Opinion
F054031
8-8-2008
PDM STEEL SERVICE CENTERS, INC., Plaintiff and Appellant, v. MULLEN & FILIPPI, Defendant and Respondent.
McLean & McLean, Mark A. McLean, Lauri K. McLean and Benjamin L. Kennedy for Plaintiff and Appellant. Vartain Law Group, Michael J. Vartain, Kathryn J. Burke and Judy Liao for Defendant and Respondent.
Not to be Published
INTRODUCTION
On July 20, 2006, appellant PDM Steel Service Centers, Inc., filed a multi-cause complaint in Fresno County Superior Court alleging respondent Mullen & Filippi, LLP, mishandled a workers compensation matter relating to one of appellants employees. Appellant filed a first amended complaint on March 21, 2007, and that same day personally served the amended pleading and related documents upon respondents office employee in Fresno. Appellant successfully requested entry of default on April 26, 2007, based on respondents purported failure to timely answer or demur to the first amended complaint. On June 7, 2007, the superior court held the entry of default void because of appellants failure to serve respondents designated agent for service of process. The superior court subsequently awarded respondent $5,341.40 in fees and $553.02 in costs (a total of $5,894.42) incurred in the preparation and presentation of respondents motion to set aside default. On appeal, appellant contends the award of fees and costs as sanctions constituted an abuse of discretion. Respondent, in turn, seeks an affirmance of that award as well as the imposition of sanctions on appeal.
Although the superior court file includes a filed summons on first amended complaint, only the face page and proof of service page of the first amended complaint can be located at the proper point in the hard copy of the superior court file. We have taken notice of the face page and proof of service of the first amended complaint.
STATEMENT OF THE CASE
We initially note there are gaps in the clerks transcript on appeal and that certain designated documents are missing critical attachments. In her declaration in support of respondents motion for sanctions on appeal, attorney Kathryn J. Burke correctly noted that PDM omitted attorney Judy Liaos declaration filed May 8, 2007, and the April 24, 2007, letter of appellants counsel to respondents counsel. An appellant has the burden of affirmatively showing error on an adequate record. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) A record is inadequate if the appellant predicates error only on the part of the record he or she provides to the trial court but ignores or does not present to the appellate court portions of the proceedings which may provide grounds upon which the decision of the trial court could be affirmed. (Osgood v. Landon (2005) 127 Cal.App.4th 425, 435.) Where a party fails to furnish an adequate record of the challenged proceedings, his or her claim on appeal must be resolved against him. (Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28, 46.) In the instant case, we have taken judicial notice of certain documents in the superior court file to fill the gaps and omissions in the record on appeal.
On April 6, 2007, McLean & McLean LLP, attorneys for appellant PDM Steel Service Centers, Inc., filed a proof of service in superior court. A declaration of Robert Ferguson of Action Legal Support, attached to the proof of service, indicated that Ferguson served on respondent Mullen & Filippi, LLP, a California Limited liability law partnership, copies of a summons on first amended complaint, first amended complaint, civil case cover sheet, notice of case management conference, and alternative dispute resolution information package. According to the declaration, Ferguson served the papers on respondent by personally delivering them to one Christina Garcia.
On April 26, 2007, the superior court entered the default of respondent Mullen & Filippi, LLP, as requested by appellant.
On May 8, 2007, respondent filed a motion to set aside the entry of default, noting that Christina Garcia was the office receptionist for the respondents Fresno regional office, that respondent is a limited liability partnership, and that Garcia is not registered with the Secretary of State as respondents agent for service of process. (Code Civ. Proc., § 473.5.)
On May 24, 2007, appellant filed written opposition to respondents motion to set aside entry of default, claiming respondent received actual notice of appellants first amended complaint on March 21, 2007. Appellant specifically prayed for $3,000 in attorney fees and costs associated with the entry of default and written opposition to the motion to set aside because respondent "made no effort to resolve this matter informally." On May 29, 2007, appellant filed a pleading correcting errata in its written opposition to respondents motion.
On May 31, 2007, respondent filed additional declarations in support of its motion to set aside entry of default.
On the same date, respondent filed a reply memorandum in support of its motion.
On June 7, 2007, the superior court filed an amended tentative ruling holding the entry of default void for failure to serve respondents designated agent for service of process or to comply with the provisions of Code of Civil Procedure section 415.20, subdivision (a) (leaving copy of summons and complaint at office). The court also denied appellants request for $ 3,000 in fees and costs because the default was void.
On June 13, 2007, respondent filed a declaration setting forth $ 6,386.96 in total reasonable costs and fees incurred in bringing the motion to set aside the default. (Code Civ. Proc., § 473, subd. (c)(1)(C).)
On June 25, 2007, appellant filed a separate written response and written evidentiary objections to the declaration and requested exclusion of "all improperly requested costs and fees."
On July 2, 2007, respondent filed a written reply memorandum in support of its declaration of fees and costs.
On July 11, 2007, the court filed a tentative ruling to grant respondent $5,341.40 in fees and $553.02 in costs (a total of $ 5,894.42) incurred in the preparation and presentation of respondents motion to set aside default.
On August 29, 2007, the court filed several tentative rulings in the underlying action. Among other things, the court overruled respondents demurrer to the seventh and eight causes of action for professional negligence and breach of contract alleged in the second amended complaint. The court also sustained without leave to amend the demurrer as to the ninth cause of action for breach of the covenant of good faith and fair dealing. The court further required an answer from respondent within 10 days of its tentative ruling. In a separate tentative ruling, the court held its order on sanctions under Code of Civil Procedure section 473 would stand because respondent had previously made several general appearances in the case.
On October 19, 2007, appellant filed a notice of appeal "from the interlocutory order of the Superior Court of the State of California for the County of Fresno ... awarding defendant Mullen & Filippi, LLP monetary sanctions in the amount of $5,894.42." However, appellant did not appeal from the order on motion to set aside default.
Code of Civil Procedure section 904.1 states in pertinent part:
"(a) An appeal, other than in a limited civil case, is to the court of appeal. An appeal, other than in a limited civil case, may be taken from any of the following: [¶] ...
"(12) From an order directing payment of monetary sanctions by a party or an attorney for a party if the amount exceeds five thousand dollars ($5,000)."
We note appellant does not appeal from the ruling underlying the sanctions order, i.e., the June 7, 2007, order on motion to set aside default. An appeal may be taken from an order setting aside a default (see generally Penland v. Goodman (1941) 44 Cal.App.2d 14, 15-20) or an order granting a motion to quash service of summons (Code Civ. Proc., § 904.1, subd. (a)(3)).
On December 19, 2007, appellant filed a petition for writ of mandate with this court (No. F054380). On December 27, 2007, this court denied the petition for writ by minute order.
On January 30, 2008, counsel for respondent wrote counsel for appellant and requested immediate dismissal of the instant appeal.
On February 6, 2008, counsel for appellant wrote counsel for respondent, noted that his client "appeals only the sanctions award as an abuse of discretion," and declined to dismiss the appeal.
On February 11, 2008, respondent filed a motion in this court to impose sanctions on appellant and its counsel "for taking a frivolous appeal, for appealing solely to cause delay, and/or for committing an unreasonable violation of the Rules of Court by omitting crucial facts and evidence from its opening brief." (Code Civ. Proc., § 907, Cal. Rules of Court, rule 8.276.)
On March 3, 2008, this court filed an order noting respondents motion for sanctions and granting appellant leave to file a reply.
On March 19, 2008, appellant filed a written response to motion for sanctions, claimed it followed applicable statutes and rules in serving respondent, requesting respondents default, and in summarizing the facts in its opening brief on appeal, and maintained its appeal was neither frivolous nor filed solely to delay a judgment. Appellant therefore maintained the request for sanctions should be denied.
On July 18, 2008, this court filed a notice of intent to take judicial notice of certain records of the superior court in this action (Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a)).
The documents to be noticed included: (1) complaint filed July 20, 2006; (2) first amended complaint filed March 21, 2007; (3) order to show cause re case management conference filed March 23, 2007; (4) letter from Judy Liao to Mark A. McLean, Esq. dated April 2, 2007; (5) notice and acknowledgment of receipt — civil signed by Charissa Gung and Judy Liao, Esq. on April 2, 2007; (6) letter from Benjamin L. Kennedy, Esq. to Judy Liao, Esq. dated April 24, 2007; (7) letter from Judy Liao, Esq. to Benjamin L. Kennedy, Esq. dated April 25, 2007; (8) letter from Benjamin L. Kennedy, Esq. to Judy Liao, Esq. dated April 30, 2007; (9) declaration of Judy Liao in support of defendant Mullen & Filippi, LLPs motion to set aside entry of default, filed May 8, 2007; and (10) tentative ruling on determination of amount of fees and costs for motion to set aside default, dated July 9, 2007.
The period for filing an objection having expired, this court takes judicial notice of the foregoing materials. (Evid. Code, §§ 455, 459, subd. (c).)
STATEMENT OF FACTS
Facts of the Underlying Lawsuit
The following facts are taken from respondents brief on appeal:
"The underlying lawsuit was filed on or about July 20, 2006. It is an action by an insured (PDM) against a law firm (Mullen & Filippi, LLP) hired by PDMs workers compensation carrier to defend a workers compensation claim made by PDMs employee. PDM alleges that it later entered into a settlement of a civil lawsuit by the employee, necessitated because in the prior workers compensation proceeding, the Law Firm did not attend a January 2002 hearing of the Workers Compensation Appeals Board (`WCAB) and adduce evidence from PDM, and then did not inform PDM of the WCAB judges findings. As to the settlement of the civil lawsuit, PDM was represented in those proceedings by the same attorneys now representing it in this case against the [respondent] Law Firm.
"... Trial is set for August 18, 2008.... Accordingly, the discovery cut-off will be on or about July 18, 2008, and the deadline for filing a motion for summary judgment will be on or about April 29, 2008 by mail service. The case is currently in the discovery phase. PDM has filed numerous discovery motions...."
Facts Underlying the Order for Sanctions in the Trial Court
On March 21, 2007, appellant served respondent with a first amended complaint. The first amended complaint was delivered to Christina Garcia of the Fresno office of respondent law firm. On March 26, 2007, five days after registered process server Robert Ferguson delivered the documents to Garcia, attorney Maurice Harrison of respondent law firm appeared at a scheduled case management conference. On April 2, 2007, attorney Judy Liao of the Vartain Law Group wrote attorney Mark A. McLean of McLean & McLean LLP, counsel for appellant. Liao advised McLean that the Vartain Law Group represented respondent and that all communications regarding the underlying action should be directed to her. She also noted that respondent had not been properly served with the summons and complaint. She stated: "Therefore, please find enclosed a notice and acknowledgment from Mullen & Filippi, LLP, of receipt of the summons and complaint. This will deem the effective date of service to be April 2, 2007."
On April 5, 2007, appellant filed and served the proof of service of the first amended complaint, stating that service on respondent was effected on March 21, 2007. The proof of service was accompanied by a proof of service of summons executed by Robert Ferguson of Action Legal Support. The firm of McLean & McLean LLP represented appellant in the underlying action and the Vartain Law Group represented respondent. On April 16, 2007, Benjamin L. Kennedy, Esq., a member of the McLean firm, spoke with Judy Liao, Esq., of the Vartain Group regarding the delivery of documents on March 21, 2007. During this conversation, Kennedy advised Liao that he believed respondent had been properly served on March 21. He also informed Liao that the superior court had rejected respondents notice and acknowledgment form that she had sent to Kennedys office.
On April 24, 2007, attorney Benjamin Kennedy of the McLean firm wrote to Liao. Kennedy noted he had spoken with Liao and her paralegal about the underlying matter during the previous week and that he had informed Liao and the paralegal that his firm had served the first amended complaint on respondent firm on March 21, 2007. He concluded:
"As you know, a defendant wishing to demur to a complaint must do so within 30 days after service. The First Amended Complaint was served on Mullen & Filippi on March 21, 2007. Mullen & Filippis demurrer was due on or before April 20, 2007. (And despite your knowledge — no later than April 2, 2007 — of service of the First Amended Complaint on your client, on March 21, 2007, you neither requested nor obtained an extension of time to respond.) Accordingly, please be informed that if we do not receive your clients answer by Friday, April 27, we will be forced to seek entry of default." (Fn. omitted.)
The following day, April 25, 2007, Liao wrote Kennedy in response and said the March 21, 2007, purported service of summons and first amended complaint was ineffective because the person served was not "`designated as agent for service of process in a statement filed with [the] Secretary of State or ... a general partner or the general manager of the partnership." On April 30, 2007, Kennedy again wrote Liao, stating:
"For the record, at no time during my conversation with you — nor in any other communication with you or your office — did I `agree that defendant Mullen & Filippi, LLP was `effectively served on April 2, 2007. (Indeed, your inaccurate recollection as to our telephone conference is quite curious in that it is directly inapposite to my actual statements to you, that your client was served with Plaintiffs First Amended Complaint on March 21, 2007, that a representative of Mullen & Filippi, LLP appeared at the March 23, 2007 hearing in this action, and that irrespective of any claim you wish to assert as to service, our firm and unambiguous position is that the actual date of service (March 21, 2007) is also the effective date of service."
In a subsequent declaration, Kennedy said he spoke with the Action Legal Support office manager on May 21, 2007, and the latter said that process server Robert Ferguson spoke with Christina Garcia of respondent law firm at the time of service. Ferguson told Kennedy that Garcia reviewed the documents and told Ferguson she was authorized to accept service on behalf of the respondent law firm. Joseph A. Igoa, Esq., managing associate partner of the Fresno regional office of respondent firm, acknowledged that appellant delivered the summons and first amended complaint to the desk of the respondents Fresno receptionist, Christina Garcia. However, Igoa maintained that respondent was "a limited liability partnership of which the office receptionist is not a partner nor is she registered with the Secretary of State as the agent for service of process."
According to a declaration executed by Ferguson on June 18, 2007, Garcia advised him that she was authorized to accept service of process on behalf of respondent. Ferguson explained: "If the individual does not confirm to me — with clear certainty — that he or she is authorized to accept service of process on behalf of the entity, then my practice is to: (1) leave the documents with the individual; and (2) mail a duplicate copy of the documents to the business entity, in order to complete `substitute service on the business entity."
On April 26, 2007, Kennedy filed a request for entry of default against respondent and the clerk entered default as requested on that same date. On May 8, 2007, respondent moved to set aside the default alleging the default was "based upon a purported service of summons that, as a matter of law, was insufficient, since it solely showed personal delivery to a person who was not an agent for service of summons." Appellant filed written opposition, maintaining "service on a partner, manager, or registered agent is not required for effective service on [a] limited liability partnership ...." (Fn. omitted.) On May 31, 2007, respondent filed a written reply memorandum asserting that service of summons on the a partnership can only be accomplished by delivery of a copy of the summons and complaint to the person designated as agent for service of process, to a general partner, or to the general manager of the partnership (Code Civ. Proc., § 416.40, subd. (a)).
On June 7, 2007, the court conducted a contested hearing on respondents motion, heard the arguments of counsel, and adopted its tentative ruling, which stated in pertinent part:
"Both parties here agree that California Code of Civil Procedure section 416.40, which was listed on the proof of service as the code section under which service was made, applies, though they dispute whether it is sub-part (a) or (b).
"Both sub-sections (a) and (b) require that service be accomplished on a person designated or authorized by the defendant to receive service for it. Additionally, Corporations Code section 16962(a) states that the designation is done by the law firm, and only the law firm, by furnishing a statement to the Secretary of State. Finally, Code of Civil Procedure section 415.20(a) states that service may be accomplished by leaving the summons and complaint with a person who is in charge of the office of the registered agent, but that a copy of same must also be mailed via first class postage to that agent thereafter. Such extends the time for a responsive pleading by ten days.
"There is no provision allowing service of process on a person merely because they state they can accept it. Only the law firm is able to designate who its agent may be, and the only evidence provided in this motion is that the person served, the law firm receptionist, was not then nor ever designated or authorized as the agent for service of process on the law firm. The four-level hearsay statement by counsel for opposing party that the receptionist averred she could accept service is not admissible, nor if it were, would it suffice to demonstrate whom the law firm itself has designated as its agent for this purpose.
"Opposing counsel admits that no investigation was undertaken to determine the status of the person to whom the papers were given until May 21, 2007, although he was advised on April 2, 2007 that she was not the agent. There is no evidence that counsel for PDM Steel ever obtained the statement of agent from the Secretary of State. PDM Steel has failed to meet its burden of proof to demonstrate that service has been accomplished. [¶] ...
"The lack of proof of service renders the default void. It is therefore vacated, not merely set aside. Code of Civil Procedure section 417.10(a) requires that a proof of service list the title of the person served. The proof of service filed with the Court for Mullen & Filippi fails to do so; `receptionist appears no where thereon.
"Nor does the proof of service provide any basis for the process servers averment that the receptionist is the `agent for service. The default was therefore entered as a result of clerical mistake, and is vacated pursuant to Code of Civil Procedure 473(d) as well as for failure to meet the service requirements of the sections set forth above."
In the June 7 tentative ruling, the court ordered that "plaintiffs counsel pay to counsel for moving party all reasonable costs and fees incurred in bringing this motion, pursuant to Code of Civil Procedure section 473(c)(1)(C)." The court further continued a previously-set case management conference to July 11, 2007, for a hearing on the costs and fees. On July 11, the court filed a tentative ruling to grant respondents counsel attorney fees in the sum of $5,341.40 and costs in the sum of $553.02 (a total of $5,894.42) payable by counsel for appellant. That same date, the court called the case and a question arose as to whether respondent firm had made a general appearance in the action or only special appearances up to that point. The court directed the parties to submit simultaneous briefs on the issue of a general appearance and the impact of such an appearance on the award of fees and costs. On August 22, 2007, the court adopted a tentative ruling finding that respondent had made several general appearances in the action. The court also adopted the July 11 tentative ruling as to the issue of sanctions, i.e., $5,341.40 in fees and $553.02 in costs payable by counsel for appellant to the counsel for respondent.
The August 22 tentative ruling did not expressly indicate adoption of the July 11 tentative ruling. At the August 22 hearing, counsel for respondent reminded the court that it previously ordered sanctions in the approximate amount of $5,000 in its July 11 order. The court stated, "So the Court adopts the tentative ruling as to the issue of sanctions — becomes the order of the Court." Counsel for respondent asked, "So that means the amount you previously ruled on in your tentative would be confirmed?" The court responded, "Thats correct. So no further order is necessary. The tentative ruling becomes the order of the court and well reflect that in the minute order." A minute order referencing a hearing date of August 29 indicated a ruling on "Mtn for Attorney Fees" and further indicated "Tentative rulings become the order of the court. No further order is necessary." The face page of that minute order did not expressly refer to the tentative ruling of July 11.
DISCUSSION
I. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY AWARDING RESPONDENT $5,894.42 IN SANCTIONS.
Appellant contends the trial court abused its discretion in awarding the sanctions because it misapplied the laws governing service of process. Appellant submits the courts June order formed the basis of the courts August 22 order awarding sanctions but did not comport with the laws governing service upon California limited liability partnerships.
Appellants argument is somewhat circular. Appellant expressly declined to "appeal the trial courts vacating the default." Yet, appellant insists the award of sanctions in the superior court should be reversed because the trial court based the award "on its erroneous finding of improper service and `premature entry of default." Appellant could have appealed from the order vacating the default but declined to do so. Appellants calculated refusal to appeal from the order setting aside default and simultaneous claim of erroneous trial court findings underlying that order is disingenuous at best.
Appellant specifically refers to the "trial courts June 18, 2007 Order, which forms the basis of the trial courts August 29, 2007 Order awarding Mullen & Filippi sanctions ...." The record on appeal does not appear to include a June 18, 2007, order and the August 29, 2007, order actually references the hearing that took place on August 22.
A. Statutes Governing Service of Process
"Process" is a writ or summons issued in the course of a judicial proceeding of either a civil or criminal nature. (Code Civ. Proc., § 17, subd. (b)(6).) A summons is an order signed by proper authority directing the party served to appear within 10 days if served in the county, otherwise within 30 days, unless a particular statute provides differently. (Pinon v. Pollard (1945) 69 Cal.App.2d 129, 133.) Service of process is the means by which a court having jurisdiction over the subject matter asserts its jurisdiction over the party and brings home to the party reasonable notice of the action. Service of process is an indispensable element of due process of law. (Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1466; Renoir v. Redstar Corp. (2004) 123 Cal.App.4th 1145, 1150.)
Code of Civil Procedure section 416.40, subdivision (b) states:
"A summons may be served on an unincorporated association (including a partnership) by delivering a copy of the summons and of the complaint:
"(a) If the association is a general or limited partnership, to the person designated as agent for service of process in a statement filed with the Secretary of State or to a general partner or the general manager of the partnership;
"(b) If the association is not a general or limited partnership, to the person designated as agent for service of process in a statement filed with the Secretary of State or to the president or other head of the association, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a general manager, or a person authorized by the association to receive service of process;
"(c) When authorized by Section 18220 of the Corporations Code, as provided by that section."
Corporations Code section 16962, cited in the superior courts tentative ruling for the June 7, 2007, hearing, states in pertinent part:
"(a) Each registered limited liability partnership whose principal office is not in this state and each foreign limited liability partnership registered under Section 16959 shall designate as its agent for service of process any natural person or a domestic or foreign corporation entitled to be designated as agent for the service of process pursuant to Section 1505."
Code of Civil Procedure section 473, subdivision (d) states:
"The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order."
Code of Civil Procedure section 473.5, subdivision (a) states in relevant part:
"When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action."
Compliance with the statutory procedures for service of process is essential to establish personal jurisdiction. Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. Under Code of Civil Procedure section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law due to improper service. (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.) "Actual notice" in Code of Civil Procedure section 473.5 means genuine knowledge of the party litigant. The term "actual knowledge" has been strictly construed with the aim of implementing the policy of liberally granting relief so that cases may be resolved on their merits. An appellate court reviews the trial courts findings regarding actual notice of the action for an abuse of discretion. (Ellard v. Conway, supra, 94 Cal.App.4th at p. 547.)
B. Appellants Contentions
On appeal, appellant contends the trial court erroneously assumed that Corporations Code section 16962 applied to California limited liability partnerships such as respondent rather than only to "`limited liability partnership[s] whose principal office is not in this state" and to "`foreign limited liability partnership[s]." Appellant further contends that strict compliance with service statutes was not required under California case law.
A limited liability partnership (LLP) is a general partnership with the corporate feature of providing a partner with a liability shield for certain forms of debts and obligations. An LLP is designed to provide the benefits of limited liability while permitting partners to actively participate in the management of the partnership. Most jurisdictions permit LLPs to carry on a broad range of business activities, not just the practice of specified professions. (1 Selecting & Forming Business Entities (Cont.Ed.Bar 2d ed. 2007) § 7.2, p. 464.) In California, the LLP vehicle is only available to general partnerships engaged in the practice of law, public accountancy, or architecture, and LLPs providing services or facilities related to those provided by such firms. To qualify as a registered LLP, all partners of the law or other professional firm must be licensed to practice their respective profession. (1 Selecting & Forming Business Entities, supra, § 7.3, p. 465.)
The legislation authorizing LLPs in California did not enact a separate statutory scheme for general partnerships that convert to LLPs. Instead, provisions specifically dealing with LLPs are included in the Uniform Partnership Act of 1994 (Corp. Code, §§ 16100-16962.). (1 Selecting & Forming Business Entities, supra, § 7.8, pp. 470-471.) A domestic general partnership may be organized to qualify as an LLP or an existing general partnership may be converted to an LLP. (Corp. Code, § 16955, subd. (a).) Following the requisite vote of partners of a general partnership, a general partnership completes its conversion to an LLP by filing a registration form (Secretary of State form LLP-1) with the Secretary of State and paying a fee. (Corp. Code, § 16953, subds. (a), (b).) The form requires the partnership to provide the name and address of the agent for service of process on the limited liability partnership in California. (Corp. Code, § 16953, subd. (a)(3).) (1 Selecting & Forming Business Entities, supra, § 7.15, p. 475.)
Appellant correctly maintains the trial court erred by referring to Corporations Code section 16962 in its tentative ruling for the June 7, 2007, hearing. That section pertains to registered limited liability partnerships where principal offices are not in this state and to foreign limited liability partnerships registered under Corporations Code section 16959. Appellant properly points out that respondent is a domestic liability partnership with its principal office in California. However, the Corporations Code does include a comparable provision applicable to respondent firm, i.e., section 16953. That section requires the filing of a registration with the Secretary of State setting forth certain information, including "[t]he name and address of the agent for service of process on the limited liability partnership in California." (Corp. Code, § 16953, subd. (a)(3).) The fact a registration is on file with the Secretary of State is notice that the partnership is a registered limited liability partnership, and of those other facts contained therein that are required to be set forth in the registration. (Corp. Code, § 16953, subd. (f).) The superior courts incorrect citation of the applicable section of the Corporations Code does not compel reversal in the instant case as it does not affect the substantial rights of the parties. (Code Civ. Proc., § 475.)
Citing Code of Civil Procedure section 416.40, subdivision (b), appellant contends a summons may be served on a limited liability partnership by delivering a copy of the summons and complaint to (1) the person designated for service of process by the unincorporated entity with the Secretary of State; (2) the president or other head of the entity; (3) a vice president; (4) a secretary or assistant secretary; (5) a treasurer or assistant treasurer; (6) a general manager; or (7) a person authorized by the entity to receive service of process. Appellant submits the last category of persons authorized to accept service of process includes "individuals with ostensible authority to accept service." Appellant cites Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295 (Gibble) to support its contention.
In Gibble, defendant consumer research corporation hired plaintiff Gibble to conduct certain marketing research in defendants Stonestown Galleria office. Defendant corporations office manager, Jean Coddington, eventually rejected plaintiff Ravi Malhotra as a research subject and terminated Gibbles employment. Both Gibble and Malhotra sued for damages and served their complaint on defendant corporation. Plaintiffs were aware that the corporation had been suspended by the California Secretary of State at the time the action commenced but they nevertheless personally served the summons, complaint, and statement of damages on Coddington as an individual defendant and as a person authorized to accept service on behalf of the corporation. The corporation failed to answer the complaint and plaintiffs requested entry of default and a default judgment. Copies of the default documents were mailed to Coddington and plaintiffs eventually recovered a $300,000 judgment. More than a year later, the corporation successfully moved to set aside the default judgment. Plaintiffs appealed and Division Three of the Court of Appeal, First District, reversed the set-aside, concluding the corporation had adequate notice of the action and was properly served but failed to respond until long after entry of judgment.
As to the validity of service, the appellate court stated:
"It is well settled that strict compliance with statutes governing service of process is not required. Rather, in deciding whether service was valid, the statutory provisions regarding service of process should be liberally construed to effectuate service and uphold the jurisdiction of the court if actual notice has been received by the defendant. (Pasadena Medi-Center Associates v. Superior Court (1973) 9 Cal.3d 773, 778 ...; Dill v. Berquist Construction Co. [(1994)] 24 Cal.App.4th [1426, 1437].) Thus, substantial compliance is sufficient. (Ibid.) Furthermore, service on a person who was ostensibly, even if not actually, a corporate officer is sufficient under section 416.10. (See Pasadena Medi-Center Associates v. Superior Court, supra, at pp. 778-779.) Where there has been service upon a corporate agent with ostensible authority to accept it, jurisdiction is established and a claim of defective service in such a case is not a proper basis for setting aside a default judgment entered against the corporation. ( Id. at p. 777.)" (Gibble, supra, 67 Cal.App.4th at p. 313.)
In Gibble, evidence in the record indicated that Coddington had sole, unfettered authority to hire and fire employees, to authorize payment of their wages, to authorize or withhold payments to interview subjects, and to conduct defendant corporations core business activities in the San Francisco area, apparently without oversight from any other manager or officer of the corporation. Without any contrary evidence, plaintiffs could reasonably conclude that Coddington was "general manager" of the corporation. Defendant corporation admitted that Coddington was "manager" of its San Francisco office and never effectively denied that she was a "general manager" within the meaning of Code of Civil Procedure, section 416.10, subdivision (b), the statute applicable to the corporation. Absent proof to the contrary, the trial court should have concluded jurisdiction over defendant corporation was established and the latters belated claim of defective service was not a proper basis for granting relief from the default judgment. (Gibble, supra, 67 Cal.App.4th at pp. 313-314.)
Appellant fails to point to such evidence in the instant case, in all likelihood because no such evidence is extant. Our careful review of the record does not reveal any acts or declarations of the respondent that would even suggest ostensible authority on the part of employee Garcia. Appellant nevertheless insists that respondents employee, Christina Garcia, had ostensible authority to accept service on behalf of the firm. "Ostensible authority" is "such as a principal, intentionally or by want of ordinary care, causes or allows a third person to believe the agent to possess." (Civ. Code, § 2317.) Ostensible authority is based on the principle of estoppel, i.e., representation, justifiable reliance, and changed position as a result of the reliance. Ostensible authority must be based on the acts or declarations of the principal and not solely upon the agents conduct. (Taylor v. Roseville Toyota, Inc. (2006) 138 Cal.App.4th 994, 1005.)
In the instant case, appellant maintains Christina Garcia, the individual served on behalf of respondent firm, specifically stated she was authorized to accept service of process. Ostensible authority is not established by the statements and representations of the purported agent. Rather, ostensible authority is created by the acts or declarations of the principal. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1438, fn. 11.) Appellant fails to point out the relevant acts and/or declarations of the principal — respondent firm — in the instant case. More specifically, appellant fails to cite to any express words, policies, customs, or conduct by respondent law firm to suggest or imply that its Fresno employee, Christina Garcia, was authorized to accept service on its behalf on March 21, 2007. Absent affirmative representations by the principal or its acquiescence in the conduct of a subordinate, we cannot conclude that Christina Garcia had ostensible authority to act in lieu of the agent expressly registered with the office of Secretary of State and to accept service of process for respondent limited liability partnership.
Appellant steadfastly insists that Garcia was an agent of respondent firm who possessed ostensible authority. While Garcia may have had certain defined responsibilities within respondents operation, we cannot equate them with the expansive duties and responsibilities of Jean Coddington in the Gibble case. Appellant was unable to show that Garcia had the authority to hire and fire, authorize payment of wages, or conduct the limited liability partnerships core business activities. We further note that agents are not fungible. A person who is authorized to perform one function on behalf of a principal may have no authority at all regarding a different function. In particular, the fact a person is authorized to receive mail on behalf of a corporation and to sign receipts acknowledging the delivery of that mail does not mean that the same person is authorized by the corporation to accept service of process. (Dill v. Berquist Construction Co., supra, 24 Cal.App.4th at p. 1438 [construing Code Civ. Proc., § 416.10, governing service upon corporations].)
In our view, appellant did not comply with the statutory procedure for service of process upon respondent limited liability partnership in the instant case. According to the return of service filed April 6, 2007, appellants process server, Robert Ferguson, was well aware that "MULLEN & FILIPPI, LLP a California limited liability law partnership" was the party to be served. A partnership becomes a registered limited liability partnership at the time of the filing of an initial registration with the Secretary of State or at any later date or time specified in the registration. (Corp. Code, § 16953, subd. (e).) The fact a registration is on file with the Secretary of State is notice that the partnership is a registered limited liability partnership and of those other facts contained therein that are required to be set forth in the registration. (Corp. Code, § 16953, subd. (f).) The name and address of the agent for service of process on the limited liability partnership in California are among those facts. (Corp. Code, § 16953, subd. (a)(3).) Here, rather than heed the contents of the statutory notice registered in the office of Secretary of State, the process server chose to deliver the first amended complaint, summons thereon, and related documents to Christina Garcia, an office employee of the Fresno branch of respondent firm. However, Garcia was not a person authorized by the entity to receive service of process. (Code Civ. Proc., § 416.40, subd. (b).) Moreover, appellant failed to establish that Garcia had ostensible authority to accept service of process on behalf of respondent limited liability partnership. The trial court properly concluded the default judgment was void as a matter of law due to improper service and no abuse of discretion occurred.
C. Imposition of Sanctions in the Trial Court
Appellant summarily submits the trial court abused its discretion in awarding sanctions to respondent because appellant "complied with California laws in serving Mullen & Filippi with process and in making a timely request for entry of default."
The propriety of a sanctions award is reviewed using the abuse of discretion standard. Such an award can be overturned only if it was not based on a reasoned judgment or is at odds with legal principles and policies appropriate to the particular matter at issue. Expressed another way, an appellate court will uphold the award unless it exceeds the bounds of reason, all of the circumstances before it being considered. (Foothill Properties v. Lyon/Copley Corona Associates (1996) 46 Cal.App.4th 1542, 1557.)
In its tentative ruling for the June 7, 2007, hearing on motion to set aside default, the trial court indicated it would order appellants trial counsel to pay respondents counsel all reasonable costs incurred in bringing the motion to set aside. The trial court explained in pertinent part:
"The evidence presented to the Court shows that counsel for PDM Steel advised counsel for Mullen & Filippi in writing that no default would be taken if an answer was filed on or before April 27, 2007. The Court judicially notices that such date was a Friday pursuant to Evidence Code section 451(a). Thus, counsel for PDM Steel promised that no default would be taken prior to Monday, April 30, 2007, because he could not know until after the close of Court on Friday, April 27, 2007 whether or not his condition for avoiding default had been met or not.
"Despite such facts, counsel for PDM Steel filed a request for default on Thursday, April 26, 2007, without prior notice of his intent to do so. One of the Maxims of Jurisprudence provides that `No one can take advantage of his own wrong. Civil Code section 3517.
"The clandestine premature filing of the default amply demonstrates relief under both Code of Civil Procedure section 473(b) and 473.5 is appropriate. Such conduct is indeed a surprise, and also would cut the time all believed was given to defend the action.... [¶] ...
"... Further, defendant Mullen & Filippi offered an acknowledgement and receipt shortly after the complaint was left with their receptionist, and offered to provide a responsive pleading within 30 days of the date of that acknowledge[ment] and receipt. Acceptance of such would have avoided all fees incurred, rendering the fees unnecessary and unreasonable....
"`The notion that ours is a "dog eat dog" business governed by the "law of the jungle" should be curtailed, not rewarded. Brown & Weil, Civil Procedure Before Trial, section 5:68, speaking of default situations."
At the July 11, 2007, hearing, appellants counsel acknowledged:
"Our intent is not to reargue the set aside. We respect that ruling. We accept the Courts ruling on that matter, and basically on the evidence before the Court at the time we believe the decision was correct. [¶] Were here merely to take, I guess, our lumps which are to answer to the sanctions."
On appeal, appellant reverses course from its position in the trial court. Appellant summarily claims it complied with California law in serving respondent with process and in making a timely request for entry of default; the trial court misapplied the service laws when considering the motion to vacate default; and the trial court abused its discretion in awarding sanctions to respondent. By doing so, appellant deviates from its counsels concession in the superior court. Under general civil litigation principles, where a deliberate trial strategy results in an outcome disappointing to the advocate, the lawyer may not use that tactical decision as a basis to claim prejudicial error. Under the doctrine of waiver, a party loses the right to appeal an issue caused by affirmative conduct at trial. (Telles Transport, Inc. v. Workers Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159, 1166-1167.)
In our adversarial system, each party has the obligation to raise any issue or infirmity that might subject the ensuing judgment to attack. Bait and switch on appeal not only subjects the parties to avoidable expense, but also wreaks havoc on a judicial system too burdened to retry cases on theories that could have been raised earlier. (JRS Products, Inc. v. Matshusita Electric Corp. of America (2004) 115 Cal.App.4th 168, 178.) Appellants attack on the trial courts sanctions—via a rehashing of factual points to which appellants trial counsel conceded in the superior court—is tantamount to a forbidden "bait and switch." The trial courts imposition of sanctions was well within the bounds of reason given the foregoing facts and circumstances meticulously considered and recited by the trial court.
II. THE IMPOSITION OF SANCTIONS ON APPELLANTS COUNSEL FOR TAKING A FRIVOLOUS APPEAL IS APPROPRIATE IN THIS CASE.
On February 11, 2008, respondent simultaneously filed its brief on appeal and a motion in this court for imposition of sanctions against appellant and its counsel "for taking a frivolous appeal, for appealing solely to cause delay, and/or for committing an unreasonable violation of the Rules of Court by omitting crucial facts and evidence from its opening brief."
The motion of sanctions on appeal was supported by the declaration of Kathryn J. Burke, an attorney associated with respondents counsel, the Vartain Law Group. Respondent appended the declaration to its brief on appeal, along with 11 tabbed exhibits representing critical documents omitted from the record on appeal. These documents included: (1) attorney Judy Liaos declaration filed May 8, 2007; (2) an April 24, 2007, letter from appellants counsel to respondents counsel; (3) the trial courts tentative ruling of July 9, 2007; (4) this courts December 27, 2007, order denying appellants petition for writ of mandate with respect to a discovery order; (5) a September 12, 2007, law and motion minute order setting trial readiness and mandatory settlement conference dates; (6) the Vartain Law Groups January 30, 2008, letter requesting appellant to immediately dismiss appeal No. F054031 as "frivolous and dilatory"; and (7) the February 6, 2008, letter of appellants counsel declining appellants request to dismiss the appeal.
On March 3, 2008, this court granted appellant leave to file a reply to respondents motion. On March 19, 2008, appellant filed a response to motion for sanctions, asserting (1) its appeal presented a unique issue of first impression that "is not indisputably without merit"; (2) appellant filed its appeal from the trial courts sanctions order because a litigant should not be sanctioned for following California law; and (3) its opening brief on appeal complied with the rules of court by providing a summary of significant events.
Code of Civil Procedure section 907 states: "When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just." The standards for determining whether an appeal is frivolous are set forth in In re Marriage of Flaherty (1982) 31 Cal.3d 637. An appeal may be found frivolous and sanctions imposed when the appeal (1) "is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment," or (2) "indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit." (Id. at p. 650.)
This court will not and cannot impose sanctions simply because an appeal is unmeritorious. We have previously recognized our duty to avoid a serious chilling effect on the assertion of litigants rights on appeal. Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely they will win on appeal. An appeal that is simply without merit is not by definition frivolous and should not incur sanctions. An appeal, though unsuccessful, should not be penalized as frivolous if it presents a unique issue which is not indisputably without merit, or involves facts which are not amenable to easy analysis in terms of existing law, or makes a reasoned argument for the extension, modification, or reversal of existing law. At some point, however, litigants must realize that litigation is not some sort of a boxing match in which whoever lands the most punches wins. Courts exist for the resolution of disputes, and not to provide a mechanism for some persons to wreak havoc upon the lives of others they do not like. Moreover, the Supreme Court relies on the good judgment of appellate courts to strike the proper balance and has emphasized that, in light of the competing interests, the punishment should be used most sparingly to deter only the most egregious conduct. (Doran v. Magan (1999) 76 Cal.App.4th 1287, 1296.)
That said, we may impose monetary sanctions for any unreasonable infraction of the rules governing appeals as the circumstances of the case and the discouragement of like conduct in the future may require. An opening brief on appeal is not an appropriate vehicle for an attorney to "`vent his spleen" after sustaining a loss in the trial court. That is because once the brief is filed, both the opponent and the state must expend resources in defending against and processing the appeal. An unsupported appellate tirade is more than just words on paper; it represents a real cost to the opposing party and the state. An appellate outburst, when committed to the pages of an opening brief, becomes an expensive proposition for all those concerned. Justice requires that those costs be borne by the person or persons who unreasonably caused them. (Pierotti v. Torian (2000) 81 Cal.App.4th 17, 32-34.)
A. Sanctions Payable to Respondent
Even a cursory review of the instant record reveals multiple grounds for the imposition of sanctions upon appellate counsel here. We note:
A reviewing court may order a litigant, his or her attorney, or both to pay sanctions on appeal. (In re Marriage of Schnabel (1994) 30 Cal.App.4th 747, 755.)
(i) At the July 11, 2007, hearing on motion for fees, attorney Kennedy frankly conceded on behalf of appellant: "Our intent is not to reargue the set aside. We respect that ruling. We accept the Courts ruling on that matter, and basically on the evidence before the Court at the time we believe the decision was correct. [¶] Were here merely to take, I guess, our lumps which are to answer to the sanctions." Despite this concession, appellants devote the bulk of their brief to a re-argument of the default and the superior courts action in setting aside that default.
Theories not raised in the trial court cannot be asserted for the first time on appeal. Appealing parties must adhere to the theory (or theories) on which their cases were tried. Under California law, it would be unfair, both to the trial court and the opposing litigants, to permit a change of theory on appeal. (Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316; Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 847.) As noted above, appellant did not elect to directly appeal from the order setting aside default although such ruling was appealable and would have provided an appropriate and ample opportunity for substantive review of service of process in the instant case. Instead, the appellant indirectly attacked that order in the guise of an appeal from the order imposing sanctions in the superior court. In doing so, appellants counsel essentially spoke out of both sides of their mouths, acknowledging the propriety of the trial courts ruling on the motion to set aside default but simultaneously disputing the propriety of ruling for purposes of sanctions. Appellants calculated refusal to appeal from the order setting aside default and simultaneous claim of erroneous trial court findings underlying that order is disingenuous at best. We cannot condone appellants further attempt to overturn the trial courts sanctions order by challenging findings in which it had formally acquiesced.
(ii) In a footnote in its opening brief on appeal, appellant effectively concedes: "PDM does not appeal the trial courts vacating the default, only the sanctions it awarded to Mullen & Filippi based on its erroneous finding of improper service and `premature entry of default." Under the doctrine of waiver, a party loses the right to appeal an issue caused by affirmative conduct or by failing to take the proper steps at trial to avoid or correct the error. (Telles Transport, Inc. v. Workers Comp. Appeals Bd., supra, 92 Cal.App.4th at p. 1167.)
(iii) Appellants opening brief offers a selective recitation of factors, often overlooking or minimizing salient points that support the ruling of the trial court. An appellant must fairly set forth all the significant facts, not just those beneficial to the appellant. (In re S.C. (2006) 138 Cal.App.4th 396, 402.) An appellate court must presume the record contains evidence to support every finding of fact. In California, it is the appellants burden, not the courts, to identify and establish deficiencies in the evidence. An appellate court will consider the sufficiency of the evidence to support a given finding only after a party tenders such an issue together with a fair summary of the evidence bearing on the challenged finding, particularly including evidence that arguably supports it. (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409-410.)
(iv) Appellant makes much of the fact that Judge Corona erroneously relied upon Corporations Code section 16962 but fails to acknowledge or challenge Judge Coronas simultaneous reliance upon relevant provisions of the Code of Civil Procedure governing service of process in the instant case.
(v) As noted in part I above, Corporations Code section 16953, the statutory provision applicable to respondent limited liability partnership, includes a service of process requirement comparable to that set forth in Corporations Code section 16962.
(vi) Nothing in the appellate record suggested or reflected ostensible authority on the part of Christina Garcia or an effort by appellants representatives to effect the time-honored procedure of personal delivery with substituted service where the registered agent for service is unknown or cannot be ascertained.
(vii) Respondents original motion to set aside entry of default, filed May 8, 2007, encompassed a number of supporting documents, including the supporting declaration of attorney Judy Liao and 10 tabbed exhibits (exhibits A-J) attached to it. The clerks transcript on appeal omits Liaos declaration and the exhibits attached to it. The Liao declaration and attached exhibits set forth facts critical to an understanding of the service of process in the instant case, the trial courts decision to set aside the default, and the trial courts imposition of sanctions. As this court observed several years ago: "When practicing appellate law, there are at least three immutable rules: first, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two." (Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364.)
We believe appellants appeal is frivolous under the standard of In re Marriage of Flaherty, supra, 31 Cal.3d at page 650. Given all of the facts and the controlling legal authority, we believe any reasonable attorney would agree this appeal is totally and completely without merit.
Among the specific factors we may consider in determining the appropriate amount of sanctions are the amount of respondents attorney fees on appeal; the amount of the judgment against appellant; the degree of frivolousness and delay; and the need for discouragement of like conduct in the future. (Pierotti v. Torian, supra, 81 Cal.App.4th at pp. 33-34.) Here, respondents counsel has filed a declaration in which she estimates the total attorney fees incurred by respondent at the appellate level is $5,775 and the total costs are $356.12, for a total of $6,131.12. The initial complaint in the underlying action was filed July 20, 2006, and no judgment has been entered after almost two years of litigation. We believe this case exhibited a relatively high degree of frivolousness because in the superior court appellants counsel conceded the propriety of the ruling on the motion to vacate default and then turned right around and characterized that holding as "erroneous" when resisting the imposition of sanctions. Lastly, "[t]he purpose of litigation is to resolve participants disputes, not compensate participating attorneys. Our courts are sufficiently burdened without combat kept alive solely for attorney fees." (International Industries, Inc. v. Olen (1978) 21 Cal.3d 218, 224.)
In sum, we conclude respondents request for $6,131.12 in sanctions is a reasonable one in light of the entirety of the record. We impose those sanctions jointly and severally against attorneys Mark A. McLean and Benjamin L. Kennedy, counsel for appellant PDM Steel Service Centers, Inc.
B. Sanctions Payable to State
Respondent is not the only entity aggrieved by this frivolous appeal. Litigants who have nonfrivolous appeals have been patiently waiting since October 2007 (the month we file-stamped the notice of appeal) while this court has processed the instant matter. The appellate system and the taxpayers of the State of California are damaged whenever there is a waste of this courts time and resources. A frivolous appeal, or one taken for improper reasons, harms the court, not just the respondent. As a result, a growing number of courts are ordering appellants to pay sanctions directly to the court clerk to compensate the state for the cost of processing such appeals. (Pierotti v. Torian, supra, 81 Cal.App.4th at pp. 35-36.)
In Pierotti v. Torian, supra, 81 Cal.App.4th at pages 35 and 36, Division Three of the Court of Appeal, First Appellate District, imposed sanctions of $6,000 to compensate the state for the cost of processing that frivolous appeal. The court relied on a 1992 estimate of $5,908.26 as the cost of processing an "average" civil appeal. While noting that the cost had probably risen during the intervening eight years, the Pierotti court nevertheless decided to err on the side of caution. (Pierotti v. Torian, supra, 81 Cal.App.4th at p. 36.) In this case, we too should err on the side of caution and impose sanctions of $3,000 to compensate the state for processing this frivolous appeal.
Sanctions should be imposed on appellants attorneys, Mark A. McLean and Benjamin L. Kennedy, jointly and severally, in the amount of $3,000 payable to the clerk of this court. The clerk of this court should be directed to deposit said sums in the general fund. All sanctions should be paid no later than 15 days after the date the remittitur is filed. Attorneys Mark A. McLean and Benjamin L. Kennedy and the clerk of this court should each be ordered to forward a copy of this opinion to the State Bar of California upon return of the remittitur. (Bus. & Prof. Code, §§ 6086.7, subd. (c), 6068, subd. (o)(3); DeRose v. Heurlin (2002) 100 Cal.App.4th 158, 182.)
This courts opinion constitutes the required written statement of the courts reason for imposing sanctions. (Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1083.)
DISPOSITION
The superior court orders setting aside the default and default judgment and awarding sanctions are affirmed.
As sanctions for bringing this frivolous appeal, attorneys Mark A. McLean and Benjamin L. Kennedy are jointly and severally liable to pay $6,131.12 to respondents counsel and $3,000 to the clerk of this court. The clerk of this court is directed to deposit said sums in the general fund. All sanctions shall be paid no later than 15 days after the date the remittitur is filed.
Attorneys Mark A. McLean and Benjamin L. Kennedy and the clerk of this court are each ordered to forward a copy of this opinion to the State Bar of California upon return of the remittitur. (Bus. & Prof. Code, §§ 6086.7, subd. (c), 6068, subd. (o)(3); DeRose v. Heurlin (2002) 100 Cal.App.4th 158, 182.)
Respondent is awarded costs on appeal.
We concur:
DAWSON, J.
KANE, J.