Opinion
A120836 A120920
3-3-2009
GERARD CHANG, Plaintiff and Appellant, v. GOLDSTEIN, GELLMAN, MELBOSTAD, GIBSON & HARRIS et al., Defendants and Respondents.
Not to be Published in Official reports
In 2002, William Chang (William) sued his brother, appellant Gerard Chang. The lawsuit concerned a dispute over real property that Chang and William owned as tenants in common. Chang hired respondents Jeffrey Gibson and Goldstein, Gellman, Melbostad, Gibson & Harris (collectively the Firm) to represent him. In June 2003, Gibson prepared a Tenancy-In-Common Ownership Agreement (TIC Agreement) and a mutual release for Chang. The brothers signed the TIC Agreement and mutual release; William dismissed the lawsuit. In 2005, however, William filed two lawsuits against Chang. Both actions alleged, among other things, that Chang breached the TIC Agreement. The trial court entered judgment against Chang in both lawsuits.
We refer to William Chang by his first name for clarity and convenience. (Murphy v. Murphy (2008) 164 Cal.App.4th 376, 383, fn. 2 (Murphy).)
In 2006, Chang filed a complaint alleging numerous causes of action, including legal malpractice, against the Firm. The trial court granted the Firms motion for summary judgment. In 2007, Chang amended the complaint to add respondents Philip R. Soderquist (Soderquist) and Bank of America, N.A., (Bank of America) as defendants. The court sustained Soderquists demurrer without leave to amend and dismissed the complaint as to him. The court sustained Bank of Americas demurrer without leave to amend as to some causes of action and with leave to amend as to others.
Chang appeals from the order granting the Firms motion for summary judgment. He also appeals from the orders sustaining Soderquist and Bank of Americas demurrers. We consolidated the appeals for purposes of briefing, oral argument, and decision. Soderquist moved to dismiss Changs appeal and for sanctions against Chang for pursuing a frivolous appeal. We granted Soderquists motion to dismiss. We now award sanctions against Chang for $450. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 1999, Chang and William purchased a three-unit property on Sanchez Street in San Francisco as tenants in common. Chang owned 70 percent of the property and William owned 30 percent; the brothers agreed to share all benefits and liabilities "based upon their pro-rata share." Chang lived in one of the units and tenants lived in the other two units.
Sometime thereafter, Changs relationship with William began to deteriorate. In 2002, William filed a lawsuit alleging that Chang failed to: (1) account for rents, profits and other revenue generated from the Sanchez Street property; (2) make the tenants billing information available to William; (3) account for operating expenses; and (4) provide information to enable William to determine his share of the rents and other revenue generated from the property.
In January 2003, Chang hired the Firm to represent him. On June 19, 2003, Chang emailed Gibson, stating: "I touched base with William and he and I are close to a resolution. We hope to hammer out the details this weekend and he will then notify his attorney to dismiss the lawsuit without prejudice. [¶] In the interim, please do not engage in any further actions unless we are required to do so." A few days later, Chang emailed Gibson again, this time to notify him that he and William had reached an agreement to resolve the dispute. The email attached a copy of the agreement and stated: "Attached is the draft of the agreement that William and I want to execute. As you advised, Im sending it to you for your review and input to ensure that as you said, there are no `hooks for me. . . . I would greatly appreciate your feedback as soon as possible."
Gibson reviewed the agreement. He prepared a TIC Agreement and a mutual release and sent both documents to Chang. Chang reviewed the TIC Agreement and sent Gibson an email with detailed comments and questions. Gibson discussed the TIC Agreement and the release with Chang on several occasions. Williams attorney, Soderquist, requested certain modifications to the TIC Agreement and release. In late 2003, the brothers signed both documents and William dismissed the lawsuit.
The TIC Agreement contained a default clause which provided in relevant part that a party who "fails or refuses to pay that partys pro rata share of the regular expenses . . . for more than seven (7) days after they are due" is in default. Pursuant to the default clause, a "defaulting partys right to occupy [the property] under this Agreement shall terminate immediately upon default, and the defaulting party shall be subject to Eviction. . . ."
In April 2005, Chang contacted Gibson and told him that he wanted to "get out" of the TIC Agreement. Gibson told Chang that he could not "get out" of the Agreement merely because he wanted to and advised him to get new legal counsel. Shortly thereafter, William filed an unlawful detainer action alleging that Chang breached the TIC Agreement by failing to pay his pro rata share of the mortgage payments on the Sanchez property. The trial court granted Williams motion for summary judgment and awarded him $39,836.55. In July 2005, William filed another lawsuit against Chang alleging claims for breach of contract and an accounting. Following a trial, the court awarded William $ 118,175.04.
Appearing in propria persona, Chang sued the Firm in September 2006, alleging, among other things, that the Firm committed legal malpractice when it represented him in the lawsuit filed by William in 2002. Chang failed to respond to the Firms requests for admission and the Firm moved for an order establishing the admissions pursuant to Code of Civil Procedure section 2033.280. On the day of the hearing on the Firms motion, Chang served his responses to the Firms requests for admission by mail. He provided the following response to each and every request: "Plaintiff Gerard Chang does not admit or deny this claim at this time." He did not verify his responses. Following a hearing, the court granted the Firms motion and ruled that "[t]he truth of those matters specified" in the Firms requests for admissions were "conclusively established against [Chang] for all purposes in this action."
The requests for admissions provided as follows: (1) "Admit that Gerard Chang approved of all documents, including the tenancy in common agreement and settlement agreement, drafted by [the Firm] for Gerard Chang;" (2) "Admit that [the Firm] reviewed with Gerard Chang the details of all documents, including the tenancy in common agreement and settlement agreement, drafted for Gerard Chang;" (3) "Admit that [the Firm] advised Gerard Chang concerning the details of any documents, including the tenancy in common agreement and settlement agreement, drafted for Gerard Chang;" (4) "Admit that all services provided for Gerard Chang by [the Firm] were performed to Gerard Changs satisfaction;" (5) "Admit that [the Firm] did not agree to be present during the discussions between Gerard Chang and William Chang referred to in paragraph 40 of your complaint in this action;" (6) "Admit that Gerard Chang never requested of [the Firm] that it be present during the discussions between Gerard Chang and William Chang referred to in paragraph 40 of your complaint in this action;" (7) "Admit that [the Firm] was not negligent in any regard concerning the provision of legal services to Gerard Chang;" (8) "Admit that [the Firm] did not engage in any form of fraud with regard to its representation of Gerard Chang;" (9) "Admit that Gerard Chang believes [the Firm]s fees for all legal services rendered by [the Firm] were reasonable;" (10) "Admit that Gerard Chang did not suffer emotional distress as a result of [the Firm]s acts or omissions;" (11) "Admit that [the Firm] was under no duty to mitigate any damages alleged in Gerard Changs complaint;" (12) Admit that [the Firm] is not responsible for the loss of any past or future rental income owed to Gerard Chang;" (13) "Admit that [the Firm] did not engage in any tortious activity with regard to Gerard Chang;" (14) "Admit that [the Firm] never intended to cause Gerard Chang any harm;" (15) "Admit that Gerard Chang did not suffer any damages as a result of [the Firm]s acts or omissions;" (16) "Admit that [the Firm] did not breach any fiduciary duty owed to Gerard Chang;" (17) "Admit the [Firm] did not breach any contract between [the Firm] and Gerard Chang;" (18) "Admit that [the Firm] rendered all legal services paid for by Gerard Chang;" and (19) "Admit that [the Firm] discussed with Gerard Chang the details of all documents, including the tenancy in common agreement and settlement agreement, drafted for Gerard Chang."
Unless otherwise noted, all further references are to the Code of Civil Procedure.
In August 2007, the Firm moved for summary judgment. It contended that, "[b]y Order of this court, [Chang] has been deemed to have conclusively admitted that all of his claims are meritless." The Firm attached the requests for admission and the courts order deeming the responses admitted. Gibson submitted a detailed declaration describing the legal services he and his firm provided for Chang and averring that the work he and the Firm performed on the TIC Agreement and mutual release satisfied the requisite standard of care.
In his two-page opposition to the Firms motion, Chang noted that he "dispute[d] many, if not all facts and allegations" and argued that the Firms reliance on his failure to respond to the requests for admissions "constitute[d] a violation of [his] right to Equal Protection" under the federal Constitution. He did not submit a separate statement or any evidence to support his opposition.
In December 2007, the court [Judge Diane Wick] granted the Firms motion for summary judgment, concluding that Chang was "unable to show that [the Firm] violated any duty owed to [him] and no triable issues of fact remain regarding the liability of [the Firm] to [him]." In January 2008, the court entered judgment for the Firm.
In February 2008, the court [Judge Charlotte Woolard] sustained Soderquists demurrer without leave to amend and dismissed the complaint as to Soderquist. The court also sustained Bank of Americas demurrer without leave to amend as to four causes of action and with leave to amend as to the remaining seven causes of action. In March 2008, Chang filed a notice of appeal stating he was appealing "[section] 904.1 et seq. Demurrers for [] Soderquist and Bank of America, N.A."
Soderquist moved to dismiss the appeal and for sanctions in the amount of $450. We dismissed the appeal as to Soderquist. We notified Chang that we were considering imposing sanctions and invited him to file an opposition. (Cal. Rules of Court, rule 8.276(c).) Changs counsel declined to file an opposition. Chang, however, filed an opposition in propia persona in violation of the rule that a party represented by counsel on appeal may not file papers in propia persona. (In re Barnett (2003) 31 Cal.4th 466, 478 & cases cited therein.) The clerk of this court struck the opposition and returned it to Chang.
DISCUSSION
The Court Properly Granted the Firms Motion
to Deem the Admissions Established
Chang seems to suggest that the court erred by granting the Firms motion to deem the admissions established because he filed and served responses to the requests for admission "[o]n the day of, but prior to" the hearing on the Firms motion. He relies on Code of Civil Procedure section 2033.280, which provides in relevant part: "If a party to whom requests for admission are directed fails to serve a timely response . . . (b) The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted. . . . (c) The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220." (§ 2033.280, subds. (b), (c).)
Section 2033.220 provides: "(a) Each answer in a response to requests for admission shall be as complete and straightforward as the information reasonably available to the responding party permits. [¶] (b) Each answer shall: [¶] (1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party. [¶] (2) Deny so much of the matter involved in the request as is untrue. [¶] (3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge. [¶] (c) If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter."
Irrespective of when Chang served his responses, the trial court properly granted the Firms motion because Changs responses were not "in substantial compliance with section 2033." (Allen-Pacific, Ltd. v. Superior Court (1997) 57 Cal.App.4th 1546, 1551 (Allen-Pacific), overruled on other grounds in Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983, fn. 12 (Wilcox); see also Tobin v. Oris (1992) 3 Cal.App.4th 814, 827, disapproved on other grounds in Wilcox, supra, 21 Cal.4th at p. 983, fn. 12.) Chang did not verify his responses to the requests for admission. It is well-settled that "`unsworn responses are tantamount to no responses at all." (Allen-Pacific, supra, at p. 1551, quoting Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636, bracket omitted; see also § 2033.210, subd. (a) ["The party to whom requests for admission have been directed shall respond in writing under oath. . ."].) Moreover, Changs responses were not in substantial compliance with section 2033.220 because they did not admit or deny any of the requests or state that Chang lacked sufficient information or knowledge to enable him to admit the matter.
Accordingly, the trial court did not err in granting the Firms motion to deem the requests admitted. "It is no secret that "[t]he law governing the consequences for failing to respond to requests for admission may be the most unforgiving in civil procedure. . . . [W]oe betide the party who fails to serve responses before the hearing. In that instance the court has no discretion but to grant the admission motion, usually with fatal consequences for the defaulting party. One might call it `two strikes and youre out as applied to civil procedure." (Allen-Pacific, supra, 57 Cal.App.4th at p. 1551, quoting Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 394-396, italics omitted.)
In view of our conclusion that Chang failed to serve responses in substantial compliance with section 2033.220, we need not address Changs argument that while his tardy responses were served on the day of the hearing, they were served "before" the hearing as required by section 2033.280, subdivision (c).
The Court Properly Granted Summary Judgment for the Firm
On a motion for summary judgment, the moving party "bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Once the moving party shows "`"that one or more elements of the cause of action, even if not separately pleaded, cannot be established," the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff "may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action. . . ." [Citations.] [Citation.]" (Village Nurseries v. Greenbaum (2002) 101 Cal.App.4th 26, 35-36, quoting Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.)
Chang contends there were triable issues of material fact regarding "the standard of care [ ]; whether the standard of care was met and wh[e]ther informed consent was obtained to place the default clause in the TIC Agreement." We disagree.
Chang did not submit a separate statement in opposition to the motion for summary judgment and, as a result, he failed to demonstrate the existence of a triable issue of material fact. "In opposing a defendants motion for summary judgment, the plaintiff must submit a separate statement setting forth the specific facts showing that a triable issue of material fact exists. [Citations.] Without a separate statement of undisputed facts with references to supporting evidence in the form of affidavits or declarations, it is impossible for the plaintiff to demonstrate the existence of disputed facts." (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116, disapproved on other grounds in Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 41-42; see also § 437c, subd. (b)(3) ["Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the courts discretion, for granting the motion"].)
As noted above, Gibson submitted a detailed declaration averring that the work that he and the Firm performed for Chang satisfied the standard of care. In his opposition, Chang offered no evidence to contradict Gibsons declaration. Merely stating that he "dispute[d] many, if not all facts and allegations" was not sufficient to create a triable issue of fact. And, as previously discussed, the Firms requests for admission were deemed established. Among other things, Chang was deemed to have admitted: (1) he approved of the TIC Agreement and mutual release; (2) the Firm reviewed the details of all documents, including the TIC Agreement and mutual release, with him; (3) the Firm advised him "concerning the details" of the TIC Agreement and mutual release; and (4) all services provided by the Firm for him "were performed to [his] satisfaction." Finally, he was deemed to have admitted he "did not suffer any damages as a result of [the Firm]s acts or omissions." As a result, the trial court properly granted the Firms motion for summary judgment.
Chang also contends the court erred in granting summary judgment because the requests for admission were "too general, overly broad and essentially calling for [Chang]s legal opinion as to whether in a `legal sense he believed that he `approved the TIC [Agreement and that he] believed that [the Firm] reviewed . . . the details of . . . the TIC [A]greement with him." It is well-settled that "`an appellate 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, and pass it without consideration." [Citation.]" (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546 (Mansell ), quoting In re Marriage of Schroeder (1987) 192 Cal.App.3d 1154, 1164; see also Murphy, supra, 164 Cal.App.4th at p. 406, fn. 15; People v. Dougherty (1982) 138 Cal.App.3d 278, 282.) Because Chang has failed to cite to any relevant authority to support his argument, we decline to consider it.
Chang Has Abandoned His Appeal
from the Order Sustaining the Banks Demurrer
As stated above, Chung appealed from the order sustaining Bank of Americas demurrer. His appeal fails for two reasons. First, "[a] reviewing court has jurisdiction over a direct appeal only when there is (1) an appealable order or (2) an appealable judgment." (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.) "Orders sustaining demurrers are not appealable. [Citations.] An appeal can be taken after entry of such an order only after the court enters an order of dismissal. [Citation.]" (Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1695.) Here, the court did not enter an order of dismissal as to Bank of America. Accordingly, we have no statutory authority to entertain Chungs appeal of the order sustaining Bank of Americas demurrer.
Even if we did have jurisdiction to consider Changs appeal, we would conclude he has abandoned it. "A `reviewing court has inherent power, on motion or its own motion, to dismiss an appeal which it cannot or should not hear and determine. [Citation.] An appealed-from judgment or order is presumed correct. [Citation.] Hence, the appellant must make a challenge. In so doing, he must raise claims of reversible error or other defect [citation], and `present argument and authority on each point made. [Citations.] If he does not, he may, in the courts discretion, be deemed to have abandoned his appeal. [Citation.] In that event, it may order dismissal. [Citation.] Such a result is appropriate here. With no error or other defect claimed against the orders appealed from, [we are] presented with no reason to proceed to the merits of any unraised `points—and, a fortiori, no reason to reverse or even modify the orders in question. [Citation]." (In re Sade C. (1996) 13 Cal.4th 952, 994, fn. omitted.)
Soderquist is Entitled to Sanctions in the Amount of $450
In December 2008, Soderquist moved to dismiss the appeal, contending that Chang failed to assert a basis to reverse the courts order sustaining Soderquists demurrer without leave to amend. He also moved for sanctions in the amount of $450 on the grounds that the appeal was frivolous. In January 2009, we dismissed the appeal as to Soderquist and advised Chang we were considering awarding sanctions against him. (Cal. Rules of Court, rule 8.276(c).)
In his motion for sanctions, Soderquist requested an award of $450. Rule 8.276(a) authorizes this court to impose sanctions on a party for, among other things, "[t]aking a frivolous appeal or appealing solely to cause delay." (Cal. Rules of Court, rule 8.276(a)(1), (4).) "We impose a penalty for a frivolous appeal for two basic reasons: to discourage further frivolous appeals, and to compensate for the loss that results from the delay. [Citations.]." (Pierotti v. Torian (2000) 81 Cal.App.4th 17, 33.) "Among the specific factors we may consider in determining the appropriate amount of sanctions are the amount of [Soderquists] attorney fees on appeal; the amount of the judgment against [Chang]; the degree of objective frivolousness and delay; and the need for discouragement of like conduct in the future. [Citation.]" (Id. at pp. 33-34.)
Soderquists attorney filed a declaration averring that he incurred $450 to respond to Changs appeal. Thus, the requested sanctions approximate the amount of Soderquists attorney fees on appeal. The frivolity of this appeal also weighs in favor of awarding sanctions in the amount of $450. Chang refused—without reason—to dismiss Soderquist from the appeal, despite having filed an opening brief which did not mention Soderquist and which raised no claims of reversible error or other defect regarding the sustaining of the demurrer.
DISPOSITION
The judgment in favor of the Firm is affirmed. Soderquist is awarded sanctions of $450 in addition to his costs on appeal. The Firm and Bank of America are awarded their costs on appeal.
We concur:
Simons, J.
Stevens, J.