Opinion
G059136
08-23-2022
LENORE L. ALBERT, Plaintiff and Appellant, v. DAVID SEAL, Defendant and Respondent
Lenore L. Albert, in pro. per., for Plaintiff and Appellant. David Seal, in pro. per., for Defendant and Respondent.
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Orange County, No. 30-2014-00738725 Layne H. Melzer, Judge. Affirmed.
Lenore L. Albert, in pro. per., for Plaintiff and Appellant.
David Seal, in pro. per., for Defendant and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
INTRODUCTION
Lenore Albert appeals from an order granting a nonsuit in favor of David Seal on one cause of action and from an order denying her motion to vacate a jury verdict in his favor and to grant a new trial on the other one. Seal was not named as a defendant until Albert's third amended complaint, filed in July 2015. He made a partially successful anti-SLAPP motion that resulted in the allegations against him being severely reduced. The suit against him and some codefendants finally went to trial in February and March 2020. His case was severed from that of the other defendants and tried separately; the jury rendered a unanimous verdict in his favor.
In this appeal, Albert has filed a 6,000-page appendix, a 65-page opening brief, a motion to augment the record, with exhibits, and a request for judicial notice, with exhibits. A large portion of the appendix consists of copies of "trial exhibits," exhibits purportedly included on the pretrial exhibit list. Although Albert's briefs do not indicate whether these exhibits were offered into evidence, she repeatedly uses them as "citations to the record" supporting her factual claims of conspiracy. That is, when she cites to the record at all, instead of simply making things up. Much of both the opening brief and the reply brief is devoted to an argument that tort liability can be based on statements made in a document filed with the court, as if the contrary rule was not one of the most firmly established principles of California law.
Albert is no stranger to the appeal process, having represented herself in some 12 appeals in this court alone. We have in the past articulated principles of appellate law and practice in the opinions in quite a few of these cases and admonished her for failing to follow these principles, but to no avail. This is a busy court, with many calls on its resources. Appellants with legitimate issues must wait to have them resolved while we deal with briefing replete with misrepresentations of the record and violations of basic rules of appellate practice, such as Albert has placed before us. We affirm the orders granting a nonsuit and denying the motion to vacate the verdict.
We notified Albert that we were considering imposing sanctions for her pervasive violations of the California Rules of Court relating to the contents of briefs and appendices. After considering her 120-page opposition, we now impose sanctions of $2,500.00.
We recite only those facts that bear on the issues identified in Albert's opening brief.
In July 2015, Albert sued Seal (an attorney), two other attorneys, and several non-attorneys in her third amended complaint. The three attorneys each filed anti-SLAPP motions; the trial court granted all three motions and dismissed the complaint as to these defendants.
Albert's appeal from the order granting these motions was decided in Albert v. Hannah (Mar. 6, 2018, G052748) [nonpub. opn.] (Hannah). The order regarding the motions of the other two attorneys was affirmed in its entirety. As to Seal, however, we reversed in part the order granting Seal's motion. The allegations of Albert's third amended complaint that survived Seal's anti-SLAPP motion were (1) a defamatory statement that Albert was having sex with various people and her dog (Hannah, supra, G052748, at p. 19) and (2) nine specific acts alleged to have qualified as intentional infliction of emotional distress. According to the complaint, Seal and the two other attorneys, along with four or five other defendants, conspired to cause Albert emotional distress by means of these actions.
These were: Sending out poems of birds dying in trees and saying Albert is the dying bird; sending chat messages of photos of people hanging themselves after hearing codefendant Karen Rozier telling Albert to die or that she should be hung; telling colleagues that Albert was stalking them and that she should be terminated from the CAMMFG listserve group; stalking Albert and her employees; videotaping Albert; having Albert's car towed during a hearing and then having her videotaped so that it could be uploaded and distributed to others; telling others that George Olivo did not attempt to assault Albert with a statue at her office and that her car window was not blown out when both of these things really happened; intruding into Albert's e-mails and spoofing her e-mail address and then sending out awful e-mails from her e-mail address to others; advising Albert's clients and others to extort Albert into free legal services or threaten to join Defendant in harassing her. (Hannah, supra, G052748, at p. 21.)
Albert's complaint also alleged different kinds of wrongdoing against a set of defendants who were not attorneys. When the case finally came on for trial, in February 2020, the court severed Seal's trial, for defamation and intentional infliction of emotional distress, from that of the other defendants, who were accused primarily of computer hacking. Seal objected to the severance; Albert agreed (or did not object).Both Albert and Seal represented themselves.
Before the court severed the two trials, Seal made a motion in limine asking the court to try the existence of the conspiracy before moving on to the specific bad acts alleged against the defendants. The court denied the motion on October 18, 2019. Seal did not ask to have the two trials severed.
Albert elected to proceed by means of a settled statement in lieu of a reporter's transcript for the trial. Her appendix improperly includes the reporter's transcript for her motions for new tria l and for JNOV. (See Cal. Rules of Court, rule 8.124(b)(3)(B).) We disregard materials improperly included in an appellant's appendix. (See Canal Ins. Co. v. Tackett (2004) 117 Cal.App.4th 239, 243.)
Voir dire began on February 10, 2020. Albert "disclosed at the beginning of voir dire that she was a suspended lawyer." None of the jurors indicated that this information would affect their ability to evaluate the evidence. The next day, both parties accepted the jury, without having exercised all their peremptory challenges.
The trial occupied a courtroom for 14 days. Albert repeatedly tried to introduce testimony regarding the activities of people other than Seal, including activities of the defendants whose trial had been severed. Her theory was that Seal had conspired with these other people to do these actions and was therefore liable for them. Seal's objections to this testimony were repeatedly sustained.
From the settled statement: "[Albert] continued to try to question [a former employee] about the conduct of third parties who were not on trial . . . without attempting to establish, or establishing that they were in a conspiracy with . . . Seal." "There were multiple sidebars where . . . Albert was told she had not established a conspiracy and she needed to focus on introducing evidence of things done by . . . Seal in a tria l against . . . Seal, as opposed to evidence of things done by third parties."
After 10 days of trial, the court granted Seal's motion for nonsuit on Albert's defamation claim, on March 4, 2020. Seal's motion asserted that Albert had failed to introduce evidence of anything he said more defamatory than that Albert had a "boyfriend." The settled statement did not record court's reasons for granting the nonsuit.
The rest of the case went to the jury on March 11, 2020. After about 45 minutes of deliberation, the jury returned a unanimous defense verdict. Judgment was entered on March 13, 2020.
Albert moved for judgment notwithstanding the verdict on March 26, 2020, with a memorandum of points and authorities, and also filed a notice of intent to move for new trial. She did not, however, file any memorandum or additional papers in connection with the motion for new trial. Both motions were denied on May 27, 2020. Albert filed her notice of appeal on the same day.
DISCUSSION
Albert identifies the key issues on appeal as "whether either (1) Covid-19 related grounds or (2) non-Covid-19 grounds exist to reverse the nonsuit and vacate the judgment after jury verdict, and if so, if such bias existed to warrant transferring this case to another courtroom." As it turns out, "non-Covid-19 grounds" means nearly everything that happened at the trial and a great deal more that did not.
We thus review the record as requested: the nonsuit order and Albert's motion to vacate the jury verdict under Code of Civil Procedure section 657. Albert has also asserted judicial bias, which we also review.
Our opinion in Hannah set out some "principles of law and [appellate] practice" that Albert has again ignored, as she did during the Hannah appeal. Among these principles are (1) an appellant cannot go outside the record, (2) new facts or theories raised in a reply brief may be treated as waived, and (3) facts asserted in appellate briefs must be supported by accurate and precise record references. (Hannah, supra, G052748, at pp. 3-5.) This last rule applies to assertions of fact regardless of where they occur in the briefs. (Professional Collection Consultants v. Lauron (2017) 8 Cal.App.5th 958, 970; In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1310, fn. 3.) To these we now must add California Rule of Court, rule 8.124(b)(3)(A), prohibiting the inclusion in an appendix of documents "unnecessary for proper consideration of the issues," and the practical rule "if it is not in the record, it did not happen." (See Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364.) For example, if an exhibit on the exhibit list was not offered into evidence, it cannot form the basis of a claim of prejudicial error. An appellant may argue that the exclusion of a specific exhibit was prejudicial error, citing appropriate supporting authority, but an exhibit that was never put before the court for a decision as to admissibility is not evidence of anything.
Finally, we must emphasize that it behooves an appellant not to misrepresent the record. As a widely admired treatise on appellate practice points out, misrepresenting the record casts doubt on a party's credibility. (Eisenberg et al., Cal. Practice Guide: Civil Writs and Appeals (The Rutter Group 2016) ¶ 9:27, p. 9-8.) This doubt, in turn, leads to viewing with a skeptical eye any statement or argument in an appellant's briefs. We find plenty to be skeptical about in Albert's briefing.
But before turning to the individual issues, we must orient the discussion to reflect those allegations of the third amended complaint that remained after Hannah affirmed most of Seal's anti-SLAPP motion. The causes of action that went to trial against Seal were (1) defamation and (2) intentional infliction of emotional distress.
Of the defamation allegations against Seal, the sole survivor was an allegation that Seal said Albert was having sex with various people and her dog. We called these statements "old-fashioned imputations of promiscuousness" and held that, unlike the other statements alleged in the defamation cause of action, they were not protected by the anti-SLAPP statute. (Hannah, supra, G052748, at p. 20.) An imputation of promiscuousness does not, however, extend to accusing Albert of trying to have anyone murdered. It is also worth noting that Hannah was confined to the application of the anti-SLAPP statute. We did not hold, as Albert appears to think, that the promiscuousness statement was immune to other kinds of challenges, e.g., the litigation privilege.
We have listed the surviving allegations of intentional infliction of emotional distress in footnote 2. This cause of action was alleged against Seal and all the other individual defendants, save two. Albert alleged these defendants conspired to inflict emotional distress on her through specific distressing actions. These actions did not include, for example, calling Albert a crook or crazy. They also did not include the statement about her sex life that underlay the defamation claim.
We include this point at the beginning of the discussion section because Albert early on lost sight of what was still viable in the complaint and therefore what Seal was on trial for and what evidence was needed to prove him liable for defamation and intentional infliction of emotional distress. The trial court 's vigilance prevented the trial from becoming a free-for-all, in which Albert could introduce evidence of anything anyone had ever said or done that offended her, regardless of relevance to the allegations against Seal. Unfortunately for us, there is no similar protection for appellate briefs.
I. The Nonsuit Order
The gravamen of the defamation claim was Seal's alleged statement about Albert having sex with various people and her dog. On March 4, 2020, after Albert rested her case, the court granted Seal's motion for a nonsuit. On appeal, Albert claims to have submitted evidence for a prima facie case for defamation. But none of the exhibits cited in her opening brief was admitted into evidence, except for a Huntington Beach police report that made no mention of Albert's sex life.
"A defendant is entitled to a nonsuit if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his favor. [Citation.] 'In determining whether plaintiff's evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give "to the plaintiff['s] evidence all the value to which it is legally entitled, . . . indulging every legitimate inference which may be drawn from the evidence in plaintiff['s] favor."' [Citation.] A mere 'scintilla of evidence' does not create a conflict for the jury's resolution; 'there must be substantial evidence to create the necessary conflict.' [Citation.]" (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291 (Nally).)
When we review an appeal from motion granting a nonsuit, we adhere to the same standard as the trial court. We do not weigh evidence or consider credibility. We accept the plaintiff's evidence as true. (Nally, supra, 47 Cal.3d at p. 291.) But there has to be some supporting evidence admitted at trial. And the appellant must show us where it is by citing to the record where the evidence can be found.
A. Covid Grounds
Albert argues that she "was sick and without counsel during trial." The record shows that Albert called the court on Friday, March 6, 2020, to report that she was ill and could not be in trial the following Monday. But by that time the court had already granted Seal's motion for nonsuit. Albert's illness, whatever it may have been, had no bearing on the motion for nonsuit.
The minute order of March 9, 2020, actually states that Albert called the court on March 8. March 8, 2020, was a Sunday. We interpret the order to refer to Friday, March 6.
B. Non-Covid Grounds
Because we do not have a reporter's transcript of the hearing on the motion for nonsuit, we do not know the basis for the court's order. Seal's motion referred to his statement that Albert had a "boyfriend" as the only concrete instance of an allegedly defamatory remark for which she had provided any evidence.
The "evidence" upon which Albert relies in her opening brief to show error consists almost entirely of exhibits that were not admitted at trial. The sole exception is a Huntington Beach police report by Seal against Albert, exhibit No. 273, which does not mention Albert's boyfriend or her sex life. She does not refer us to any testimony that would have established a prima facie case that Seal ever made any comment about her sex life, the basis of the defamation cause of action against Seal. In short, she does not direct us to even a "scintilla" of admitted evidence that Seal ever defamed her.
Albert's other argument on the nonsuit for defamation is nonsense. She claim s that by granting the motion, the trial court denied her right to a jury trial. If this were the law, a nonsuit could never be granted. Albert also argues that the court did not issue a written order granting the nonsuit during trial and therefore she could not take a writ after the court granted the motion. Nothing in the record suggests that Albert asked for a written order or mentioned taking a writ during trial.
Albert does repeatedly refer to a declaration that Seal filed in connection with an application for a temporary restraining order (TRO) against her as evidence of defamation. She argues that statements made in the declaration were party admissions, adoptive admissions, and judicial admissions. She also claims the declaration would show a statement by Seal that Albert was trying to murder him.
Albert's argument on this issue is copied nearly verbatim from her tria l brief on coerced self publication.
Albert characterizes Seal's silence in the face of the attacks against Albert by other defendants in a 14-page e-mail thread, exhibit No. 103, as "an equivocal adoptive admission." Silence becomes an adoptive admission under circumstances that would ordinarily evoke a response, such as an accusation of a crime, of negligence, or of wrongdoing. (See Estate of Neilson (1962) 57 Cal.2d 733, 746,747.) Nothing in the record suggests that Seal had to involve himself in the middle-school name-calling reflected in the portions of exhibit No. 103 that were admitted into evidence. The only remarks that can be attributed to him are his two demands to Albert to stop sending him harassing e-mails.
Albert's argument founders on the litigation privilege of Civil Code section 47, subdivision (b), which is absolute as it applies to tort liability, except for malicious prosecution. A party cannot be sued for defamation (or other torts) based on statements made in a pleading filed with the court. (Silberg v. Anderson (1990) 50 Cal.3d 205, 215216 and cases cited (Silberg).) The exceptions to the privilege cited by the court in Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1246-1247, a case Albert cites, all deal with specific criminal statutes, such as the ones against perjury and suborning perjury - not torts - that would be inoperable if the litigation privilege protected them. They do not apply to civil tort cases.
One case Albert cites to support her argument, Komarova v. National Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, actually undermines it. While deciding that the litigation privilege did not protect violations of the unfair debt collection practices act, because the act prohibiting certain litigation-related activities was more specific than the litigation privilege (id. at pp. 339-340), the court held that the privilege applied to a cause of action for intentional infliction of emotional distress based on the same allegations of unfair debt collection. (Id. at pp. 341-343.)
Albert supports her argument in part with a quotation from the Court of Appeal opinion in Silberg v. Anderson (1988) 203 Cal.App.3d 29, to the effect that the application of the litigation privilege depends on the speaker's motive, despite the fact that the Supreme Court granted review, depublished the case, and overturned the Court of Appeal's ruling on that very issue. (Silberg, supra, 50 Cal.3d at pp. 209, 218.)
Moreover, as we stated in the introduction to this section, a statement that Albert was trying to murder Seal was not alleged in the third amended complaint as one of the defamatory statements made by Seal. In fact, only one defendant, George Olivo, was alleged to have stated that Albert was trying to murder him (Olivo). The complaint could not have given Seal notice that he was being sued on that basis.
The nonsuit ruling is unassailable.
Code of Civil Procedure section 657 provides: "The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: [¶] 1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial. [¶] 2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors. [¶] 3. Accident or surprise, which ordinary prudence could not have guarded against. [¶] 4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial. [¶] 5. Excessive or inadequate damages. [¶] 6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law. [¶] 7. Error in law, occurring at the trial and excepted to by the party making the application."
Albert filed her notice of intention to move to vacate the verdict and grant a new trial on March 26, 2020. She did not subsequently file a memorandum of points and authorities or any affidavits. The court permitted Albert to argue her motion, even though she had not filed the required paperwork and ruled on the merits of her motion. It found she had failed to support the first four grounds of her motion with affidavits, as required, and had failed to support the last two grounds (insufficiency of the evidence and error in law) through court minutes, also required. (Code Civ. Proc., § 658.)
The verdict Albert seeks to vacate is the one issued on the sole remaining issue at trial - Seal's liability for those acts of intentional infliction of emotional distress; alleged in the third amended complaint that had survived Seal's anti-SLAPP motion. Our review of an order denying a new trial requires us to look at the entire record, including the evidence, to determine independently whether an error was prejudicial. (Los Angeles v. Decker (1977) 18 Cal.3d 860, 872.)
A. Covid Grounds
As stated above, Albert informed the court she was sick on March 6. A doctor's note and her own representation to the court established that she was ready to proceed on March 11. She also insisted she had the flu, not Covid. On March 10, she appeared by telephone to discuss jury instructions and the verdict form. At that time, "Albert said she was no longer contagious and would appear in person to give a closing statement."
March 11 was the last day of trial. No witnesses testified. Two exhibits were admitted into evidence. The parties gave their closing arguments, and the jury deliberated, returning a verdict on that day.
As the record reflects, Albert clearly took the lead in deciding when she would return to the courtroom. There is absolutely no indication in the record that the court pressured her in any way to return while she was sick. And when she did return, it was only to give closing argument, on the last day of trial. All the evidence, such as it was, had already been presented to the jury. Arguments of counsel are not evidence.
From Albert's opening brief: "There was no understanding as to putting Ms. Albert through the week of March 9, 2020, when she was sick. The Judge did not allow her to rest. He made her go back to the Clinic on Sunday March 8, 2020. Then he made her attend a phone conference with the Court on Monday, March 9, 2020. Then he made her go back to the Clinic one more time. Then he made her attend another court hearing by phone on Tuesday March 10, 2020." There are no citations to the record for any of these statements. The record shows one trip to a clinic, on March 5, 2020, at which time Albert received her clearance to resume trial on March 11. On March 9, the Monday after informing the court of her illness, Albert filed two briefs - one concerning the common interest privilege, the other concerning exceptions to the litigation privilege - and a notice of the criminal conviction of a defendant in Hawaii, filed in the court in Hawaii on March 3, complete with verdict form and witness list.
In her opening brief, Albert twice states, "[Albert] was not allowed to return to trial on Wednesday, March 11, 2020." On the contrary, the doctor's note that she presumably presented to the court at its request showed that she was cleared to work on March 11. The medical record from the date during trial shows she had the flu, not Covid. That is also what she told the court on March 9.
The trial court continued the trial for two days to accommodate Albert's flu, even though by that time the trial was all but over. She presented herself on March 11 as ready to proceed. She now argues that the court should have granted a longer continuance or declared a mistrial. But she never asked for a longer continuance and certainly never moved for a mistrial. She never informed the court that she was too sick to proceed or that she needed a longer continuance.
Albert claims she "understood" the court to say Seal would be allowed to make his closing argument without her if she did not "get clearance on her health." The citations to the record to support this extraordinary statement are (1) the minute order of March 4, (2) the two briefs and the notice referred to in the preceding footnote, (3) the minute order of March 9, (4) four jury instructions, (5) the minute order of March 10 and the first page of the minute order of March 11, and (6) a laboratory report dated August 9, 2020, and the doctor's March 5 flu diagnosis and note clearing her to return to court on March 11. None of these documents reflects any such statement by the court. The settled statement, to which Albert does not refer, records the judge stating that she had to be cleared by a doctor to do in-person closing argument, but she could appear by video for closing argument if necessary.
We review a trial court's decision to grant or deny a continuance for abuse of discretion. (Foster v. Civil Service Com. (1983) 142 Cal.App.3d 444, 448.) When the court is never asked to exercise its discretion, there is nothing for us to review.
B. Non-Covid Grounds
Albert's main contention on appeal is that the exclusion of many of her trial exhibits deprived the jury of the full picture of what Seal and his alleged coconspirators were doing to cause her emotional distress. Even if Seal did not do the activities himself, she contends, he was in league with the others who did do them. For example, although Seal did not tip Ford Credit off that Albert's vehicle was in a court parking lot, was not present in the parking lot when Ford Credit repossessed it, and did not videotape the event, he was liable for the resulting emotional distress because he "set up a swatting scenario" by obtaining a TRO against her. His participation in and approval of the repossession action was established by another defendant's giving him a hug inside the courthouse.
There was testimony that a codefendant did hug Seal on the day Albert's vehicle was repossessed. She did so, she testified, because she was happy about the hearing on her anti-SLAPP motion against Albert. Albert embroiders this testimony by stating that the codefendant "whispered in . . . Seal's ear" and gave him a big hug after learning that the vehicle was gone, that Seal "expressed joy" after learning that the repossession had succeeded, and that he "expressed no shock or horror at the event." Nothing in the settled statement supports any of these "factual" statements.
This defendant was correct in believing that argument went well. The court granted her anti-SLAPP motion. (Albert v. Ragland (Mar. 6, 2018, G052204) [nonpub. opn.].)
In Albert's opinion, the court was at fault for "narrowly constru[ing]" her emotional distress cause of action. She maintains that "proof of conspiracy was not limited to any set of facts in the pleading." In other words, she should have been free to accuse Seal of conspiring to cause her emotional distress through activities other than those pleaded in the complaint, which were, presumably, the ones he was prepared to meet at trial.
Fortunately, the trial court was alert to the necessity to establish a conspiracy from the very outset of the case. Before empaneling the jury, the court ordered Albert "to submit a brief providing offer of proof on how [Albert] will establish [Seal] directly engaged in the conduct. If the theory is not direct action but liability based on conspiracy or aiding and abetting, identify (act by act) those items where that is the theory; state whether it is conspiracy or aiding and abetting, possibly both. The Court needs to see proof, at least an offer of proof, before it is inclined to let [Albert] talk about acts that Mr. Seal did not directly commit." Albert eventually complied with this order on February 24, 2020, well after the commencement of trial. The chart she used in the offer of proof is reproduced in her opening brief.
In her opening brief, Albert quotes a lengthy passage from Hannah, which she implies represents our approval of her conspiracy allegations. In fact, the passage is a quotation from one paragraph of Albert's brief. It does not represent the conclusions of this court.
In her offer of proof, Albert cited four "projects" that purportedly showed the defendants acting in concert to cause emotional distress. Two of these are for activities not alleged in the complaint to have caused Albert emotional distress. The two conspiratorial projects relating to an emotionally distressing activity alleged in the complaint are "advis[ing] [Albert's] clients and others to extort [Albert] into free legal services" [sic] and having Ford Credit repossess Albert's vehicle by towing it from a court parking lot. Seal's part in this latter conspiratorial project was to obtain a TRO against Albert and to file a police report against her. His part in the extortion project was to state in a cross-complaint and in the opening statement at trial that Albert owed him money.
Albert called the repossession of her vehicle a "swatting scenario." "Swatting" refers to the vicious practice of calling a police department to report, falsely, a crime in progress serious enough to send out a SWAT team. The purpose is to set up a panic situation during which someone may be injured or killed. Albert's rather grandiose theory is that if she had protested the repossession of her vehicle, a SWAT team might have been called in to quell her. Seal had paved the way for calling a SWAT team by getting a TRO against her, thus implying that she might react violently to the repossession. This offer of proof could only have reassured the trial judge that he was on the right track in insisting that Albert establish a conspiracy before she started associating Seal with the acts of other people. (See Evid. Code, § 1223, subd. (b).)
During trial, the court repeatedly admonished Albert that she was putting the acts-of-other-people cart before the conspiracy horse, an admonition she repeatedly ignored. She continued to try to introduce testimony regarding actions of people other than Seal before she introduced evidence that Seal was in a conspiracy with these people to do the actions.
We repeat here the allegations of intentional infliction of emotional distress that remained after the partial granting of Seal's anti-SLAPP motion:
• Sending out poems of birds dying in trees and saying Albert is the dying bird:
With apologies to Lewis Carroll, we reproduce the poem here: "The woggly bird sat on the whango tree,/ Nooping the rinkum corn,/ And graper and graper, alas! grew he,/ And cursed the day he was born./ His crute was clum and his voice was rum,/ As curiously thus sang he,/ 'Oh, would I'd been rammed and eternally clammed/ Ere I perched on this whango tree.' "Now the whango tree had a bubbly thorn,/ As sharp as a nootie's bill,/ And it stuck in the woggly bird's umptum lorn/ And weepadge, the smart did thrill./ He fumbled and cursed, but that wasn't the worst,/ For he couldn't at all get free,/ And he cried, 'I am gammed, and injustibly nammed/ On the luggardly whango tree.' "And there he sits still, with no worm in his bill,/ Nor no guggledom in his nest;/ He is hungry and bare, and gobliddered with care,/ And his grabbles give him no rest;/ He is weary and sore and his tugmut is soar,/ And nothing to nob has he,/ As he chirps, 'I am blammed and corruptibly jammed,/ In this cuggerdom whango tree.'" Albert regarded this poem as a threat.
• Sending chat messages of photos of people hanging themselves after having codefendant Karen Rozier tell Albert to die or that she should be hung;
• Telling colleagues that Albert was stalking them and that she should be terminated from the group CAMMFG listserve:
• Stalking Albert and her employees;
• Videotaping Albert;
• Having Albert's car towed during a hearing and then having her videotaped so that it could be uploaded and distributed to others;
• Telling others that George Olivo did not attempt to assault Albert with a statue at her office and that her car window was not blown out when both of these things really happened;
• Intruding into Albert's e-mails and spoofing her e-mail address and then sending out awful e-mails from her e-mail address to others;
• Advising Albert's clients and others to extort Albert into free legal services or to threaten to join Seal in harassing her.
Albert's third amended complaint alleged that "[Mitchell] Hannah, Seal, and [Devin] Lucas," along with, presumably, George Olivo, Karen Rozier, Sheryll Alexander, Rene Powers, and Norma White, caused intentional infliction of emotional distress "by either doing or conspiring" to do the above actions.
The jury received the standard CACI instructions on emotional distress as modified for the trial:
The jury was also instructed on the elements of conspiracy and of aiding and abetting a tort. Both jury instructions identified the coconspirators with Seal as "Maegan Nikolic, Pam Ragland, Sheri Moody, Monica Jones or Cindy Brown." The individual defendants named in the third amended complaint included George Olivo, Maegan Nikolic, Pam Ragland, Karen Rozier, Sheryll Alexander, Norma White, and Rene Powers. The cause of action for intentional infliction of emotional distress was alleged against all the individual defendants except Nikolic and Ragland. Because we do not have a transcript for the days during which jury instructions were discussed, we cannot tell why Nikolic and Ragland were included in the list of coconspirators, when they were specifically excluded from the cause of action, or how Moody, Jones, and Brown came to be included in the list. It may be that Nikolic and Ragland were included because Albert filed a "Notice re: Harassment and Prejudice" on February 18 asking to have them added to the defamation and emotional distress causes of action. Albert's proposed fourth amended complaint rearranged the intentional infliction of emotional distress cause of action and included Nikolic, Ragland, Jones, Brown, and Moody as coconspirators, although Jones, Brown, and Moody were not named defendants. Albert's pretrial ex parte application to file a fourth amended complaint was denied. She made the application in August 2019 at the time when trial was set for September 2019 and sought to advance the tria l date while refusing to agree to a continuance to allow defendants to prepare responses to the new allegations. Nothing in the record suggests that a request to amend according to proof during trial was denied.
CACI No. 1600: "Lenore Albert claims that David Seal's conduct caused her to suffer severe emotional distress. To establish this claim, Lenore Albert must prove all of the following: [¶] 1. That David Seal's conduct was outrageous; [¶] 2. That David Seal intended to cause Lenore Albert emotional distress; [¶] or [¶] That David Seal acted with reckless disregard of the probability that Lenore Albert would suffer emotional distress, knowing that Lenore Albert was present when the conduct occurred; [¶] 3.That Lenore Albert suffered severe emotional distress; and [¶] 4. That David Seal's conduct was a substantial factor in causing Lenore Albert's severe emotional distress."
CACI No. 1602: "'Outrageous conduct' is conduct so extreme that it goes beyond all possible bounds of decency. Conduct is outrageous if a reasonable person would regard the conduct as intolerable in a civilized community. Outrageous conduct does not include trivialities such as indignities, annoyances, hurt feelings, or bad manners that a reasonable person is expected to endure. [¶] In deciding whether David Seal's conduct was outrageous, you may consider, among other factors, the following: [¶] (a) Whether David Seal abused a position of authority or a relationship that gave him real or apparent power to affect Lenore Albert's interests; [¶] (b) Whether David Seal knew that Lenore Albert was particularly vulnerable to emotional distress; and [¶] (c) Whether David Seal knew that his conduct would likely result in harm due to mental distress."
The jury was also instructed on the definitions of "reckless disregard" and "severe emotional distress."
According to the settled statement, the jury heard the following facts regarding the emotional distress allegations:
Seal sent Albert a bird poem. Seal was not seen in the parking lot where Albert 's vehicle was repossessed. Nikolic (a codefendant) hugged Seal after the hearing on her anti-SLAPP motion. There was no evidence that the so-called "spoofing" of Albert 's e-mail address was anything but a typographical error or that Seal was involved in the error. There was no evidence that Seal intruded into Albert 's e-mails or sent out emails in her name. Seal never suggested that Albert should be made to work for free. The parties stipulated that George Olivo had assaulted Albert. Albert was removed from the CAMMFG listserve by the group administrator because she was using it to air personal grievances against Seal. (Seal was using it to air personal grievances against Albert; he later withdrew from the listserv.) Seal did not know Albert in 2013 and so could not have said Albert's window was not blown out. Seal did not say Olivo had not assaulted Albert. Seal denied videotaping Albert or orchestrating the repossession of her vehicle.
As can be seen from the above summary, there was no evidence whatsoever regarding the allegations about photos of people hanging themselves or telling Albert to die, about Seal telling anyone that Albert was stalking him or her, about stalking anyone, about intruding into Albert's e-mails and sending e-mails from her address to others, or about advising her clients to threaten to join others in harassing her. The evidence regarding George Olivo and the car window was solely that Seal never said either one. The evidence regarding videotaping Albert and the repossession incident was that Seal was not involved in either one. The evidence regarding advising clients to extort free legal services from Albert was that Seal never did it. The "spoofing" was a typographical error. Albert was terminated from the listserv because she was abusing it, and the decision was not Seal's to make.
Albert successfully introduced a still photograph of herself taken by Seal while she was sitting fully clothed at a table in a bar with a wine glass in front of her. It depicted her upper body and face above table level. Albert characterized the picture as an "up-skirt" photograph and complained that it made her nose look big. On appeal, she asserts the photo was altered to make her look like a pig. This photo was not alleged to have caused Albert emotional distress.
This leaves the bird poem. Albert testified she thought it was a threat. Seal testified that he sent the poem to suggest that Albert was not making sense and to defuse the tension created by some e-mails to him from Albert and others. The jury clearly thought sending the poem, whatever it meant, was not "outrageous conduct" "so extreme that is goes beyond all possible bounds of decency."
Albert simply could not keep her eye on the ball. Her complaint alleged a conspiracy to do some very specific acts that she alleged caused her emotional distress. If she had no evidence that Seal himself had, for instance, stalked her or her employees or had videotaped her vehicle being towed by a creditor, then she had to produce evidence that a person who had done these actions was in league with Seal. Instead, as the court repeatedly admonished her, she kept trying to introduce testimony regarding what these other persons had done without establishing that they were in league with Seal. Unless they were in league with him, what the other people did to cause her emotional distress was irrelevant. The judge was right.
To the extent Albert bases claims of error on a contention the court abused its discretion in sustaining objections to any of her exhibits, she is required to identify the exhibit and explain, with citation to authority, why that exhibit should have been admitted and why the exclusion prejudiced her. (Code Civ. Proc., § 475; Evid. Code, § 354.) But to the extent that Albert is basing her claims of error on exhibits that were never even offered into evidence, she is asking us, in essence, to act as the trier of fact and find in her favor on evidence not submitted to the trial court. We have neither that job nor that power.
The only specific evidentiary rulings that Albert challenged unsuccessfully below, according to the record before us, were the exclusion of Seal's declaration filed as part of his TRO application and a motion in limine excluding portions of a witness's deposition. Albert did not identify the ruling on the motion in limine as an issue on appeal. But Albert repeatedly tried to get the Seal declaration before the jury, and the trial court was steadfast in keeping it out. The court was correct.
The witness testified at trial.
As we discussed above, a party cannot be liable in tort for statements absolutely protected by the litigation privilege of Civil Code section 47, subdivision (b)(2). This includes liability for intentional infliction of emotional distress. (See Silberg, supra, 50 Cal.3d at p. 215.) Thus, nothing stated in Seal's declaration could possibly be the basis of liability for this cause of action.
As to the other "conspirators," proof of conspiracy requires evidence "that each member of the conspiracy acted in concert and came to a mutual understanding to accomplish a common and unlawful plan, and that one or more of them committed an overt act to further it. [Citation.] It is not enough that the [conspirators] knew of an intended wrongful act, they had to agree - expressly or tacitly - to achieve it." (Choate v. County of Orange (2000) 86 Cal.App.4th 312, 333.)
What's more, the TRO declaration could not prove a conspiracy to inflict emotional distress because it was the basis of the defamation cause of action, not the emotional distress cause of action. The complaint's emotional distress allegations did not include statements about Albert's sex life.
In this appeal, Albert has not provided us with argument and authority to show that the court abused its discretion by excluding any other exhibit. Evidence Code section 354 prohibits setting aside a verdict "by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice ...." Albert has simply lumped clusters of exhibits together - without distinguishing between those that were offered into evidence but rejected and those that were merely marked with exhibit numbers but never offered - and has not even attempted to show that any one of these exhibits was improperly excluded. We cannot base a finding of miscarriage of justice on such untethered generalities.
III. Bias
Albert's bias claim, as articulated in her statement of key issues on appeal, refers only to judicial bias; the only relief she requests from us is transfer to another courtroom, instead of remanding to the same judge.
Albert's claim of jury bias on appeal rests on the information conveyed to the jury that she was a suspended lawyer. After introducing herself to the jury as a suspended lawyer at the very beginning of voir dire, she now argues "[t]here [was] no way jurors were going to be able to comprehend that the State Bar could be politically swayed like Ford was politically swayed against Albert."
Albert's sole claim of judicial bias rests on the stipulation between the parties, entered into on March 4, 2020, that Olivo had in fact assaulted her. Albert now characterizes this stipulation as the judge making Seal stipulate to this fact and then not allowing her to impeach Seal. Presumably Albert is referring to the threatening messages she wanted to introduce to establish that Olivo had assaulted her. "Based on Mr. Seal conceding the assault occurred[,] the parties agreed the messages were no longer relevant. (Italics added.)" Nevertheless, Albert asserted in her opening brief that the "Judge acted in a biased manner in favor of . . . Seal by obfuscating the truth from the jury[.]"
According to the settled statement, the parties stipulated on February 19 to the fact that Olivo had assaulted Albert. The record does not reflect any coercion by the judge to make either party stipulate to this fact. In any event, the main issue for trial was not whether Olivo had actually assaulted Albert, but rather whether Seal had ever said he had not done so. Seal testified as part of his case that he had never made this statement. Albert cross-examined him after this testimony, and she never even raised the Olivo issue. She never tried to impeach him. The court never interfered with her cross-examination on this topic.
"Disparaging the trial judge is a tactic that is not taken lightly by a reviewing court." (In re S.C. (2006) 138 Cal.App.4th 396, 422.) Impugning the court's integrity in a document filed with the court is an instance of direct contempt. (See In re Koven (2005) 134 Cal.App.4th 262, 271; In re White (2004) 121 Cal.App.4th 1453, 1477-1478.) So is an unsupported accusation of bias toward a party. (In re White, supra, 121 Cal.App.4th at p. 1478.) Contempt is punishable by a fine or imprisonment or both. (In re Koven, supra, 134 Cal.App.4th at p. 271.) Such allegations should be made only with more care than was shown here.
IV. Other Issues A. Severance
Albert argues that severing the Seal trial from the trial of the other defendants was reversible error. Albert either agreed or did not object to the severance. Without evidence of an objection, she cannot claim error on appeal. (See Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1, 48 ["Forfeiture of issues on appeal typically occurs when a party fails to object."]; see also Code Civ. Proc., § 1048, subd. (b) [court may order separate trials].)
B. Leave to Amend
Albert argues that the court denied her an opportunity to amend the complaint according to proof at trial. There is no evidence in the record of any denial of a request for leave to amend. "[I]f it is not in the record, it did not happen." (Protect Our Water v. County of Merced, supra, 110 Cal.App.4th at p. 364.)
C. Talking to Jurors
Albert asserts that one of the defendants from the other part of the case "was caught talking with the foreman of the jury in the cafeteria during a smoke break[.]" Needless to say, nothing in the record supports this statement.
On the contrary, Albert asserted to the court on February 18 that a defendant from the severed case was seen (by someone else) talking to an unidentified juror during lunch, an assertion the defendant denied. The next day, the juror was identified, and "The Court agree[d] with [Albert's] assessment that the parties did not appear to be conversing." So the record contradicts this assertion. We should also note that nothing in the record supports the identification of this juror as the jury foreman.
D. Motions in Limine
We review the trial court's decision to grant a motion in limine to exclude evidence for abuse of discretion. (Katiuzhinsky v. Perry (2007) 152 Cal.App.4th 1288, 1294.)
In her opening brief, Albert identified two defense motions in limine that she claims were erroneously granted. These are the exclusion of her "sovereign citizen" expert and the exclusion of reference to damages she suffered by reason of the suspension of her State Bar license. As to the latter motion, the extent of her argument is that "[t]he court erred in Granting Defendant 's Motion in Limine to Exclude Damages surrounding [Albert's] suspension of her Bar license, yet found it relevant to tell the jury about the suspension." We can hardly base a finding of abuse of discretion on this frail reed. As the record indicates, Albert, not the court, told the jury she was a suspended lawyer.
In her reply brief, Albert complains that the court excluded another one of her experts, a computer forensic expert. As we told her in Hannah, we do not entertain new theories or arguments introduced in a reply brief.
Seal objected to Albert's "sovereign citizen" expert, Gregory Meinhardt, on several grounds: relevance, prejudice, lack of qualification, and failure to produce discoverable writings. The court did not indicate on which of these grounds it based its ruling. Albert now asserts, again without citation to the record, that the ground was prejudice.
Albert asserts, "His testimony was relevant for profiling, gang like behaviors and the intimidation that can ensue to intimidate witness and the behavior." He was also apparently slated to "identify the behaviors to demonstrate the Defendants were acting in concert to tortiously attack and intimidate [Albert] and her supporters."
It is by no means certain that prejudice was the reason for excluding Meinhardt. The court could have agreed that his testimony would be irrelevant or that he did not have the proper credentials. In her opening brief, Albert does not address any alternate grounds or show why it would be an abuse of discretion to exclude Meinhardt for these reasons. She has not shown an abuse of discretion.
In her reply brief, Albert is more detailed about Meinhardt's credentials. That is too late.
V. Request to Augment the Record/Request for Judicial Notice
Albert has requested to augment the already toxically bloated record with the following documents: Seal's memorandum of costs; various documents relating to the preparation of the settled statement, one of which includes an opinion by the Ninth Circuit Court of Appeals; a request for court orders; the written order granting Seal's motion for nonsuit (entered October 23, 2020); and the settled statement. The memorandum of costs and Albert's proposed settled statement are already in the appellant 's appendix. The settled statement is also already part of the record. The remaining documents are irrelevant to the issues before this court. The motion to augment the record is denied.
Albert has also filed a request to judicially notice four documents. These are (1) a brief filed in the trial court on September 17, 2020, dealing with the content of the settled statement; (2) a notice from the Orange County Superior Court dated December 31, 2020, regarding, among other matters, filing of documents during the pandemic court closure; (3) an unconformed copy of a declaration filed in the United States Bankruptcy Court contending that Albert had paid the amounts required by the California State Bar to reinstate her license to practice law; and (4) a printout of Albert's State Bar profile, showing her reinstated to active practice as of April 21, 2021. The first document is already included in the appellant's appendix. The other three documents are irrelevant to the issues identified in the opening brief as the basis of this appeal. The request is denied.
VI. Sanctions
We notified Albert that we were considering imposing sanctions on her on our own motion for pervasive violations of the California Rules of Court, specifically rule 8.276(a)(4), which requires statements of fact to be limited to matters in the record; rule 8.276(a)(2), which prohibits including in an appendix of matter not material to the appeal's determination; and rule 8.124(b)(3)(A), which prohibits including in an appendix of documents or portions of documents unnecessary to a proper consideration of the issues. Albert responded by filing an additional 120 pages, in effect admitting that she had violated the rules and attempting to correct the violations at the last minute.
Albert's attitude toward the record is best summed up by a statement made in her reply brief. After asserting a "fact" about Seal's testimony at trial - one lacking any support in or citation to the record - she states, "Regardless of what is or is not in the Settled Statement, the error warrants reversal." It is hard to imagine a more succinct expression of contempt for the entire appellate process.
In fact, our approach is very much the opposite. We can completely disregard contentions unsupported by proper page citations (Professional Collection Consultants v. Lauron, supra, 8 Cal.App.5th at p. 970), and we have frequently done so in this case. It is not our task to hunt through a voluminous record looking for evidence to support a party's contentions. (See Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 745.)
Page after page of Albert's briefs contain assertions of fact without any citation to the record. To give but one example, Albert refers to the denial of her motion in limine to exclude Seal's trial exhibits about her State Bar suspensions. There is no citation to the record for this motion, and it cannot be found in the appendix. Nor does the record regarding the trial court's rulings on motions in limine refer to any such motion, let alone an order denying it. According to the record, Albert made one motion in limine, which the court granted on October 18, 2019. This motion had nothing to do with State Bar records.
There are many other instances of fabricated "facts" finding no support in the record and no reference to any page number. For example, "During . . . Seal's closing argument, he gave summation of facts that were not part of the evidence. [Albert] objected and the court overruled." Nothing in the settled statement or a minute order supports this assertion. "Defendants denied they had communications [with jurors], although it was the bailiff who reported the communications. Yet, the court merely warned Defendants not to do it again. But they did. [¶] . . . Defendant Pam Ragland took the opportunity to indirectly speak to the jurors out in the hallway. She approached [Albert's] witness . . . and started yelling that [Albert] was a liar and [the witness] knew it, in a drama school performance as the entire jury looked on."
In the settled statement, the sole reference to this episode is that the trial court was informed of "a verbal altercation" in the hallway "that might have been overheard by jurors." (Italics added.) The subject of the altercation is not specified. "The court inquires of the involved parties and concludes the exchange was in no way prejudicial to the proceedings." The court also undertook to instruct the jury that anything heard outside the courtroom was not evidence. Nothing in the record supports Albert's elaborations on this bare-bones account of the event, and there are no citations to the record for the claimed facts.
As for including matter unnecessary for the proper determination of the issues or not material to the appeal's determination, the appendix bulges with just such matter. For example, the defendants filed 25 motions in limine. On appeal, Albert took issue with the court's rulings regarding two of them. Nevertheless, all 25 motions were included in the appendix. The 6,000-page appendix also contains hundreds of pages of exhibits that were not cited in either of Albert's briefs.
Albert excuses her conduct by referring to California Rules of Court, rule 8.124(b)(4), which provides that "[a]ll exhibits admitted in evidence, refused, or lodged are deemed part of the record, whether or not the appendix contains copies of them." This rule, however, does not license her to violate rules 8.124(b)(3)(A) and 8.276(a)(2), which restrict the record to items necessary to decide the issues on appeal and material to their consideration. If an exhibit is necessary to decide an issue on appeal, it is available for inclusion in the record. If it is not, it has no business being there.
As Albert herself acknowledged during oral argument, she is not a new attorney. Moreover, she has been repeatedly taken to task in prior appeals for her disregard of established principles of appellate practice. In the last of these appeals, we specifically mentioned the eligibility of her conduct for sanctions. The time has come to demonstrate that the California Rules of Court are not mere suggestions and that violating them has consequences. Our reluctance to impose sanctions is overcome by consideration of how hard other parties - including respondent - have to work to comply with these rules. Accordingly we impose sanctions on Lenore Albert in the amount of $2,500.00.
DISPOSITION
The order granting respondent's nonsuit motion is affirmed. The order denying appellant's motion to vacate the verdict and for new trial is affirmed. Appellant's request for judicial notice is denied. Appellant's request to augment the record is denied. Respondent is to recover his costs on appeal.
We find that appellant Lenore Albert has violated California Rules of Court, rule 8.204(a)(2)(C), rule 8.124(b)(3)(A), and rule 8.276(a)(2), and we impose sanctions under rule 8.276(a)(2) and rule 8.276(a)(4) in the amount of $2,500.00, which sum shall be paid to the clerk of this court within 30 days of the issuance of the remittitur in this matter. This opinion constitutes a written statement of our reasons for imposing sanctions, as required by In re Marriage of Flaherty (1982) 31 Cal.3d 637, 654.
Pursuant to Business and Professions Code section 6086.7, subdivision (a)(3), the clerk of this court is ordered to forward a copy of this opinion to the State Bar of California upon return of the remittitur and to notify Attorney Lenore Albert, State Bar No. 210876, that the matter has been referred to the State Bar.
WE CONCUR: MOORE, J., SANCHEZ, J.