Opinion
F040855
7-30-2003
BARBARA ANN CARTER et al., Plaintiffs and Appellants, v. TOMMY S. SPECHT et al. Defendants and Respondents.
Robert B, Amidon, A Law Corporation, and Robert B. Amidon for Plaintiffs and Appellants. Law Offices of Robert B. Zaro, Stephen L. Ramazzini and Robert B. Zaro for Defendants and Respondents.
Appellants Barbara Ann Carter and Jimmy Carter accepted separate Code of Civil Procedure section 998 offers served by respondents Tommy S. Specht, D.D.S., Jerry J. Woolf, D.D.S., and Southwest Dental Center in appellants action for damages against respondents. The offers included amounts to be paid to each appellant as damages, and also provided that each appellant was to waive his or her respective costs of suit. The offers were silent as to attorney fees. In accord with Code of Civil Procedure section 998, the offers were reduced to judgments in favor of appellants; the judgments provided that each party would bear his, her, or its own costs of suit.
After they each filed a notice of satisfaction of judgment, appellants moved for an award of attorney fees. This appeal is from the trial courts order denying appellants motion for attorney fees.
DISCUSSION
The trial court did not err in denying appellants motion for attorney fees, for two reasons. First, because appellants claim the right to fees based upon the provisions of a statute or statutes, such fees are recoverable as costs and not as a separate item of damages. (Code Civ. Proc., § 1033.5, subd. (a)(10); 7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, § 146, p. 661.) Therefore, appellants agreement to waive their costs of suit operated as a consent to waive the right to collect all sums within the category of recoverable costs, including in this instance attorney fees. (See State of California ex rel. State Lands Co. v. Superior Court (1995) 11 Cal.4th 50, 80-81, 900 P.2d 648 ["costs" includes attorney fees authorized by statute; prohibition against recovery of "costs" includes prohibition against recovery of statutory attorney fees].)
Second, appellants have not established they are entitled to any statutory fee award, and therefore they have not shown that they were prejudiced by the trial courts decision. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 409, p. 461.) Obviously recognizing — but not expressly acknowledging — that relief in actions brought under Business and Professions Code section 17200 is limited to the prohibitive and restitutional and thus does not include attorney fees (Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1179), appellants take the position attorney fees were authorized by several "predicate statutes pursuant to Business and Professions Code § 17200, which permits cumulative remedies." As we understand appellants argument, because the remedies afforded by the unfair competition law (Ch. 5 of Part 2 of Div. 7 of the Bus. & Prof. Code, § 17200 - 17209) are "cumulative to each other and to the remedies or penalties available under all other laws of this state" (Bus. & Prof. Code § 17205), all rights to recover attorney fees found in other statutes which address matters relating to consumer protection apply equally to appellants Business and Professions Code section 17200 cause of action.
The problem with appellants argument is that the relevant allegations of appellants complaint did not state a cause of action under any of the other supposed "predicate" statutes cited by appellants as authorizing an award of attorney fees. Appellants complaint consisted of four causes of action. The first, based on alleged professional dental malpractice, asserted that appellant Barbara Carter suffered personal injuries as a result of nerve damage caused by respondents negligent emplacement of a crown. The second cause of action, based upon an oral contract, asserted that respondents had failed to perform their oral promise to pay all costs of correcting the nerve damage caused by respondents dental malpractice. The third cause of action, based upon a violation of Business and Professions Code section 17200 , alleged that respondents engaged in "some" of the following "unlawful, unfair or deceptive business practices":
"a. Failing to professionally know, understand and properly advise their patients about injection-related nerve damage;
"b. Failing to refer patients such as [appellant Barbara Carter] immediately to specialists who are knowledgeable in injection-related nerve damage, and who are able to describe the known risks to patients;
"c. Failing to discuss at all a resolution of the case with [appellants] during the 90-day tolling period set aside by statute (CCP § 364) for such known policy purposes;
"d. Failing to prescribe injection of steroids for the purpose of attempting to mitigate nerve damage;
"e. Delaying [appellant Barbara Carter] from seeing specialists to conduct exploratory and restorative surgery within a time-frame to assure some potential success;
"f. Failing to read and acknowledge advice from third parties, such as their insurer, regarding the risks of injection-related nerve damage;
"g. Failure to provide requested insurance policies;
"h. Failure to abide by promises to pay all expenses and costs in repairing the damage;
"i. Failing to interview oral surgeons or microsurgeons regarding [appellant Barbara Carters] case, and the need for immediate surgery."
The fourth cause of action, based upon loss of consortium by appellant Jimmy Carter, incorporated all the allegations of the first three causes of action.
The statutes cited by appellants as supporting their claim for fees are these: Civil Code section 1717; Civil Code section 1770, subdivisions (a)(2), (4) and (7); Business and Professions Code section 16750, and Business and Professions Code section 17082.
Appellants also assert that other "consumer statutes permitting the recovery of attorneys fees" may be found "in the foregoing cases" mentioned in appellants brief. Apparently, appellants expect this court to cull the multitude of opinions cited by appellants to attempt to determine what particular "consumer" statutes appellants may have in mind and then independently assess, without any help from appellants, whether any are applicable here. Needless to say, we will not act as associate counsel for appellants and perform services for appellants that are the responsibility of appellate counsel. (Associated Builders & Contractors, Inc. v. San Francisco Airports Comn (1999) 21 Cal.4th 352, 368, 981 P.2d 499 [appellate court may treat as waived any issue which, though raised in the briefs, is not supported by pertinent or cognizable legal argument or proper citation of authority]; Dills v. Redwoods Assocs., Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1 [appellants briefs made only passing reference to certain issues, without argument or authority; the court would "not develop the appellants arguments for them," and therefore declined to reach the inadequately treated issues].
None of these statutes are put in issue by the allegations of the third cause of action of appellants complaint. Civil Code section 1717 deals with clauses in contracts that authorize the award of attorney fees to the prevailing party; there is no allegation in appellants complaint that there ever was any contract between either appellant and any defendant which contained an attorney fees provision. Business and Professions Code section 16750 is a part of Californias antitrust laws, and authorizes any "person who is injured in his or her business or property by reason of" any prohibited combination in restraint of trade by "two or more persons" to sue in an appropriate court; there are no allegations in the complaint that respondents violated the antitrust laws by committing any anti-competitive act within the scope of the statute. Business and Professions Code section 17082 authorizes an award of reasonable attorney fees to a successful plaintiff who brings an action under the Unfair Practices Act (Ch. 5 of Pt. 2 of Div. 7 of the Bus. & Prof. Code). The Unfair Practices Act proscribes a variety of acts in connection with goods and products, including loss leaders ( § 17044), locality discrimination ( § 17040), and secret payments and allowances ( § 17045); no allegation in the complaint describes any such prohibited act. Finally, Civil Code section 1770, subdivision (a)(2), proscribes "Misrepresenting the source, sponsorship, approval, or certification of goods and services," subdivision (a)(4) proscribes "Using deceptive representations or designations of geographic origin in connection with goods or services," and subdivision (a)(7) proscribes "Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another." None of the allegations of appellants third cause of action describe the occurrence of any representation or misrepresentation described in any of the three cited subdivisions of Civil Code section 1770. PAGE CONTAINED FOOTNOTES
Appellants also cite Civil Code section 1780, subdivision (d), but, like Business and Professions Code section 17082, this subdivision does not articulate any substantive prohibited act. The subdivision instead simply authorizes a consumer who suffers any damage as a result of anything declared unlawful by Business and Professions Code section 1770 to bring an action for several forms of relief.
We note also that, to the extent appellants have alleged respondents are the agents, employees or representatives of each other, respondents cannot constitute a "combination in restraint of trade" as a matter of law. (See Roth v. Rhodes (1994) 25 Cal.App.4th 530, 544.)
The result is the same with respect to the allegations of the first and second causes of action of appellants complaint, which are incorporated by reference into the third. The first cause of action alleges only acts of professional dental negligence. The second sets out only those acts associated with the alleged breach of the purported oral contract. In addition, there are general allegations included in the introductory paragraphs of appellants complaint to the effect that respondents conspired with each other and with unnamed Does to "commit unfair, unlawful and deceptive business practices," none of which are described with any more specificity. Obviously, these conclusory allegations are insufficient to put in issue any particular consumer protection law. (Code Civ. Proc. § 425.10; Careau & Co. v. Security Pac. Business Credit, Inc. (1990) 222 Cal. App. 3d 1371, 1390, 272 Cal. Rptr. 387.)
The essence of appellants position is that, by merely alleging respondents violated Business and Professions Code section 17200 in some manner in connection with the individual dental care respondents afforded appellant Barbara Carter, appellants are entitled to recover attorney fees based upon, for example, the statute prohibiting sales of products below cost for the purpose of injuring or destroying competition (see Bus. & Prof. Code, § 17043). The obvious absurdity of this proposition is demonstrated by its mere statement.
DISPOSITION
The order appealed from is affirmed. Respondents shall recover their costs on appeal.
WE CONCUR: Buckley, J., and Gomes, J.