Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 06CC09497 William M. Monroe, Judge.
Philip A. Putman and Arnold A. McMahon, in pro. per., for Defendant and Appellant.
Law Offices of Linda Platisha and Linda Platisha; Law Offices of Dilip Vithlani and Dilip Vithlani for Plaintiff and Respondent.
OPINION
O’LEARY, J.
Dilip Vithlani filed a collection action against a former client, Arnold McMahon, who refused to pay his legal bills. McMahon filed a cross-complaint against Vithlani. After ruling on several pretrial motions, the trial court entered judgment in Vithlani’s favor in both actions. On appeal, McMahon asserts the trial court erroneously: (1) sustained Vithlani’s demurrer to four claims in McMahon’s cross-complaint without leave to amend; (2) refused to allow McMahon to amend his cross-complaint by adding a new legal malpractice claim; (3) denied McMahon’s ex parte request to continue the summary judgment motion to conduct further discovery; (4) granted Vithlani’s summary judgment motion as to his collection action because there was a triable issue as to Vithlani’s legal incompetence; (5) allowed Vithlani to submit confidential attorney/client communications as evidence to support his summary judgment motion; (6) deemed Vithlani’s motion for change of venue moot; and (7) failed to consider an argument raised in McMahon’s untimely “corrected declaration” in opposition to the summary judgment motion. We conclude each of his contentions lack merit. The judgment is affirmed.
Facts
McMahon is a philosophy professor at Los Angeles City College. In 2001, Palacio Del Mar Homeowners Association (the Association) filed a complaint against McMahon and others for avoidance of fraudulent transfer, pursuant to the Uniform Fraudulent Transfer Act (UFTA). (Civ. Code, § 3439 et seq.) The complaint alleged McMahon wrongfully transferred his ownership of and title to three separate properties with the intent of defrauding the Association, a judgment creditor in a 1998 covenants, conditions, and restrictions (CC&R’s) enforcement action against McMahon. The UFTA suit was stayed pending the finality of our decision affirming the judgment in the enforcement action. (Palacio Del Mar Homeowners Association, Inc. v. McMahon et al. (Mar. 17, 2004, G028742) [nonpub. opn.].)
In August 2004, the Association resumed activity on the lawsuit, filing a first amended UFTA complaint. In October 2004, McMahon’s wife, Elizabeth, asked Vithlani if he would represent McMahon in the UFTA lawsuit brought by the Association. He declined.
We will refer to Elizabeth McMahon by her first name in this opinion, not out of disrespect, but for convenience and clarity. (Cruz v. Superior Court (2004) 120 Cal.App.4th 175, 188, fn. 13.)
McMahon and Elizabeth, representing themselves, resisted the Associations’ attempts to obtain discovery. After they violated orders to attend depositions, the court entered separate judgments of contempt against them. This court vacated McMahon’s contempt order as procedurally infirm due to evidence he was medically unable to attend his deposition. (McMahon et al. v. Superior Court (May 31, 2005, G034741) [nonpub. opn.].) However, we concluded substantial evidence supported the contempt judgment and $5,000 in sanctions imposed against Elizabeth. (Ibid.)
After speaking with Elizabeth and McMahon several more times, Vithlani eventually agreed to represent McMahon in late December 2004. Vithlani sent McMahon a retainer agreement on December 30, 2004, and went to work on the case, starting with the preparation of an answer for the UFTA action. Vithlani propounded discovery, defended McMahon and Elizabeth at their depositions, and assisted in matters involving the discovery referee. He prepared a motion for judgment on the pleadings and a motion for summary judgment. Those motions were denied, and this court denied the petitions for writs from adverse rulings on these motions.
Vithlani withdrew as counsel on June 1, 2005. He had represented McMahon in the above action for five months (from December 29, 2004, to May 31, 2005). McMahon had paid approximately $28,000, but still owed Vithlani over $22,000 in attorney fees and costs.
At the end of July 2005, nearly one year after service of the first amended complaint, McMahon filed a Code of Civil Procedure section 425.16 special motion to strike in the UFTA action. The trial court denied the motion as untimely and without merit. It deemed the motion frivolous and awarded the Association costs and attorney fees in the amount of $1,620. This court affirmed the orders on appeal and we directed the trial court on remand to determine and award the Association its reasonable costs, including attorney fees on appeal as sanctions for filing frivolous appeal. (Palacio Del Mar Homeowners Association, Inc. v. McMahon (Aug. 24, 2006, G036287) [nonpub. opn.].)
In February 2006, Vithlani filed a collections action against McMahon to recover the unpaid legal fees. McMahon filed a cross-complaint for breach of contract, legal malpractice, fraud, and elder abuse. The court granted Vithlani’s motion for judgment on the pleadings with leave to amend. In December 2006, McMahon amended his cross-complaint stating the same causes of action, adding breach of the implied covenant of good faith and fair dealing.
On December 21, Vithlani demurred to the amended cross-complaint. On January 9, Vithlani filed a motion for summary judgment in favor of his collection complaint. Vithlani submitted his declaration as well as 60 pages of e-mails exchanged between the parties (hereafter, Exhibit D).
McMahon failed to file any opposition to the demurrer. Instead, he filed an ex parte application to seal Exhibit D, claiming the e-mails contained confidential attorney/client communications. He also requested a continuance of the summary judgment motion until the exhibit was redacted, sanctions for attorney misconduct, and for leave to amend the legal malpractice claim in the cross-complaint to discuss the latest breach of confidentiality. Judge Daniel J. Didier denied the application to seal Exhibit D, but ordered it be placed in a confidential envelope in the court file and “to be treated as a confidential document by all attorneys and parties and not to be revealed to any outside sources.” At the hearing on the demurrer, Judge William M. Monroe sustained the demurrer without leave to amend on all causes of action except for breach of contract.
A few days before McMahon’s opposition was due on the summary judgment motion, he again sought ex parte relief to continue the hearing. Vithlani advised the court he had given McMahon “every single detail I have.” The court concluded McMahon failed to explain what additional evidence could be uncovered if given more time. It asked McMahon why he had not conducted more discovery if he believed there was additional evidence. The court denied the application without prejudice.
McMahon filed an opposition to the summary judgment motion, raising five arguments: (1) the exhibits exceeded the 25-page limit and were not filed as a separate document; (2) the separate statement was vague; (3) Exhibit D violated the attorney-client privilege; (4) Vithlani committed legal malpractice and there was a dispute as to whether he should be paid for his services; and (5) the court should grant a continuance to allow McMahon to discover additional evidence.
After McMahon filed his reply, and the time for briefing had passed, McMahon filed a “corrected declaration in opposition” to the motion and a “supplemental opposition” to the motion. A few days before the hearing, McMahon filed the declaration of Ronald Gottschalk, an expert in legal malpractice and fraudulent billings, in further support of the opposition to the summary judgment motion.
At the beginning of the hearing, McMahon again requested a continuance to obtain an expert witness on the question of whether Vithlani “competently performed under the contract,” citing Bahl v. Bank of America (2001) 89 Cal.App.4th 389 (Bahl). The court denied the motion.
After considering oral argument at the hearing, the court granted the motion for summary judgment. In the minute order, the court concluded Vithlani had presented sufficient evidence of the services he performed and McMahon’s breach of contract when he failed to pay the bill. The court sustained Vithlani’s objection to McMahon’s legal opinion testimony, and found there was no other evidence Vithlani was incompetent or performed unauthorized services. It concluded the burden had shifted to McMahon to show a triable issue of fact or a defense to the collection action, but he had failed to do so. The court overruled McMahon’s objections to Exhibit D.
The next day, Vithlani filed a motion for summary judgment of the remaining claim for breach of contract in McMahon’s cross-complaint. The hearing was set for June 2007. In the meantime, notice of entry of judgment on the complaint was filed and served in April. McMahon filed an ex parte application to void the judgment or in the alternative to stay enforcement pending filing of his writ petition. The court denied the application, but treated it as an application for an order shortening time and set a hearing for May 22, 2007.
Vithlani sought clarification of the court’s ruling on Exhibit D, because McMahon refused to allow the e-mails to be used at his deposition. The court appointed a referee and set the matter for a status conference also on May 22. Before the May 22 matters could be heard, McMahon filed a motion for change of venue based on the allegation Judge Monroe was biased.
McMahon failed to file any opposition to the summary judgment motion of his cross-compliant. Vithlani filed a declaration stating no opposition had been filed and opposing the motion to transfer. On June 12, 2007, McMahon failed to appear at the summary judgment hearing, and the court granted the motion. It took the motion to transfer venue off calendar as moot.
That same day, June 12, McMahon and his counsel filed several documents: (1) Objections to the ruling on the motion for summary judgment on the cross-complaint; (2) Objection to the declaration of lack of opposition to motion for summary judgment; (3) “Reply to evidentiary objections to [the] declaration of . . . McMahon [regarding] motion for change of venue”; and (4) Reply to the opposition to the motion for change of venue. Final judgment in this case was entered on June 27, 2007, and served on July 5, 2007.
Discussion
A. The Demurrer
“In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
McMahon argues the trial court improperly denied him leave to amend his first amended cross-complaint. He admits the court gave him leave to amend after Vithlani’s motion for judgment on the pleadings was granted. McMahon asserts he was not properly served with Vithlani’s demurrer and Vithlani would not agree to continue the hearing date. He adds, the court failed to follow “the clear policy of the law in California that leave to amend be routinely granted.”
This argument leaves out two significant facts: First, the demurrer hearing date was continued from January 23 to February 13, 2007. The clerk’s transcript contains a letter written by McMahon’s counsel stating the demurrer was sent to the wrong address and then redelivered to the correct address on January 4, 2007. McMahon’s counsel offered to accept January 4 as the date of service if the demurer could be continued to February 6. The hearing was held on February 13, 2007. In the minute order, the court stated: “The objections to the proof of service are untimely. They lack merit, since by all appearances, [cross-complainant] is still represented by counsel . . . and there are no contentions that service on him is improper.” Based on this record, there is no support for McMahon’s claim he was not given adequate time to oppose the demurrer.
Another important fact McMahon fails to mention is that he failed to file an opposition to the demurrer and did not submit a proposed amended cross-complaint to the trial court. This omission is relevant to whether he meets his burden of proof on appeal. He acknowledges “the trial court sustained the demurrer on grounds that adequate facts had not been pled.” But he did not “submit a proposed amended complaint or, on appeal, enumerate the facts and demonstrate how those facts establish a cause of action. [Citations.] Absent such a showing, the appellate court cannot assess whether or not the trial court abused its discretion by denying leave to amend.” (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 890.)
B. Motion to Amend the Complaint to Add a New Claim
After the court had considered argument on the demurrer, it asked if the parties had “anything else[.]” McMahon’s counsel stated, “Actually, we would like leave to amend[.]” He explained McMahon wanted to “add a cause of action dealing with violation of the attorney-client privilege as being legal malpractice[.]” On appeal, McMahon explains the claim is based on Vithlani’s decision to submit “60 confidential e-mails” generated during the UFTA litigation, i.e., Exhibit D in support of the summary judgment motion filed by Vithlani.
The court properly denied the request as premature. To state a cause of action for legal malpractice, McMahon was required to plead a proximate causal connection between Vithlani’s purported breach of his duty and the resulting injury, as well as “actual loss or damage resulting from the attorney’s negligence.” (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199.) Damages would relate to whether there was evidence McMahon would have obtained a more favorable result but for the alleged malpractice. The underlying action, as well as the UFTA action, was still pending when the demurrer was heard. Without evidence of negative results, McMahon could not state a viable claim for legal malpractice.
C. Motion for Continuance of the Summary Judgment Motion
“To mitigate summary judgment’s harshness, the statute’s drafters included a provision making continuances—which are normally a matter within the broad discretion of trial courts—virtually mandated ‘“upon a good faith showing by affidavit that a continuance is needed to obtain facts essential to justify opposition to the motion.” [Citation.]’ [Citation.] That is, Code of Civil Procedure section 437c, subdivision (h) declares: ‘If it appears from the affidavits submitted in opposition to a motion for summary judgment . . . that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall . . . order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just.’ (Italics added.) The drafters’ inclusion of the italicized words ‘may’ and ‘shall’ leaves little room for doubt that such continuances are to be liberally granted.” (Bahl, supra, 89 Cal.App.4th at pp. 395-396.)
“The non-moving party seeking a continuance must show: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts. [Citations.] [Citation.] The decision whether to grant such a continuance is within the discretion of the trial court. [Citation.]” (Frazee v. Seely (2002) 95 Cal.App.4th 627, 633-634.) McMahon contends he complied with those requirements. We disagree. He failed to show facts essential to justify opposition might exist, and failed to explain why such facts could not be presented at the time.
In his second petition for a continuance, McMahon stated his efforts at discovery consisted of one request for a bill of particulars. McMahon admitted he had received a seven and one-half page computer spreadsheet. He claimed his requests for additional supporting information were refused. McMahon stated he is looking for evidence legal services were not invoiced according to the retainer agreement, and that he was charged for more hours than actually expended. He concluded, Vithlani’s “refusal to provide information beyond the barebones computer spreadsheet raises the suspicion [Vithlani] is hiding information essential to cross-complainant’s case. [¶] Therefore, a continuance of the [summary judgment motion] is essential to enable [McMahon] to obtain this evidence.” He argued the motion for summary judgment was prematurely filed just 19 days after filing a demurrer. This was the only reason stated for why additional discovery had not been requested.
In his opposition, Vithlani pointed out the demurrer related to the cross-complaint, and the motion for summary judgment at issue related to the collection action filed one year earlier. Vithlani stated that in 18 months, McMahon had engaged in minimal discovery. Other than demanding a bill of particulars and propounding form interrogatories, McMahon had not sought depositions or propounded any requests for production of documents, or specially prepared interrogatories. Vithlani asserted the underlying action simply sought payment of past due bills for attorney fees and costs, “[t]herefore, it is difficult, if not impossible to fathom what further discovery is being sought and why he has not conducted relevant discovery to date.”
Indeed, the record reveals McMahon had ample time to conduct discovery and find whatever evidence he needed to defend himself in the collection action. Vithlani filed the complaint in August 2005. The first amended complaint was filed in February 2006. McMahon filed his cross complaint in August 2006. Vithlani filed the motion for summary judgment on January 9, 2007, which was over one year after the original complaint was filed. The hearing was set for March 27, 2007.
Instead of engaging in discovery before the hearing, McMahon made several motions. Approximately two weeks after the motion was filed, McMahon made an ex parte application to seal Exhibit D, and also take the summary judgment motion off calendar until Vithlani had time to redact confidential portions of that exhibit. When this continuance request was denied, McMahon waited until four days before his opposition was due (March 8), to make another ex parte application for a continuance, failing to offer any excuse why he had not yet utilized any follow up discovery after receiving the billing computer printout.
There had been ample time for discovery in this bill collection case. In his affidavit, McMahon failed to articulate what evidence might exist beyond the billing computer printout he already had obtained. His alternative argument the summary judgment was premature was belied by the record. It cannot be said the court abused its discretion in denying the continuance request due to the substantial evidence of McMahon’s lack of diligence in this case.
D. The Summary Judgment Motion
(1) Standard of Review
“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law . . . . [¶] [T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact . . . . [¶] [H]ow the parties moving for, and opposing, summary judgment may each carry their burden of persuasion and/or production depends on which would bear what burden of proof at trial.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851, fns. omitted; Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1303-1304 [“[a]s the party moving for summary judgment, the university bore an initial burden of production of a prima facie showing that there is no triable issue of material fact in this case and it is entitled to judgment as a matter of law. Only if the university carried that burden was plaintiff faced with a burden of production of her own—to make a prima facie showing of the existence of a triable issue of material fact”].)
On appeal following a summary judgment, this court “examine[s] the record de novo and independently determine[s] whether [the] decision is correct. [Citation.]” (Colarossi v. Coty U.S. Inc. (2002) 97 Cal.App.4th 1142, 1149-1150.) In doing so, we use the same three-step process employed by the trial court. First, we identify the issues raised by the pleadings. Second, we determine whether the moving party’s showing establishes facts sufficient to negate the opposing party’s claims and to justify judgment in the moving party’s favor. If so, we then determine whether the opposing party has raised a triable material issue of fact. (Dawson v. Toledano (2003) 109 Cal.App.4th 387, 392; Ojavan Investors, Inc. v. California Coastal Com. (1997) 54 Cal.App.4th 373, 385.)
“On review of a summary judgment, the appellant has the burden of showing error, even if he did not bear the burden in the trial court. [Citation.] ‘The fact that we review de novo a grant of summary judgment does not mean that the trial court is a potted plant in that process.’ [Citation.] ‘[D]e novo review does not obligate us to cull the record for the benefit of the appellant in order to attempt to uncover the requisite triable issues. As with an appeal from any judgment, it is the appellant’s responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record . . . .’” (Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 230 (Claudio).)
(2) Breach of Contract—Retainer Agreement
The first cause of action was for breach of contract. In order to prevail on his cause of action, Vithlani was required to establish: (1) a contract; (2) his performance or excuse for nonperformance; (3) McMahon’s breach; and (4) damages to Vithlani proximately caused by the alleged breach. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.) The parties agree there are no material facts in dispute as to all the elements except for number two. At issue is whether Vithlani’s performance met the standard of care for legal professionals justifying payment under the retainer agreement.
Specifically, the parties do not dispute there was a retainer agreement for Vithlani to provide legal services at the rate of $200 per hour for McMahon. There is also no dispute that Vithlani’s assignment was to defend McMahon in the UFTA action. The parties agree McMahon did not pay Vithlani for a significant portion of the legal services performed on the UFTA case during his five months as attorney of record.
As for the issue of legal malpractice, Vithlani pointed out that McMahon accepted over four months of legal services from December 29 until May, paying Vithlani over $28,000 in fees. After making some modifications, McMahon signed the retainer agreement on May 4, suggesting he desired more legal assistance from Vithlani and did not believe the legal work to be incompetent. Vithlani submitted McMahon’s e-mails promising payment, praising Vithlani’s work, and acknowledging money was owed. Vithlani also attached the computer printout giving a detailed account of his legal services and costs, and the balance owed by McMahon. Like the trial court, we conclude this showing was sufficient on the breach of contract claim to shift the burden of proof to McMahon.
In his separate statement of disputed facts, McMahon asserts his declaration provides evidence there is a triable issue of material fact as to Vithlani’s incompetence. McMahon declared, “[Vithlani] failed to act competently and he did not always act in my interest. He also misrepresented the costs and results of his services.” McMahon gave as examples of legal malpractice: (1) Vithlani missed the 60-day limitations period and failed to file an anti-SLAPP motion; (2) he failed to recognize the UFTA complaint failed to make two essential allegations; (3) he failed to respond when McMahon’s free speech rights were violated; (4) his unsuccessful motion for judgment on the pleadings failed to include a winning argument; (5) his unsuccessful motion for summary judgment was defective due to the same omission; (6) he violated the attorney-client privilege by submitting e-mails in Exhibit D; (7) Vithlani “so mishandled my UFTA case and so failed to act in my interest that [a] material issue arises as to whether or not the unpaid fees he alleges were actually earned, not only for the services and the time spent he alleges but their reasonableness and the extreme lack of competence and breach of trust and fiduciary duty I allege.”
Not surprisingly, Vithlani objected to these statements as improper legal opinion by a lay witness. The court agreed and sustained the objections. It determined that because McMahon had no other evidence Vithlani was incompetent or performed unauthorized services, he failed to meet his burden to defeat the summary judgment motion.
On appeal, McMahon maintains the list he offered about Vithlani’s inadequate services were facts, not legal opinions. As an example, he maintains the allegation Vithlani failed to raise appropriate defenses in the UFTA judgment on the pleadings “is a fact. Such a fact is evidence of incompetence. If this fact is now transmogrified into being an opinion, no client would ever be able to raise the charge of incompetence against his lawyer.” McMahon offers no legal authority or analysis to support this contention. He could not be more wrong.
Following the long established rule in cases of medical malpractice (see, e.g., Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1000-1001), the standard of care against which alleged acts of professional negligence are to be measured usually requires expert testimony. (Lipscomb v. Krause (1978) 87 Cal.App.3d 970, 975-976; Lysick v. Walcom (1968) 258 Cal.App.2d 136, 156.) “When the challenged conduct or omission relates to matters not within the common knowledge of a layman, the question of professional negligence will generally require expert testimony for appropriate factual resolution. [Citations.]” (Davis v. Damrell (1981) 119 Cal.App.3d 883, 887.) This case presents a perfect example why this general rule exists. On the list of McMahon “facts” showing incompetence is Vithlani’s purported negligence in failing to file an anti-SLAPP motion. Based on our experience with the previous appeal reviewing the trial court’s denial of the anti-SLAPP motion eventually filed in UFTA case (after Vithlani was recused), we know Vithlani showed good legal judgment in choosing not to file an anti-SLAPP motion. This court and the trial court agreed the motion lacked merit and warranted sanctions below, and for filing a frivolous appeal. (Palacio Del Mar Homeowners Association, Inc. v. McMahon, supra, G036287.
Very telling is McMahon’s last minute request before the summary judgment hearing for a continuance to find an expert on the issue of competence. Apparently, he recognized a philosophy professor would not be qualified to render such an opinion.
McMahon devotes a larger portion of his brief to argue there was a triable issue of fact as to whether Vithlani was incompetent by overcharging or charging for services not performed. However, much of this argument is devoted to repeating the same complaints about the court’s failure to grant a continuance. These issues have already been dealt with above.
We reject McMahon’s contention Vithlani should have been required to provide additional documentary proof the bills and costs were legitimate. He is apparently confused about who bore the burden of proof below and on appeal. As stated in more detail above, Vithlani provided sufficient evidence there were unpaid bills. He presented an eight-page detailed spreadsheet entitled “time and costs summary,” which delineated all the services performed and costs incurred. He declared the spreadsheet had “been prepared by reviewing all records maintained by [him] and [was] a compilation of time spent, costs incurred and monies paid by McMahon. [The statement was] maintained in the normal course of [his] business/law practice.”
On appeal it was McMahon’s “responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record . . . .” (Claudio, supra, 134 Cal.App.4th at p. 230.) McMahon misses the mark. In his brief, McMahon asserts he suspects there is evidence of misconduct (and again argues a continuance was justified). We may not consider evidence, inferences, or conclusions drawn from “suspicion alone, or on imagination, speculation, surmise, conjecture[,] or guesswork.” (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 483 (Leslie G.) and cases cited therein.) McMahon had 18 months to conduct discovery and secure supporting expert opinions.
McMahon also refers to the declaration of Gottschalk, “an expert in legal practice” who stated, “It has been my experience that when attorneys do not have any substantiating material for their billings, there is a high probability of incorrect billings, inflated billings[,] and/or fraudulent billings. As discovery . . . has just begun, it is too [early] to make a final statement that [Vithlani’s] billings are incorrect, inflated[,] and/or fraudulent.”
Notwithstanding the fact this declaration was untimely and for this reason properly disregarded by the court, Gottschalk essentially only speculated there may be evidence of wrongdoing. McMahon cannot survive summary judgment simply because it is possible that Vithlani might have engaged in fraudulent or incorrect billing practices. (Leslie G., supra, 43 Cal.App.4th at p. 483; Brautigam v. Brooks (1964) 227 Cal.App.2d 547, 556 [“an inference ‘cannot be based upon mere possibility’”].)
E. The Motion to Change Venue on the Basis of Judicial Bias
After Vithlani prevailed on the summary judgment motion in the collection action, he filed summary judgment motion of the remaining claim in the cross-complaint. Before the matter could be heard, McMahon filed a motion for change of venue based on the allegation there could not be an impartial trial.
McMahon maintains his motion for a change in venue scheduled to be heard on June 19 had the effect of staying all other proceedings in the trial court (citing Pickwick Stages System v. Superior Court (1934) 138 Cal.App. 448 (Pickwick) [“The filing of a motion for change of venue operates as a supersedeas or stay of proceedings, and must be disposed of before any other steps can be taken”]). McMahon asserts the court should not have considered the summary judgment motion, and it had no right to declare the change of venue motion moot on June 12. We disagree.
In Pickwick, supra, 138 Cal.App. 448, several defendants moved for a change of venue arguing the case had been filed in the wrong county. The appellate court held the Los Angeles Superior Court did not have jurisdiction to rule on a demurrer if San Francisco was the proper forum for the action. As noted in City of Oakland v. Darbee (1951) 102 Cal.App.2d 493, 503, “The reason for the suspension of such powers of the court is that if a defendant is entitled to have his motion for change of venue granted, he is entitled to have such matters heard before the court of the county of his residence; also, in respect to the pleadings, the motion for transfer must be decided upon the basis of their status as of the date of the filing of notice of the motion.”
This case does not help McMahon. There is no dispute the Orange County Superior Court was the “proper” court to consider the collection action and the cross-complaint. McMahon’s motion to change venue to Los Angeles County was made solely on the allegation there was “reason to believe that an impartial trial cannot be had” due to his belief all Orange County judges could be biased against him (citing Code Civ. Proc., § 397). McMahon asserts the potential widespread prejudice stems from a problem that arose in the UFTA action before Judge James Brooks. In August 2005, Judge Brooks recused himself from the UFTA action and received a public admonishment from the Council on Judicial Performance for making an inappropriate comment towards McMahon from the bench. McMahon claims Judge Monroe, who is assigned to the collection action, is located in a courtroom directly adjacent to Judge Brooks’s courtroom. McMahon stated he was “deeply concerned that the judges in the Orange County Superior Court, because of their association with Judge Brooks, cannot give [him] a fair trial.” As evidence of Judge Monroe’s bias, McMahon cited the rulings Judge Monroe made which were not in his favor, as well as a few record cites purportedly showing Judge Monroe’s “short-tempered behavior[.]”
In his motion, McMahon relies exclusively on Code of Civil Procedure section 397, subdivision (b), which calls for a change of venue, “When there is reason to believe that an impartial trial cannot be had therein.” But this section does not apply to allegations of judicial bias. Rather, it is intended to address those cases where there is evidence the petitioner cannot receive a fair jury trial due to, for example, negative media coverage about the petitioner or widespread prejudice against him. “‘[T]he prospect of jury trial is extremely important, if not crucial, in determining whether “there is reason to believe that an impartial trial cannot be had” in the court where the matter is pending.’ [Citation.]” (Nguyen v. Superior Court (1996) 49 Cal.App.4th 1781, 1791.) McMahon did not assert jurors would be prejudiced against him. The court correctly deemed the change of venue motion seeking a fair jury trial was rendered moot.
We recognize, “[Code of Civil Procedure section] 397, [subdivision (d),] states as a ground for change of venue: ‘When from any cause there is no judge of the court qualified to act.’ [Citations.] No grounds for disqualification are stated in the venue statutes, and reference must be made to [Code of Civil Procedure section] 170.1. [Citation.] . . . [¶] [Code of Civil Procedure section ] 397, [subdivision] (d)[,] is virtually obsolete. Under the present system of assignment of outside judges by the Chief Justice, no useful purpose is served by transferring the entire case to another county. Assignment of a qualified judge in place of the disqualified judge is all that is necessary. (See People v. Spring Valley Co. (1952) 109 [Cal.App.]2d 656, 672, . . . [dictum that disqualification of all judges in county does not ordinarily require change of venue, for a qualified judge may be assigned]; . . . .)” (3 Witkin, Cal. Procedure (1996) Actions, § 872, p. 1061.) McMahon argued Judge Monroe was biased due to the proximity of his courtroom to Judge Brooks’s courtroom. But Orange County has many courtrooms and different courthouses. A motion under this subdivision would have been premature because McMahon never sought to have Judge Monroe disqualified.
F. Exhibit D
Without any supporting legal authority, McMahon asserts Vithlani’s inclusion of 60 e-mail communications made during the UFTA litigation (Exhibit D) was a “gross violation of the attorney-client relationship” which “should bar any use of [Exhibit D] in the motion for summary judgment. Furthermore, on remand, the trial court should be instructed to grant [McMahon] permission to amend [his] cross-complaint to include a cause of action for breach of the attorney client privilege.” Not so.
As aptly noted in Vithlani’s brief, only “those communications that are relevant to the question of breach are admissible [(Evidence Code section 958)]. [McMahon] fails, however, to show which e-mails were not relevant and he fails to support his argument by citing to any part of the record he finds offensive.”
Thus, McMahon offers no legal authority, analysis, or record citations to support his claim the court erred in failing to exclude Exhibit D. We deem the issue waived. A trial court’s ruling is presumed to be correct and the burden of demonstrating error rests squarely on the appellant. (See Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 631-632, and cases cited therein.) When an appellant raises an issue “but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citations.]” (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) An appellant cannot simply make the assertion the trial court’s ruling is erroneous and leave it to the appellate court to figure out why. Even when our standard of review is de novo, the scope of review is limited to issues that have been adequately raised and are supported by analysis. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.)
G. McMahon’s “Corrected Declaration”
Four days before the summary judgment hearing, McMahon submitted a “corrected declaration in opposition” to the motion. He raised several new contentions, including a claim there exists a triable of issue of fact as to whether Vithlani failed to disclose a conflict of interest before agreeing to represent him in the UFTA action. He alleged Vithlani was friends with a JAMS (Judicial Arbitration and Mediation Services) judge, who was also a member and director of the Association (the plaintiff in the UFTA lawsuit). On appeal, McMahon asserts the trial court failed to consider or rule on this conflict of interest issue. We conclude the court properly ignored the argument as untimely. Moreover, because McMahon fails to provide legal authority or analysis regarding why the alleged conflict of interest created a triable issue of fact, we deem the issue waived.
Disposition
The judgment is affirmed. Respondent shall recover his costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., IKOLA, J.