Opinion
A163897 A164728
10-11-2023
STEPHEN G. OPPERWALL, Plaintiff and Appellant, v. DEAN PAPPAS, Defendant and Respondent.
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. HG18900038
CHOU, J.In these consolidated appeals, plaintiff Stephen G. Opperwall appeals from a judgment dismissing defendant and respondent Dean Pappas, an order granting Pappas attorney fees that he incurred in a prior appeal (Code Civ. Proc., § 425.16, subd. (c)), and an order denying Opperwall's motion to strike or tax Pappas's memorandum of costs. Opperwall contends the trial court entered judgment and awarded fees and costs prematurely and contrary to the one final judgment rule. His arguments are meritless, and we will affirm the judgment and the orders.
All statutory references are to the Code of Civil Procedure.
I. FACTS AND PROCEDURAL HISTORY
A. Earlier Proceedings
The underlying controversy began when Opperwall, an attorney, made a claim for water damage under his State Farm homeowners insurance policy. Unhappy with State Farm's response, he threatened to sue. State Farm hired Attorney David Demo to communicate with Opperwall regarding the insurance claim. In October 2017, State Farm closed the claim file and notified Opperwall.
Opperwall filed a lawsuit against a State Farm entity, alleging multiple causes of action, including breach of contract and fraud. State Farm hired Attorney Sandra Stone to defend the lawsuit, removed the lawsuit to federal court, and obtained dismissal of some of the claims.
In March 2018, Opperwall threatened to file a new lawsuit naming Demo and Stone as defendants if State Farm did not accept his settlement demand. State Farm hired Attorney Pappas-the respondent in this appeal-to communicate with Opperwall.
In early April 2018, Opperwall dismissed the first lawsuit without prejudice and filed a new complaint in superior court against various defendants. In his first amended complaint, Opperwall added Demo, Stone, and Pappas as defendants, alleging a single claim against them for "Interference with Contract and Inducing Breach of Contract." According to the pleading, Pappas took illegal and bad faith actions intended to prevent performance of the insurance contract, such as refusing to discuss aspects of the claim, precluding Opperwall from discussing the claim with State Farm, threatening him, and destroying or erasing evidence from the claims file.
Demo and Stone filed a special motion to strike under the anti-SLAPP (strategic lawsuit against public participation) statute (§ 425.16), on the ground that their alleged conduct constituted protected activity and Opperwall could not establish a probability of prevailing on his claim against them. The trial court granted the motion and, pursuant to the statute, awarded attorney fees to Demo and Stone. Opperwall appealed, and we affirmed. (Opperwall v. Stone (June 24, 2020, A156200) [nonpub. opn.].)
Relevant here, Pappas also filed a special motion to strike the claim against him, arguing that his communications with Opperwall constituted litigation-related activity protected by the statute and that Opperwall could not demonstrate a probability of prevailing. In opposition, Opperwall insisted Pappas was acting as a claims adjuster rather than an attorney, and neither Pappas nor his conduct was covered by the anti-SLAPP statute (§ 425.16).
The trial court granted Pappas's motion. The court concluded that Opperwall's allegations against Pappas arose out of protected activity and that Opperwall failed to demonstrate a probability of prevailing, both because the litigation privilege barred his claim and because Opperwall did not offer evidence to support his claim.
Pursuant to section 425.16, subdivision (c), Pappas filed a motion for attorney fees. Opperwall opposed. The trial court granted Pappas's motion and awarded him attorney fees in the amount of $22,000.
Opperwall appealed from the orders granting Pappas's special motion to strike and awarding Pappas attorney fees. In March 2021, this court affirmed the orders and awarded Pappas costs on appeal pursuant to rule 8.278(a)(2) of the California Rules of Court. (Opperwall v. Ornelas (Mar. 11, 2021, A157904) [nonpub. opn.].)
B. Judgment and Orders at Issue
In June 2021, Pappas filed a motion in the trial court under section 425.16 to recover $30,080 for his attorney fees on appeal. Opperwall opposed on the ground that the court had previously required Stone and Demo to wait until the conclusion of the entire case to request such fees. He further argued that the motion suffered from various defects. On August 24, 2021, the court heard argument and took the matter under submission.
On August 26, 2021, the trial court entered judgment for Pappas, including attorney fees of $20,200 as previously adjudged by the court, costs recoverable under sections 1032 and 1033.5, and attorney fees on appeal in the amount of $30,080, pursuant to section 425.16, subdivision (c)(1).
On September 21, 2021, the trial court issued its written order granting Pappas's motion for attorney fees on appeal, awarding $30,080. The court rejected Opperwall's arguments, distinguishing between its prior ruling on Demo and Stone's attempt to seek attorney fees by a memorandum of costs and Pappas's noticed motion for fees.
In October 2021, Opperwall timely appealed from the August 26, 2021 judgment and the September 21, 2021 order granting attorney fees on appeal (A163897).
On October 12, 2021, Pappas filed a memorandum of costs seeking $4,079. On October 24, 2021, Opperwall filed a motion to tax and strike costs. He did not object to the amount of costs asserted in the cost memorandum. Instead, he argued that the entry of judgment on August 26, 2021 was improper, the fee motion was improperly granted, and "Pappas [was] still in the case" (despite the affirmed order striking the lone claim against him).
In February 2022, the trial court denied Opperwall's motion to tax or strike costs. The court observed that Pappas's motion for fees had already been litigated and Opperwall did not object to the costs sought in the cost memorandum.
Opperwall filed a timely notice of appeal from the order denying his motion to tax or strike costs (A164728). We consolidated appeal numbers A163897 and A164728.
Pappas has filed a request that we take judicial notice of documents including a July 2022 order declaring Opperwall a vexatious litigant, a December 2022 judgment in this case in favor of Demo and Stone, Opperwall's appeal from that judgment, and this court's order denying Opperwall's application for permission to appeal as a vexatious litigant. Opperwall opposed the request for judicial notice, and we deferred our ruling until our consideration of the merits. The documents sought to be judicially noticed were not before the trial court at the time of its ruling, and the vexatious litigant order was not in existence when Opperwall filed the appeals that are the subject of this opinion. The request for judicial notice is therefore denied.
II. DISCUSSION
Opperwall contends the entry of judgment for Pappas, the attorney fees award, and the denial of his motion to strike or tax costs were improper because the trial court violated the one final judgment rule and should have followed its earlier ruling precluding Demo and Stone from seeking attorney fees until later in the case. His arguments are meritless.
A. Failure to Cite to the Appellate Record
In deciding Opperwall's prior appeals, we warned him that all factual assertions in his briefs must be supported by citations to the appellate record under rule 8.204(a)(1)(C) of the California Rules of Court, and that the failure to comply with this rule can result in our disregarding his assertions of fact. In his opening brief for his present appeals, he again falls short of the rule, citing to the record only twice. On page 14, he tells us: "For the facts that are discussed herein, see primarily the Third Amended Complaint. Clerk's Transcript at 442 et seq." On page 20, he writes, "This aspect is covered in the Clerk's Transcript at 182-183." This is insufficient. We therefore strike and disregard all the unsupported factual assertions in Opperwall's opening brief. Accordingly, he has failed to demonstrate that the appellate record discloses error, and the judgment and orders may be affirmed for this reason alone. As discussed next, even if we considered his factual assertions, he still would not prevail.
B. One Final Judgment
Opperwall argues that the entry of judgment in favor of Pappas violated the "single final judgment rule." He contends the judgment is a "piece-meal" or "partial" judgment because he still has a claim against State Farm. He is incorrect.
The one final judgment rule is designed to prevent piecemeal dispositions by limiting appellate review of intermediate rulings until final disposition of the case. (Tinsley v. Palo Alto Unified School Dist. (1979) 91 Cal.App.3d 871, 880.) Where all claims against one of several defendants have been resolved, however, judgment may be entered as to that defendant, even if the case proceeds as to other defendants. Section 579 decrees: "In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, whenever a several judgment is proper." (See § 578 ["[j]udgment may be given . . . for or against one or more of several defendants"]; Diamond Heights Village Assn., Inc. v. Financial Freedom Senior Funding Corp. (2011) 196 Cal.App.4th 290, 305 [court properly entered judgment in favor of one of the defendants after granting summary judgment on the lone cause of action pled against it].)
Here, Opperwall's sole claim against Pappas was resolved by the anti-SLAPP order, which struck the allegations on which the claim was based. The anti-SLAPP ruling was affirmed and became final. There was nothing more to resolve concerning Pappas's alleged liability to Opperwall, and judgment was therefore properly entered as to Pappas.
The cases on which Opperwall relies are inapposite. In Roy Brothers Drilling Co. v. Jones (1981) 123 Cal.App.3d 175, the court of appeal observed that judgment on a complaint would be premature if a cross-complaint by the defendant against the plaintiff was still pending. (Id. at p. 180.) Here, Pappas does not have a cross-complaint against Opperwall. In Horton v. Jones (1972) 26 Cal.App.3d 952, the court of appeal ruled that an appeal could not be taken from a denial of a motion for judgment notwithstanding the verdict after the liability phase of a bifurcated trial, before the damages phase had begun. (Id. at pp. 956-960.) Here, by contrast, there are no substantive issues left between Pappas and Opperwall.
Opperwall argues that the order granting Pappas's anti-SLAPP motion did "nothing more than to strike certain allegations against Pappas" and did not "lead to a judgment" because "the liability that had been alleged against Pappas was still being litigated by [Opperwall] against State Farm, and State Farm should be the one to pay Pappas'[s] attorneys' fees and costs, or alternatively to have State Farm reimburse [Opperwall] for those amounts claimed by Pappas." Similarly, he contends the trial between State Farm and Opperwall will decide if "State Farm must pay the amounts that Pappas claims against [Opperwall] and whether State Farm would have to reimburse [Opperwall] for any amounts claimed by Pappas."
Because there is no pleading by Pappas against Opperwall, there are no amounts that Pappas "claims" against Opperwall other than the attorney fees (and costs) the trial court already awarded. Contrary to Opperwall's argument, the trial in Opperwall's case against State Farm will not decide who must pay these fees and costs-it has already been decided that Opperwall must pay them. Whether State Farm might have to reimburse Opperwall has to do with matters between Opperwall and State Farm, not Pappas.
Moreover, Opperwall's notion that State Farm will be found liable is premised on a misreading of our opinion in one of his earlier appeals. He states: "Based on the precedent in Appeal # A156200, State Farm is liable to [Opperwall] for the actions of Pappas." He tells us we "said that State Farm is liable for the damages sustained by [Opperwall] as a result of those attorneys for State Farm." We said no such thing.
Opperwall points to the following "key language" in our opinion: "Lastly, in his reply brief, Opperwall protests that the 'insurance carrier is trying to create immunity for bad faith actions by having outside claims adjusters who are attorneys take the place of the carrier's in-house claims adjusters,' 'creating a wall between the homeowner and the carrier that seeks to insulate the carrier from its bad faith and from the adjusters' bad faith.' As explained ante, however, Opperwall failed to cite any evidence that Demo and Stone were acting as claims adjusters, so his argument falls flat. Furthermore, he misperceives the anti-SLAPP statute, which does not grant 'immunity' to anybody. [Citation.] Further still, we do not rule that the carrier (State Farm General) escapes liability by employing an attorney to act as a claims adjuster. The point is simply this: where a plaintiff has chosen to sue an attorney for communications and other acts made in connection with actual or threatened litigation, the claim is of a type that requires the plaintiff (in the second step of the anti-SLAPP analysis) to show a probability of prevailing in order to proceed against the attorney." (Opperwall v. Stone, supra, A156200, italics in original.)
The context of this passage was our rejection of Opperwall's arguments against the application of the anti-SLAPP statute. By stating "we do not rule that the carrier (State Farm General) escapes liability by employing an attorney to act as a claims adjuster" (italics added), we were not declaring that State Farm was liable (to the contrary, we found no evidence that Demo or Stone were claims adjusters). Instead, we were simply stating that we were not deciding that issue and did not need to decide it in applying the statute. In fact, we explicitly stated our "point [was] simply" that Opperwall had to show a probability of prevailing, which he ultimately failed to do. Simply put, Opperwall mischaracterizes our opinion in Opperwall v. Stone, supra, A156200.
C. Trial Court's Prior Order Regarding Demo and Stone
Opperwall contends the trial court should have followed its earlier ruling as to Demo and Stone and denied Pappas's request for attorney fees and costs until the conclusion of the case.
The situation with Demo and Stone is distinguishable from the situation with Pappas, as the trial court explained in its order. Demo and Stone sought attorney fees incurred in their appeal by filing a memorandum of costs. Pappas, on the other hand, filed a noticed motion for fees. Moreover, regardless of how the trial court ruled as to Demo and Stone, the anti-SLAPP order striking the allegations against Pappas left no substantive issues to litigate as to Pappas, so entering judgment as to Pappas, ruling on his motion for attorney fees, and awarding him costs was proper. There being no argument as to the amount of fees or costs awarded, the orders awarding fees and denying Opperwall's motion to strike or tax costs will be affirmed along with the judgment.
III. DISPOSITION
The judgment and orders are affirmed. Pappas is entitled to recover his costs on appeal.
WE CONCUR: JACKSON, P. J. BURNS, J.