro.
IV
Motion for Sanctions
On October 29, 2007, Petrus filed a motion requesting imposition of sanctions against Plaintiffs and for an award of attorney fees and costs on appeal. Petrus argues that because Plaintiffs' appeal is frivolous, sanctions of at least $30,000 should be imposed. Petrus also argues it is entitled to an award of attorney fees and costs incurred on appeal pursuant to the fee agreement and Civil Code section 1717. On December 4, Plaintiffs filed a memorandum opposing Petrus's motion.
A
As Petrus correctly notes, an appellate court may impose sanctions on a party for prosecuting a frivolous appeal. (§ 907; Cal. Rules of Court, rule 8.276(a); In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) An appeal is frivolous "only when it is prosecuted for an improper motive--to harass the respondent or delay the effect of an adverse judgment--or when it indisputably has no merit--when any reasonable attorney would agree that the appeal is totally and completely without merit. [Citation.]" (In re Marriage of Flaherty, at p. 650, italics added.) However, considering the circumstances in this case, we conclude Petrus has not carried its burden to show that any reasonable attorney would agree Plaintiffs' appeal of the summary judgment against them was totally and completely without merit. (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650.) Pierotti v. Torian (2000) 81 Cal.App.4th 17, cited by Petrus, is inapposite and does not persuade us to conclude otherwise. In any event, assuming arguendo Plaintiffs' appeal is frivolous, we decline to exercise our discretion to impose sanctions in the circumstances of this case. Accordingly, we deny Petrus's request for sanctions.
Petrus does not appear to contend Plaintiffs' appeal was taken for purpose of delay. In any event, we are not persuaded that the purpose of Plaintiffs' appeal was to delay the effect of the summary judgment against them.
B
Regarding Petrus's motion requesting an award of attorney fees and costs on appeal, we conclude the fee agreement's attorney fee provision does not cover the attorney fees incurred by Petrus in this appeal whether pursuant to Civil Code section 1717 or otherwise. The fee agreement between Petrus and Tillman provides:
"Should legal action be necessary to enforce attorney's rights to fees and/or reimbursement of amounts advanced outlined in this Agreement, the prevailing party shall be entitled to recover Attorney's fees and costs."
Civil Code section 1717, subdivision (a), provides: "In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs." Petrus argues that because Plaintiff's action against it requested restitution of attorney fees paid to Petrus, it is entitled to an award of attorney fees incurred on appeal pursuant to Civil Code section 1717. However, as we concluded, Plaintiffs' action against Petrus was, in effect, a malpractice/tort action and not one "on a contract." (Civ. Code, § 1717, subd. (a); Loube v. Loube (1998) 64 Cal.App.4th 421, 429-430.) To the extent any breach of contract or nontort cause of action was alleged in the complaint, we concluded above that cause of action was, in effect, a malpractice or other tort cause of action. In any event, because the attorney fee provision in the fee agreement appears to be narrow and not broad (i.e., applies only to enforcement of Petrus's right to fees and reimbursement of amounts advanced), we are not persuaded that any attorney fees Petrus incurred on appeal in responding to any nontort causes of action alleged by Plaintiffs should be awarded to it. (Cf. Santisas v. Goodin (1998) 17 Cal.4th 599, 608 [involving broad attorney fee provision].) Because Petrus does not persuade us it is entitled to an award of attorney fees under the fee agreement, we deny Petrus's motion requesting an award of attorney fees on appeal.
We need not expressly decide Petrus's motion requesting an award of costs on appeal because those costs are automatically awarded to Petrus pursuant to California Rules of Court, rule 8.278(a)(1), which provides: "Except as provided in this rule, the party prevailing in the Court of Appeal in a civil case . . . is entitled to costs on appeal." Because we affirm the trial court's judgment, Petrus is the prevailing party on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J. HALLER, J.