Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County No. D181995, Mark A. Juhas, Judge.
Haight Brown & Bonesteel, Rita Gunasekaran and Jennifer K. Saunders for Appellant.
No appearance for Respondent Henry C. Yuen.
Dreier Stein Kahan Browne Woods George and Henry S. David; Jaffe and Clemens and Bruce A. Clemens for Respondent Molly H. Yuen.
ROTHSCHILD, J.
Molly Yuen filed a complaint in joinder adding her ex-husband’s attorney as a party to her ongoing marital dissolution proceedings. The attorney, Robert J. Allan, moved under Civil Code section 1714.10 to strike the complaint in joinder, which alleged that he had aided and abetted certain fraudulent transfers of the ex-husband’s assets. Allan now appeals from the trial court’s denial of his motion to strike. We affirm.
All subsequent statutory references are to the Civil Code.
BACKGROUND
In 1986, Henry Yuen petitioned for dissolution of his marriage to Molly Yuen. The trial court entered judgment of dissolution in 1987. In 1997, Molly moved to set aside the 1987 judgment and/or to divide concealed assets. In 2000, Molly and Henry entered into a stipulation resolving Molly’s motion to set aside, and the court entered an order on that stipulation, requiring Henry to make spousal support payments to Molly totaling over $40 million. In 2002, Molly and Henry signed an agreement modifying the 2000 order in certain respects.
As is customary in marital dissolution actions, we will henceforth refer to the Yuens by their first names. No disrespect is intended.
In 2005, Molly filed a motion to confirm arrearages. The trial court granted the motion and determined that Henry owed Molly over $46 million in arrearages, plus interest. We recently affirmed in part and reversed in part, concluding that certain portions of the trial court’s award were erroneous but that Henry still owed Molly over $40 million in arrearages, plus interest. (In re Marriage of Yuen (10/30/08, B195293 [nonpub.opn.]).)
On May 16, 2007, Molly filed a notice of motion and declaration for joinder, seeking to join several entities and individuals, including Allan, in the dissolution action. Attached to the motion was a proposed complaint in joinder. In it, Molly alleged that Allan, acting “as general counsel for Henry,” has aided and abetted Henry’s allegedly fraudulent transfers of assets in order to “hinder, delay, and defraud Molly (and others).” The claims in the proposed complaint in joinder were not based on Allan’s representation, if any, of Henry in the dissolution action itself, and the complaint did not allege any such representation.
Allan moved to strike Molly’s notice of motion and declaration for joinder and her proposed complaint in joinder on the ground that they violated section 1714.10, which in certain circumstances requires a prefiling order before an action may be brought against an attorney for conspiracy with the attorney’s client. Molly opposed Allan’s motion to strike on numerous grounds, including that her claims against him did not arise “from any attempt to contest or compromise a claim or dispute” (§ 1714.10, subd. (a)), so section 1714.10 did not apply.
The trial court granted Molly’s motion for joinder, allowing her to file the proposed complaint in joinder. The court then treated Allan’s motion to strike as a motion to strike the filed complaint.
On October 5, 2007, the court heard and denied Allan’s motion to strike the complaint in joinder, reasoning that Allan’s alleged conduct did not constitute an attempt to contest or compromise a claim or dispute. Allan timely appealed.
The trial court’s order denying Allan’s motion to strike under section 1714.10 is appealable. (§ 1714.10, subd. (d).)
DISCUSSION
Subdivision (a) of section 1714.10 provides in relevant part: “No cause of action against an attorney for a civil conspiracy with his or her client arising from any attempt to contest or compromise a claim or dispute, and which is based upon the attorney’s representation of the client, shall be included in a complaint or other pleading unless the court enters an order allowing the pleading that includes the claim for civil conspiracy to be filed after the court determines that the party seeking to file the pleading has established that there is a reasonable probability that the party will prevail in the action.” The trial court concluded that the statute did not apply to Molly’s claims against Allan because the conduct alleged did not constitute an attempt to contest or compromise a claim or dispute.
Allan contends that the trial court erred in denying his motion to strike, but Allan’s opening brief on appeal contains almost no arguments challenging the trial court’s reasoning. Instead, the brief attributes to the trial court the proposition that section 1714.10 does not apply to “transactional lawyers,” and the brief then argues against that proposition. The brief also contains an extensive discussion of the statutory phrase “arising from.” But, again, Allan’s opening brief says almost nothing about the phrase “any attempt to contest or compromise a claim or dispute,” which was the actual basis for the trial court’s decision.
Allan advanced additional arguments concerning the phrase in his reply brief but does not explain why he failed to present those arguments in his opening brief. We therefore need not address the arguments raised for the first time in the reply brief. (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3 [“Points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before”]; Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8 [“We reject this contention because, without good cause, it was not raised until the reply brief”].)
We have identified only three passages in the opening brief that are addressed to the crucial “contest or compromise a claim or dispute” language. The first is embedded in Allan’s argument that section 1714.10 can apply to a transactional lawyer. Allan argues that “settlement has been recognized by the California Supreme Court as a form of business transaction,” so “even under its own limited definition of ‘compromise,’ the trial court could not hold that § 1714.10 does not apply to a transactional lawyer.” Even if the argument is sound and section 1714.10 can apply to a transactional lawyer, that would not show that the trial court erred, because it would not show that Molly’s claims against Allan in her complaint in joinder are based on his attempts to contest or compromise a claim or dispute.
Second, Allan argues that because “[l]itigation was ongoing between [Molly] and her former spouse during all the relevant times, and . . . Allan’s alleged misconduct is comprised of acts done in his capacity as [Henry’s] attorney, to whom his duty and undivided loyalty were owed,” it follows that Molly’s claims against Allan “for aiding and abetting his client most certainly arose from [Henry’s] alleged attempt to contest or compromise a claim or dispute[.]” The argument lacks merit because, although the complaint certainly does allege that Allan was one of Henry’s attorneys during a period in which Henry was engaged in contesting Molly’s claims, it does not follow that (1) Allan represented Henry in contesting (i.e., litigating) Molly’s claims, or (2) the claims in the complaint are based on such representation, if any existed. On the contrary, the complaint does not allege that Allan represented Henry in contesting Molly’s claims, and Molly’s claims against Allan are not based on such representation, if any existed. Thus, this argument fails to show that the conduct on which Molly’s claims are based constituted an attempt to contest or compromise a claim or dispute.
Third, Allan states that “[t]he trial court rejected . . . Allan’s contention that his alleged acts of aiding and abetting his client arose from any attempt to contest or compromise a claim or dispute,” and Allan contends that “[t]o the contrary, the crux of [Molly’s] allegations against . . . Allan is that he aided and abetted [Henry] in his efforts to contest, interfere with, thwart, or compromise [Molly’s] ability to collect the money that he owed to her in support payments, by transferring assets.” This contention is not an argument at all but rather is merely a denial of the trial court’s conclusion—the trial court concluded that the complaint did not allege an attempt to contest or compromise a claim or dispute, and Allan contends that it did. In the absence of any intelligible argument for Allan’s position, we may treat the point as waived. (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368 [“One cannot simply say the court erred, and leave it up to the appellate court to figure out why”].)
We conclude that Allan’s opening brief does not contain a meritorious argument against the trial court’s conclusion that Molly’s claims against Allan are not based on conduct that constitutes an attempt to contest or compromise a claim or dispute. We therefore affirm the trial court’s order.
DISPOSITION
The order is affirmed. Allan’s request for judicial notice is granted. Respondent Molly H. Yuen shall recover her costs of appeal.
We concur: MALLANO, P. J. WEISBERG, J.
Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.