Opinion
B163782.
10-30-2003
JOSEPH R. GIANNINI et al., Cross-complainants and Appellants, v. KENJI TAGUCHI, Cross-Defendant and Respondent.
Joseph R. Giannini, in pro. per., and Tamela J. Murphy, in pro. per., for Cross-complainants and Appellants. Law Offices of Gene W. Choe and Gene W. Choe for Cross-defendant and Respondent.
This appeal arises out of orders setting aside a default and sustaining demurrers without leave to amend. We affirm.
FACTS
A.
In 1998, Joseph R. Giannini, a CPA, former IRS agent, and lawyer (not licensed in California) was retained by an intermediary for Kenji Taguchi to perform accounting services for Taguchis corporation. After Giannini began his accounting work, the intermediary introduced Giannini to Taguchi, and Taguchi asked Giannini to represent him in a bad faith action against Taguchis insurer. Giannini declined.
In January 1999, Taguchi retained the law firm of Feldman & Rothstein to file two lawsuits. The first, a bad faith action against Taguchis insurer, was settled in August. Taguchi disputed the amount of the lawyers fee, and part of the settlement fund was placed in an escrow account. In October, Taguchi retained Giannini to negotiate the fee dispute with Feldman & Rothstein.
In July 2001, Taguchi (represented by Gene W. Choe) sued Feldman & Rothstein based on the same fee dispute. In June 2002, that case was resolved by a defense motion for summary judgment.
The second lawsuit, a medical malpractice action arising out of the same accident underlying the bad faith case, was filed in early 1999, but Feldman & Rothstein (with the trial courts permission) withdrew as the attorneys of record in September, leaving Taguchi in propria persona. In November, Taguchi had the file in the medical malpractice case delivered to Giannini, and Taguchi asked Giannini and another lawyer, Tamela J. Murphy, to substitute in as his lawyers. They declined and, two days later, returned the file to Taguchi, explaining that they would not represent him because he was a convicted felon who had been expelled from the United States and could not appear at trial (and advising him that there were outstanding discovery requests in the medical malpractice case). Taguchi thereafter failed to prosecute the action and it was dismissed in January 2000.
B.
In June 2001, Taguchi (represented by Gene Choe) sued Giannini and Murphy (who is included in our subsequent references to Giannini) for legal malpractice, alleging that, but for Gianninis "incorrect advice," Taguchi would have prevailed in the medical malpractice action. Giannini demurred and the complaint was ultimately dismissed, but Giannini also cross-complained against Taguchi (for fraud and RICO violations) and removed the case to federal court. The case was remanded back to the superior court, and Taguchis default was entered in October. In December, Taguchi moved for relief from default on the ground that, while the case was still in federal court, he had (on August 30) timely responded to the cross-complaint with a motion to dismiss. Over Gianninis opposition, Taguchis motion was granted, and Taguchi then demurred to the cross-complaint. The demurrer was sustained with leave to amend.
In May 2002, Giannini filed a first amended cross-complaint in which he reasserted his fraud and RICO claims on allegations that Taguchi, a Japanese national, is an admitted former member of the Japanese mafia who has suffered convictions for assault and kidnapping; that he is in the United States illegally, doing business through a suspended corporation that is, allegedly, a "criminal enterprise" engaged in racketeering, extortion, blackmail, stolen cars and parts, phony insurance claims, and "filing lawsuits in the United States without any factual or legal foundation . . . to harass and to shake down American citizens"; and that Taguchi has lied under oath to the Immigration and Naturalization Service and in his lawsuits, tampered with witnesses to win compensation, and threatened his opponents, including Giannini, in his attempts to win.
Taguchis demurrer to Gianninis first amended cross-complaint was sustained without leave to amend on the ground that the cross-complaint did "not allege specific acts of fraudulent conduct or misrepresentations that were the cause of injury to [Giannini]. The conduct described . . . details unlawful conduct on the part of [Taguchi] but fails to allege how that conduct resulted in damage to [Giannini], particularly in light of the fact that [Giannini did not agree] to represent [Taguchi] in the underlying [medical malpractice] action." Giannini appeals.
DISCUSSION
I.
We summarily reject Gianninis contention that the trial court should have denied Taguchis motion for relief from entry of his default on the ground that the motion was not supported by a declaration showing mistake, inadvertence, surprise or excusable neglect or by an attorney affidavit of fault. This argument ignores the fact that, a response having been timely filed, the default should never have been requested or entered. As a result, the entry of default was void within the meaning of subdivision (d) of section 473 of the Code of Civil Procedure, and there was no need to support the motion by a declaration or an affidavit of fault. (Laguna Village, Inc. v. Laborers Internat. Union of North America (1983) 35 Cal.3d 174, 175-176, 182 [a motion to dismiss timely filed in federal court is a responsive pleading and no default may be entered when the case is remanded to superior court]; Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.)
II.
We summarily reject Gianninis contention that the trial court should have stricken Taguchis demurrer to the first amended cross-complaint as a sanction for Taguchis failure to comply with an order compelling him to appear for his deposition. Giannini has failed to present a record sufficient to demonstrate error or prejudice (the record does not include the relevant minute orders or reporters transcripts), and he has not met his burden as the appellant, which is to show an abuse of discretion. (Bennett v. McCall (1993) 19 Cal.App.4th 122, 127; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.)
III.
Giannini contends his first amended cross-complaint is sufficient to state causes of action for fraud and RICO violations, and that the demurrer should have been overruled. We disagree.
A.
Assuming for the sake of discussion that Giannini has alleged acts of "racketeering activity" as defined by the RICO statute (18 U.S.C. § 1961(1)), the fact remains that he has not alleged proximately caused damages. Contrary to his assertion, the harm allegedly resulting from the need to defend against Taguchis legal malpractice lawsuit is insufficient — because the act of filing a lawsuit is neither tortious per se nor "racketeering" within the meaning of the RICO statute. (Beck v. Prupis (2000) 529 U.S. 494, 501.)
It adds nothing to suggest, as does Giannini, that Taguchis lawsuit was an act of retaliation for his refusal to participate in Taguchis scheme (the reference is to Gianninis refusal to step into the medical malpractice action) — because the statute does not protect lawyers who refuse to handle lawsuits, only witnesses, victims, and informants. (18 U.S.C. §§ 1513, 1961.) Similarly, it adds nothing to say, as does Giannini, that he was physically threatened "in retaliation for refusing to aid and abet [Taguchis] extortion activities [by filing] counterfeit claims" — because such threats are not the cause of any damage claimed by Giannini. (Beck v. Prupis, supra, 529 U.S. 494; Pillsbury, Madison & Sutro v. Lerner (9th Cir. 1994) 31 F.3d 924, 928-930.)
As Giannini apparently recognizes, emotional distress damages are not available for a RICO violation. (18 U.S.C. § 1964(c).)
B.
Gianninis fraud cause of action fails because it does not and could not allege reliance, an essential element of this claim. (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, §§ 668, 686, pp. 123, 145-146.) Indeed, by alleging that he refused to assist Taguchi with his allegedly nefarious schemes, Giannini essentially admits that he took no detrimental action in regard to anything that Taguchi did or didnt do.
C.
Finally, Gianninis failure to suggest that it is possible to allege additional facts to support any cause of action is an admission that the demurrers were properly sustained without leave to amend, and no further discussion of that issue is required. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)
DISPOSITION
The judgment is affirmed. The parties are to pay their own costs of appeal.
We concur: SPENCER, P.J. and MALLANO, J.