Opinion
G054394
07-27-2018
GABRIEL GOMEZ, Plaintiff and Appellant, v. ANDREW CANO et al., Defendants and Respondents.
Gabriel Gomez, in pro. per., for Plaintiff and Appellant. Law Office of Bruce Adelstein, Bruce Adelstein; Law Office of Elizabeth Skorcz Anthony and Elizabeth Skorcz Anthony for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2013-00685153) OPINION Appeal from a judgment of the Superior Court of Orange County, Nathan R. Scott, Judge. Affirmed. Gabriel Gomez, in pro. per., for Plaintiff and Appellant. Law Office of Bruce Adelstein, Bruce Adelstein; Law Office of Elizabeth Skorcz Anthony and Elizabeth Skorcz Anthony for Defendants and Respondents.
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INTRODUCTION
Gabriel Gomez sued Andrew Cano, Jaimee Cano, Service First Group, and Saddleback Valley Sports Complex, LLC (collectively, defendants) in connection with a failed business venture. Following a bench trial on Gomez's claims for breach of contract, fraud, breach of fiduciary duty, negligence, alter ego liability, conversion, and an accounting, the trial court found in favor of defendants on all causes of action and entered judgment accordingly. Gomez solely argues on appeal that his trial attorney's failure to object to alleged "prosecutorial misconduct" and instructional error constituted ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution.
We affirm. Gomez's claim for ineffective assistance of counsel is without merit. There is no such constitutional right in the context of this civil action seeking money damages.
BACKGROUND
Gomez filed a fifth amended complaint alleging claims for breach of contract, fraud, and conversion against Andrew Cano, Jaimee Cano, and Service First Group; claims for breach of fiduciary duty and an accounting against all defendants; and a claim for alter-ego liability against Andrew Cano and Jaimee Cano only. The fifth amended complaint alleged that in October 2010, Andrew Cano approached Gomez to purchase commercial property in Lake Forest (the property). According to the parties' alleged oral agreement, Gomez was to purchase the property with a down payment of $280,000 and, after completion of the sale, Andrew Cano would lease the property from Gomez and run a youth sports center on the premises. Gomez alleged he transferred a total of $280,000 to Andrew Cano who took the money, commingled it with his own, and used it to pay himself a salary; the money was not used to purchase the property.
The fifth amended complaint contained a claim for negligence against defendant RE/MAX LLC. In July 2016, the trial court granted summary judgment in favor RE/MAX LLC, which is not a party to this appeal. The judgment entered in this case refers to Zeta Investments, Inc. as a defendant (not named in the fifth amended complaint) and states Gomez dismissed that defendant from this action without prejudice; Zeta Investments, Inc. is not a party to this appeal. The judgment also referred to a cross-complaint against Gomez filed by Andrew Cano, Service First Group, and Saddleback Valley Sports Complex, LLC, which those defendants dismissed without prejudice. --------
The trial court held a bench trial of Gomez's claims on November 17 and 29, 2016. Gomez was represented at trial by James A. Fraser of Commonwealth Law Group. Defendants were represented by Jerome D. Stark. The parties presented both oral and documentary evidence; after closing arguments, the trial court took the matter under submission.
On December 1, 2016, the trial court issued its ruling:
"The court finds for defendant Andrew Cano on all causes of action in plaintiff Gabriel Gomez's 5th Amended Complaint. Defendant shall prepare, serve, and submit a proposed judgment within 10 days of this ruling. . . . This was a complicated case. The circumstances under which plaintiff gave $280,000.00 to defendant remain[] murky. As in many cases, the decision here rests on the allocation of the burden of proof. Plaintiff bore the burden of proof on each of his causes of action. . . . He did not meet his burden—most notably, by failing to show any enforceable agreement or actionable misrepresentation whereby defendant would purchase a building for plaintiff. Plaintiff's testimony as to the formation and the terms of the alleged contract was vague and unpersuasive. Plaintiff produced no credible corroborating evidence. Despite multiple emails between the parties, plaintiff identified none in which he asked defendant to identify the alleged seller or provide copies of any purchase agreement, financing documents, closing documents, or deed. Plaintiff instead sent emails to defendant mentioning 'working cash,' 'startup expenses,' 'lease deposit,' the 'start of business,' and an 'amount to invest in our business.' . . . Plaintiff also received budgets and projections and lease documents from defendant, including a lease proposal that plaintiff described as 'not perfect' but 'one step[].' . . . Those emails and documents are inconsistent with the alleged agreement/representation to buy a building." No party requested a statement of decision.
Judgment was entered in favor of defendants and against Gomez as to the fifth amended complaint. Gomez appealed.
DISCUSSION
Gomez's sole argument in this appeal is that he received ineffective assistance of counsel from the attorney he retained to represent him at trial in this matter, in violation of the Sixth and Fourteenth Amendments to the United States Constitution. He generally refers to his counsel's "lack of technical legal capacity," and states his trial counsel was ineffective for failing to object to prosecutorial misconduct and by failing to obtain a curative instruction (in a nonjury trial).
Gomez does not clearly explain in his appellate briefs how his attorney's representation was deficient. In his appellate briefs, Gomez reargues his case and defends his credibility, but does not argue that insufficient evidence supported the trial court's findings or that the trial court engaged in legal error.
We express no opinion on the effectiveness of Gomez's trial counsel because a party to a civil action is generally not entitled to a retrial based on ineffective assistance of counsel. (Chevalier v. Dubin (1980) 104 Cal.App.3d 975, 978-979 ["the right to counsel constitutional provisions refer specifically to criminal prosecutions, and hence do not apply to civil proceedings"]; see In re Grunau (2008) 169 Cal.App.4th 997, 1003 ["In a civil case, attorney negligence may be remediable by a malpractice action, and it may be better to relegate the aggrieved litigant to that remedy than to impair the finality of appellate judgments on the ground of counsel's deficient performance"].)
In Salas v. Cortez (1979) 24 Cal.3d 22, 34, the California Supreme Court held that in a paternity action brought by a district attorney, an indigent defendant was entitled to appointment of counsel at public expense. The appellate court in Chevalier v. Dubin, supra, 104 Cal.App.3d at page 979, which involved a civil case and money damages, distinguished Salas, holding: "The fact that the right of effective counsel is available to a defendant in a paternity case does not mean that it is also available to a defendant in a punitive damage case, merely because both are civil actions. Unlike a paternity case, a punitive damage case involves only a monetary judgment. Unlike a paternity case, a punitive damage case cannot expose a defendant to a possible deprivation of his liberty. Unlike a paternity case, a punitive damage case does not involve state participation nor a substantial state interest." The Chevalier court further stated: "Moreover, civil suits involving punitive damages are essentially private matters between the litigants. Each litigant selects his own counsel, for better or for worse." (Ibid.)
Here, Gomez's argument the judgment entered in defendants' favor must be reversed on the ground his counsel was ineffective is without merit. We find no error.
DISPOSITION
The judgment is affirmed. Respondents shall recover costs on appeal.
FYBEL, J. WE CONCUR: O'LEARY, P. J. MOORE, J.