Opinion
A149365
04-05-2019
RASH B. GHOSH, Plaintiff, Cross-Defendant and Appellant, v. PAUL J. STEINER, Defendant, Cross-Complainant, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. CGC-14-539586)
Rash B. Ghosh appeals the trial court's order granting summary judgment in favor of attorney Paul J. Steiner on Ghosh's legal malpractice complaint, and Ghosh also appeals the trial court's entry of judgment in favor of Steiner after a bench trial on Steiner's cross-complaint for unpaid legal fees. We affirm.
Steiner filed two respondent's briefs, one drafted by a law firm addressing the grant of summary judgment, and one drafted by Steiner addressing the decision on Steiner's cross-claims. California Rules of Court, rule 8.200(a)(2) provides that "[e]ach respondent must serve and file a respondent's brief," and there is only one respondent in this case. Rule 8.200(a)(4) provides that "[n]o other brief may be filed except with the permission of the presiding justice . . . ." Here, Steiner filed a substitution of attorney stating he would represent himself as the "Cross Complainant and Respondent on Cross-Complaint only," but he did not request permission to file two briefs. Nonetheless, in his reply brief, Ghosh does not object. In addition, the two respondent's briefs address distinct issues, and their combined word count does not exceed 14,000. (Cal. Rules of Court, rule 8.204(c)(1).)
FACTUAL AND PROCEDURAL HISTORY
On June 2, 2014, Ghosh, acting in propria persona, filed a complaint for legal malpractice against Steiner. Ghosh's complaint asserted a single cause of action based on Steiner's representation of him in three matters, referred to by Ghosh as the receivership case, the discrimination case, and the wrongful arrest case. Steiner answered the complaint, and filed a cross-complaint against Ghosh, asserting causes of action for breach of contract, quantum meruit, and open book account, relating to unpaid legal fees. Ghosh answered the cross-complaint.
On October 7, 2015, Steiner moved for summary judgment, arguing Ghosh could not establish causation, or, in other words, he could not show that but for Steiner's alleged errors, Ghosh would have obtained a more favorable result in the cases. On December 28, 2015, the court granted the motion.
In June 2016, the court conducted a bench trial on Steiner's cross-complaint for unpaid legal fees. The court issued a tentative decision, finding Steiner could not prevail on his breach of contract claim, but finding in favor of Steiner on his causes of action for quantum meruit and account stated. The court found the total "amount due to Steiner . . . is $48,197.06, inclusive of unpaid legal fees and costs in the amount of $40,638.24; prejudgment interest at 10% of $4,063.82, and unpaid sanctions in the amount of $3,495.00."
Ghosh did not challenge the tentative decision so it became the court's statement of decision. Ghosh filed a notice of appeal challenging the judgment against him.
DISCUSSION
I.
The Court Did Not Err by Granting the Motion for Summary Judgment
A summary judgment motion "shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment meets its burden of showing no triable issue by showing one or more elements of the cause of action cannot be established or by showing a complete defense to the cause of action. (§ 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) The burden then shifts to the plaintiff to show that a triable issue of material fact exists. (§ 437c, subd. (p)(2).) "The plaintiff . . . shall not rely upon the allegations . . . of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists . . . ." (Ibid.) We review a decision on a summary judgment motion de novo, viewing the evidence in the light most favorable to the nonmoving party. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
All undesignated statutory references are to the Code of Civil Procedure.
To prevail on a legal malpractice claim, the plaintiff must prove four elements: "(1) the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the breach and the resulting injury; and (4) actual loss or damage resulting from the attorney's negligence." (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199.) "[T]he plaintiff must establish that but for the alleged negligence of the defendant attorney, the plaintiff would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred." (Viner v. Sweet (2003) 30 Cal.4th 1232, 1241.) "Because causation is a question of fact for the jury, it ordinarily cannot be resolved on summary judgment. [Citation.] In legal malpractice claims, the absence of causation may be decided on summary judgment 'only if, under undisputed facts, there is no room for a reasonable difference of opinion.' [Citation.]" (Namikas v. Miller (2014) 225 Cal.App.4th 1574, 1583.)
A. Steiner Met His Initial Burden of Showing Ghosh Could Not Establish Causation
Assuming without deciding that Steiner breached a duty, we consider whether Steiner met his initial burden of showing there was no evidence his conduct caused Ghosh's losses. Ghosh alleged Steiner's conduct caused him harm in three ways. First, in the receivership matter, Ghosh alleged Steiner "failed to file an opening brief in plaintiff's appeal in Ghosh v. City of Berkeley, Court of Appeal No. A135893, which resulted in the appeal being dismissed." Second, in the discrimination case, Ghosh alleged Steiner "did not give plaintiff the file for . . . Ghosh v. City of Berkeley, Court of Appeal No. A133425, so plaintiff could not properly prepare a petition for review to the California Supreme Court, which resulted in the petition being denied." Third, Ghosh alleged Steiner "did not file a governmental tort claim with the City of Berkeley for plaintiff's claim for wrongful arrest, . . . which resulted in the expiration of the time to file such a claim." Ghosh alleged Steiner's "wrongful acts and omissions resulted in plaintiff's loss of meritorious claims against others and resulted in the loss of plaintiff's property and moneys."
In support of his motion for summary judgment, Steiner asserted that Ghosh's discovery responses were devoid of evidence—direct, circumstantial, or inferential—to prove Steiner's failure caused Ghosh's damages. In discovery responses, Ghosh complained that, in the receivership matter, Steiner filed a dismissal without Ghosh's knowledge. Ghosh also responded that "[d]espite stating that he [Steiner] would file my wrongful arrest and property loss claims, he did not do so. As a result, I lost the opportunity to make my wrongful arrest and property loss claims because both were barred by the statute of limitations. My properties were then sold by the city [on] June 12, 2012, which I could not challenge. From July 2012 onward, I lost my opportunity to earn monthly rent on these properties."
In amended responses, Ghosh stated that, in the receivership case, "Mr. Steiner signed a stipulation without my permission and later dismissed the appeal without my permission. [¶] [In the discrimination case,] Mr. Steiner did not interview me, or allow me to meet with his assistant so that he could get adequate facts of the case to properly prosecute it. [¶] [In the wrongful arrest case,] Mr. Steiner failed to file a timely claim with the City of Berkeley, despite many requests by me. He always wanted to postpone the filing."
Ghosh's discovery responses fail to establish the results in these cases would have been "more favorable" to Ghosh if Steiner had filed an opening brief in the receivership matter, if he had filed a government tort claim against the City of Berkeley relating to Ghosh's arrest, and they also provide no reasonable basis for concluding Steiner's failure to return documents to Ghosh caused the California Supreme Court to deny his petition for review in the discrimination case. (Viner v. Sweet, supra, 30 Cal.4th at p. 1242 ["the crucial causation inquiry is what would have happened if the defendant attorney had not been negligent."].) Accordingly, Steiner met his initial burden of showing Ghosh could not establish that Steiner's conduct caused Ghosh's losses. (§ 437c, subd. (p)(2).)
B. Ghosh Failed to Create a Triable Issue as to Whether He Would Have Achieved More Favorable Results
In opposition to the motion, Ghosh and two attorneys submitted declarations. Viewing this evidence in the light most favorable to Ghosh, it fails to create triable issues of material fact as to whether Steiner caused Ghosh to lose meritorious claims, property or money.
Ghosh filed papers in opposition to the summary judgment motion on December 7, 2015, including a declaration by Ghosh and an attorney named James K. O'Gallagher. Ghosh filed additional papers in opposition to the motion on December 15, 2015, including a more detailed declaration by Ghosh, and a declaration by attorney Michael M. Sims.
First, with regard to the receivership case, Ghosh averred the trial court ordered that three of his buildings were to be sold, and the trial court did not return $160,000 Ghosh deposited with the court for code violation repairs, plus additional permit fees. He stated that Steiner dismissed the appeal without Ghosh's permission. Ghosh argued there were "good grounds to appeal the court's taking my property and . . . deposit," and that "[a]n appellate court that followed the law would have reversed the trial court's orders." Similarly, attorney James O'Gallagher opined that the receivership matter was "worthy of an appellate brief," and that Steiner committed an ethical violation and a breach of duty by dismissing the case without Ghosh's consent.
Second, in the discrimination case, Ghosh stated the Court of Appeal affirmed a judgment against him. Ghosh asked Steiner for his file so that he "could file a petition for review and pursue the appeal further, but [Steiner] would not give me my file."
Third, in the wrongful arrest case, Ghosh averred the police did not have a warrant or probable cause for his arrest "on May 16, 2011 for child endangerment (relating to a child of my tenant), tampering with electrical line, and stealing electricity." Ghosh stated he filed a claim against the City of Berkeley in January 2013, but was informed it was late, and Steiner told Ghosh he would file a civil rights suit against the City of Berkeley, but he never did.
Steiner objected to these statements on numerous grounds. The court did not rule on Steiner's evidentiary objections, but nonetheless found Ghosh's evidence did not show he "would have received a better result in his three claims against the City of Berkeley." On appeal, Ghosh argues that whether the evidence "could support a better outcome" is "a matter of interpretation." He argues his testimony that he lost $160,000 is "evidence of a loss that he could try to recover for the possibility of a better outcome."
We are not persuaded. Arguing it is "possible" he could have recovered money in an appeal of the receivership case does not meet Ghosh's burden of showing he would have achieved this result. (Barnard v. Langer (2003) 109 Cal.App.4th 1453, 1461 ["It is not enough for [a plaintiff] to simply claim . . . that it was possible to obtain . . . a better result . . . ."].) Based on the statements in the declarations, we cannot reasonably infer Ghosh would have recovered money or property in an appeal of the receivership matter. With regard to the discrimination case, we cannot conclude the California Supreme Court would have granted Ghosh's petition for review if Steiner had returned his file. Likewise, based on Ghosh's statements regarding his wrongful arrest, we cannot reasonably infer he had a viable government tort claim or civil rights lawsuit against the City of Berkeley. We discern no error in the court's grant of summary judgment against Ghosh. (Namikas v. Miller, supra, 225 Cal.App.4th at pp. 1578, 1584 [affirming grant of summary judgment in legal malpractice case; defendant "shift[ed] the burden to [plaintiff] to produce admissible evidence demonstrating a triable issue of fact," but plaintiff "failed to do so."]; Marshak v. Ballesteros (1999) 72 Cal.App.4th 1514, 1518 [affirming grant of summary judgment and noting that in a legal malpractice action, "Plaintiff must prove what that better outcome would have been."].)
C. Ghosh's Remaining Arguments Regarding the Summary Judgment Proceedings Have No Merit
Ghosh argues his malpractice action was not limited to a claim against Steiner for negligence, and the court erred by "dismissing" his "implicit" claims for professional negligence, breach of contract, breach of fiduciary duty, and violation of professional ethics.
We are not persuaded. The pleadings " 'set the boundaries of the issues to be resolved at summary judgment.' " (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250.) Ghosh filed a complaint asserting a single cause of action for legal malpractice. The court was not required to consider Ghosh's other legal theories.
Next, citing section 437c, subdivision (h), Ghosh contends the court should have granted his request for a continuance. This argument has no merit. A continuance " ' "is not mandatory . . . when the submitted affidavit fails to make the necessary showing . . . ." ' " (Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 532.) " 'Code of Civil Procedure section 437c, subdivision (h) requires more than a simple recital that "facts essential to justify opposition may exist." ' " (Id. at pp. 532-533.) Here, Ghosh requested a continuance to depose Steiner, but he failed to explain what the deposition would have revealed, or why that information was essential to opposing the motion. Therefore, Ghosh failed to make the necessary showing to require a continuance. (Johnson, supra, 205 Cal.App.4th at p. 533.) Moreover, a lack of diligence in conducting discovery provides reasonable grounds for denying a request for a continuance. (Ibid.) Even though the motion for summary judgment was filed over a year after Ghosh's complaint, Ghosh never noticed Steiner's deposition.
Section 437c, subdivision (h) provides, in relevant part: "If it appears from the affidavits submitted in opposition to a motion for summary judgment . . . that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just."
Next, Ghosh argues the court erred by failing to rule on his request for leave to amend the complaint to assert legal theories of professional negligence, breach of written contract, breach of fiduciary duty, and violation of professional ethics. For the most part, Ghosh's account of the facts underpinning these legal theories is the same or similar to his account of the facts undergirding his claim for legal malpractice. Accordingly, for the reasons explained ante, Ghosh would have been unable to prove that Steiner's misconduct was the cause of his losses, so it would have been futile for the court to permit Ghosh to amend his complaint to assert these theories. (Thompson v. Halvonik (1995) 36 Cal.App.4th 657, 664 [trial court correctly granted summary judgment on a cause of action for legal malpractice, so no prejudicial error in sustaining demurrer to other causes of action based on the same conduct].) Moreover, unwarranted delay in seeking leave to amend is a valid reason for denying the request. (Record v. Reason (1999) 73 Cal.App.4th 472, 486-487.)
Ghosh also argues Steiner violated professional duties by failing to sign their contract and by failing to provide Ghosh with a copy signed by both attorney and client. But even if Steiner omitted to do so, Ghosh cannot argue he was prejudiced by Steiner's omissions: the court permitted Ghosh to void the contract, and granted judgment against Steiner on his cross-claim for breach of contract.
II.
The Court Did Not Err by Awarding Steiner His Unpaid Legal Fees
After granting Steiner's motion for summary judgment, the court held a bench trial on Steiner's cross-complaint for unpaid legal fees, and issued a statement of decision awarding Steiner over $40,000. On appeal, Ghosh argues the court should have treated his fee agreement with Steiner as a contingent fee agreement. Ghosh implies the court got it wrong when it found Steiner did not agree to a contingent fee arrangement, and when it found the agreement was that Steiner would be paid on an hourly basis.
We reject Ghosh's argument. "In reviewing a judgment based upon a statement of decision following a bench trial," "[w]e apply a substantial evidence standard of review to the trial court's findings of fact. [Citation.] Under this deferential standard of review, findings of fact are liberally construed to support the judgment and we consider the evidence in the light most favorable to the prevailing party, drawing all reasonable inferences in support of the findings." (Thompson v. Asimos (2016) 6 Cal.App.5th 970, 981.) If an appellant challenges the sufficiency of the evidence, he or she is required to set out in his opening brief all of the evidence on that point, and if he or she fails to do so, we may treat the issue as waived. (In re Marriage of Fink (1979) 25 Cal.3d 877, 887; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)
Here, when discussing his fee agreement with Steiner, Ghosh focuses on his own testimony, he fails to discuss Steiner's testimony in any detail, and even for the facts he does discuss, he often fails to cite to the record. The court found the parties agreed Steiner would be paid by the hour. By failing to set out all of the evidence, Ghosh has forfeited his contention that this finding was not supported by substantial evidence. (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738 ["Where a party presents only facts and inferences favorable to his or her position, 'the contention that the findings are not supported by substantial evidence may be deemed waived.' "].)
Next, Ghosh argues Steiner was not entitled to a quantum meruit recovery because it should be based upon the "benefit" received by the client, and Ghosh contends he "received no benefits whatsoever from the work which may have been done by Mr. Steiner." But the court found Steiner filed an appellate brief on behalf of Ghosh in the discrimination case, and the court also found that Steiner provided a benefit when he advised Ghosh not to proceed with an appeal that could be deemed frivolous. In the absence of a showing to the contrary, we presume this ruling was correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
For similar reasons, we reject Ghosh's argument the court erred in awarding Steiner money under a theory of account stated. According to the court, Steiner "produced unimpeached testimony and documents revealing" Ghosh owed him over $40,000 in unpaid legal fees. On appeal, Ghosh fails to discuss this evidence.
DISPOSITION
We affirm. Steiner is entitled to costs on appeal. (Cal. Rules of Court, rule 8.278, subd. (a).)
/s/_________
Jones, P.J. WE CONCUR: /s/_________
Simons, J. /s/_________
Needham, J.