Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC 320743, Mark V. Mooney, Judge.
Robert J. Rosati, for Plaintiffs and Appellants Canterbury Women’s Health Care, Inc., Cynthia Bergmann and Marshall Noel.
Robie & Matthai, Edith R. Matthai, Kyle Kveton and Steven S. Fleischman for Defendants and Respondents Robert C. Rosen and Rosen & Associates, P.C.
Greines, Martin, Stein & Richland, Robert A. Olson and Alana B. Hoffman for Los Angeles County Bar Association as Amicus Curiae on behalf of Defendants and Respondents Robert C. Rosen and Rosen & Associates, P.C.
ROTHSCHILD, J.
This appeal arises from a legal malpractice action concerning the handling of a previous legal malpractice action. Cynthia Bergmann, Marshall Noel, and Canterbury Women’s Health Care, Inc. (Canterbury) retained Fred Rucker to represent them in malpractice actions against their former attorneys. Bergmann, Noel, and Canterbury (collectively appellants) lost one of those suits, and they then filed suit both against Rucker and against Rosen & Associates, P.C. and Robert Rosen (collectively Rosen), who had referred them to Rucker. This appeal concerns only the summary judgment entered in favor of Rosen; the action remains pending in the trial court with respect to Rucker. We affirm.
BACKGROUND
Bergmann and Noel are physicians. Before 1995, they lived in Fresno and operated their medical practice, Canterbury, there. In 1995, Bergmann and Noel entered into employment contracts with Holston Medical Group (HMG), which is located in Tennessee. Noel moved to Tennessee to begin work, while Bergmann remained in Fresno to sell Canterbury and the family home. Some sort of dispute quickly erupted, however, and Noel terminated his contract with HMG. Bergmann never sold Canterbury or the home, never moved to Tennessee, and never began work for HMG under her contract.
Appellants retained Fresno attorneys Scott Quinlan and Walter Johnson to represent them in a lawsuit filed in superior court in California against HMG. HMG filed a counterclaim for breach of contract and sought to recover attorneys’ fees. The action was removed to federal court and transferred to Tennessee. Quinlan then referred appellants to Tennessee attorney John Rogers, whom appellants retained to represent them in federal court in Tennessee. The case was tried to a jury, which returned a defense verdict on the complaint and awarded HMG $95,489.07 in damages against Noel and $473,668.51 in contractual attorneys’ fees and costs against appellants, jointly and severally, on HMG’s counterclaim.
Appellants next retained Thomas J. Anton & Associates (Anton) of Tennessee to represent them in two legal malpractice actions, one against Rogers and one against Quinlan, both filed in federal court in Tennessee. Appellants settled their claims against Quinlan, and those claims are not the subject of the present action.
In the spring of 2002, a dispute arose between appellants and Anton concerning fees and Anton’s handling of the malpractice litigation. On June 17, 2002, appellants contacted Rosen in order “to determine whether he would be willing to take over the handling of the pending lawsuits as well as to assist in resolving the Anton fee dispute.”
Rosen’s declaration states that he “informed plaintiffs that [he] would not agree to represent them in the underlying Quinlan and Rogers legal malpractice cases[,]” and that he also “declined to represent plaintiffs in the legal fee dispute against their then-current attorney Anton.” In her deposition, Bergmann testified that Rosen said “he would not be taking the case personally because he didn’t have time to do it[.]” Similarly, Noel testified that Rosen said “he would not be the lawyer” in the action against Rogers.
Bergmann also testified, however, that Rosen agreed to “be available for consultation if they need anything.” Noel likewise testified that Rosen “said he would monitor the case—the cases.” Noel further explained that the agreement to “monitor” meant that Rosen “would be available . . . on an as-needed basis, to make sure things were going well.” There is no evidence that either Rucker or appellants ever sought to consult with Rosen concerning the Rogers malpractice action.
In late June 2002, Rosen introduced appellants to attorney Fred Rucker, with whom Rosen had a prior professional relationship. Rucker had represented an opposing party in previous litigation and had successfully represented Rosen in a dispute, and Rosen had previously referred two legal malpractice cases to Rucker, who successfully handled them. Appellants independently confirmed that Rucker was a member in good standing of the California bar.
On July 12, 2002, appellants entered into a written retainer agreement with Rucker to represent them in the Quinlan and Rogers malpractice cases. The agreement provided that Rucker had agreed to pay Rosen “a sum equal to twenty percent of the fee to be received by [Rucker] in this matter. These fees are to be paid as consideration for [Rosen] referring the Actions to [Rucker] and for Rosen’s agreement to provide periodic consultation and advice to [Rucker] on the matter on an ‘as needed’ basis, although Rosen will not be counsel of record in any of the actions.” Rucker drafted the retainer agreement. Rosen was not a signatory to the agreement and did not receive a copy of the agreement until October 2003, and there is no evidence that Rosen was previously aware of or had any input concerning the “periodic consultation and advice” term of the agreement. Again, there is no evidence that either Rucker or appellants ever sought Rosen’s consultation or advice concerning the Rogers malpractice action.
In August 2002, Rucker substituted in as appellants’ attorney of record in the Rogers malpractice action. He prepared an amended complaint and designation of expert witnesses and engaged in some discovery. He also prepared an opposition to a motion for summary judgment filed by Rogers Rosen was never provided with any information concerning the status or progress of the case.
In support of appellants’ opposition to Rogers’ motion for summary judgment, Rucker filed unsigned declarations by Bergmann and Noel and a declaration by an undesignated expert. Rogers successfully moved to strike the declarations, and the trial court granted summary judgment on the ground that appellants’ opposition was not supported by any admissible evidence.
On August 27, 2004, appellants filed suit against Rosen, Rucker, and one of Rucker’s employees, alleging claims for legal malpractice, breach of fiduciary duty, fraud and deceit, negligent misrepresentation, and negligent referral. In support of the fraud claim, appellants alleged that when Rosen referred them to Rucker, Rosen was or should have been aware that Rucker had a history of violating his duties to clients, and that Rosen misrepresented that fact to appellants.
Rosen moved for summary judgment. The trial court granted the motion on the following grounds: (1) The malpractice and breach of fiduciary duty claims failed as a matter of law because Rosen had no duty to investigate Rucker beyond determining that he was licensed to practice law, Rosen did not breach any duties with respect to “monitoring” on an “as needed” basis because no one consulted him or sought his advice, and once Rucker took appellants’ case Rosen was not appellants’ attorney; (2) the fraud and negligent misrepresentation claims failed as a matter of law because they were based on statements of opinion rather than actionable statements of fact, there was no evidence that at the time of the referral Rosen had reason to believe that his statements about Rucker’s competence were false, and there was no evidence of detrimental reliance on Rosen’s alleged promise that he would monitor the Rogers litigation; and (3) the negligent referral claim failed as a matter of law because no such cause of action exists under California law. Appellants timely appealed.
STANDARD OF REVIEW
We review the trial court’s ruling on a motion for summary judgment de novo. (Buss v. Superior Court (1997) 16 Cal.4th 35, 60.)
DISCUSSION
The argument section of appellants’ opening brief is replete with statements concerning the facts and the evidence, but it contains only a handful of references to the record on appeal. “[A]ny reference to a matter in the record” must be supported by a proper citation to the record (Cal. Rules of Court, rule 8.204(a)(1)(C)), and we “need not consider” such matters if no such citation is given (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 & fn. 16). We therefore will limit our discussion to the arguments in appellants’ opening brief that appellants attempt to support by reference to the record.
First, appellants argue that Bergmann’s deposition testimony creates a disputed issue of fact “as to whether Rosen knew at the time of the referral” about a previous case in which Rucker allegedly committed misconduct, which was allegedly reported in a “60 Minutes” television program. We disagree. The cited portion of Bergmann’s deposition testimony does say that Rosen told Bergmann that “he knew about that case[,]” but that discussion took place at a meeting between Bergmann and Rosen in October 2003, more than one year after Rosen referred appellants to Rucker. The testimony thus does not show that Rosen knew about the previous case at the time of the referral. It therefore does not support appellants’ contention that, at the time of the referral, Rosen knew or should have know about Rucker’s alleged prior misconduct.
Appellants also cite two published opinions that, they argue, describe misconduct by Rucker. In the first, Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, Rucker apparently committed some procedural missteps in attempting to remedy an error committed by his client’s previous lawyer, leading the trial court to dismiss his client’s complaint with prejudice. The dismissal was reversed on appeal as an abuse of discretion (Vaccaro v. Kaiman, supra, 63 Cal.App.4th at pp. 762-766), so Rucker’s conduct did not ultimately prejudice his client. The second case, S.E.C. v. McNulty (2d Cir. 1998) 137 F.3d 732, was an appeal from a decision of the United States District Court for the Southern District of New York. Appellants cite no evidence that the “Fred Rucker” referred to in that opinion is the same Fred Rucker who is a defendant in this lawsuit; they do not even provide evidence that Rucker was ever admitted to practice law in New York. Moreover, the record contains evidence that Rosen was not aware of either of those cases. Appellants cite no evidence to the contrary, and they cite no authority for the proposition that he should have been aware of them.
Second, appellants argue that Rosen had the right to control the Rogers malpractice litigation, and that such control supports appellants’ theory that Rosen and Rucker were joint venturers. (See Ramirez v. Long Beach Unified School Dist. (2002) 105 Cal.App.4th 182, 193 [a joint venture “requires an agreement under which the parties have (1) a joint interest in a common business, (2) an understanding that profits and losses will be shared, and (3) a right to joint control”].) In support of that argument, appellants cite the referral fee provision of Rucker’s retainer agreement, which stated that Rosen would “provide periodic consultation and advice to [Rucker] on the matter on an ‘as needed’ basis[.]” That provision of the fee agreement does not, however, show that Rosen had any right to control anything—he was to provide only “consultation and advice,” and only “as needed.” The retainer agreement thus left Rucker free to reject Rosen’s advice, or never to ask for it at all. We conclude that the cited evidence provides no support for appellants’ contention that Rosen had the right to control the Rogers malpractice litigation.
Third, appellants attempt to support their breach of fiduciary duty claim by citing Rosen’s and Rucker’s statements, in their declarations, concerning their relationship prior to the referral that is at issue in this case. The declarations state that (1) Rosen and Rucker first met when they represented parties on opposing sides of a previous lawsuit, (2) Rosen later referred two legal malpractice cases to Rucker, which Rucker handled to the clients’ satisfaction, (3) Rucker once represented Rosen himself, and (4) Rucker once retained Rosen as an expert witness in a case Rucker was handling. Appellants argue that this evidence supports their breach of fiduciary duty claim because it raises the possibility that “Rosen recommend[ed] Rucker and arrange[d] for him to meet Bergmann and Noel, not because he believed Rucker to be qualified and competent, but because he knew that Rucker would pay him a substantial portion of the fee, apparently for doing nothing[.]” The cited evidence does not, however, indicate that Rosen received a fee for the prior referrals, so the evidence has no tendency to show that the desire for a fee motivated Rosen in this case. In any event, a referral fee is lawful so long as the client consents and the total fee ultimately paid by the client is not increased by the referral fee and is not unconscionable. (Rules Prof. Conduct, rule 2-200(A), (B).) Assuming Rosen did receive lawful referral fees from Rucker in those earlier cases, that would not create a disputed issue of material fact as to whether Rosen breached his fiduciary duties to appellants when he referred them to Rucker—the receipt of a lawful fee, and the desire for another, do not constitute a breach of fiduciary duty.
Fourth, appellants argue that the trial court abused its discretion when it excluded the declaration of appellants’ expert on the ground that it constituted improper legal opinion. The trial court sustained numerous objections to the declaration, however, including relevance and lack of foundation. Because appellants do not address those other objections, their challenge to the exclusion of the declaration fails. Moreover, appellants assert that certain issues—“(1) whether Rosen represented Canterbury and for how long; (2) whether Rosen effectively limited the scope of his representation; and (3) whether Rosen had a conflict of interest and breached fiduciary duties to Canterbury”—are factual issues, on which expert opinion should be admissible, but appellants cite no authority for the proposition that those are factual issues. “We need not consider an argument for which no authority is furnished.” (Dabney v. Dabney (2002) 104 Cal.App.4th 379, 384.)
Appellants’ remaining references to the record concern only (1) the trial court’s rulings, (2) the arguments that Rosen advanced in the trial court, and (3) the allegations in the complaint. Because none of those references are to evidence, none of them can show that appellants introduced sufficient evidence to create disputed issues of material fact. We therefore affirm the judgment in favor of Rosen.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
We concur: MALLANO, Acting P. J., VOGEL, J.