Opinion
H025319.
11-25-2003
CHARLES DOUGLAS WARFEL, Plaintiff and Appellant, v. SCOTT EWBANK, Defendant and Respondent.
This is the latest in a series of appeals arising out of plaintiff Charles Warfels effort to hold his trial and appellate counsel liable for his term in county jail on a probation violation. In Warfel v. County of Santa Clara (H021789, unpub.) (Warfel I) plaintiff sued his public defender, the public defenders office, and the county for malpractice, seeking damages for both negligence and deceit. Summary judgment was granted to the defendants in that case, and plaintiffs appeal was dismissed after plaintiff failed to file a brief.
Plaintiff was convicted of violating probation by failing to pay restitution. He thereafter served seven months of a one-year term in county jail.
Respondent Scott Ewbank had been appointed to represent plaintiff in the criminal appeal. In June 1999, plaintiff filed Warfel v. Ewbank against Ewbank, alleging counsels breach of duty in pursuing the appeal and failure to secure plaintiffs release on bail, which plaintiff had eventually obtained himself (H022253, unpub.) (Warfel II). In granting summary judgment to Ewbank, the trial court cited Wiley v. County of San Diego (1998) 19 Cal.4th 532, which requires a convicted person to prove innocence of the crime in order to succeed in a subsequent malpractice suit against his or her attorney. Finding no argument suggesting reversal, we upheld the trial courts order granting summary judgment to the appellate attorney, Scott Ewbank.
In June 2000, before judgment was entered in Warfel I, plaintiff filed Warfel v. County of Santa Clara, alleging fraud and deceit, intentional infliction of emotional distress, constructive fraud and breach of fiduciary duty against his public defender and the county (H024248, unpub.) (Warfel III ). The trial court sustained the defendants demurrer without leave to amend on the ground of res judicata, and we affirmed.
The present appeal arises from a renewed attempt to recover from Ewbank. On August 9, 2000, the day before the summary judgment hearing in Warfel II, plaintiff filed a new complaint against Ewbank alleging the same wrongs as in Warfel II—i.e., negligence, fraud and deceit, intentional infliction of emotional distress, and breach of fiduciary duty for failing to pursue his criminal appeal with skill and diligence, failing to secure plaintiffs release on bail, and falsely representing that plaintiff had no right to release on bail during the appeal. On August 14, 2000 (after the court granted Ewbanks summary judgment motion in Warfel II), plaintiff filed an amended complaint in the present action. This time he omitted the heading "Malpractice and Negligence," though he retained all of the underlying allegations. The remaining causes of action in the first amended complaint were identical to the original complaint. They were also essentially the same grounds as those asserted in Warfel II.
In September 2000 Ewbank demurred to the first amended complaint, noting that this action arose out of the same facts as the prior action (Warfel II), which was not yet final. Recognizing that the matter was "subject to abatement, absent amendment [of] the complaint," the trial court sustained the demurrer with 20 days leave to amend. If plaintiff were to fail to amend within that time, the court ruled, this action would be abated until Warfel II became final.
Plaintiff did not amend his pleading any further. He did, however, file numerous challenges to the order sustaining the demurrer, including an appeal. In addition, while the case was abated, plaintiff continued to file various motions and requests in the trial court, followed by yet another appeal.
That appeal was dismissed for failure to comply with California Rules of Court, rule 19.5. (H023152)
That appeal also was dismissed under California Rules of Court, rule 10(a). (H023372)
This courts opinion in Warfel II was filed on June 5, 2002 and became final August 6, 2002. On September 23, 2002, Ewbank filed a demurrer and a motion for judgment on the pleadings, citing the doctrine of res judicata. After a hearing at which plaintiff did not appear, the court overruled the demurrer but granted judgment on the pleadings "based upon the principle of res judicata."
Defendant mistakenly advised the trial court that it was permitted to lift the abatement because Warfel II became final in early July, 30 days after the opinion was filed. Warfel II was not final as to the parties and the trial court until the remittitur issued on August 6, 2002. Defendants error is of no consequence, however, since no further action was taken in the present case until September 2002, after Warfel II had become final.
Discussion
Plaintiff asks this court to reject the application of res judicata in this case. He maintains that the complaint in the present action was sufficiently different from the one filed in Warfel II to state a viable claim for relief. We observe, however, that although the complaint in Warfel II was denominated one for malpractice, it listed the same grievances against Ewbank as the first amended complaint before us.
The doctrine of res judicata "gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy." (7 Witkin, Cal. Procedure (4th ed.1997) § 280, p. 820, italics omitted; accord, Busick v. Workmens Comp. Appeals Bd. (1972) 7 Cal.3d 967, 973.) The doctrine precludes relitigation of " a cause of action that has been finally determined by a court of competent jurisdiction. [Citation.]" (Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 620.) "[I]f the first suit has terminated in a judgment on the merits adverse to the plaintiff, the defendant in the second suit may set up that judgment as a bar under the principles of res judicata. (Panos v. Great Western Packing Co. (1943) 21 Cal.2d 636, 638-640 . . . .)" (Crowley v. Katleman (1994) 8 Cal.4th 666, 682.)
A party seeking to apply the primary aspect of res judicata, or claim preclusion, must show the same cause of action is involved in both actions. "[I]f the causes of action in the second proceeding are not the same as those asserted in the prior litigation, then the judgment in the prior proceeding does not constitute a bar to the subsequent proceeding." (Branson v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327, 340.) On the other hand, " [i]f the matter was within the scope of the action, related to the subject-matter and relevant to the issues, so that it could have been raised, the judgment is conclusive on it despite the fact that it was not in fact expressly pleaded or otherwise urged. The reason for this is manifest. A party cannot by negligence or design withhold issues and litigate them in consecutive actions. Hence the rule is that the prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigable. " (Aerojet-General Corp. v. American Excess Ins. Co. (2002) 97 Cal.App.4th 387, 402, quoting Sutphin v. Speik (1940) 15 Cal.2d 195, 202.)
"California law defines a cause of action by focusing on the "primary right" at stake: if two actions involve the same injury to the plaintiff and the same wrong by the defendant then the same primary right is at stake even if in the second suit the plaintiff pleads different theories of recovery, seeks different forms of relief and/or adds new facts supporting recovery. [Citations.] . . . The cause of action, as it appears in the complaint when properly pleaded, will therefore always be the facts from which the plaintiffs primary right and the defendants corresponding primary duty have arisen, together with the facts which constitute the defendants delict or act of wrong. [Citation.] " (Tensor Group v. City of Glendale (1993) 14 Cal.App.4th 154, 160.)
Thus, "when a plaintiff attempts to divide a primary right and enforce it in two suits," the primary right theory may be applied. (Crowley v. Katleman, supra, 8 Cal.4th at p. 682.) "The most salient characteristic of a primary right is that it is indivisible: the violation of a single primary right gives rise to but a single cause of action. (Slater v. Blackwood (1975) 15 Cal.3d 791, 795 . . . .)" (Id. at p. 681.) "[T]he primary right is simply the plaintiffs right to be free from the particular injury suffered. [Citation.] It must therefore be distinguished from the legal theory on which liability for that injury is premised . . . ." (Ibid.) In this context, a "cause of action" should not be confused with counts pleaded in a complaint, "which are merely ways of stating the same cause of action differently." (Bay Cities Paving & Grading, Inc. v. Lawyers Mutual Ins. Co. (1993) 5 Cal.4th 854, 860, fn. 1; see Slater v. Blackwood, supra, 15 Cal.3d at p. 796.)
It is readily apparent that in both Warfel II and the present action plaintiff has asserted the same primary right, to receive skilled and honest representation on appeal. In Warfel II, plaintiff complained of Ewbanks failure to assert all possible grounds for appeal, failure to request timely extensions of time, refusal to discuss plaintiffs defense with him, refusal to file or assist plaintiff with an application for bail pending appeal, and false statement that plaintiff had no right to bail. The first amended complaint in the present action included these same allegations of lack of diligence; and as before, it asserted his attorneys breach of the "duty to exercise reasonable care, skill, and diligence on plaintiffs behalf." Plaintiff also claimed, just as in the prior action, that Ewbank had fraudulently misrepresented the law regarding bail; this time he merely set forth those allegations under separate headings called "fraud and deceit," "Creating and Mailing to Client Intentionally Misleading, False, and Fraudulent Writings," and "Extrinsic Fraud." And again plaintiff complained of Ewbanks failure to file a bail motion, refusal to meet with him, and failure to communicate with him; now these omissions were described in the third cause of action, called "Constructive Fraud; Breach of Fiduciary Duty." The only new facts alleged were Ewbanks failure to investigate by interviewing plaintiffs trial attorney, Ewbanks prediction that if plaintiff continued to try to remove him as appellate counsel plaintiff would lose his appeal, and the emotional distress plaintiff had suffered as a result of Ewbanks fraud and deceit.
Plaintiff cannot avoid the application of the primary right doctrine simply by calling it "uncertain and . . . subject to frequent dispute and misconception." Whatever difficulty courts may have had in determining its applicability in other cases, this one presents no uncertainty. Both actions arose from the same primary right, plaintiffs entitlement to effective representation by his appellate attorney. Both complaints described the same wrongs and the same injury — i.e., the lack of success of his appeal and the loss of his freedom while incarcerated. What is evident here is that plaintiff lost his first lawsuit against Ewbank and, even before judgment was entered in that case, proffered new theories of recovery for the same conduct. The trial court properly rejected this renewed effort to assert liability against appellate counsel by granting judgment on the pleadings.
Plaintiff does not attempt to argue that his conviction would have been overturned had he had effective representation, nor does he even suggest that he was actually innocent of the underlying charges. (Cf. Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1200; Wiley v. County of San Diego, supra, 19 Cal.4th 532, 545.)
Plaintiffs remaining contention appears to be a renewal of a request for a change of venue. Although he cites Code of Civil Procedure section 397, plaintiff does not specifically argue that the trial court abused its discretion in denying a motion he had made in September 2000. In any event, the propriety of that order is moot, since this matter will never go to trial.
Disposition
The judgment is affirmed.
WE CONCUR: PREMO, Acting P. J., BAMATTRE-MANOUKIAN, J.