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Flores v. Campbell

California Court of Appeals, Fourth District, Second Division
Feb 28, 2011
No. E048569 (Cal. Ct. App. Feb. 28, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County Nos. RCV063335, RCV071788. Barry L. Plotkin, Judge.

Armando and Mary Flores, in pro. per., for Cross-complainants and Appellants.

Gateway Legal Group, Gregory A. Paiva and Poonam K. Walia for Cross-defendants and Respondents.


OPINION

McKinster, J.

Armando and Mary Flores appeal from a judgment denying them any recovery on their cross-complaint in an action for attorney fees brought against them by their former attorney, Stephen Campbell. Their principal contention is that the trial court erred in finding that their claim for malicious prosecution was unsupported by the evidence because there was no evidence of favorable termination of a prior action brought against them by the cross-defendants. We will affirm the judgment.

PROCEDURAL AND FACTUAL HISTORY

Some of the following facts, which are material to an understanding of the current dispute, are taken from our opinion in Flores v. Haslam (Apr. 22, 2002, E028388 [nonpub. opn.]).

In 1992, Armando Flores and Mary Rivera, now Mary Flores, retained attorney Donald G. Haslam and his law firm, Covington and Crowe, to represent Armando in an action to modify support and custody arrangements for Armando’s child from a prior relationship. The retainer agreement provided that although Mary would be responsible for the fees, Armando was the client. (Flores v. Haslam, supra, E028388 [at p. 3].) After an unfavorable result in the family law action, the Floreses sued Haslam and his firm for breach of contract and negligent representation. (Ibid.) Haslam and the firm cross-complained for unpaid attorney fees. The matter was submitted to binding arbitration, resulting in an award to Haslam and the firm of a total of $56,052.30, consisting of $10,401.70 in damages and $45,650.60 for attorney fees and costs incurred in the arbitrated matter. (Id. [at p. 4].) The trial court affirmed the award and the Floreses appealed. We affirmed the judgment as to Armando but reversed it as to Mary because the arbitrator barred her from participating in the arbitration on the ground that she was not a proper party and dismissed her claims. We agreed that Mary was not a party, based on the retainer agreement, but held that the arbitrator exceeded his authority by imposing an award on a nonparty. (Id. [at pp. 2-3, 10-11].)

We will refer to the appellants jointly as the Floreses and individually by their first names. We do this solely for the purpose of clarity and simplicity and do not imply any disrespect. We will refer to other individuals primarily by their last names.

Stephen Campbell represented the Floreses in the arbitration. In 2002, he sued the Floreses to recover attorney fees and costs allegedly owed for his work in connection with the arbitration. (Campbell v. Flores (Super. Ct. San Bernardino County, 2009, No. RCV063335).) In response, the Floreses filed a complaint against Campbell, alleging breach of contract and professional negligence. (Flores v. Campbell (Super. Ct. San Bernardino County, 2004, No. RCV071788).) RCV071788 was later consolidated with Campbell’s action. The Floreses’ second amended complaint was ultimately dismissed by the trial court after it sustained Campbell’s demurrer without leave to amend, on grounds that the complaint was barred by the statute of limitations. Thereafter, the Floreses filed their cross-complaint in RCV063335. Their second amended cross-complaint, which was the operative pleading at the time of the trial, asserted a cause of action for fraud against Campbell and a cause of action for conspiracy against Campbell and his attorney, Gregory Paiva.

For simplicity, we will hereafter refer to these cases as RCV063335 and RCV071788.

The Floreses appealed that ruling. However, we dismissed the appeal without prejudice because no judgment of dismissal had been filed. (Flores v. Campbell (E035493, dism. by order filed Apr. 16, 2004).)

Paiva, acting as his own attorney, filed a demurrer to the second amended cross-complaint solely on his own behalf; he did not demur on behalf of Campbell. Despite recognizing that Campbell was the sole cross-defendant named in the first cause of action and that the pleading did not purport to state a cause of action for fraud against Paiva, the trial court sustained the demurrer as to the first cause of action as to Paiva only without leave to amend. The court determined that the second cause of action failed to state a cause of action for conspiracy, but that it did state a cause of action for malicious prosecution. Consequently, it overruled the demurrer as to that cause of action.

A general demurrer must be overruled if the pleading states a cause of action on any legal theory, regardless of the title under which the factual basis for relief is stated. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)

The matter proceeded to a bench trial on Campbell’s complaint for attorney fees and the Floreses’ complaint for fraud against Campbell and for malicious prosecution against Campbell and Paiva. At its conclusion, the court ruled in favor of the Floreses on Campbell’s complaint, holding that Campbell’s legal representation of the Floreses in the Haslam arbitration was so deficient that he was not entitled to payment for his services. The court found for the cross-defendants on both causes of action in the Floreses’ cross-complaint.

The Floreses’ principal contention was that Campbell failed to argue to the arbitrator that Haslam and the law firm, who were representing themselves, were not entitled to an award of attorney fees. (Trope v. Katz (1995) 11 Cal.4th 274, 277, 292 [self-representing attorney is not entitled award of attorney fees because he incurred none]; see Flores v. Haslam, supra, E028388 [at pp. 4-6] [conc. opn. of Gaut, J.].) Campbell testified that the superior court had rejected that argument during a hearing on a motion prior to the arbitration. He felt that the court’s ruling precluded him from making the same argument in the arbitration. He also testified that he was not aware of the California Supreme Court decision in Trope v. Katz. The trial court found that Campbell’s substantially “subpar” representation of the Floreses had resulted in significant harm to the Floreses. For that reason, the court held, Campbell was not entitled to payment for his services.

The Floreses filed a timely notice of appeal.

The judgment does not specifically incorporate the order dismissing RCV071788.

LEGAL ANALYSIS

THE FLORESES FAILED TO PROVE AN ESSENTIAL ELEMENT OF MALICIOUS PROSECUTION

As noted above, in ruling on Paiva’s demurrer to the Floreses’ cause of action for conspiracy, the trial court determined that the second amended cross-complaint did not state a cause of action for conspiracy but that it did state a cause of action for malicious prosecution.

The basis for that ruling is unclear. To establish a cause of action for the malicious prosecution of a civil action, a plaintiff must plead and prove that a prior action was commenced by or at the direction of the defendant and was pursued to a legal termination in the plaintiff’s favor, and that the action was brought without probable cause and with malice. (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50; Crowley v. Katleman (1994) 8 Cal.4th 666, 676.) A claim for malicious prosecution may also be based on a showing that the defendant continued to prosecute the prior action after having learned that the claim was not supported by probable cause. (Zamos v. Stroud (2004) 32 Cal.4th 958, 960, 965-970.) The second amended cross-complaint does not allege the favorable termination of any prior proceeding brought by either Campbell or Paiva. Nevertheless, the matter proceeded to trial on that theory.

At trial, Mary informed the court that the malicious prosecution claim pertained to “this action, ” i.e., RCV063335. The Floreses did not adduce any evidence that any prior action brought by the cross-defendants was terminated in favor of the Floreses. Accordingly, the court found the evidence of malicious prosecution insufficient and ruled in favor of the cross-defendants.

On appeal, the Floreses initially state their contention as follows: “The Honorable Judge Kayashima [who ruled on the demurrer to the second amended cross-complaint] clearly stated the cause of action was malicious prosecution not conspiracy. [Record citations.] If the court had erred changing the cause of action from Conspiracy to Malicious Prosecution and the proper elements were not in the Complaint it would create [a] miscarriage of justice to allow the malicious prosecution cause of action to be brought to trial prematurely to create Res Judicata, which would then preclude the Flores from a Malicious Prosecution action at anytime in the future.” Without elaborating on that premise, they proceed to argue instead that the trial court erred by finding that they failed to prove their case. They contend that their malicious prosecution claim could validly be based on Paiva and Campbell’s continuing the current suit for attorney fees without probable cause.

A portion of their argument appears under a separate caption. The caption does not appear to indicate a new contention; rather it appears to be for the purpose of emphasis. Accordingly, we do not address it separately.

The Floreses are correct that a malicious prosecution action may result where, although a prior suit was initiated with probable cause, the plaintiff continued to litigate it after having learned that the action was not supported by probable cause. (Zamos v. Stroud, supra, 32 Cal.4th at pp. 965-970.) However, favorable termination of a prior action remains an element of malicious prosecution. (Id. at pp. 965-966.) Stated another way, a “cause of action for malicious prosecution first accrues at the conclusion of the litigation in favor of the party allegedly prosecuted maliciously. [Citation.]” (Babb v. Superior Court (1971) 3 Cal.3d 841, 846.) Because the claim has not matured until there is an outcome favorable to the defendant, the defendant may not file a cross-complaint for malicious prosecution of a pending complaint. (Id. at pp. 845-846.) Accordingly, the Floreses’ claim of malicious prosecution was premature and could not validly be alleged in the cross-complaint or litigated prior to the favorable termination of RCV063335.

As noted previously, the Floreses contend that by erroneously recasting their cause of action as malicious prosecution, the trial court created a res judicata bar to any future malicious prosecution action based on Campbell’s suit. We express no opinion whether the current judgment bars a subsequent suit for malicious prosecution based on the favorable termination of Campbell’s suit for attorney fees. We do note, however, that any res judicata bar was not created by the trial court’s ruling, erroneous though it was. Rather, any such bar was created by the Floreses’ decision to litigate the malicious prosecution claim. They could simply have dismissed the second cause of action without prejudice rather than taking it to trial on a untenable legal theory.

Res judicata applies only to a final judgment on the merits and on the identical claim. (Morris v. Blank (2001) 94 Cal.App.4th 823, 831.)

IF THE TRIAL COURT ERRED IN DISMISSING THE FLORESES’ SECOND AMENDED COMPLAINT, NO PREJUDICE RESULTED

Prior to filing their cross-complaint in RCV063335, the Floreses filed a separate complaint in RCV071788. The second amended complaint in RCV071788 was dismissed with prejudice following the court’s order sustaining a demurrer without leave to amend. According to the Floreses, the second amended complaint was dismissed upon the court’s conclusion that all causes of action were barred by the statute of limitations. However, the second amended complaint included a cause of action for fraud, as to which the four-year statute of limitations had not yet expired. The Floreses contend that the demurrer should not have been sustained as to that cause of action. They further contend that dismissing the second amended complaint somehow affected their ability to try the same fraud cause of action, which they later alleged in their second amended cross-complaint in RCV063335. After making that assertion, however, they do not explain how the dismissal of the original fraud complaint negatively affected their ability to litigate the identical claim as alleged in their second amended cross-complaint. Instead, they appear to argue that the evidence at trial supported the fraud claim. They do so largely without citing to the record to support their factual contentions and without grounding their argument on any legal authority which would support the argument that the trial court was required to find in their favor. Moreover, despite our sincere efforts, we simply do not understand the Floreses’ argument.

An appellate court is entitled to the meaningful assistance of the appellant in order to address the appellant’s contentions. It is the appellant’s burden to demonstrate both error and prejudice. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610; Paterno v. State of California (1999) 74 Cal.App.4th 68, 105.) In order to meet this burden, the appellant must spell out, comprehensibly, exactly what the error is and how it caused a miscarriage of justice: “An appellate court is not required to examine undeveloped claims, nor to make arguments for parties.” (Paterno v. State of California, supra, at p. 106.) Moreover, the appellant must provide both argument and citation to appropriate authority in support of his or her argument (McComber v. Wells (1999) 72 Cal.App.4th 512, 522), as well as citations to specific pages in the record which support the appellant’s contentions (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 [Fourth Dist., Div. Two]). Appellants have done none of these things with respect to this contention. Accordingly, we need not address it. (Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863, 871.)

We recognize the difficulty which these requirements may pose for a party acting in propria persona. Nevertheless, they apply to appellants acting without counsel. (See McComber v. Wells, supra, 72 Cal.App.4th at pp. 522-523.)

The Floreses’ request for judicial notice, which apparently applies solely to this argument, is denied because the Floreses have neither cited to any specific document which would support their contentions nor explained the relevance of any of the documents to the issue.

DISPOSITION

The judgment is affirmed. The parties are to bear their own costs on appeal.

We concur: Hollenhorst, Acting P.J., King, J.


Summaries of

Flores v. Campbell

California Court of Appeals, Fourth District, Second Division
Feb 28, 2011
No. E048569 (Cal. Ct. App. Feb. 28, 2011)
Case details for

Flores v. Campbell

Case Details

Full title:ARMANDO FLORES et al., Cross-complainants and Appellants, v. STEPHEN…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Feb 28, 2011

Citations

No. E048569 (Cal. Ct. App. Feb. 28, 2011)