Opinion
C040818.
11-26-2003
KEVIN M. HEALY, Plaintiff and Appellant, v. CHARLES E. BAUER, Defendant and Respondent.
Plaintiff Kevin M. Healy, an attorney representing himself as plaintiff, appeals from a judgment (1) dismissing as a strategic lawsuit against public participation or "SLAPP" suit (Code Civ. Proc., § 425.16) his lawsuit alleging fiduciary misconduct against defendant Charles E. Bauer, and (2) awarding Bauer attorneys fees. Plaintiff seeks reversal of the judgment primarily on the ground the judge should have disqualified himself. We shall conclude plaintiff has waived the issue of disqualification by failing to avail himself of the statutory procedures for disqualifying a judge before judgment was entered and the notice of appeal was filed. Because plaintiff has failed to show any grounds for reversal, we shall affirm the judgment.
Undesignated statutory references are to the Code of Civil Procedure.
The notice of appeal was filed after the court ruled but 10 days before entry of the judgment. We liberally construe the notice of appeal as an appeal from the judgment. (Cal. Rules of Court, rule 1(a); rule 2(d) [premature notice of appeal].)
We deny as unnecessary defendants April 3, 2003, motion for judicial notice of State Bar documents regarding plaintiff. As we explain post, we grant defendants April 3, 2003, motion to strike from the appellate record documents and transcripts postdating the entry of judgment and notice of appeal. We deny defendants request for sanctions in connection with the motion to strike.
We deny plaintiffs requests in his appellate briefs for judicial notice of other, unrelated cases involving the same judge, and we disregard plaintiffs comments on matters outside the record. We also disregard attachments to plaintiffs appellate briefs that are not part of the record, and we decline plaintiffs offer to disclose to this court in camera and ex parte asserted information which is not part of the record.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs framing of appellate contentions does not require us to reach the merits of the complaint, and therefore only a brief summary of the factual background is warranted.
Plaintiff had a fee dispute with a former client concerning division of a $195,000 personal injury award. The client gave the check (made payable to plaintiff and the client) to defendant, a lawyer, and sought his legal assistance in resolving the fee dispute. Defendant filed against plaintiff a declaratory relief action, which is not the subject of this appeal.
On November 8, 2001, plaintiff filed the complaint which is the subject of this appeal, listing himself as attorney acting in propria persona for himself as plaintiff. The complaint asserted claims for breach of fiduciary duties by a trustee, legal malpractice, tortious interference with contract, fraud, defamation, and punitive damages. Plaintiff claimed defendant became a fiduciary of plaintiff by signing an agreement drafted by plaintiff, making defendant trustee of the funds and prohibiting any disbursements without the agreement of both plaintiff and the client.
On December 10, 2001, defense counsel June Coleman, from the Sacramento office of Murphy, Pearson, Bradley & Feeney, sent a letter to plaintiff, notifying him that "James Murphy, a partner in our San Francisco office, represents Judge [Joe] Gray in a personal matter. This is being brought to your attention for your consideration. It may require the judge to recuse himself during the course of our representation of [defendant]."
On December 12, 2001, defense counsel filed an ex parte application seeking to compel plaintiff to return an inadvertently-produced privileged document, which defense counsel mistakenly "faxed" to plaintiff instead of defendant. A minute order dated January 3, 2002, reflects the trial court, Judge Gray, after a hearing, ordered plaintiff to return the privileged document.
Though there is no reporters transcript, both parties agree that at a December 12, 2001, hearing on the ex parte application, at which plaintiff was present, the question of disqualification was discussed, and Judge Gray indicated he did not see a need to disqualify himself. Plaintiffs later filings indicate he considered himself to have "waiv[ed] the conflict" at that hearing on the "good word of this jurist" that he could be fair. (On appeal, plaintiff points out there is no waiver in writing, as required by section 170.3.)
On December 21, 2001, defendant filed various motions, including a motion to strike the complaint as a SLAPP suit under section 425.16. Plaintiff filed opposition.
On January 25, 2002, the trial court issued an order granting the SLAPP motion.
Thereafter, defendant filed a motion for attorneys fees and costs under the SLAPP statute, section 425.16.
On March 14, 2002, the trial court issued an order granting defendants motion for attorneys fees, in the amount of $23,000.
On March 26, 2002, plaintiff filed a motion to tax costs, hearing of which was scheduled for July 31, 2002.
On March 29, 2002, plaintiff filed a notice of appeal, appealing from "the dispository and other rulings of Judge Joe S. Gray in this matter, including but not limited to the pending money judgment herein."
On April 8, 2002, judgment was entered, stating the case was dismissed as a SLAPP suit, plaintiff would take nothing by his complaint, and defendant was to recover from plaintiff $ 23,000 for attorneys fees and costs. Notice of entry of judgment was served on May 10, 2002.
DISCUSSION
I. Motion to Strike Postjudgment Filings
On appeal, defendant asks this court to strike, from the appellate record, proceedings in the trial court which took place after judgment was entered and the notice of appeal was filed. We shall grant the motion.
As part of the record on appeal, plaintiff included documents filed and transcripts of hearings held after judgment was entered (April 8, 2002) and after the notice of appeal was filed (March 29, 2002), including the following:
On May 17, 2002 (at a point when the only matter pending in this case was plaintiffs motion to tax costs), plaintiff filed a written request for disqualification of Judge Gray, at which point Judge Gray disqualified himself from any further matter involving plaintiff. The judge stated he had been able to be fair up to that point, but plaintiffs unprofessional conduct had created a bias against plaintiff.
On May 28, 2002, plaintiff filed a motion to vacate all prior rulings of Judge Gray made on or after December 23, 2001, pursuant to section 170.3.
On July 1, 2002, Judge Rodda denied the motion to vacate on the ground plaintiffs filing of the notice of appeal deprived the trial court of jurisdiction.
Plaintiff suggests Judge Rodda found Judge Grays prior rulings were voidable for good cause. However, Judge Rodda made no finding but merely rejected plaintiffs argument that the prior rulings were void and therefore capable of being vacated by the trial court despite pendency of the appeal. Judge Rodda merely noted that, under section 170.3, prior rulings were not void but at most voidable, and therefore the trial court had no jurisdiction to act due to the pendency of the appeal. We note prior rulings of Judge Gray would not be voidable based on the asserted conflict of his being represented by defense counsel, because this fact was known to plaintiff before Judge Gray made any ruling in the case, and section 170.3, subdivision (b)(4), states prior rulings are voidable for good cause "[i]n the event that grounds for disqualification are first learned of or arise after the judge has made one or more rulings in a proceeding . . . ."
Thus, the only possible basis to vacate prior rulings would be based upon the judges bias against plaintiff due to plaintiffs unprofessional conduct.
Defendant on April 3, 2003, filed in this court a motion to strike the portions of the appellate record postdating the judgment and notice of appeal. Defendant invoked the legal principle that as a general proposition documents not before the trial court in making the decisions which are the subject of the appeal cannot be included as a part of the record on appeal. (Doers. v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1.)
Plaintiff filed an opposition to the motion to strike, but plaintiff cited no legal authority whatsoever and failed to address the authority cited by defendant. He simply argued this court should consider the "complete" record.
Defendants position has merit. Thus, "[m]atters occurring after entry of judgment are ordinarily not reviewable. The appeal reviews the correctness of the judgment or order as of the time of its rendition, leaving later developments to be handled in subsequent litigation. [Citation.]" (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 330, pp. 371-372.) The function of the appellate court is to review the action of the trial court in rendering the judgment or making the order from which the appeal is taken. (Ibid.) Error on the part of the trial court cannot be predicated on matter occurring subsequent to its rendition of the judgment. (Ibid.) Although the rule is not inflexible, plaintiff has failed to present any legal analysis or authority warranting an exception to the rule.
Plaintiffs notice of appeal stated plaintiff was appealing from "the dispository and other rulings of Judge Joe S. Gray in this matter, including but not limited to the pending money judgment herein." This notice of appeal cannot be construed to encompass an appeal from the postjudgment/postappeal order by Judge Rodda denying plaintiffs postjudgment/postappeal motion to vacate Judge Grays rulings.
Plaintiff elected to file his notice of appeal before he filed the written request for disqualification and motion to vacate. Having made that election, plaintiff cannot complain that events subsequent to the entry of judgment and filing of the appeal entitle him to reversal of the judgment.
Accordingly, we grant defendants motion to strike the postjudgment, post-notice of appeal filings and transcripts. We deny, however, defendants request for sanctions.
II. Disqualification of Judge
Plaintiffs main contention on appeal is that the trial court judge should have disqualified himself because he was being represented in a personal matter by the law firm which represented defendant in the instant litigation.
However, plaintiff has waived this contention by failing to avail himself of the statutory remedy provided by section 170.3.
Thus, section 170.3, subdivision (c)(1), provides: "If a judge who should disqualify himself or herself refuses or fails to do so, any party may file with the clerk a written verified statement objecting to the hearing or trial before the judge and setting forth the facts constituting the grounds for disqualification of the judge. The statement shall be presented at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification. Copies of the statement shall be served on each party or his or her attorney who has appeared and shall be personally served on the judge alleged to be disqualified, or on his or her clerk, provided that the judge is present in the courthouse or in chambers."
If the judge does not recuse himself or herself, "the question of disqualification shall be heard and determined by another judge . . . ." (§ 170.3, subd. (c)(5).)
If the second judge decides not to disqualify the challenged judge, the sole remedy of the objecting party is to file a writ petition in the appellate court pursuant to section 170.3, subdivision (d), which provides: "The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought within 10 days of notice to the parties of the decision and only by the parties to the proceeding."
Here, plaintiff was aware of the ground for disqualification in December 2001, before the trial court made any rulings in the case, yet plaintiff never filed any written request for disqualification at any time before his March 2002 filing of the notice of appeal or the April 2002 entry of judgment. Having failed to make a prompt written request for disqualification under section 170.3, plaintiff has waived the matter.
Thus, section 170.3s "promptness requirement," that the objection be filed at the earliest practicable opportunity after discovery of facts constituting grounds for disqualification, "is not to be taken lightly, especially when the party delays in challenging the judge until after judgment. Otherwise, a defendant can sit through a first trial hoping for [a favorable result], secure in the knowledge that he can invalidate the trial later if it does not net a favorable result." (In re Steven O. (1991) 229 Cal.App.3d 46, 55.) "`"It would seem . . . intolerable to permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not." [Citations.]" (People v. Scott (1997) 15 Cal.4th 1188, 1207.)
Even accepting for purposes of this appeal that plaintiff made prior verbal requests for the judge to disqualify himself, such verbal requests would have no significance, because section 170.3 requires the request to be in writing. In People v. Bryant (1987) 190 Cal.App.3d 1569, we rejected a defendants argument that he was not required to file a written statement seeking disqualification because the parties and the court had essentially waived that requirement by going forth and hearing an oral motion. (Id . at p. 1573.) We said: "There is nothing in section 170.1 [grounds for disqualification] which prohibits any party from first orally requesting the court to disqualify itself; however, upon refusal of the court to grant the request, if the party requesting disqualification still wishes to challenge the judge then the party must proceed in conformity with subdivision (c)(1) of section 170.3 and file the verified statement of reasons for disqualification which is to be heard before a judge other than the one for whom disqualification is sought." (Ibid .)
We conclude plaintiff waived the matter of disqualification by failing promptly to file the written statement pursuant to section 170.3. Plaintiff cites no authority whatsoever to the contrary.
We note plaintiff claims the trial court improperly extracted a waiver from him, in violation of section 170.3, subdivision (b)(3), which states: "The judge shall not seek to induce a waiver . . . ." We do not decide this case on the ground that plaintiff waived the matter of disqualification by statements he made during the unreported hearing in December 2001. Rather, we decide this case on the ground that plaintiff waived any contention regarding disqualification by failing to avail himself of the statutory remedy available under section 170.3.
Additionally, we note that at the March 2002 hearing on the motion for attorneys fees, the trial court stated, "If you want to try to disqualify me, you file a declaration and you try to disqualify me," to which plaintiff responded, "Im not trying to disqualify you." It is thus apparent plaintiff has engaged in the gamesmanship denounced by cases such as In re Steven O., supra, 229 Cal.App.3d 46, 55.)
We conclude plaintiff has waived the disqualification matter.
III. Right to Counsel
Plaintiff contends the trial court violated his due process rights by ordering that he could not have the benefit of legal counsel.
However, plaintiff cites nothing in the record to show that the trial court made any such order. He suggests the trial court refused to enter a formal order, but he claims it happened during an unreported hearing in chambers on the ex parte application concerning the privileged document in December 2001. As purported evidence that the trial court made such an order, plaintiff cites his own statements during the various hearings in this litigation, in which plaintiff repeatedly said the judge would not let him have a lawyer. Plaintiff claims that if his statements were untrue, any "reasonable jurist" would have corrected them.
However, plaintiff cites no authority imposing such an adoptive admission theory on the court. Moreover, the record contains support for defendants position that the trial court merely ordered that plaintiff could not show to anyone, including an attorney, the privileged document inadvertently sent to him by defense counsel. Thus, in a December 2001 filing regarding the privileged document inadvertently disclosed by the defense, plaintiff said: "The Court ordered that I would not even be permitted to further show this subject letter, even to defend myself, to an attorney of my own choosing, and thereby the Court deprived me of the benefit of independent counsel . . . ." This is consistent with the courts order on the ex parte application, which said plaintiff was "ordered not to disclose or distribute letter or copies thereof to anyone."
Thus, plaintiffs repeated statements on the record that he was denied the right to counsel do not create a basis for reversal of the judgment.
Besides failing to provide any factual basis for relief, plaintiff also fails to cite any authority whatsoever, beyond a blanket claim that he was deprived of equal protection and due process guaranteed by the federal and state Constitutions. He illogically maintains he cannot cite any law because no law supports the trial courts order.
We conclude plaintiff fails to show any grounds for reversal with respect to his claim that he was deprived of the benefit of counsel.
IV. Attorneys Fees
In one short paragraph, plaintiff argues the amount of the attorneys fees award—$23,000—was "blatantly excessive" and should be reduced. Plaintiff has waived this contention by failing to present any factual or legal analysis or authority. (In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 672-673, fn. 3.; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)
V. Sealed Document
Plaintiff argues the trial court erred in ordering sealed the document that was inadvertently disclosed by the defense. Again, plaintiff has waived the contention by failing to present any factual or legal analysis or authority. (In re Marriage of Nichols, supra, 27 Cal.App.4th 661, 672-673, fn. 3.) Plaintiff merely refers us to "the resaons [sic] set forth in the motion" filed in the trial court. This is not an appropriate presentation of appellate argument. (Garrick Dev. Co. v. Hayward Unified School Dist. (1992) 3 Cal.App.4th 320, 334.)
VI. Trustee Status
Plaintiff claims the State Bar Court found defendant was plaintiffs trustee, and Judge Gray never reached the issue, and this court should not find to the contrary. The argument makes no sense, and plaintiff fails to show how it would gain him reversal of the judgment, even if it were true. Plaintiff has waived the contention, whatever it was. (In re Marriage of Nichols, supra, 27 Cal.App.4th 661, 672-673, fn. 3.)
We note plaintiff on appeal has not made any attack whatsoever on the merits of the SLAPP motion. We therefore need not consider that matter.
DISPOSITION
The judgment is affirmed. Defendant shall recover his costs on appeal.
We concur: BLEASE, Acting P.J., NICHOLSON, J.