Summary
In King v. Law Offices of Sussman & Ziskin (Jan. 17, 2008, A116868) [nonpub. opn.] we affirmed an order striking King’s cross-complaint against the attorneys for Terri Nielsen, the respondent in this appeal.
Summary of this case from King v. NielsenOpinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. No. SCV236856.
Siggins, J.
Jacqueline King appeals from an order striking her cross-complaint against the Law Offices of Sussman & Ziskin due to her failure to comply with Civil Code section 1714.10, a “gatekeeping” statute designed to weed out frivolous conspiracy claims brought against attorneys and their clients in order to disrupt the attorney-client relationship. (Berg & Berg Enterprises, LLC v. Sherwood Partners, Inc. (2005) 131 Cal.App.4th 802, 816-817 (Berg).) Because King did not comply with the prefiling requirements of section 1714.10, we affirm.
All further statutory references are to the Civil Code unless otherwise indicated.
BACKGROUND
Terri Nielsen subleased a bedroom in a house King rented from George and Pacita Sanotsky. Within little more than a month after Nielsen moved in, King filed an unlawful detainer action and a tort action against Nielsen and her son, James Reis, for breach of contract, fraud, interference with contract, slander, filing of a false police report, assault, personal injury, property damage, conversion, trespass, and conspiracy to commit fraud.
Nielsen is eligible for legal services through the Sonoma County Legal Aid office (SCLA). SCLA referred her to the Law Offices of Sussman & Ziskin, a firm which frequently provides pro bono legal services to tenants in unlawful detainer actions at the request of SCLA, California Rural Legal Assistance, and other non-profit organizations.
Acting on Nielsen’s behalf, Sussman & Ziskin filed answers to both complaints and filed a compulsory cross-complaint against King and George Sanotsky in the tort action and alleged numerous violations of the landlord-tenant relationship. King responded by filing a cross-complaint (captioned a “cross-cross-complaint”) against attorney Donald Ziskin and his firm (“the attorney defendants”) and the Sanotskys, and later filed a first amended cross-complaint. The first amended cross-complaint alleged four causes of action against the attorney defendants based on a theory that they conspired with Nielsen to commit various torts against King related to the rental dispute.
At a case management conference and in a case management statement, Ziskin advised King that she had failed to petition the court for permission to file a conspiracy complaint against the attorney defendants as required by section 1714.10. Ziskin orally asked the court to dismiss the cross-complaint as against himself and his firm on that basis. The court declined to rule on the request because the cross-complaint had not been served on the attorney defendants. King subsequently effected personal service on the law firm. Donald Ziskin was never served as an individual defendant.
Sussman & Ziskin then filed a motion to strike the cross-complaint for King’s failure to comply with the prefiling requirements of section 1714.10. In opposition to the motion, King asserted that prefiling requirements did not apply because her cross-complaint falls within two statutory exceptions to section 1714.10. King alleges the exceptions apply because the attorney defendants took actions to further “their own nefarious scheme” in conspiring with Nielsen. According to King’s allegations, this “scheme” included harassing George Sanotsky in an attempt to sour his relationship with King; delaying Nielsen’s eviction for as long as possible so she would receive free rent; helping her avoid paying any ultimate judgment for unpaid rent and damages; and attempting to bet King that “he would be successful in aiding and abetting Defendant Nielsen in her scam to rip off as many ‘landlords’ as possible,” all without a good faith belief that any substandard conditions existed at Nielsen’s rental.
In addition to her allegations, King claimed she had new evidence that Ziskin was being paid by SCLA and was knowingly pursuing a frivolous action against King simply to maximize his charges to SCLA; that “Ziskin’s only goal in this matter is to bilk a public service agency out of funds earmarked for the public benefit”; and that “[p]reliminary research indicates that Mr. Ziskin’s law firm has been funded for some time on this fraudulent misuse of public funds.” King added more claims of a similar ilk in a subsequent “addendum” to her opposition, including that Ziskin told her SCLA “had written him a ‘blank check’ and that he did not care who he represented or who was right or wrong since continuing a lawsuit would mean easy billable hours for him, regardless of the outcome.”
The court struck the cross-complaint and entered judgment on it, including $1,000 in sanctions, in favor of Sussman & Ziskin against King. King timely appealed.
DISCUSSION
I. The Motion to Strike
“Section 1714.10 prohibits the unauthorized filing of an action for nonexempt civil conspiracy against an attorney based on conduct arising from the representation of a client that is in connection with any attempt to contest or compromise a claim or dispute. It requires a plaintiff who desires to pursue such an action to first commence a special proceeding by filing a verified petition naming the attorney as respondent; the trial court then orders service upon the attorney, who is thereby given the opportunity to appear and contest the petition. If the petition is granted, the plaintiff is permitted to file the order. If, on the other hand, the petition is denied, the plaintiff is foreclosed from filing the complaint, likewise subject to his or her right to appeal that determination.” (Berg, supra, 131 Cal.App.4th at p. 815.) If a party files such a nonexempt action against an attorney without first petitioning the court under section 1714.10, the attorney defendant may demur or move to strike the pleading for the plaintiff’s failure to comply with the gatekeeping statute. (Berg, at pp. 816-817.)
The text of section 1714.10, subdivision (a) reads: “(a) 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 court may allow the filing of a pleading claiming liability based upon such a civil conspiracy following the filing of a verified petition therefor accompanied by the proposed pleading and supporting affidavits stating the facts upon which the liability is based. The court shall order service of the petition upon the party against whom the action is proposed to be filed and permit that party to submit opposing affidavits prior to making its determination. The filing of the petition, proposed pleading, and accompanying affidavits shall toll the running of any applicable statute of limitations until the final determination of the matter, which ruling, if favorable to the petitioning party, shall permit the proposed pleading to be filed.”
“ ‘Section 1714.10 was intended to weed out the harassing claim of conspiracy that is so lacking in reasonable foundation as to verge on the frivolous. [Citations.] The weeding tool is the requirement of prefiling approval by the court, which must be presented with a verified petition accompanied by a copy of the proposed pleading and “supporting affidavits stating the facts upon which the liability is based”; the pleading is not to be filed until the court has determined “. . . the party seeking to file the pleading has established that there is a reasonable probability that the party will prevail in the action.’ ” (Berg, supra, 131 Cal.App.4th at p. 815; Evans v. Pillsbury, Madison & Sutro (1998) 65 Cal.App.4th 599, 604.)
Subdivision (c) of section 1714.10 carves out two exceptions to the prefiling requirement where “(1) the attorney has an independent legal duty to the plaintiff, or (2) the attorney’s acts go beyond the performance of a professional duty to serve the client and involve a conspiracy to violate a legal duty in furtherance of the attorney’s financial gain.” King asserts her cross-complaint against Ziskin qualifies under both exceptions. She is wrong.
King argues her action is exempt from section 1714.10 under subdivision (c)(2) because Ziskin’s actions went beyond the performance of his duties to his client and were undertaken for his own financial gain. (§ 1714.10, subd. (c)(2).) She says Ziskin told her “Sonoma County Legal Aid had written him a ‘blank check’ and that he did not care who he represented or who was right or wrong since continuing a lawsuit would mean easy billable hours for him, regardless of the outcome. In essence, [Ziskin] was willing to make false allegations for his own personal gain . . . .” But King’s allegation does not set forth facts that bring her claim within the section 1714.10, subdivision (c)(2) exception. In Berg, the court held that even an unconscionable fee for services rendered on behalf of the attorney-defendant’s client failed to satisfy the financial advantage requirement of the subdivision (c)(2) exception. The court explained: “These allegations do not plead that [the attorney’s] conduct was in furtherance of a personal financial advantage or interest, separate and apart from the advancement [of] its client’s interests, in the subject matter of the representation. . . . We do not find it in keeping with the statute’s purposes that mere allegations, however egregious, by a third party of an attorney’s excessive billing of a client for services rendered satisfy the financial gain requirement of the statute’s exception. Such allegations could be made by an adversary in any case, thus significantly weakening the gatekeeping function of the statute. (Berg, supra, 131 Cal.App.4that pp. 835-836.) Therefore, the court held, “ ‘in furtherance of the attorney’s financial gain’ as used in this subsection means that through the conspiracy, the attorney derived economic advantage over and above monetary compensation received in exchange for professional services actually rendered on behalf of a client.” (Id. at p. 836, italics added.)
Berg requires some independent financial interest in the litigation separate and apart from fees received for legal services to invoke the “financial gain” exception. No such independent financial interest has been shown here.
Alternatively, King argues the cross-complaint falls within the exception to the prefiling requirements where the attorney charged with conspiring with his client bears an “independent legal duty” to the plaintiff. (§ 1714.10, subd. (c)(1).) King contends Ziskin “has an independent duty to plaintiff King not to commit fraud,” and she claims he lied that he was not receiving funds from SCLA in his reply brief in support of the motion to strike. But there is no allegation that King relied on this claimed misrepresentation, that any such reliance was reasonable, or that King was harmed by it. Nor is it apparent how an alleged misstatement made in a reply in support of the motion to strike and after the events described in King’s cross-complaint could be at all relevant to an exception to the prefiling requirement. In any event, assuming arguendo that Ziskin was in fact receiving funds from SCLA (see Evans v. Pillsbury, Madison & Sutro, supra, 65 Cal.App.4th at pp. 606-607), his alleged statement is not fraud unless he intended to induce reliance, reliance by King was reasonable and it resulted in harm. (See 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 772, p. 1121.) None of those elements are alleged or apparent.
King’s reliance on Pavicich v. Santucci (2000) 85 Cal.App.4th 382 is inapt. In Pavicich, attorney Santucci represented a corporation and a partnership of investors. In his capacity as attorney for the corporation and partnership, Santucci made misrepresentations to Pavicich to induce him to invest in his clients’ venture and concealed the fact that there were claims pending against his clients. Pavicich invested, in reliance on Santucci’s representations, and lost substantial funds. (Id. at pp. 386-388, 397-398.) There is no allegation in this case that Ziskin’s statement was intended to induce reliance, that King relied on it, or that she was thereby harmed.
Without citing any supporting authority, King argues Ziskin waived his right to file a section 1714.10 motion when he appeared and made an oral motion to strike during a July 13, 2006, case management conference. Not so. Under section 1714.10, subdivision (b), “Failure to obtain a court order where required by subdivision (a) shall be a defense to any action for civil conspiracy filed in violation thereof. The defense shall be raised by the attorney charged with civil conspiracy upon that attorney’s first appearance by demurrer, motion to strike, or such other motion or application as may be appropriate. Failure to timely raise the defense shall constitute a waiver thereof.” (Italics added.) A defendant “appears” in an action when he “answers, demurs, files a notice of motion to strike, files a notice of motion to transfer pursuant to Section 396b, moves for reclassification pursuant to Section 403.040, gives the plaintiff written notice of appearance, or when an attorney gives notice of appearance for the defendant.” (Code Civ. Proc., § 1014.) Ziskin did none of these things until he filed his written notice of motion and motion to strike, some two months after the case management conference. Indeed, at the time of the case management conference neither Ziskin nor his law firm had even been served with the action against them. The motion to strike was timely and was not waived.
Denial of Leave to Amend
Although King’s opening brief identifies the court’s refusal to grant her leave to amend as an issue on appeal, she has waived her challenge to that ruling by failing to address it with any pertinent discussion or legal authority. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 594, pp. 627-628.) “[I]t is not this court’s function to serve as [appellant’s] backup appellate counsel . . . .” (Mansell, supra, at p. 546.)
In any event, her challenge would fail even if she had preserved it for appeal. For the reasons discussed above, King’s allegations and proposed allegations do not satisfy either of the exceptions to section 1714.10’s prefiling requirement. Because King cannot show any way in which an amendment could excuse her failure to petition for and obtain prefiling approval, the court properly denied leave to amend. (See Schifando v. City of Los Angeles (2003)31 Cal.4th 1074, 1081 [plaintiff has the burden of showing a reasonable possibility that an amendment could cure the pleading defect].)
DISPOSITION
The order is affirmed.
We concur: Pollak, Acting P.J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.