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Nichols v. Geragos & Geragos

California Court of Appeals, Second District, First Division
Aug 30, 2023
No. B322553 (Cal. Ct. App. Aug. 30, 2023)

Opinion

B322553

08-30-2023

MICHAEL A. NICHOLS et al., Plaintiffs and Appellants, v. GERAGOS & GERAGOS et al., Defendants and Respondents.

Joseph J. M. Lange Law Corporation and Joseph J. M. Lange for Plaintiffs and Appellants. Kaufman Dolowich Voluck, Steve R. Belilove, and John T. Lupton for Defendants and Respondents.


NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BC687134, Gregory Keosian, Judge. Affirmed.

Joseph J. M. Lange Law Corporation and Joseph J. M. Lange for Plaintiffs and Appellants.

Kaufman Dolowich Voluck, Steve R. Belilove, and John T. Lupton for Defendants and Respondents.

CHANEY, J.

In this action against a law firm and attorneys for legal malpractice and breach of fiduciary duty, plaintiffs appeal from a judgment entered after the trial court granted defendants' motion for nonsuit at the close of plaintiffs' evidence in phase one of a bifurcated jury trial (the so-called "trial-within-a-trial" of the underlying case in which the malpractice allegedly occurred). The phase one jury trial lasted just over a week before the court granted defendants' motion for nonsuit.

In challenging the nonsuit, plaintiffs correctly set forth in their appellate briefing this court's standard of review: We evaluate plaintiffs' evidence in a light most favorable to plaintiffs, resolving all presumptions, inferences, and doubts about plaintiffs' evidence in favor of plaintiffs, and affirm the nonsuit if a judgment for defendants is required as a matter of law.

Here, in support of their assertions of trial court error, plaintiffs cite only to the allegations of their unverified complaint and characterizations in trial court briefings of the evidence they presented at trial (with no citations to the actual evidence). None of the trial testimony or trial exhibits is included in the record before us. The only portion of the reporter's transcript of the trial that plaintiffs included in the appellate record is from the hearing on defendants' motion for nonsuit. In the respondents' brief, defendants pointed out that the appellate record plaintiffs provided is inadequate to demonstrate error because it includes none of the evidence the trial court heard and considered before it granted defendants' motion for nonsuit. In response, plaintiffs maintain that this court may rely on characterizations of the evidence set forth in trial and appellate court briefings. They assert these characterizations of the evidence are undisputed, despite defendants' statement to the contrary in the respondents' brief.

As explained more fully below, without a record of any evidence plaintiffs presented during the week-long jury trial, we cannot review the judgment of nonsuit on the merits under our standard of review. Accordingly, we affirm the judgment for this reason.

BACKGROUND

I. Appellate Record

Our account of the circumstances of this case, that we set forth herein, is taken from the limited appellate record before us. The appellants' appendix includes, in full: (1) plaintiffs' unverified complaint; (2) defendants' answer to the complaint; (3) the trial court's ruling granting in part and denying in part defendants' motion for summary judgment; (4) defendants' trial brief, filed during the phase one trial, in which defendants requested the trial court grant nonsuit at the close of plaintiffs' evidence in the phase one trial; (5) plaintiffs' opposition to the motion for nonsuit; (6) defendants' reply to plaintiffs' opposition to the motion for nonsuit; (7) the trial court's minute order granting the motion for nonsuit; (8) the ruling on the motion for nonsuit; (9) an order dismissing this action with prejudice; (10) the notice of appeal and an errata regarding the notice of appeal; (11) plaintiffs' notice designating the record on appeal; (12) plaintiffs' notice of filing a deposit for the reporter's transcript; and (13) the trial court's case summary (case information and register of actions).

In their notice designating the record in this appeal, plaintiffs requested that only the hearing on the motion for nonsuit be included in the reporter's transcript; but plaintiffs incorrectly listed the date of the hearing as the day after the trial court granted the motion for nonsuit and excused the jury from further service. Accordingly, we received a notice from the superior court stating no proceedings were reported in this case on the date designated. Plaintiffs filed a motion to augment the record with the reporter's transcript of the hearing on the motion for nonsuit, and we granted the motion. Plaintiffs did not request to augment the record with any other portion of the reporter's transcript of the week-long jury trial or any of the exhibits admitted into evidence at trial. Nor did plaintiffs obtain a settled statement.

Respondents filed in this court a small respondents' appendix with documents fleshing out the procedural history of this case. The respondents' appendix does not contain any of the evidence plaintiffs presented at trial.

II. Plaintiffs' Allegations in the Present Action

In December 2017, plaintiffs Michael Nichols, Mindy Nichols, and Georgia Nichols (collectively, plaintiffs) filed this action (hereafter, the present action) against defendants Geragos &Geragos, Mark J. Geragos, Ben J. Meiselas, James Wong (collectively, defendants), and other individuals who were no longer parties to this action by the time of trial. In their complaint, plaintiffs allege defendants committed legal malpractice and breached their fiduciary duties to plaintiffs in the prosecution of an unsuccessful federal civil rights action (hereafter, the underlying action) against the City of Palm Springs, the Palm Springs Police Department (the PSPD), and individual police officers, including an officer called Rae Fernandez.

In August 2020, the trial court in the present action granted in part and denied in part defendants' motion for summary judgment/adjudication on the issues arising from plaintiffs' complaint for legal malpractice and breach of fiduciary duty. After the court's ruling on summary adjudication, the only issue remaining to be tried in the present action was plaintiffs' claim that defendants erred in prosecuting their "state-created danger claim" in the underlying action. The alleged basis of this claim was that Rae Fernandez and others, through wrongful conduct, placed plaintiffs in a position of danger that plaintiffs would not have faced otherwise. The following is a brief summary of the pertinent allegations in plaintiffs' unverified complaint in the present action relating to their state-created danger claim.

In this appeal, plaintiffs do not challenge the trial court's ruling on the motion for summary judgment/adjudication.

Plaintiffs allege that beginning in November 2007, they owned and operated a family business acquiring and reselling items such as antiques, collectibles, and precious metals. In or around early 2008, various agencies including the PSPD asked plaintiffs to serve as confidential informants regarding stolen property offered to plaintiffs for resale. Plaintiffs agreed to act as informants and received no compensation for their efforts. Beginning in 2010, plaintiffs entered into written contracts with various (unidentified) agencies to provide information leading to arrests. The information plaintiffs provided to law enforcement under their contracts between 2010 and 2012 led to hundreds of arrests and convictions. Plaintiffs assert in their complaint: "In the course of assisting law enforcement, [p]laintiffs were often threatened, physically attacked, and fired upon in drive-by shootings and stalked by criminals and suspects that correctly surmised that [p]laintiffs were involved in their surveillance or arrest."

Plaintiffs did not attach the alleged written contracts to their complaint, and they are not part of the record in this appeal.

Plaintiffs further allege that in June 2012, Rae Fernandez and another officer from the PSPD threatened to expose plaintiffs as informants if plaintiffs brought information about criminal activity to other officers instead of them. The complaint states: "Unbeknownst to [p]laintiffs, the PSPD and/or the City of Palm Springs responded to unrest among owners of businesses adjacent to [p]laintiffs' store by organizing a meeting that took place on July 17, 2012, that was also attended by known gang members whose arrests the Nichols [sic] had facilitated, and at which meeting the PSPD and/or the City of Palm Springs revealed the Nichols' citizen-informant status to all present," thereby exposing plaintiffs to danger.

Plaintiffs assert in the complaint in the present action that defendants negligently delayed in filing the underlying action on their behalf and, as a result, claims arising from alleged wrongful conduct occurring before July 25, 2012 (including the revelation of their status as informants at a July 17, 2012 meeting) were barred by the statute of limitations.

III. The Trial and Defendants' Motion for Nonsuit

The trial court in the present action granted defendants' motion to bifurcate the trial into two phases: the merits of the underlying state-created danger claim (the trial-within-a-trial) or phase one; and plaintiffs' legal malpractice and breach of fiduciary duty causes of action against defendants or phase two.

The phase one trial commenced on May 11, 2022. The appellate record includes one minute order issued during the trial, that from May 19, 2022, the date plaintiffs concluded their presentation of evidence and the trial court granted defendants' motion for nonsuit. According to that minute order, plaintiff Georgia Nichols testified, the deposition testimony of another witness was read to the jury in lieu of live testimony, and trial exhibits were admitted into evidence. The record before us includes no information regarding which witnesses testified and what exhibits were admitted into evidence from May 11-18, 2022.

On May 16, 2022, in the midst of the phase one trial, defendants filed a trial brief. Therein, they stated: "Plaintiffs assert Rae Fernandez violated their rights by disclosing their status as informants. They allege this violation occurred: (1) at a townhall meeting on July 17, 2012 when Rae Fernandez allegedly stated that the [PSPD] was conducting an operation at [p]laintiffs' store; (2) immediately after the townhall meeting when Rae Fernandez allegedly hugged Michael Nichols; and (3) on July 20, 2012 when the Nichols [sic] delivered Angela Whiting for arrest and Rae Fernandez again allegedly hugged Michael Nichols. Defendants deny [p]laintiffs' allegations. Even accepting [p]laintiffs' allegations as true, however, and assuming [p]laintiffs' evidence supports them, Rae Fernandez' [sic] alleged conduct did not violate [p]laintiffs' clearly established rights." Other than these statements in defendants' trial brief, the record before us includes no context regarding the circumstances surrounding the allegations that Rae Fernandez hugged Michael Nichols or the arrest of Angela Whiting. These allegations were not included in plaintiffs' complaint. Nor does the appellate record include additional context regarding the circumstances surrounding the alleged July 17, 2012 meeting, other than the one-sentence allegation in plaintiffs' complaint summarized above and this statement from defendants' trial brief.

Defendants argued in their trial brief that Rae Fernandez was entitled to qualified immunity because as of July 2012, when the alleged conduct occurred, "there was no clearly established right requiring that police officers keep the identities of informants confidential."

Plaintiffs filed a written opposition to defendants' request for nonsuit. Therein, they asserted: "Here, the evidence has established that: (i) [p]laintiffs had worked as informants involving violent suspects and gangs; (ii) Rae Fernandez revealed [p]laintiffs' role in this capacity during and immediately after a town hall meeting on July 17, 2012, and during the arrest of violent criminal Angela Whiting; and (iii) after these events [p]laintiffs immediately were threatened and assaulted." Plaintiffs did not cite to any actual evidence in support of this characterization of their evidence. And, again, the record before us contains no additional context regarding these events, other than what we have already set forth above.

Plaintiffs argued in their opposition: "(i) qualified immunity does not apply when a violation of a constitutional right occurs, (ii) under the state-created danger doctrine Rae Fernandez's actions foreseeably exposed [p]laintiffs to increased danger, and (iii) exposing [p]laintiffs to increased danger violated their due process rights."

IV. The Hearing on Defendants' Motion for Nonsuit

On May 19, 2022, after the close of plaintiffs' evidence, the trial court excused the jury from the courtroom and held a hearing on defendants' motion for nonsuit. In addition to the grounds for nonsuit set forth in their trial brief (as summarized above), defendants stated they were moving for nonsuit on the ground plaintiffs presented no evidence that Rae Fernandez acted with deliberate indifference, an element of the state-created danger claim. The parties argued their positions on qualified immunity and the state-created danger doctrine, and the trial court questioned counsel regarding applicable law. Plaintiffs' counsel commented that there were "days and days of testimony" in the phase one trial regarding how Rae Fernandez's actions exposed plaintiffs to a greater risk of danger. In opposing the motion for nonsuit, plaintiffs asserted the evidence they presented at trial established Rae Fernandez acted with deliberate indifference.

After a brief recess, the trial court granted defendants' motion for nonsuit, stating on the record: "The constitutional right alleged to have been violated must have been clearly established at the time of the incident, and as counsel has referenced in case law cited, it can't be muddled. There can't be a split of authority. It can't [be] generalized. It must be particularized to the facts, and from my reading of the case law regardless of whether I agree with it or not, there appears to be no clearly established right requiring police officers to keep the identities of informants confidential. As stated in Martinez [v. City of Clovis (9th Cir. 2019) 943 F.3d 1260], even assuming the plaintiff has met the requirements of establishing a state-created danger, the right at issue must be clearly established, and to be clearly established, it must be particularized to the facts of the case, not to a generality such as exposing plaintiffs to an increased danger[.] Therefore, I am compelled and required to follow the law on this issue and grant the motion for nonsuit based on the qualified immunity."

We set forth the trial court's ruling to provide context for plaintiffs' contention on appeal. As explained below, we do not reach the merits of the ruling. Accordingly, we have not considered and express no opinion on the merits of the court's statements regarding the law.

The trial court entered orders dismissing the present action with prejudice and entered judgment in favor of defendants.

DISCUSSION

Plaintiffs contend the trial court erred in granting defendants' motion for nonsuit, arguing that the court "incorrectly ruled that prior Ninth Circuit case law establishing a constitutional right must be 'particularized to the facts of the case' in order to overcome [defendants]' qualified immunity defense." As explained below, we do not reach the merits of this contention because plaintiffs provided an appellate record that is inadequate for our review of the judgment under the applicable standard of review.

A defendant may move for nonsuit after the plaintiff's opening statement or at the close of the plaintiff's evidence. (Code Civ. Proc., § 581c, subd. (a).) Here, defendants moved for nonsuit at the close of plaintiffs' evidence. We do not know if plaintiffs gave an opening statement or, if they did, what evidence they said they intended to present, because the record before us does not include a reporter's transcript of the jury trial (or a settled statement).

"A defendant is entitled to a nonsuit if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his favor. [Citation.] 'In determining whether plaintiff's evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give "to the plaintiff['s] evidence all the value to which it is legally entitled, . . . indulging every legitimate inference which may be drawn from the evidence in plaintiff['s] favor."' [Citation.] A mere 'scintilla of evidence' does not create a conflict for the jury's resolution; 'there must be substantial evidence to create the necessary conflict.' [Citation.]

"In reviewing a grant of nonsuit, we are 'guided by the same rule requiring evaluation of the evidence in the light most favorable to the plaintiff.' [Citation.] We will not sustain the judgment' "unless interpreting the evidence most favorably to plaintiff's case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law." '" (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.) "The review of a grant of nonsuit is de novo." (Hernandez v. Amcord, Inc. (2013) 215 Cal.App.4th 659, 669.) A nonsuit may be affirmed on any ground specified in the motion, whether or not the trial court granted the motion on the ground. (Saunders v. Taylor (1996) 42 Cal.App.4th 1538, 1542; Lawless v. Calaway (1944) 24 Cal.2d 81, 92-94.)

In their opening appellate brief, plaintiffs correctly set out the standard of review, acknowledging that our task is to independently review the evidence to determine if a judgment for defendants is required as a matter of law. Yet, plaintiffs have provided no evidence for our review. The statement of facts in their opening brief is taken from the allegations in their unverified complaint, as their citations to the record demonstrate, rather than evidence they presented during the week-long phase one jury trial. The trial court heard and considered plaintiffs' evidence before it granted defendants' motion for nonsuit. We must review that same evidence in order to review the judgment of nonsuit under our standard of review.

As our Supreme Court has noted, in Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 186-187, the Court of Appeal "extensively catalogued the frequency with which appellate courts have declined to reach the merits of a claim raised on appeal because of the absence of a reporter's transcript." (Jameson v. Desta (2018) 5 Cal.5th 594, 609.) Pertinent to this case, courts have concluded the absence of a reporter's transcript of a trial (or a settled statement) in the appellate record precludes appellate review of a judgment of nonsuit on the merits. (See id. at p. 625 ["without a record of plaintiff's opening statement we cannot determine whether the trial court's grant of a nonsuit at this early stage of the trial was substantively proper"]; see also Hodges v. Mark (1996) 49 Cal.App.4th 651, 657 ["Since the reversal of a nonsuit requires the review of the evidence presented to the trial court, and a reporter's transcript was not provided, we do not reach the merits of [cross-appellant]'s claim"].)

Defendants pointed out to plaintiffs the inadequacy of the record before us. In their respondents' brief, defendants argue plaintiffs cannot show trial court error because the appellate record plaintiffs provided contains no evidence presented at trial. In their reply brief on appeal, plaintiffs mischaracterize defendants' argument, asserting, defendants' "new argument that their motion for nonsuit was supported by a lack of evidence is an impermissible argument raised for the first time on appeal and otherwise not supported by their own concessions about the evidence during the subject proceedings." Plaintiffs maintain that for purposes of the motion for nonsuit, defendants did not "contest [plaintiffs]' characterization of the evidence." In support of this representation, plaintiffs cite defendants' trial brief, in which defendants argued plaintiffs' allegations do not support a state-created danger claim, even assuming plaintiffs could present evidence to support their allegations. In the respondents' brief, defendants made clear they do not concede plaintiffs' characterization of the evidence presented at trial.

Whether plaintiffs' characterization of the evidence was undisputed in connection with defendants' motion for nonsuit is irrelevant here. During a week-long jury trial, plaintiffs presented witness testimony and exhibits in an effort to support their underlying state-created danger claim. The trial court heard and considered that evidence before granting defendants' motion for nonsuit. We need to independently review that evidence (or a settled statement) in order to decide this appeal on the merits under our standard of review. We cannot take plaintiffs' word for it that the evidence they presented was sufficient to defeat the motion for nonsuit. For example, we have no evidence before us indicating plaintiffs acted as informants for PSPD (e.g., the alleged written contracts); no evidence regarding the circumstances of the alleged July 17, 2012 meeting or what occurred there; and no evidence that Rae Fernandez's actions increased the danger plaintiffs faced, assuming plaintiffs agreed to and did act as informants. The appellate record includes only allegations in an unverified complaint. During oral argument on the motion for nonsuit, plaintiffs' counsel represented that the court had heard "days and days of testimony" in the phase one trial regarding how Rae Fernandez's actions exposed plaintiffs to a greater risk of danger. None of the evidence (testimony or exhibits admitted at trial) is before us. There is no settled statement.

Plaintiffs suggest it was unnecessary for them to provide for our review a factual record of the evidence presented at trial because the issue before us is a purely legal question-whether the trial court applied the correct law on qualified immunity. Plaintiffs' position misses the mark. As set forth above, in their request for nonsuit in their trial brief, defendants argued Rae Fernandez was entitled to qualified immunity because as of July 2012, when the alleged conduct occurred, "there was no clearly established right requiring that police officers keep the identities of informants confidential." Plaintiffs, on the other hand, assert: (1) "Rae Fernandez was not entitled to qualified immunity on the basis that there was no caselaw mirroring the specific facts of her conduct"; (2) "[t]he true inquiry is whether the law gave Fernandez fair warning that her conduct was unconstitutional"; (3) "[a]s of July 2012, it was clearly established that Fernandez could be held liable for violating [plaintiffs]' constitutional rights if she affirmatively and with deliberate indifference placed [plaintiffs] in danger they would not otherwise have faced"; and (4) "Fernandez placed [plaintiffs] in grave danger by revealing their status as working with the PSPD with actual words at the townhall meeting and her actions in hugging Michael Nichols at the meeting and at the Angela Whiting arrest." As plaintiffs' characterization of the relevant inquiry demonstrates, even assuming we agreed with plaintiffs' interpretation of the law that applies here, we would still need to independently apply that law to the facts to determine if the trial court erred in granting defendants' motion for nonsuit based on qualified immunity. This is not a demurrer or a motion for judgment on the pleadings, so we cannot base our review on the allegations of plaintiffs' unverified complaint. This is a motion for nonsuit made at the close of plaintiffs' evidence after a week-long trial. We must base our review on the evidence presented at trial-the same evidence the trial court heard and considered before it granted defendants' motion for nonsuit.

Plaintiffs state in their appellants' opening brief that they did "not address the deliberate indifference element" in their appellate briefing because the trial court did not address that element in its ruling. They seem to suggest that if we agree with them on the legal issue-that the trial court did not apply the correct law on qualified immunity-then we must reverse and remand the matter to the trial court for an application of the correct law to the facts, i.e. whether Rae Fernandez affirmatively and with deliberate indifference exposed plaintiffs to danger they would not have otherwise faced. Not so. As set forth above, our review of a judgment of nonsuit is de novo, and we may affirm the judgment on any ground specified in the motion, whether or not the trial court granted the motion on the ground. One of the grounds on which defendants moved for nonsuit is that plaintiffs did not present evidence establishing Rae Fernandez acted with deliberate indifference in allegedly exposing plaintiffs to greater danger than they otherwise faced; and plaintiffs opposed the motion on that ground. Thus, even if we agreed with plaintiffs' interpretation of the law, we could not conclude the trial court erred in granting defendants' motion for nonsuit based on qualified immunity because there is no evidence before us from which we may determine the qualified immunity question under the legal standard plaintiffs advance.

Based on the foregoing, we affirm the judgment of nonsuit on the ground that plaintiffs provided an inadequate record for a review of the judgment on the merits.

DISPOSITION

The judgment is affirmed. Respondents are entitled to recover costs on appeal.

We concur: BENDIX, Acting P. J. WEINGART, J.


Summaries of

Nichols v. Geragos & Geragos

California Court of Appeals, Second District, First Division
Aug 30, 2023
No. B322553 (Cal. Ct. App. Aug. 30, 2023)
Case details for

Nichols v. Geragos & Geragos

Case Details

Full title:MICHAEL A. NICHOLS et al., Plaintiffs and Appellants, v. GERAGOS & GERAGOS…

Court:California Court of Appeals, Second District, First Division

Date published: Aug 30, 2023

Citations

No. B322553 (Cal. Ct. App. Aug. 30, 2023)