Opinion
D068205
12-29-2016
LARRY ANDERSON, Cross-complainant and Appellant, v. PROCOPIO, CORY, HARGREAVES & SAVITCH LLP, Cross-defendant and Respondent.
Law Office of George Rikos and George D. Rikos for Cross-complainant and Appellant. Sandler, Lasry, Laube, Byer & Valdez, LLP, James G. Sandler, and Richard M. Valdez for Cross-defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2014-00022523-CU-MU-NC, subsequently consolidated with 37-2014-00009108-CU-BC-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Robert P. Dahlquist, Judge. Dismissed. Law Office of George Rikos and George D. Rikos for Cross-complainant and Appellant. Sandler, Lasry, Laube, Byer & Valdez, LLP, James G. Sandler, and Richard M. Valdez for Cross-defendant and Respondent.
I.
INTRODUCTION
Larry Anderson appeals from a judgment entered in favor of Procopio, Cory, Hargreaves & Savitch LLP (Procopio), on Anderson's cross-complaint against Procopio. The litigation commenced when Anderson's former employer, Tri-City Healthcare District (TCHD) sued Medical Acquisition Company (MAC). MAC cross-complained against Anderson and another individual. Anderson then cross-complained against Procopio for (1) comparative indemnity, contingent on Anderson being judged liable on the MAC cross-complaint, and (2) declaratory relief, consisting of a declaration of party rights regarding the MAC cross-complaint. The trial court sustained Procopio's demurrer to the cross-complaint, without leave to amend, and entered judgment for Procopio. After Anderson filed this appeal, MAC voluntarily dismissed its cross-complaint against both Anderson and the other cross-defendant, without prejudice. Based on these events, we conclude that Anderson's appeal is moot. The appeal is dismissed.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Because we resolve this appeal on mootness grounds, this background is limited to facts necessary for determination of that issue.
TCHD, which operates a medical center, entered into three leases with MAC, two in connection with a medical office building project and one relating to a separate facility. After MAC allegedly failed to meet certain obligations under these leases, TCHD filed suit. In TCHD's operative first amended complaint, TCHD alleged, among other things, that the leases were void on conflict of interest grounds and repeatedly referenced Anderson, who was TCHD's chief executive officer at the time that TCHD and MAC entered into the leases. Among other things, TCHD contended that Anderson had "improperly convey[ed] District assets and enter[ed] into major transactions with MAC" and that he and RoseMarie V. Reno, TCHD's board chairperson at the time, had "conflicts of interests whereby they sustained substantial financial benefits . . . ." MAC filed a cross-complaint against Anderson and Reno, asserting equitable indemnity and other claims relating to TCHD's complaint. Anderson filed his own cross-complaint against TCHD, TCHD board members, and Procopio. The only claims before us are Anderson's two claims against Procopio, which we now describe.
Anderson's third cause of action, for comparative indemnity and apportionment of fault, stated: "MAC's Cross-Complaint alleges, among other things, conduct by ANDERSON entitling MAC to damages from ANDERSON." He then alleged:
"If ANDERSON is judged liable to MAC, each of the Cross-Defendants should be required to pay a share of MAC's judgment which is in proportion to the comparative negligence of that Cross-Defendant in causing MAC's damages, and to reimburse MAC for any payments ANDERSON makes to MAC in excess of ANDERSON's proportional share of all Cross-Defendants' negligence."Anderson further contended:
"During all relevant times, PROCOPIO has and continues to serve as general counsel and/or outside counsel to TRI-CITY. Specifically, PROCOPIO served as the architect and drafter of the transaction between MAC and TRI-CITY. During all relevant times, ANDERSON relied upon the legal representation of PROCOPIO to assure this transaction, as well as other legal transactions involving TRI-CITY, was consistent with all State and Federal laws and
district policies. ANDERSON further relied upon the legal representation of PROCOPIO in providing legal advice, guidance and instruction as to the best and most appropriate manner to transact with MAC."Anderson's sixth cause of action, for declaratory relief, alleged in relevant part that "[a]ctual controversies exist between the parties of this case concerning their respective rights and duties in regard to the allegations of MAC's Cross-Complaint against ANDERSON." He sought a declaration of "the rights, responsibilities and obligations of the parties . . . in regard to the allegations of MAC's Cross-Complaint as against ANDERSON."
Procopio demurred to Anderson's cross-complaint, and the trial court held a hearing on the demurrer. At the hearing, Anderson's counsel maintained that "if there is any duty" to MAC, "then he's entitled to indemnity from Procopio." After the court observed that Procopio was counsel to TCHD and owed no duty to Anderson, Anderson's counsel contended that there was evidence to demonstrate an attorney-client relationship between Procopio and Anderson, including evidence disclosed in arbitration proceedings. He requested that, if the court would not grant leave to amend the indemnity claim, the court grant "leave to amend a negligence and breach of fiduciary duty claim." Anderson's counsel also argued that TCHD had sued Anderson; that, as part of Anderson's defense, "there [were] going to be indemnity obligations from Procopio"; and that TCHD had filed a motion to compel arbitration.
Although Anderson's counsel indicated that he wanted to "amend" this claim, we note that there were no existing causes of action for negligence or breach of fiduciary duty in Anderson's cross-complaint.
The trial court sustained Procopio's demurrer without leave to amend. The court ruled that the comparative indemnity claim failed because, among other reasons, that doctrine applies among joint tortfeasors, Procopio owed no duty of care to MAC, and Procopio thus could not be held liable as a joint tortfeasor on MAC's claims. The court held that the declaratory relief claim was derivative of the comparative indemnity claim and failed for the same reasons (and, additionally, because the conduct at issue was in the past). The court entered judgment in favor of Procopio.
In May 2015, Anderson appealed. In June 2015, MAC filed a request for dismissal without prejudice as to Reno, which was granted. In January 2016, MAC requested dismissal without prejudice as to Anderson, and, again, the request was granted.
Anderson filed his opening brief in this appeal in February 2016, contending that the trial court should have overruled the demurrer or at least granted him one opportunity to amend. In his appellant's appendix, he provided a trial court register of actions printed on February 9, 2016, which reflected that MAC had voluntarily dismissed him and Reno. He did not address the dismissals in his brief. Procopio then filed its brief, noted the dismissals, and suggested that Anderson's claims were moot, while also addressing the substance of his appeal. Procopio included the dismissal requests in its respondent's appendix, and both requests reflected that dismissal had been entered (hereafter, the dismissals). Anderson did not file a reply brief, nor did he object to Procopio's appendix. We requested briefing from the parties regarding whether we may consider the dismissals and whether Anderson's appeal is moot under the circumstances. The parties filed supplemental briefs, and Procopio concurrently moved to augment the record with the dismissals (and/or for this court to take judicial notice). Anderson filed an opposition to Procopio's motion.
III.
DISCUSSION
The threshold issue before us is whether the appeal is moot. A. Consideration of the Dismissals
We must first address whether we may consider the dismissals. We conclude that we may consider them. Although reviewing courts generally "will consider only matters which were part of the record at the time the judgment was entered," this rule is "somewhat flexible" and courts "have not hesitated to consider postjudgment events . . . [citations] . . . when subsequent events have caused issues to become moot [citation]." (Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813.) Further, the fact that MAC dismissed both Anderson and his fellow cross-defendant is not in dispute. (Ibid. ["because the fact is not in dispute, we do not usurp the fact-finding function of the trial court."].)
In turn, Procopio requests that we augment the record with the dismissals, or, in the alternative, take judicial notice of these records. We decline to augment the record. (See Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 [observing "[a]ugmentation does not function to supplement the record with materials not before the trial court," and suggesting deviation from that rule occurs "by taking judicial notice or exercising the power to take evidence under Code of Civil Procedure section 909"]; but see Long v. Hultberg (1972) 27 Cal.App.3d 606, 608 [augmenting record with postjudgment evidence, and observing courts should take evidence when it shows postjudgment events have rendered an appeal moot].) However, we conclude that we may take judicial notice of the records. (Evid. Code, §§ 452, 459 [judicial notice of superior court records permitted]; Vons, supra, 14 Cal.4th at p. 444 fn. 3; see, e.g., In re R.V. (2009) 171 Cal.App.4th 239, 245 [granting request for judicial notice of postorder reports that respondent contended were relevant to mootness].) B. Mootness
Code of Civil Procedure section 909 permits reviewing courts in nonjury matters to make factual determinations in addition to those made by the trial court, under certain circumstances. (Ibid.; Conservatorship of Hart (1991) 228 Cal.App.3d 1244, 1257.)
Anderson had a reasonable opportunity to address these records, both in his supplemental brief and after Procopio filed its motion to augment and/or for judicial notice. (Evid. Code, § 455.)
1. Governing law
As a general rule, " ' "the duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions . . . ." ' " (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.) "A case is moot when the decision of the reviewing court 'can have no practical impact or provide the parties effectual relief. [Citation.]' " (MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214 (MHC).) " ' "It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal." ' " (Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 10 (Finnie).
2. Application
We begin with indemnity. Under the doctrine of equitable indemnity, "defendants are entitled to seek apportionment of loss between the wrongdoers in proportion to their relative culpability . . . ." (GEM Developers v. Hallcraft Homes of San Diego, Inc. (1989) 213 Cal.App.3d 419, 426; Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal.4th 100, 114 ["Indemnity . . . is premised on a joint legal obligation to another for damages."].) The doctrine implicates "the fundamental principle that 'there can be no indemnity without liability.' " (Western Steamship Lines, at p. 114.)
Procopio directs us to Miller v. American Honda Motor Co. (1986) 184 Cal.App.3d 1014 (Miller) and Mesler v. Bragg Management Co. (1990) 219 Cal.App.3d 983 (Mesler). In each case, the court observed that an indemnity cross-complaint was (or would be) mooted by resolution of the underlying liability claim. In Miller, a motorcycle seller (Miller) sued the buyer (Guzman) for failure to pay. (Miller, at p. 1017.) Guzman cross-complained against Miller and the distributor (Honda) for personal injuries, and Miller cross-complained against Honda for equitable indemnity. (Ibid.) After a trial, Miller prevailed on his failure to pay claim, Miller and Honda prevailed against Guzman on Guzman's injury claim, and Honda sought and was denied costs against Miller. (Ibid.) Honda appealed and the Court of Appeal affirmed. (Ibid.) The Court of Appeal explained that "Miller and Honda were united in interest with respect to defending Guzman's claim for personal injuries" and that "[t]he trial court recognized that the decision against Guzman rendered the issues between Miller and Honda moot . . . ." (Id. at p. 1021.) The court elaborated on why those issues were moot:
"Since Guzman did not obtain a verdict against Miller, the cross-complaint for equitable indemnity against Honda was rendered moot. Miller's equitable rights against Honda were obviously contingent because they would arise only in the event that Miller was found liable to Guzman on the personal injury action . . . . Because Miller was exonerated, his claim for equitable relief never materialized."(Id. at p. 1018, fn. 2 (italics added).) See also Mesler, supra, 219 Cal.App.3d at pp. 988, fn. 5 (defendant Bragg, which had cross-complained against third party Industrial Parts Depot, Inc. (IPD) for equitable indemnity, obtained dismissal of underlying complaint; Court of Appeal affirmed and noted: "IPD is supportive of the dismissal obtained by Bragg in the trial court, and on this appeal, since failure of [plaintiff] Mesler's action against Bragg will moot any claim to equitable indemnity by Bragg against IPD.")
See also Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1612, fn. 1 [heirs of driver who died in car accident sued other driver and car owner for wrongful death, defendants cross-complained against General Motors (GMC), and GMC prevailed; on appeal, court noted wrongful death action had been severed, driver had obtained a defense verdict, and this result mooted driver's cross-complaint and appeal].)
Anderson identifies the MAC cross-complaint and seeks indemnity "[i]f ANDERSON is judged liable to MAC." Procopio's liability to Anderson was "obviously contingent" on MAC's cross-complaint, because it could arise only if Anderson were judged liable on that cross-complaint. (Miller, supra, 184 Cal.App.3d at p. 1018, fn. 2.) MAC has dismissed its cross-complaint. Thus, there is no present possibility of Anderson being judged liable to MAC, and, in turn, nothing for which Procopio could indemnify him. Reversal would not grant Anderson any effectual relief. The claim is therefore moot. (MHC, supra, 106 Cal.App.4th at p. 214.)
Turning to the declaratory relief claim, " '[t]he fundamental basis of declaratory relief is the existence of an actual, present controversy over a proper subject.' " (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.) Courts decline to address declaratory claims that would result in no relief, including in the indemnity context. (See, e.g., City of Coronado v. Sexton (1964) 227 Cal.App.2d 444, 450-451 (Sexton) [cities failed to enjoin election that was step in forming port district (which was then formed), but maintained that they were entitled to declaratory relief; Court of Appeal disagreed: "They have not convincingly pointed out how such a declaration of rights and remedies would provide them any substantial benefit . . . . [D]eclaratory relief would be fruitless."]; Just In Time Chemical Sales & Mktg., Inc. v. Ironshore Specialty Ins. Co. (D.N.J. 2014) 2014 WL 3784264, *2 (Just In Time) ["The docket of the Ohio Action reflects that the case was voluntarily dismissed, without prejudice . . . . Because Plaintiffs explicitly seek a declaration that Defendant must defend and indemnify them in the Ohio Action, the issue is now moot because there is no live case-or-controversy. As such, the Court cannot grant the requested relief."]; Access Ins. Co. v. Carpio (E.D. Pa. 2012) 861 F.Supp.2d 539, 542 [declaratory relief moot after dismissal of underlying litigation: "[t]o the extent [Plaintiff] seeks a declaration that it does not have to indemnify [Defendant] for any damages she owes as a result of the Wagman [l]itigation[,] this issue is moot because there is no live case-or-controversy."].)
Anderson seeks a declaration of party rights "in regard to the allegations of MAC's Cross-Complaint against ANDERSON." Even assuming that this were an appropriate basis for declaratory relief, dismissal of MAC's cross-complaint has mooted it. The MAC cross-complaint is no longer a present controversy about which the trial court could declare party rights—meaning reversal could not provide effectual relief for this claim, either. (Sexton, supra, 227 Cal.App.2d at pp. 450-451; MHC, supra, 106 Cal.App.4th at p. 214.)
Procopio contends that the declaratory relief claim is also moot because it is derivative of the indemnity claim. Given our conclusion that the claim is moot in the absence of a present dispute or effectual relief, we need not reach this argument.
Anderson's arguments that the cross-complaint is not moot as to Procopio are unpersuasive. He contends that TCHD "maintains a cross-claim in arbitration for essentially the same claims MAC alleged against [him]," thus justifying his claims against Procopio. We assume that Anderson is suggesting that the arbitration claim precludes a determination of mootness here, but he fails to provide factual or legal support for this argument and thus has forfeited it. First, he directs us to no evidence regarding the arbitration (such as its current status or the purported claim at issue), and the record reflects only general references to arbitration proceedings made by his counsel at the demurrer hearing (and a docket entry relating to a motion to compel arbitration). (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768 (Del Real) (["[I]t is counsel's duty to point out portions of the record that support the position taken on appeal."]; Ibid. ["[A]ny point raised that lacks citation may, in this court's discretion, be deemed waived."].) Second, Anderson does not explain how TCHD's claim in arbitration would have any bearing on mootness in this case. (People v. Stanley (1995) 10 Cal.4th 764, 793 (Stanley) [" '[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived . . . .' "].)
Similarly, Anderson argues that he has "potential malpractice claims" against Procopio and that he has a right to amend the cross-complaint because of his "on-going" damages. These purported malpractice claims do not prevent his appeal from being deemed moot. First, Anderson has forfeited any argument regarding such claims. Although his counsel requested leave from the trial court to add claims for negligence and breach of fiduciary duty, he did not contend in his opening brief that he could amend his cross-complaint to pursue these or other malpractice-related claims. (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125 [appellant's "failure to discuss an issue in its opening brief forfeits the issue on appeal"]; Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [burden of proving reasonable possibility of amendment "is squarely on the plaintiff"].) Second, even if malpractice claims were potentially at issue, Anderson does not state that these claims would seek recovery beyond the potential liability arising from the MAC cross-complaint. Thus, he fails to explain why the new claims would not also fail on mootness grounds.
Although Anderson appears to maintain that his claims are not moot, to the extent that he implies that he should be permitted to amend to avoid mootness, he offers no legal support for this view. (Cf. Fox v. Board of Trustees of State University of New York (2d Cir. 1994) 42 F.3d 135, 144 [affirming denial of motion to amend moot complaint]; Danzy v. Johnson (E.D. Pa. 1976) 417 F.Supp. 426, 430 [denying motion to amend complaint that "appear[ed] to be nothing more than an afterthought to avoid dismissal for mootness."].)
Finally, Anderson contends that Frank v. State of California (1988) 205 Cal.App.3d 488, a personal injury case arising from a car accident, addresses "[w]hether the dismissal of a party negates claims for equitable indemnity," and supports his position. We disagree. In Frank, one driver (Mitchell) sued the other driver (Frank), the state, and the Department of Motor Vehicles. (Id. at pp. 489-490.) The state demurred based on failure to state a cause of action, the demurrer was sustained, and the state was dismissed. (Id. at p. 490.) Frank had cross-complained against Mitchell, as well as the state and multiple local municipalities, alleging that the state and the municipalities had failed to control the intersection where the accident occurred. (Id. at p. 491.) The state successfully demurred on res judicata grounds, and Frank appealed. (Ibid.) The Court of Appeal reversed, holding that because the earlier dismissal had not adjudicated the intersection issue, the first requirement for res judicata or collateral estoppel (prior adjudication of an identical issue) was not satisfied. (Id. at p. 494.) Procopio is not making a res judicata or collateral estoppel argument, and Frank does not address mootness, so the case is inapposite.
Anderson has two related arguments, and neither is persuasive. First, he suggests that if we deem his appeal moot, his "due process rights would be violated," because due process " 'forbid[s] the assertion of a plea of res judicata against a party unless he was bound by the earlier litigation . . . .' " But res judicata is not at issue, and Anderson does not explain how carrying out our judicial duty to avoid moot claims would implicate due process. Second, Anderson notes that the dismissal here was without prejudice, and it is a dismissal with prejudice that is final for res judicata purposes. Again, res judicata is not before us and Anderson does not explain the relevance to our analysis, if any, of the type of dismissal. (Cf. DVD Copy Control Assn., Inc. v. Bunner (2004) 116 Cal.App.4th 241, 245, fn. 2 [defendant appealed from preliminary injunction, plaintiff filed voluntary dismissal without prejudice and moved to dismiss appeal as moot, and defendant opposed motion; court indicated that it denied the motion because the "appeal present[ed] important issues that could arise again and yet evade review"]; Ptasynski v. Kinder Morgan G.P., Inc. (10th Cir. 1007) 220 Fed.Appx. 876, 878-879 [voluntary dismissal without prejudice rendered appeal moot]; Just In Time, supra, 2014 WL 3784264, *2.)
Anderson also states, without elaboration, that he "has been denied his § 1983 due process rights by his employer for over three years." He does not provide a factual basis for this contention nor clarify how it relates to mootness. To the extent that he was attempting to make an argument against mootness, he has forfeited it. (Del Real, supra, 95 Cal.App.4th at p. 768; Stanley, supra, 10 Cal.4th at p. 793.)
We conclude that Anderson's claims against Procopio are moot and dismiss the appeal.
Although we could reverse the judgment with directions to dismiss the cross-complaint as moot, we conclude that dismissal is appropriate here, given that our disposition is unambiguous and in the interests of efficiency. (See In re Arturo A. (1992) 8 Cal.App.4th 229, 235-236 [concluding that it was "appropriate and in the interests of judicial efficiency to resolve [the] appeal by ruling on the motion to dismiss," and dismissing appeal]; cf. County of San Diego v. Brown (1993) 19 Cal.App.4th 1054, 1090 [when appeal is resolved on mootness grounds, " 'in order to avoid ambiguity, the preferable procedure is to reverse . . . with directions . . . to dismiss' "].)
IV.
DISPOSITION
The appeal is dismissed. Procopio shall recover its costs on appeal.
/s/_________
AARON, J. WE CONCUR: /s/_________
NARES, Acting P. J. /s/_________
HALLER, J.